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April 25, 2006

Vol. 19 No. 2 Mar/Apr 2006

Vol. 19 No. 2 Mar/Apr 2006

PDF Version: http://www.utahbar.org/barjournal/pdf/2006_march_april.pdf

Cover Art Information: COVER: Sunset Cruise on the Great Salt Lake, taken by Talley Burke, West Jordan, Utah.

* President-Elect & Bar Commission Candidates
* Commissioner's Report: Free, Statewide, Confidential, 24 Hour Mental Health Help Added to Bar's Lawyers Assistance Program
* Utah State Bar Unveils the Lawyers Assistance Program (LAP)
* The First 50: "Celebrating Diversity in the Law"
* The Utah Office of Guardian ad Litem: How You Can Help A Child In Need
* Phishing and Pharming and Trojans - Oh My!
* SPYWARE: Living in a Cyber-Fishbowl
* Finding a Solution to the Problem With Finders in Utah
* A Guide to the Administrative Safeguards of HIPAA's Security Rule
* Utah Law Developments: There's a new Lien Law in Town: Are Your Lien Rights Protected?
* Standards of Professionalism & Civility: Standard 12
* Young Lawyers Division: 2005 Year in Review - Looking Ahead to 2006
* Paralegal Division: The "How to Guide" for Membership in the Paralegal Division

Posted by BarStaff at 03:22 PM

Letters to the Editor

Dear Editor:

Maureen Henry ("Update on End-of-Life Issues in Utah", Utah Bar Journal January/February, 2006) discusses the expression "unnaturally prolong the dying process" as used in the Utah Personal Choice and Living Will Act (Utah Code ¤¤75-2-1101 et seq.), in the wake of the Terry Schiavo matter.

The phrase has relevance only in triggering the provisions of a Living Will signed by a patient ("declarant:") or by another at the patient's "expressed direction" (2-1104(2)(a)) - unarguably unobtainable from Terry. If Terry were a Utahn and nominated her husband, under the provisions for a "Special Power of Attorney" (2-1106), any litigation would be easier for him.

Michael Schiavo, as agent, could direct treatment using a Medical Treatment Plan ("MTP"), whose effectiveness rests on simpler criteria than "unnaturally prolong": "after incurring an injury, disease, or illness" (2-1105(1)(a) and 2-1106(1)); and when the patient no longer "has the ability to give current directions concerning his (or her) care and treatment" (2-1105(2)(b). (Were there any doubts about either criterion for Terry?)

Or Michael could execute an MTP as her spouse (2-1105(2)(b)(iii)).

Without a Special Power of Attorney or guardianship, Michael has authority under 2-1107 to order the withdrawal of life support, if two physicians agree that Terry is in a persistent vegetative state; there is no need to examine the "dying process" question.

No statute could (or should) bar Terry's parents from suing to override Michael's decision, as court decisions did not deter them from seeking Congress's assistance. If they doubted that Terry was in a persistent vegetative state (apparently the basis for the Florida case(s)), Michael's spousal authority would be the more solid foundation for him.

Anyone can sue for anything. Parties endure heartache until a case is finally resolved.

But Utah need not and should not revise its statute to try to avoid a replay of that extraordinary case.

W. Paul Wharton

Dear Editor:

From Professor Dyer's and Thomas Murphy's responses to my article "The Tyranny of the Courts," (Nov/Dec 2005 Utah Bar Journal) it appears that there is some confusion. Nowhere did I suggest that rights not mentioned in the Constitution do not exist. But it is one thing to say that a legal right exists, and quite another to say that it is in the Constitution.

The right of privacy is a good example. While parts of the Constitution cover aspects of privacy (e.g. search and seizure), the Constitution does not create a general right of privacy. That is a creature primarily of the common law. The problem with reading extra-constitutional rights into the Constitution is that it takes all related issues out of the democratic political arena and places them under the control of the courts. While Mr. Murphy objects to my characterization of this as tyranny, I believe the term fits, and that was the point of my article.

Mr. Murphy's criticism of my plain meaning proposal is likewise mistaken. A plain meaning interpretation of the First Amendment, for example, would not produce the horrors he suggests. First, speech is words - verbal expression, both written and oral. Pornographic images are not speech. Second, the word "abridge" is a relative term, and always has reference to an antecedent thing or condition (e.g. the original form of a dictionary). Incitement to riot or panic were never considered part of freedom of speech, and their prohibition therefore does not abridge that freedom.

The Constitution does not command all good things, and does not forbid all bad. That is why we have a democratic process for making and revising laws, and why we should not allow the courts to usurp that process.

David R. McKinney

Posted by BarStaff at 02:59 PM

President-Elect Candidates

President-Elect Candidates

FELSHAW KING
It has been my privilege to serve as a Bar commissioner since 2001. During the past five years I have become familiar with the opportunities, problems and challenges and which we lawyers face as we move further into the 21st century.

The mission of the Utah State Bar is:

"To represent lawyers in the State of Utah and to serve the public and the legal profession by promoting justice, professional excellence, civility, ethics, respect for and understanding of the Law."

Many praiseworthy goals are included in this mission statement and progress has been made in each area. As president I would place greater emphasis on the goal "To represent lawyers in the State." We have a responsibility to ourselves and the public, and that responsibility can best be met by maintaining a strong and viable legal profession uniquely suited to avoid and solve legal issues. The public is not well-served by a proliferation of non-lawyer providers and legal "do-it-yourself" programs.

Ours is a noble and honorable profession, the strength of which is a vital element for a successful society. Strengthening our profession depends on the effort of each of us as we interact with the Judiciary, the Legislature and the public. The Bar plays an important role in this process.

My experience gives me tools to serve as president to lead the process of strengthening our profession.

* Practicing lawyer since 1962

* Former majority whip and chairman of Judiciary Committee, Utah House of Representatives

* Appointed by Governor to serve as Chairman of Utah Committee of Consumer Services (1977-1989)

* President, National Association of State Utility Consumer Advocates (1985-1987)

* President, American Inns of Court VII, 1997

* Admitted United States Supreme Court, Tenth Circuit and Fifth Circuit

* Commander, U.S. Navy Reserve (JAGC-Ret.)

* University of Utah, Certificate in Conflict Resolution (2001)

I would appreciate the challenge and the opportunity to serve as president of the Bar and I ask for your support and confidence.

V. LOWRY SNOW
V. Lowry Snow is the founding partner of the law firm of Snow Jensen & Reece, in St. George. Mr. Snow received his B.S. degree from Brigham Young University in 1975 and his J.D. from Gonzaga University School of Law in 1979. He has concentrated his practice in the areas of real property, corporate law and commercial litigation. He is also a trained mediator.

Mr. Snow has been involved in Bar service and governance for a number of years. He has served as President of the Southern Utah Bar Association and was a member of the Supreme Court Task Force on Bar Governance prior to becoming a Bar Commissioner in 1999. He will complete three years of service as a member of the Executive Committee of the Bar Commission in July.

Mr. Snow has long viewed the practice of law as a form of public service. He pioneered the introduction of his firm's volunteer pro-bono service program in Southern Utah known as Talk to a Lawyer which has operated continuously since 1996. The implementation of this program led to his firm receiving the Bar's Pro Bono Firm of the Year Award for 1998. He currently serves as a member of both the Utah Supreme Court Standing Committee on Resources for Self-Represented Parties and the Advisory Committee on Professionalism.

Lowry is married to Sheryl L. Snow and they are the parents of six children.

STATEMENT OF CANDIDACY:
Dear Friends and Colleagues:
It has been an honor and privilege to have served as Bar Commissioner for close to six years now. As a result, I believe I have some understanding of the significant issues and challenges facing the Bar. As your president, these are the areas to which I would provide emphasis and leadership:

Vision Leadership. Good leadership requires more than simply managing crises or immediate issues of concern. Good Bar leadership will require that we anticipate and address the future roles and needs of lawyers. We will need to spend time getting ahead of the curve and then staying positioned. The Bar should make every effort to facilitate and enhance the ability of lawyers to do what they do best. We need to protect, for the present and future, our role as officers and representatives of the judicial branch of government.

Younger and Diverse Leadership. The future of the Bar and its relevance rests with the younger members of our profession. Good leadership for the future will require that we provide greater emphasis to mentoring and training younger lawyers for Bar service and should include added emphasis to women and minorities making up this sector. Our Young Lawyers have an enormous capacity to make meaningful contributions. They should be invited and encouraged to participate in section and committee work. These will be the leaders of our profession and members of the judiciary in the future. The investment should start early and include greater involvement with the students and faculty at both of UtahÕs fine law schools.

Preserving our Progress. We are fortunate to have had very competent and capable leadership serving on the Commission and in many important section and committee assignments. As a result, we have made significant progress in a number of critical areas Ð too many to mention here. In addition, many lawyers have donated their time and money to a multitude of projects and causes that have benefited the Bar and the public Ð this spirit of volunteerism should be acknowledged, encouraged and preserved. We should continue with the good work of the Bar that has been accomplished by many able and devoted lawyers.

I understand something of the time and effort that would be required of me if I am elected to this office. I would welcome the opportunity to serve you and I am prepared to meet that commitment. I would appreciate your vote and your support.

Posted by BarStaff at 02:25 PM

Bar Commission Candidates

Third Division Candidates

NATE ALDER
Utah State Bar member since 1995

Education
Indiana University, School of Law, JD

Indiana University, School of Public and Environmental Affairs, MPA

Utah State University, BA, history, University Honors

Employment
Shareholder, Christensen & Jensen, P.C.

Judicial Clerk, Hon. J. Thomas Greene, U.S. District Court, District of Utah

Bar Service (present)
Bar Commissioner (July 2003-July 2006)

Bar Commission Executive Committee (2004-2006)

Admissions Committee

Bar Examiner

Co-Chair, Bar Exam's Performance Test Committee

Litigation Section's Board, Bar Commission Liaison

Bar Commission's Liaison to newly formed Antitrust Section

Board, Dispute Resolution Section

Board, Utah Minority Bar Association

Utah Supreme Court Advisory Committee on Professionalism

Bar Operations Review Committee

Western States Bar Leadership Conference

Bar Service (past)
Chair, Dispute Resolution Section (2003-2004)

President, Young Lawyers Division (2001-2002)

Ex-Officio Bar Commissioner (2001-2002)

Special Task Force for judicial salary increase (2005)

Fundraising and Planning Committees, Utah Minority Bar's "First 50" celebration

Special Bar Projects Review Committee

Governmental Relations Committee

Other Service (present)
Pro Tem Judge, Salt Lake City Justice Court

Board, Utah Council on Conflict Resolution, Inc.

Board, Thayne Center for Service and Learning (Salt Lake Community College)

Board, Friends of Utah's Children's Justice Centers

STATEMENT OF CANDIDACY:
To the Members of the Bar's Third Division:

It has been an honor to serve you as a Bar Commissioner. I promise to diligently serve you during another three-year term. I respectfully ask for your vote.

I will continue to thoughtfully approach the Commission's many decisions. I have contributed much to the Commission and yet I recognize that we can accomplish more.

We have made tremendous progress in our relationship with the Legislature. We successfully responded to the call for greater access to the courts and legal services. We provided leadership to the successful effort to increase compensation for state judges. The Bar's balance sheet is good; no dues increase on my watch. We are modernizing admissions policies. Casemaker (free on-line research for members) is now available.

I keenly sense a new area of concern - the Bar's relationship with some of its own members and soon-to-be members (law students). I am committed to this new focus. We can and must make progress through stronger sections, committees, county and affiliate bars; improved communication with members, more outreach; better technology use, enhanced member benefits; more opportunities for members to serve and participate; helping new lawyers via networks and mentoring.

The Bar can make a difference for members. Let's improve the value and service it provides to you. I will promote sound fiscal policy while investing in technology, communications and programs that bring value. Feel free to call or write: (801)323-5000; nathan.alder@chrisjen.com.

I greatly enjoy this opportunity to serve. I appreciate the support of many bar members and leaders from a wide variety of backgrounds and practice areas. I also appreciate the support of my fellow shareholders at Christensen & Jensen. I would greatly appreciate your vote.

Christian W. Clinger
Christian is an active leader in the Utah State Bar and in the community. During the past five years, Christian has helped raise over $30,000.00 for And Justice for All, overseen clothing drives to clothe over 100 disadvantaged people with professional clothing for job interviews, coordinated landscaping for several Children's Justice Centers throughout the Salt Lake Valley, taught K-12 students about Dialogue on Freedom, Brown vs. Board of Education, and We the Jury, mentored law students, served on continuing legal education committees, was a committee member of the Brown vs. Board of Education 50th Anniversary Committee, was the 2004 committee chair of the Brown vs. Board of Education Film Festival, and the 2004 committee chair of Jackie Robinson Appreciation Weekend with the then Salt Lake Stingers baseball team. He serves as a volunteer community mediator for Utah Dispute Resolution. He is currently a member of the Utah State Bar's Governmental Relations Committee, and he is the co-chair of the Bar's 2006 Annual Convention. The Utah State Bar named Christian its 2005 Young Lawyer of the Year.

Christian has proven leadership and organizational skills having served as a member of the Young Lawyers Division Executive Committee, a committee member of the Utah State Bar Journal, the 2001-2002 Treasurer for the Young Lawyers Division, and the 2002 Treasurer for the American Bar Association's Rocky Mountain Regional Conference. From 2003-2004, Christian was an Ex Officio Member of the Utah State Bar Commission and President of the Utah State Bar Young Lawyers Division.

Christian and his wife, Suzanne Lee Clinger, are the founding members of the law firm Clinger Lee Clinger, LLC where their practice includes civil litigation, business law, estate planning, governmental relations/political consulting, and mediation. Christian and Suzanne reside in Salt Lake City.

Statement of Candidacy
Dear Colleagues and Friends:

Thank you for your encouragement and nomination as a Third District Bar Commission candidate. As I have met with many of you, I have come to appreciate the strength, integrity, and commitment to public service that members of the Utah State Bar share. I hope to continue in these traditions and increase communication and activity within the Bar.

Through my service as a former Ex Officio member of the Bar Commission and participating on several Bar committees, I have learned of the many important responsibilities that the Bar Commission controls and directs such as budgetary issues, community outreach, and member services. I am prepared to represent you and lend your voice to the deliberations and policy decisions before the Bar Commission. I appreciate your support, and I ask for your vote this coming April.

Yvette Donosso Diaz
Born in Los Angeles, California to Colombian immigrants.

Married to Marco Diaz and mother of three children.

Graduated from J. Reuben Clark Law School in 1999.

Clerked for Judges Bohling, Dever, Medley and Thorne in UtahÕs Third Judicial District Court, as well as for Justice Christine M. Durham in Utah's Supreme Court.

Worked as an associate at the firm of Manning Curtis Bradshaw & Bednar LLC, in the area of employment defense litigation.

As former President of the Utah Minority Bar Association, helped launch a Diversity Pledge to highlight the need for Utah's legal employers to recruit, hire and promote attorneys of color; and lobbied to ensure that all judicial nominating commissions for the Wasatch Front have at least one ethnic minority representative.

Presently serving as the Executive Director of the Department of Community & Culture. Prior to her appointment to the Governor's cabinet, she was the lead attorney for the Hispanic Department of Christensen and Jensen, PC.

Uncontested Election in Third Division
Yvette Diaz has withdrawn her nominating petition to run as a candidate for commissioner in the Third Division. According to the Utah State Bar Bylaws, in the event an insufficient number of nominating petitions are filed to require balloting in a division, the person or persons nominated shall be declared elected.

There are accordingly an insufficient number of nominating petitions filed to require balloting. Nathan D. Alder and Christian W. Clinger have been nominated and are therefore running uncontested and will be declared elected.

Third Division Commissioner and President-elect Gus Chin has announced that he will vacate the third year of his term as commissioner in the Third Division when he becomes the Bar President at the Bar's Annual Meeting in July, 2006. Yvette has agreed to fill that unexpired one-year commissioner term.

Fourth Division Candidate
Uncontested Election: According to the Utah State Bar Bylaws, "In the event an insufficient number of nominating petitions are filed to require balloting in a division, the person or persons nominated shall be declared elected."

Robert L. Jeffs is running uncontested in the Fourth Division and will therefore be declared elected.

ROBERT L. JEFFS
Employment:
Shareholder, six member firm, Jeffs & Jeffs, P.C.

Primary emphasis in litigation Ð Personal Injury and Commercial Litigation

Mediator/Arbitrator in Commercial and Personal Injury Litigation

General Practice of Law, 1984 - Present

Education:
Juris Doctor, 1984 Ð J. Reuben Clark Law School

B.S. Business Management, 1981 Ð Brigham Young University

Member, J. Reuben Clark Board of Advocates

Bar Association, Admissions & Professional Organizations:

Utah State Bar - 1984

U.S. District Court, District of Utah - 1984

Tenth Circuit Court of Appeals - 1984

Utah Defense Association Member, Board of Directors - 1997-98

Utah State Bar Litigation Section Member

Utah State Bar, Legal Economics Committee - 1985Ð87

American Inn of Court I, Barrister - 1998-91, Master of the Bench - 2002-Present

Other:
Riverside Country Club, President - 1996

Riverside Country Club, Board of Directors - 1994-96

East River Bottom Water Company Director/Secretary - 1994-96, 2002, President - 2004-Present

Ducks Unlimited, Provo Chapter, Chairman - 1996-98

STATEMENT OF CANDIDACY:
It has been my honor to serve you the past three years on the Bar Commission. During that time the Bar has made substantial progress in improving the practice of law in Utah. With increased participation of Sections and the hard work of the Governmental Affairs Committee we have a better relationship with the Legislature than we have enjoyed for many years. The launch of Casemaker has made on-line research affordable and accessible for all practitioners. The addition of the new Employee Assistance Program (EAP) will provide Bar Members and their employees professional counseling services at minimal cost to help cope with the personal crises that sometimes accompanies our stressful occupation.

I was asked this year to Chair a new sub-committee, the Operations Review Committee. The Committee is overseeing an independent review of the policies, structure, and performance of the Bar in fulfilling its responsibilities and mission to its members and the public. The Review is another example of the commitment of the Commission to provide efficient, responsible service to the members.

I was also asked to serve on the Malpractice Insurance Disclosure Committee to consider a proposal brought before the Commission to require attorneys to disclose to their prospective clients whether they carried malpractice insurance. The input I received from the members of our Division was invaluable as we considered the balance of interests, particularly the perspective of the solo practitioners and small firms that predominate in the Fourth Division. I ask for your vote for Commissioner for the Fourth Division and I will continue to invite any member to discuss with me any concern or suggestions they may have.

Fifth Division Candidate
Uncontested Election: According to the Utah State Bar Bylaws, "In the event an insufficient number of nominating petitions are filed to require balloting in a division, the person or persons nominated shall be declared elected."

Curtis M. Jensen is running uncontested in the Fifth Division and will therefore be declared elected.

Curtis M. Jensen
I was born in Gunnison, Utah and I currently reside in Santa Clara, Utah. My wife and I are the proud parents of four daughters and one son. I attended Snow College (A.S. Degree), Brigham Young University (B.S. Economics) and Tulsa University (J.D. Degree). I began my career as a Deputy Attorney with the Sanpete County Attorney's Office. I then moved to St. George, Utah where I have continued my practicing for the past nineteen years. I am a shareholder of the firm Snow Jensen & Reece and my primarily areas of practice are in business, commercial and construction. I am also certified mediator and a strong proponent of ADR.

When I am not practicing law I enjoy working with the youth. I regularly volunteer my time and assistance with local youth programs within my community. I enjoy traveling with my family and taking motorcycle rides with my wife through the many scenic back roads and byways of Utah and surrounding areas.

During my career as a lawyer, I have had the great pleasure of associating with many good friends and colleagues. I have also had the privilege of serving on the Fifth Judicial District Bar Association Judicial Nomination Committee, (2000-2003) and as Utah State Bar Chairman, Midyear Conference, 1987. I am member of the Utah State Bar Construction Law and Litigation Sections, the Justice For All Leadership Committee, Southern Utah Bar Association (Pres. 1992), and the Federal Bar Association. I have also served as an Adjunct Professor at S.U.U. (1999-2000) and D.S.C. (1999-2003).

Statement of Candidacy
I consider it a privilege to belong to the legal profession and to associate with so many respected and esteemed colleagues over the years. I feel greatly honored to be nominated as a Commissioner for the Fifth Division of the Utah State Bar. I am aware of the significant role the Utah State Bar plays in the state, and the leadership and direction it provides to its members on critical issues affecting lawyers and their practices.

As a Commissioner I will do my best to provide an active voice in representing the concerns and needs of lawyers living in the rural areas throughout the state. I will endeavor to promote the fiscal well being and sound operation of the Bar for all of its members. As a practicing attorney in a small firm in Southern Utah, I understand the needs, concerns and challenges faced by lawyers each day. I will work hard to provide more convenient and affordable access to the many bar benefits and programs for practitioners in outlying areas.

I sincerely believe that lawyers have the opportunity to provide meaningful service in their communities, and will promote such opportunities wherever possible. As a Commissioner, I will dedicate myself to represent my colleagues and the Utah State Bar with respect, diligence and integrity in all my assignments and tasks.

Posted by BarStaff at 12:49 PM

Free, Statewide, Confidential, 24 Hour Mental Health Help Added to Bar's Lawyers Assistance Program

Free, Statewide, Confidential, 24 Hour Mental Health Help Added to Bar's Lawyers Assistance Program

by Stephen W. Owens

Recently, I chaired a subcommittee looking at ways to improve our Lawyers Assistance Program. Lest you believe this to be an unimportant issue in our profession, I point to the recent suicide of one of my law school classmates, a talented lawyer who fought against and eventually succumbed to his mental illness. In addition, lawyers in crisis often show up in disciplinary actions, legal malpractice actions, criminal proceedings, and claims against our Client Security Fund. I succeeded this committee's prior chair, Rusty Vetter. Our committee was comprised as follows:

¥ Stephen Owens, Epperson & Rencher, Commission Member, Chair

¥ Gus Chin, Summit County Attorney, President-Elect of Bar - Liaison to Lawyers Helping Lawyers

¥ George Daines, Cache County Attorney, Past President of Bar

¥ Julie Wray, Questar Corporation, Women Lawyers of Utah

¥ Leslie Francis, U of U College of Law

¥ Felshaw King, King & King, Commission Member

¥ Rob Parkes, Administrative Office of the Courts, Human Resources

¥ John Baldwin, Executive Director of the Bar, Non-Voting Staff Member

The Committee met many times and studied hundreds of documents consisting primarily of submissions from the Utah Lawyers Helping Lawyers (LHL) Program and proposals from various Employee Assistance Programs (EAPs) that had been requested from the Bar.

The Committee invited current LHL Committee Chair Roger Cutler to attend one of its meetings and to make a presentation and answer questions. The committee unanimously praised Roger and his committee and director Rich Uday for all of the meaningful work they have done over the years.

At the risk of oversimplifying, a little background is in order. Approximately three years ago, the Bar Commission approved $120,000 each year as a separate line item of the Bar budget to finance Lawyers Helping Lawyers (LHL), with approximately $20,000 of that effectively paid back to the Bar by its endorsed legal malpractice insurance broker, Marsh. The plan was for there to be an evaluation of LHL at the end of three years to determine whether the Bar should continue the present model or move in a different direction to help lawyers in crisis.

Nothing in this review should be viewed as criticism of LHL or an effort to devalue the significant work by the LHL Director and its Committee over the last three years, and for many years before that. The desire of this Committee has been to evaluate LHL and to consider other proposals and models to try to reach more lawyers in a more effective and efficient way.

By most estimates reported to the Committee, 10 - 15% of lawyers are in crisis, yet only a small number are being helped by the Bar. The LHL 2004 statistical breakdown showed 10 contacts receiving a small amount of help, 27 receiving a moderate amount of help, and 17 receiving more significant help. Assuming 6,500 active lawyers in Utah, these 54 contacts represent .83% of Utah lawyers when, applying the 10 - 15% figure, between 650 - 975 lawyers need assistance.

ISSUES ADDRESSED
During the Committee's meetings, the following issues were discussed:

¥ Attorneys can be proud, arrogant, and skeptical of seeking help.

¥ Would an attorney in crisis more likely call a peer-based program or a mental health professional-based program?

¥ Is state-wide assistance provided?

¥ Is complete confidentiality guaranteed? The current LHL situation offers limited confidentiality for disciplinary cases only. It is our understanding that LHL records and staff could be subpoenaed in other civil or criminal cases, including a legal malpractice case.

¥ Would an EAP constitute something like a union benefit when most attorneys can pay or are insured for their own mental health care?

¥ The LHL Committee does not want to provide practice management or direct case assistance to lawyers in crisis.

¥ If an EAP model is adopted, should LHL serve "under" the EAP or as a separate entity to provide peer-based support?

¥ Although LHL is quite separated from the Bar, are lawyers still hesitant to approach LHL because of a perceived connection to the Bar?

¥ All agreed that LHL had done a good job of reaching out to troubled lawyers, but questioned whether we are getting the most efficient return on our investment of resources or if our model is broken.

¥ If we were to stop the Bar's financial support of LHL, would we be losing expertise and the progress that has been made in the last three years and potentially offend and demoralize those who have worked so hard in the past on these issues?

¥ The Administrative Office of the Court contracts with a company on a "pay for as you go" contract. The multi-disciplinary team that includes a physician, clinical social worker, psychologist, and nurse practitioner. The company provides initial phone screening for inquiries and matches client needs to the appropriate clinician. Appointments are scheduled within five days (excluding emergency care).

¥ Does LHL have the professional expertise to provide the needed service?

¥ The State Bar of California offers both a short-term counseling and peer-based recovery program, which the committee generally liked.

¥ Most lawyers are probably covered by health insurance that may cover mental health visits at least in part. (Most plans have a 50% payment level for contracted professionals.) Lawyers may be hesitant to use their health insurance for mental health care for fear that their employers may learn about it.

¥ One question that was asked of each committee member was, "Assuming that you are in crisis, would you be more likely to contact a mental health professional or an attorney peer for help?" Each of the committee members stated that he or she would be more inclined to call a mental health professional.

¥ Regardless of the Bar's decision, committee members wanted the LHL or similar committee to continue to function, to meet together, to sponsor CLE, and to provide support to lawyers seeking help. There remains an important role for peer support.

¥ It is clear that we are not reaching all of the troubled lawyers that the Bar should be reaching.

¥ If LHL's funding is taken away, will LHL be able to function or do we risk losing a group of lawyers who need help because there is not a paid director for the program?

¥ Should LHL be judged only on member usage? It may be that LHL' outreach efforts are helping lawyers who do not personally contact LHL.

COMMISSION VOTE
After great study and deliberation, six of the seven voting members of the subcommittee felt that changes need to be made in the Bar' Lawyer Assistance Program to try to reach more individuals. These recommendations were adopted by a 10-2 vote of the Bar Commission. The following changes are now being implemented:

1. The Bar will contract with an employee assistance program guaranteeing complete confidentiality and free, statewide, one-on-one in person counseling with at least a Master's Degree level professional.

2. We will have a telephone help line that is covered 24 hours a day by a mental health professional.

3. Under the auspices of the EAP, a peer counseling, outreach, and education program should continue through Lawyers Helping Lawyers.

4. The Bar will set up a formal diversion or alternative discipline program for some disciplinary issues, which will require new rules and a petition to the Utah Supreme Court. This will apply for certain lawyers in crisis in lieu of disciplinary actions. The State of Utah currently has a program for healthcare providers that may provide some guidance. California's State Bar also runs such a program.

5. The Bar will not run the EAP and will only receive completely anonymous reports from the EAP.

We appreciate your support of this experiment of sorts. Our only goal is to help as many lawyers as possible with the available resources. A majority of the Commission felt that these changes would provide a more effective approach. The subcommittee did not recommend that the amount of money being spent on our Lawyers Assistance Program be reduced or increased.

You will be hearing more about this as these recommendations are implemented. I hope this is a helpful overview of these developments. Please contact me at sowens@erlawoffice.com or (801) 983-9800 if you have any thoughts on these issues.

Posted by BarStaff at 11:41 AM

Utah State Bar Unveils the Lawyers Assistance Program (LAP)

Utah State Bar Unveils the Lawyers Assistance Program (LAP)

by Brent Hale

"One of every four lawyers suffers from stress, and out of 105 occupations, lawyers rank first in depression. In addition, a disproportionate number of lawyers commit suicide."

ABA Journal, June 2005

The Utah State Bar, at the urging of the ABA Commission on Lawyer Assistance Programs, has taken the lead in an extensive effort to reach out to lawyers and judges who are struggling with personal difficulties. A new Lawyers Assistance Program (LAP) is now available to assist lawyers and their immediate family. The new LAP will not be limited to alcohol/drug abuse and offers help for a full spectrum of personal and professional dilemmas. Comfortable in the role of trained helper and problem solver, lawyers too often tend to ignore their own personal and family distress until small problems become major threats to their careers and well-being. These problems can affect their work, leading to professional difficulties and, sometimes, to ethical lapses.

Effective March 1, 2006, the Utah State Bar has contracted with Blomquist Hale Consulting to provide members with face-to-face counseling services. These counseling services are provided free of charge to members of the Bar and their families.

What is the Lawyers' Assistance Program (LAP)?
The Lawyers Assistance Program is a counseling resource funded by the Utah State Bar to assist lawyers and their dependents address a broad range of personal difficulties that may be causing them distress. It provides face-to-face counseling to help resolve such concerns as: marital difficulties, family problems, stress, depression, anxiety, personal cash flow management difficulties, elder care challenges, and assessment for drug/alcohol dependence.

Why is the Utah State Bar offering this program to all its lawyers?
Encouraging lawyers to address personal problems effectively is one of the best ways to prevent ethical violations, to reduce disciplinary actions among lawyers and to protect the public. Although some lawyers have access to an employee assistance program (EAP) through their employer, the vast majority do not. Even those currently covered by traditional EAP's have limited resources that frequently fall short of the intensive, solution-focused problem-solving services offered through Blomquist Hale Consulting by the Utah State Bar's Lawyers Assistance Program.

Can staff members other than attorneys use this program?
Only members of the Utah State Bar and their household dependents are eligible for these services. However, the Bar has negotiated a special arrangement with Blomquist Hale Consulting to allow lawyers to purchase, as a group, a staff assistance program for their non-attorney staff members at a discounted rate. To obtain more information about offering a staff assistance program to your staff members, contact Blomquist Hale Consulting at 1-800-926-9619.

Can family members of attorneys access this assistance free of charge?
Yes. Dependents living in the same household and children living away to attend school are covered by the LAP. Be sure to inform them of this new resource.

What does it cost members to use this program?
All LAP services are free of charge to members of the Utah State Bar and their eligible dependants. There are no co-pays or deductibles for LAP services. The Utah State Bar pays a set, capitated fee each month to cover the cost of all LAP services. However, the LAP is not an insurance program. It may refer clients to outside resources, but does not cover the cost of any referred services.

What services are provided?
The LAP offers face-to-face, short-term, counseling to address a broad range of difficulties. The LAP counselors use an approach called solution-focused therapy. Unlike more traditional therapy approaches which seek primarily to help clients achieve insight, solution-focused therapy assists the client to develop the strategies and skills to successfully address the problem themselves. Using this supportive approach, clients are encouraged to take the steps necessary to effectively resolve their difficulty.

There is no set limit on the number of sessions provided through the LAP. Most problems are addressed in just a few sessions over a couple of months. However, some types of problems are not appropriately treated by short-term therapy and are referred to appropriate community providers. Over 80% of all cases are handled within the LAP with no referrals made to outside providers.

The LAP is available 24/7 to help with crisis and emergency situations. They will also conduct critical incident stress debriefings where appropriate. In some of their offices, Blomquist Hale Consulting also offers free multi-week groups that focus on relationship skills, parenting, and personal growth.

Are LAP services confidential?
Yes. Blomquist Hale Consulting strictly adheres to all professional, state and federal confidentiality guidelines. The HIPAA confidentiality rules govern the practice of the LAP. Disclosure of information is governed by Notice of Privacy Practices for Blomquist Hale Consulting. Unless a client requests that information be disclosed by executing an authorization to release information, the LAP will not disclose any personally identifiable information to the Utah State Bar. UtahÕs Rules of Professional Conduct expressly provide confidentiality during participation in an approved lawyers assistance program (Rule 8.3).

How is the LAP different from the Lawyers Helping Lawyers Program?
The primary focus of Utah Lawyers Helping Lawyers has been to provide lawyer to lawyer assistance through peer counseling. The LAP is designed to offer a much broader range of resources to lawyers. As in the past, Lawyers Helping Lawyers is still available to members of the Utah State Bar. Where appropriate, the LAP will refer lawyers to the help provided by Lawyers Helping Lawyers.

What are the credentials of the LAP counselors?
Each of the counselors providing services for the LAP has at least a masters degree and is licensed by the state as a Clinical Social Worker, Marriage and Family Therapist, Licensed Professional Counselor or Psychologist. You can access pictures and credentials for the Blomquist Hale Clinical Staff at www.blomquisthale.com in the "bios of clinicians" section.

How do I access the LAP?
Access is as simple as calling the LAP and scheduling an appointment. No paperwork or approval is needed. If you live along the Wasatch Front, call directly to the Blomquist Hale office listed below that is nearest you. If you live outside the Wasatch Front, you access the LAP by calling 1-800-926-9619.

Salt Lake City (801) 262-9619
Ogden (801) 392-6833
Orem (801) 225-9222
Logan (435) 752-3241
Brigham City (435) 752-3241

What service is available to those outside the Wasatch Front?
When you call the toll-free number (1-800-926-9619), you will speak to the LAP staff in Salt Lake City who will connect you with a contracted affiliate therapist in your area. You will be invited to schedule face-to-face counseling with an affiliate therapist within a reasonable distance from you. If you prefer, the LAP can also schedule telephone consults to help you address your difficulty.

Where can I get more information about the LAP provided by Blomquist Hale Consulting?
There is a link on the Utah State Bar website that takes you to the information provided by Blomquist Hale at www.blomquisthale.com. This resource contains more detailed descriptions of services as well as useful articles and links to a vast array of helpful information and services.

Look for the representative from Blomquist Hale Consulting at the Utah State Bar's spring convention in St George and the annual convention in Newport Beach.

Posted by BarStaff at 11:32 AM

The First 50: "Celebrating Diversity in the Law"

The First 50: "Celebrating Diversity in the Law"

by Professor Robert L. Flores & Karthik Nadesan

On October 15, 2005, the Utah Minority Bar Association hosted a gala celebration honoring the First 50 minority lawyers admitted to the Utah State Bar. Reaching 50 minority lawyers in the state was an important milestone in the Bar's history. Following are two perspectives on reaching that milestone - one from a lawyer who arrived on the legal scene shortly after the final members of the First 50 entered practice in 1980, and one from a lawyer who entered practice not long ago.

The recognition of the First 50 minority lawyers admitted to practice in Utah is at once a celebration of the accomplishments of each of the 50 individuals and an honoring of the contributions made by institutions central to the success of minority lawyers within the state. As one who arrived on the legal scene shortly after the final few members of the First 50 entered practice in 1980, I have been privileged to know and work with many of them, to learn from their examples, and to understand both the enormity of the challenges they have faced and the immense importance of their accomplishments in the face of those challenges. It is not appropriate here to elaborate upon the stories of each of those individuals - that was already done at the First 50 banquet, there are too many to include in this limited space, and selecting a small number to focus on would be something of an affront to many deserving others. Instead, I choose one man to serve as a sort of representative of all. That choice is easy because his individual history is highly representative of the challenges and accomplishments of the group, and is closely intertwined with the particular institution I wish to focus on.

It is also a safe choice, because no one who has ever worked alongside him, or has even a minimal familiarity with his work, can disagree about his importance. He has personally borne an inordinate share of the burden of bringing us to our present state of progress and can aptly be described as a hero among us. From his overcoming the humblest of beginnings - including the World War II years spent in the Heart Mountain Wyoming relocation center, and his fatherless family living in poverty on the rough streets of post-war Ogden - through his pursuit of education including professional degrees in social work and law, his years of law practice, his groundbreaking election to become the first minority in the state judiciary and the subsequent long service on the bench, and always through his community activism - including energetic voluntary service in such organizations as the local and national Japanese American Citizens League and more recently the Utah Minority Bar Association - he has modeled every important facet of what our First 50 mean to us. It is appropriate that our state Bar has already recognized the stature of Number 8 on our list of 50 by establishing the Raymond S. Uno Award for those who contribute to the advancement of minorities in the legal profession.

To Number 8 - and the other 49 you serve here to represent - we now recognize you as our "greatest generation." Those of us who followed closely behind you extend to you our greatest measure of respect and gratitude. The only appropriate means by which we, and the next generations, can repay the debt we owe to you is to continue in the traditions you have established - to build upon your progress, and in particular to ensure that the doors you held open for us will not close when you have left the scene, and that other entryways, closed to most of you, will be opened by our own hard work.

The most effective way we can do that is by involvement with crucial institutions. As a scholar and community activist, I have both studied and experienced some of the ways in which a few institutions have played critical roles in developing the 50 individuals we now recognize and in enabling their hard work to be channeled to the benefit of our communities. Those institutions have included the long established law school of the University of Utah where the largest number of the First 50 were educated, the much younger law school of Brigham Young University whose contributions have come later, the state bar and state and federal courts, and for the past 15 years, the Utah Minority Bar Association. As with the individuals, I choose one institution to focus upon, as an example of the past and future contributions of all.

With apologies to any whose memories might differ, I trace the beginnings of the Utah Minority Bar Association ("UMBA") first to discussions I recall from 1988, when a few of us involved with the then Utah Hispanic Bar Association considered whether it was feasible to create an organization bringing together all of the significant minority groups (following the model set a few years earlier by our law student groups - the U of U Minority Law Caucus and the BYU Minority Law Students Association). At that time, we decided it was not feasible, primarily because there were still so few lawyers from other minority groups. Two of the First 50, Robert Archuleta, and Solomon Chacon, along with U of U Professor John Martinez, led those discussions.

We reconvened the discussions in 1991, involved others, and by the end of that year had concluded that the time was right. Perhaps most critical to the change of circumstances was that we were joined by Number 8. Ray Uno co chaired our formation meetings and then served as the first President of the UMBA. I was not at all sure that our fledgling organization would succeed if he had not agreed to do so, at great personal sacrifice, considering that he was trying to learn how to cut back on community involvement and enjoy a more leisurely life. He failed to learn that lesson, and we are all the better for his lack of success in that endeavor (and fortunate that he was absent on the day we nominated and elected him to the Presidency!). With the credibility he brought, we were able to draw in most of the more civic minded minority lawyers, including many of the still active First 50 (such as pioneers Number 6 & 11, Jimi Mitsunaga and Ken Hisatake).

A small number of the most dedicated members led by Ray nursed the organization through its early years. And, from the beginning, there has been a joining of generations within the UMBA. Those earliest meetings had members of our revered First 50 at the core, surrounded by very recent graduates and current law students. And as the years have passed, those younger participants have moved in and shouldered the burden. Some who were students at the time of the initial meetings have gone on to hold various UMBA offices or otherwise contribute to the work in recent years.

In the 15 years of the UMBA's existence there has been remarkable progress on a variety of fronts. The UMBA has been both a contributor to and a beneficiary of that progress. Its growing resiliency and capability is due in large part to the growth in numbers of minority lawyers (for which we owe much to the local law schools and the close ties we have maintained between UMBA and the law students) and to the extent to which those minority lawyers have moved into influential positions in other important institutions, including most recently some major law firms, and the leadership of the Utah State Bar.

There were certain doors that the First 50 were never able to enter, but which have begun opening for those of us have followed. As one who has observed and participated in a bit of the history of minority lawyers in Utah, I know well that such recent gains must be attributed in significant part to the work done by our First 50 - such as our hero Ray Uno, and to the core institutions, including our increasingly effective Utah Minority Bar Association.

- Professor Robert L. Flores

Less than a century ago, not one single minority had become a lawyer in Utah. In 1980, less than three decades ago, only fifty minority attorneys had been admitted to practice law in Utah. However, in the past twenty-five years, minority participation in the Bar has improved dramatically. In fact, there are several hundred minority attorneys practicing law in Utah today. Minority attorneys are currently involved in every aspect of the legal profession - from government agencies and public interest organizations to corporate counsel and private practice. Just as importantly, they have reached positions of prominence. Minority attorneys are law professors, shareholders in some of Utah's largest law firms, and members of the Utah judiciary. And, in a course of events that no one could have imagined twenty-five years ago, a minority attorney, Gus Chin, will be the next President of the Utah State Bar. Today, there exist more opportunities for young minority attorneys than ever before.

However, the opportunities of today would never have existed without the hard work and perseverance of the First 50. When they graduated from law school, the First 50 faced a bleak and uncertain future - job opportunities were scarce and mentors were almost non-existent. Nonetheless, the First 50 not only persisted in the face of these adversities, they flourished. Members of the First 50 are prominent members of Utah's legal community and have reached levels of success that once seemed unattainable. They have provided invaluable guidance and leadership to those following in their footsteps. And they have created opportunities for diversity that would otherwise never have existed. But, most importantly, the First 50 have provided the inspiration and hope for diversity to succeed in Utah. They have shown us that hard work, perseverance, and time are sufficient to overcome all obstacles.

While the legal profession in Utah is more diverse than ever before, the statistics show that there is still much progress to be made. Minorities are still under-represented among new admittees to the Utah State Bar. Many talented young minority attorneys still leave Utah in search of better job opportunities and more diverse legal communities. There are still prominent positions within the legal community that minority attorneys have not attained. However, the goal of a truly diverse legal profession in Utah becomes more attainable with every passing year. On a national level, influential groups such as the Minority Corporate Counsel Association and the American Bar Association Commission on Racial and Ethnic Diversity are pushing for diversity. On a state level, the Utah State Bar and the Utah Minority Bar Association are committed to achieving diversity and a framework for focusing efforts towards this goal. But, in the end, it is the efforts of interested individuals, whether they belong to a minority group or not, that have and continue to determine the course of diversity in Utah.

The significance of the First 50 is lost if they only inspire the minority attorneys of Utah. Instead, the First 50 should inspire each and every member of the Utah State Bar who has an interest in having a diverse legal community. Every effort to encourage diversity, no matter how small, makes a difference. And the First 50 inspire all of us to make that effort - to increase enrollment diversity in law schools, to retain a diversity of attorneys in our state, and to promote diversity in our work environments. Diversity in the legal profession may seem a difficult and challenging goal but, as the First 50 have shown us, it is a goal that can not only be attained, but attained in the near future. I hope you will join the Utah Minority Bar Association's efforts in achieving this goal.

- Karthik Nadesan

Thank You!
The Utah Minority Bar Association (UMBA) wishes to express its sincere gratitude to the many generous sponsors and all others who supported the First 50: Celebrating Diversity in the Law event. Without each of you, we would not have been able to pay the First 50 the tribute they deserve. Lawyers of minority background, in addition to all others in society who benefit from the richness of diversity in the legal profession, owe much to the First 50. These courageous men and women helped break down barriers and create opportunities for those following in their footsteps.

The opportunities created by the First 50 laid the foundation for the creation and growing expansion of UMBA. UMBA strives to promote diversity in the legal profession and provide opportunities for minority law students and minority lawyers, and advocates for legal services and education within minority communities in Utah.

Underwriter Sponsors ($10,000+)
Ballard Spahr Andrews & Ingersoll, LLP
Parsons Behle & Latimer

VIP Sponsors ($2,500)
American Express
Holland & Hart, LLP
Holme Roberts & Owen, LLP
Smiles for Diversity Foundation (Dr. Dan Fischer of Ultradent)
Snow, Christensen & Martineau
Utah State Bar
Van Cott, Bagley, Cornwall & McCarthy
Wells Fargo Bank

VIP Sponsors In-Kind ($2,500+)
ABA Commission on Racial & Ethnic Diversity in the Profession
Digital Bytes Production and Design
Reagan National Advertising
Utah Law & Justice Center
Vanguard Media Group

UMBA Angel ($1,500)
Chapman & Cutler, LLP
Christensen & Jensen
Dewsnup, King & Olsen
Jones Waldo Holbrook & McDonough
Kipp & Christian, P.C.
Litigation Section of the Utah State Bar
Manning Curtis Bradshaw & Bednar, LLC
OC Tanner
Ray Quinney & Nebeker P.C.
Richards, Brandt, Miller & Nelson
Snell & Wilmer LLP
Stoel Rives, LLP
Utah Hispanic Chamber of Commerce
Young Lawyers Division of the Utah State Bar

UMBA Friend ($1,000)ATK
Bendinger, Crockett, Peterson, Greenwood & Casey, PC / Howrey, LLC
Callister Nebeker & McCullough
Durham Jones & Pinegar
Fabian & Clendenin
Honorable Raymond S. Uno (Ret.)
Iron Mountain Information Management
J. Reuben Clark School of Law (BYU)
Japanese American Citizens League
Kennecott Utah Copper Corporation
LDS Foundation
Law Offices of Blake Nakamura
National Asian Pacific American Bar Association
Parr Waddoups Brown Gee & Loveless
Robert J. DeBry and Associates
Salt Lake County Bar Association
Siegfriend & Jensen
S.J. Quinney School of Law (University of Utah)
Strong & Hanni, PC
Unishippers Association, Inc.
Utah State Bar
Utah Trial Lawyers Association
Women Lawyers of Utah
Workman Nydegger, PC
Zions First National Bank
Anonymous

UMBA Patron (up to $999)
Clayton A. Simms, LLC
Community Mediation Center, George A. Lopez & May R. Romo
DPR Communications LLC
Modern Display
NAACP
National JACL Credit Union
Pure Shadow Innovations
Rite Way Alarms, Inc.
Salt Lake Community College
Snow, Jensen & Reece
Strindberg Scholnick & Chamness, LLC
Greg Sueoka
Utah Asian Chamber of Commerce
Utah Attorney GeneralÕs Office
Utah Paralegal Division
Working Rx

"Celebrating Diversity in the Law"Souvenir Program Brochures still available
The Utah Minority Bar Association has a limited number of programs available from the First 50 event. The 52-page program includes biographical information on each of the First 50 with photographs, comments from many of the First 50 about their mentors in the legal profession and careers and quotes regarding their experiences in the practice of law. Please send $5 to cover shipping and handling to Utah Minority Bar Association, c/o Utah State Bar, Law & Justice Center, 645 South 200 East, Salt Lake City, UT 84111-3834

Posted by BarStaff at 10:55 AM

April 24, 2006

Phishing and Pharming and Trojans - Oh My!

Phishing and Pharming and Trojans - Oh My!

by Polly Samuels McLean and Michelle M. Young

"DEAR SIR/MADAM: I REPRESENT THE RECENTLY DEPOSED MINISTER OF AGRICULTURE FOR NODAMBIZIA, WHO HAS EMBEZZLED 30 MILLION DOLLARS FROM HIS STARVING COUNTRYMEN AND NOW NEEDS TO GET IT OUT OF THE COUNTRY. . ."

"Dear Client of US Bank: As the Technical service of bank have been currently updating the software, we kindly ask you to follow the reference given below to confirm your data, otherwise your access to the system may be blocked."

More likely than not, the above blurbs are familiar. Each is an element of an online scam capable of stealing confidential information, identities, bank account funds and more.

Cybercrime has exploded in the last five years - according to the IC3 2004 Internet Fraud Crime Report ("IC3 Report") produced by the FBI and the National White Collar Crime Center, complaints about online fraud more than doubled between 2003 and 2004. According to the IC3 Report, more than 200,000 complaints were logged with the FBI in 2004, costing consumers more than $265 million.

And the news gets worse. In the past, cybercriminals have produced worms and viruses (malignant software programs that invade personal computers, deleting programs and generating mass e-mails) that, although pervasive, obnoxious and malicious were not designed to procure financial gain. Now professional Internet crime rings, organized to exploit computer weaknesses and the online economy are reaping illicit gains. Christopher Bolin, Chief Technical Officer at security software producer McAfee, has characterized the new threat to consumers in these terms: "This is not a pimple-faced kid who, when he gets a girlfriend, stops writing viruses. This is a guy with a business plan." 1 Like other types of fraud, cybercrime can be defeated through knowledge, common sense, and a few well-placed security measures. Below is an overview of some of the most common scams running right now, as well as some tips for avoiding victimization.

Online Auction Fraud
By far the most common type of Internet crime in the United States, online auction fraud is reminiscent of traditional methods of fraud. But unlike traditional telephone or in-person fraud schemes, the anonymity and worldwide nature of the Internet makes identifying and prosecuting the perpetrators more difficult. Online auction fraud is increasing exponentially as the popularity of online auction sites grows. According to the IC3 Report, online auction fraud accounted for nearly 75% of all complaints registered with the FBI's Internet Crime Complaint Center in 2004.

Occurring most frequently on popular online auction Web sites (such as eBay or UBid), online auction fraud takes a myriad of forms. Most commonly, scam artists are either selling products they donÕt actually possess or intend to deliver, or products that donÕt match the description given in the auction (e.g., "genuine" Gucci handbags that arenÕt quite genuine).

For example, in 2004 Mark Beaver of Salt Lake City was sentenced to prison time and restitution when he was convicted of bilking hundreds of eBay buyers out of more than $180,000. Beaver sold his victims Fiesta Bowl tickets he had never possessed, often concocting glowing stories regarding the quality of the seats and reassuring his victims that he had an excellent reputation as a ticket seller on eBay. Many of Beaver's victims, most of whom had flown to Tempe, AZ in anticipation of receiving the tickets from Beaver shortly before the game, were unable to afford scalped tickets and were forced to watch the game on television. State v. Beaver, Case No. 031900185 (3rd Dist. 2004).

The IC3 Report details a similar case. A West Virginia man sold his airplane on eBay for $16,200. The buyer sent him a $2,000 deposit but heard nothing from the seller. Frustrated, the buyer continued to e-mail the seller until the seller accused the man of harassment and said he was going to keep both the plane and the deposit. The seller then relisted the airplane on eBay and sold it again. When police attempted to arrest him, the seller fled on his motorcycle, leading police on a high-speed chase. The chase ended when police caught up with the suspect at a roadblock. The seller was charged with computer fraud and various other crimes related to the chase. He pled guilty to a lesser charge of obtaining money under false pretenses and was sentenced to six months in jail, fined $250 plus court costs, and ordered to pay restitution.

There are other types of online auction fraud as well. For example, a recurring fact pattern involves a foreign buyer who agrees to buy a big-ticket item (typically a car, boat, etc.) being sold by an American seller over the Internet. The buyer sends a cashier's check for several thousand dollars more than the agreed upon purchase price, requesting that the seller deposit the check, ship the item, and then wire any remaining money back to the buyer overseas. After the seller wires the amount of the balance in legitimate funds "back" to the buyer, the seller discovers the check is counterfeit and the bank will not honor it. The seller is then faced with the impossible task of trying to recover both the merchandise and the cash. Richard White of Sandy got lucky when he was targeted by scammers in 2003. White had listed his motorcycle for sale on the Internet for just over $5,000. The buyer, though, forwarded White a check for $10,000 requesting that White wire the difference to an overseas account. White thought the request sounded suspicious and, instead of complying with the buyer's instructions, contacted Sandy police who later determined that the check was counterfeit.

Another type of online auction fraud is the "second chance" scam. In this type of scam, the seller takes advantage of people who bid on but did not win the auction. The seller contacts the next highest bidder, indicating that the highest bidder backed out and offering the buyer a "second chance" to buy the item at less than the highest bid price. The buyer accepts and sends payment to the seller. The seller may tell several buyers this same story. The buyers all tender payment, but no one receives the item. The seller pockets the money and disappears.

Online auctions are also popular places for thieves to sell stolen goods. For example, in a recent Utah case, a West Jordan man was arrested after police found hundreds of stolen items in his home. Local law enforcement was tipped off when a Midvale man discovered his recently stolen paintball gun listed for sale on eBay. Officers set up a "sale," then, after obtaining the seller's payment information, raided the seller's West Jordan home. In the home, officers discovered hundreds of stolen items as well as information indicating that the suspect had listed more than 500 stolen items for sale on eBay in the months preceding the raid.

Reviewing a seller's online feedback from previous buyers is not always a reliable safeguard. Feedback results when participants in an online auction transaction each "rate" the quality of the transaction. That rating is then available for other prospective buyers and sellers to view. Unfortunately, the system has weaknesses that online criminals routinely exploit. For example, in June of 2003, Russell Dana Smith was arrested in Salt Lake City and charged with 54 counts of fraud when it was discovered that the laptops he was selling on eBay didn't really exist. Smith, who had assumed the identity of John Leary in order to perpetrate his auction fraud, had offered "rebates" for customers who left positive feedback for him. At the time of Smith's arrest, more than 1,000 victims had come forward with claims exceeding $1 million, making Smith's one of the largest domestic eBay auction fraud cases yet.

Finally, online auctions enable activities designed to artificially inflate the bid price, known as "shill" bidding. In 2004, three eBay sellers in New York pled guilty to charges of shill bidding. The sellers cast bids in over 1,100 of each other's online auctions for the sole purpose of driving up the bid price on the merchandise offered for sale. Such shill bidding affected more than a hundred eBay buyers and, while the actual costs are unknown, the potential cost to consumers is substantial.

Nigerian 419 Letters
Purportedly named for the section of the Nigerian penal code they violate, Nigerian 419 letter scams prey on the fundamentally greedy nature of people. The letters, sent via e-mail, claim, for example, that "the recently deposed minister of agriculture for Nodambizia, who has embezzled 30 million dollars" needs to flee and now requires your assistance to get the money out of his country. The scammers offer, as payment for helping this corrupt bureaucrat, a cut of the funds (usually about one-third). Victims are sometimes asked to travel overseas to meet with the scammers to complete the transaction; and in all cases the victim is asked to front thousands of dollars to pay for "taxes," "attorneys costs," "bribes," "advance fees," etc.

Although the scheme seems farfetched, the FBI's IC3 Report indicates that the average financial loss of victims of a Nigerian 419 letter is $3,000, an amount higher than any other reported type of online fraud except check fraud.

There are many variations on the Nigerian 419 scam. Some letters claim to be from African government committees, some claim to be from dignitaries, some claim to be from Nigerian royalty. One scam with a local spin targets Utah residents. The letter claims to be from a Mormon living in Africa who desires only to support Mormonism and to share his wealth with others. He requests only that you send your bank account information to him so he can wire the money to you.

Work at Home/Reshipping Schemes
One new facet on the often perpetrated "work at home" scheme is the postal forwarding/reshipping scam. Scammers place online ads or create employment Web sites looking for a "correspondence manager" for an offshore corporation. The "position" requires "employees" to accept goods sent to his or her personal address and then reship the goods overseas. Victims are also sometimes asked to accept wire transfers into his or her bank account, and then transfer the money to the "corporation's" account. In return, victims are paid with a percentage of the goods or money.

In reality, the goods have been purchased with stolen credit card numbers and reshipped by "correspondence managers" to scam participants who fence them overseas. Moreover, the money transferred into victims' accounts is stolen money being transferred from one account to another to launder the money. The thieves also use the employee's employment information (such as social security number, birth date and bank account information) to steal the employee's identity and money. This scam is popular with con artists because it allows them to fence stolen goods, launder money, and obtain access to confidential information. The FBI recently reported that they had identified more than 5,000 U.S. addresses that had been utilized in furtherance of a reshipping scheme.2

Spyware
Spyware is software used to covertly monitor actual computer activity - including Web sites visited, passwords, and other confidential information. In addition to monitoring users' online activities, spyware can also monitor offline computer activity. The program gathers confidential information (such as bank account information, credit card numbers, social security numbers, etc.) and then transmits the information to criminals who either use the information to steal funds and identities, or who sell the information to other criminals who do likewise.

Despite its name, the Utah Spyware Control Act (Utah Code ¤13-40-101 et seq.) (the "Act") mainly addresses adware. Although the terms are frequently confused by both legislators and consumers alike, adware refers to relatively benign software programs that track consumers' Internet surfing and spending habits, and cause "pop-up" advertisements to appear on the user's computer screen. The Act is based largely on copyright/trademark infringement policies and requires express user consent before the software downloads on a computer.

Phishing
Phishing (sometimes called "brand spoofing") is one of the most well known and fastest growing scams on the Internet today. The typical phishing scam involves an e-mail that appears as though it came from Paypal, eBay, a bank or some other reputable financial institution. The e-mail appears to be legitimate, and includes appropriate logos and working or "live" links to authentic areas of the institution. The message generally indicates that, due to problems with a database, a reset server or, ironically, identity theft concerns, the recipient is required to update personal data such as passwords, bank account information, driver's license numbers, social security numbers, PIN numbers, and so forth. Consumers are warned that failure to immediately provide the updated information will result in suspension or termination of the account.

Once consumers click on the link enclosed in the e-mail, they are taken to a legitimate looking (but fraudulent) Web site. Consumers are then asked to log in to complete a form "updating" their account information. Once thieves have a victim's personal information, they drain the victim's bank account, ruin his or her credit, and/or steal his or her identity.

Despite growing consumer awareness of phishing scams, people continue to fall victim to them in increasing numbers. One survey found that 28% of Internet users in the United States could not tell the difference between a legitimate e-mail and a fraudulent phishing e-mail.3 The click-through rate on phishing e-mails remains high at about three percent, compared with a typical response rate of about 0.5 percent for other types of spam.4 Losses to consumers due to phishing schemes have been estimated to be as high as $500 million nationwide.

To exacerbate the situation, phishing scams are getting more sophisticated as hackers employ other means to more accurately target customers of specific banks. Phishers are now using spyware and/or programs designed to log users' keystrokes (keylogging programs) to track those users' online activity and to gain access to consumer information. The criminals then tailor phishing e-mails to look like they came from the victim's actual bank - improving the odds that the victim will "take the bait."

Spyware is also used to gain control over personal computers. Once thieves have control of a number of computers (sometimes called a "zombie network" or a "botnet"), the network can be used to generate "phishing" attacks. Although spyware isn't the only way a phishing scam can be perpetrated, the use of zombie networks disrupts the computer "trail," making it more difficult for law enforcement to track fraudulent activity. Given the ease with which spyware programs may be created or acquired (many free spyware programs are available on the Internet), using spyware programs to establish a zombie network of compromised computers is an attractive proposition to many computer criminals.

Trojan Horse Programs
Trojan horse programs hide malevolent programming within a shield of benign computer code to circumvent security software and firewalls. These programs are often transmitted via e-mail and Internet worms - malicious software programs that trigger massive e-mail by the infected computer in order to perpetuate the spread of the program. Like spyware, once installed on a host computer, the Trojan horse program collects system information, downloads and executes files, and even remotely controls a connected Web cam. Frequently, Trojan horse programs wait until users visit online banking sites and then log and transmit user names, passwords, and other account information to thieves.

Recent Trojan horse attacks are more sophisticated. These new attacks consist of multi-pronged attacks of coordinated software that communicate with each other and work together to bypass firewall programs and establish control over infected computers. And because the programs allow thieves to remotely access the computer, the program code can be changed quickly and often to avoid anti-virus programs and other security software.

Trojan horse programs also provide a means by which phishing scams can be accomplished without requiring users to click any links. This method of phishing, currently spreading throughout Brazil and other South American countries, works like a virus. If the user opens the e-mail, a Trojan horse program installs itself on the user's computer. The program waits for a user to visit his or her legitimate banking site, and then a keylogger program contained within the Trojan horse program steals the consumer's usernames and passwords. Although this type of attack has not yet spread to the United States, experts predict it will arrive here soon.

Pharming
Pharming (sometimes called "domain spoofing") is another way online criminals use Trojan horse programs to gain access to confidential consumer information. Pharming uses Trojan horse programs to redirect people to counterfeit banking or e-commerce sites (sometimes called "page hijacking"). The compromised computer or server redirects consumers to fraudulent Web sites even if a user manually types an address into the browser address window. The fraudulent sites are formulated to look like authentic, legitimate sites (and may even include a bogus "secure site" logo indicating that the site is genuine). The site may install spyware or prompt the consumer to enter personal information, including user name and password.

Another form of pharming "poisons," or gives false information to, domain name servers. Those servers then redirect Internet users to Web sites maintained by the attackers. A recent attack resulted in an estimated 1,300 Web site addresses being redirected to malicious sites.

Pharming is particularly dangerous because it gives the user no warning that the computer is infected. The Trojan horse operates quietly in the background, redirecting the user to fraudulent Web sites.

Conclusion
The growth of cybercrime is alarming. During the 2006 legislative session, Utah lawmakers are considering a bill making the procurement of sensitive financial information (such as driverÕs license, social security, or bank account numbers) by false pretenses a felony Ð regardless of the amount of damages incurred. See Utah SB52. At present, the communications fraud statute (Utah Code ¤76-10-1801), one of the means by which Internet fraud can be prosecuted in Utah, specifies that the amount of damages determines the severity of the punishment (e.g., misdemeanors for losses under $1,000, felonies for losses over $1,000). The proposed statute would mean possible prison time for merely obtaining the information under false pretenses even if there is no financial loss.

Opponents to recently considered anti-cybercrime legislation argue that it is not new legislation that is needed, but new means of enforcement. They claim that fraud, whether perpetrated online or off, is still fraud and is, therefore, covered by state and federal consumer protection statutes. Yet enforcement of anti-fraud statutes with respect to Internet crime is more difficult because of the ease with which scammers can create and dismantle Web sites, hide their identities, and so forth. Such groups believe that legislation expanding enforcement powers and providing for information sharing between law enforcement agencies would be more effective in the fight against cybercrime.

In order to protect themselves, it is vital for consumers to maintain a healthy skepticism and to use common sense. Do not give out confidential information unless you know to whom you are giving it, and why. Personal computer users should run up-to-date antivirus and antispyware software and should update it regularly. Any computers running Microsoft products should download program updates regularly as those programs are often the target of malicious programmers.

The Internet is global, anonymous, and fluid. Although the Internet offers a vast legitimate economic opportunity, it also offers an attractive new forum for those who perpetrate fraud. Given the increased degree of difficulty in fighting cybercrime due to the very nature of the Internet, consumers, law enforcement, and legislators must work together to create a safer and more productive e-commerce environment.

1. Grant Gross, Tech Execs Call for Cybercrime Commission, PC World, at http://www.pcworld.com/news/article/0,aid,119648,00.asp, (Feb. 10, 2005).

2. Operation Cyber Sweep, United States Dept. of Justice, at http://www.fbi.gov/cyber/cysweep/cysweep1.htm.

3. US Consumers Still Can't Spot Phishing Scams, Finextra, at http://www.finextra.com/fullstory.asp?id=12250 (July 28, 2004).

4. Tony Lima, Does Online Banking Put Your Money at Risk?, PC World, at http://www.pcworld.com/news/article/0,aid,117757,00.asp (Sept. 13, 2004).

Posted by BarStaff at 11:38 AM

SPYWARE: Living in a Cyber-Fishbowl

SPYWARE: Living in a Cyber-Fishbowl

by Polly Samuels McLean and Michelle M. Young

One of the most potent and pervasive types of cybercrime is commonly known as spyware. Spyware, a general term used for software that performs certain behaviors such as advertising, collecting and transmitting personal information, or changing a computer's configuration without the owner's knowledge or permission, invades consumers' privacy, inundates users with pop-up windows, slows computers down, and causes computers to crash.

The term "spyware" is often used as an umbrella term encompassing a number of annoying and malignant programs. There are actually several discreet types of spyware, including adware (programs that install and initiate "pop-up" advertising), malware (programs such as viruses or worms that are specifically designed to disrupt computer operation), keylogging programs (programs that track computer users" key strokes, sometimes known as "snoopware") and page hijackers (programs that take over a computer's internet browser, rerouting users to different home pages or Internet sites).

Adware
Adware, also known as "pestware" or "adbots," is usually more annoying than malicious. Composed of relatively benign programs that track consumers' Internet surfing and spending habits, adware causes advertisements to appear (or "pop-up") when a user visits specific Web sites or when he or she searches for a specific site or product. Although adware programs are frequently referred to as "spyware" and many people use the terms interchangeably, spyware and adware are quite different in both purpose and use. Adware is intended to be benign and it is primarily used to market online goods and services. Spyware, on the other hand, is frequently malicious and may be used to fraudulently obtain users' bank account information, passwords, and other confidential information. This confusion regarding spyware and adware may lead some consumers and legislators to underestimate the threat presented by actual spyware, believing that the worst of it is simply annoying.

Despite its relatively benign function and purpose, adware is widely disliked. Online merchants don't like it because it attempts to redirect users to a competitor's Web site or product; consumers find pop-up advertisements annoying because they block the user's computer screen and disrupt online work - users must stop working and close the ad before they can continue. Adware is also disruptive because it causes computers and Internet connections to slow down, and, if a user inadvertently clicks on a pop-up advertisement, may expose users to computer viruses and other forms of malware. Thus, although the intent of the adware programmer is not malicious, the adware itself causes problems and exposes consumers to other more malicious forms of programming.

Adware usually installs itself through the use of misleading dialogue boxes or other methods of stealth installation and is frequently bundled with free product downloads, such as peer-to-peer movie/music swapping programs or free screen saver programs. Adware manufacturers insist that they disclose the existence of the adware in the end user licensing agreements ("EULAs") and that consumers agree to the adware download when they click the "I accept" button required by the EULA before the download begins. But despite such "disclosure," most users are unaware that they have installed an adware application on their computers. And once downloaded, adware programs are difficult (if not impossible) to uninstall and removal of the adware may render the rest of the bundled software inoperable.

Because adware is so pervasive, obvious and disruptive, it has spurred the biggest consumer backlash against computer programming to date - generating multiple versions of anti-spyware1 legislation on both state and federal levels. Federal legislation intended to regulate adware passed the House in October of 2004, H.R. 4661, but stalled in the Senate, due to concerns over the impact the legislation might have on legitimate businesses. Opponents of the legislation believe that the legislation would restrict the legitimate uses of responsive pop-up and information gathering technology. For example, the use of "cookies," programs that gather data allowing a user to return to a Web site and have the site "recognize" him or her (sometimes including forms pre-filled with that specific user's information), by legitimate business could be impeded by anti-spyware legislation. Anti-Spyware legislation originating in the Senate also remains pending.

On the state level, Utah passed the nation's first anti-spyware/ adware legislation in 2004 under Utah Code ¤13-40-101 et seq. Utah's 2004 Spyware Control Act (the "Act") initially required software to obtain a user's express consent (separate from any disclosure contained within the EULA) before any computer program was installed on a machine. The 2004 Act also required software manufacturers to provide a means for disabling and removing the software. However, opponents of the legislation argued that the law regulated interstate commerce - an area constitutionally reserved for federal action alone. As a result, the Utah Act was stayed in June of 2004 pending judicial review.

In an attempt to remedy the constitutional issues, the Utah legislature amended the Anti-Spyware Control Act in 2005. The 2005 Act, which now focuses more on trademark/copyright infringement issues, applies only to adware downloads to computers physically present in the state and owned by Utah residents. Utah legislators hope that this restricted application of the law will circumvent any potential Commerce Clause issues. Since Utah first initiated such protective legislation, nine states have enacted some type of spyware legislation and another 28 states are currently considering it.

Moreover, some Web site owners have pursued civil suits claiming that pop-up advertisements block the content of the Web site and, in effect, violate the copyright or trademark rights of the owner. Although courts have generally been sympathetic, they have routinely ruled against site owners, finding that, because computer users have, ostensibly, voluntarily downloaded the adware programs, there was no violation of trademark law. For example, in U-Haul Int'l v. WhenU.Com, Inc., 279 F.Supp. 2d 723, 723 (E.D. Va. 2003), the United States District Court for the Eastern District of Virginia held that WhenU, an Internet advertising company, had not violated trademarks by having its software display pop-up advertisements in front of U-Haul's Web site, even though the pop-ups blocked the view of visitors to the U-Haul site. The court plaintively opined:

Computer users, like this trial judge, may wonder what we have done to warrant the punishment of seizure of our computer screens by pop-up advertisements for secret web cameras, insurance, travel values, and fad diets. Did we unwittingly sign up for incessant advertisements that require us to click, click, and click again in order to return to our Internet work? The Court, in this opinion, attempts to answer this question; we have invited these pop-up advertisements by downloading free screen savers and other free software from the Internet.

Id. Ultimately, the court found the supposed voluntary nature of the download (i.e., computer users voluntarily and affirmatively downloaded the adware) to be dispositive.

In cases where the adware program downloads without any type of notice to the user Ð often as a result of the user visiting an infected site or opening an infected email, the newly established trespass against chattels standard set forth by the California Supreme Court in Intel Corp. v. Hamidi, 30 Cal. 4th 1342; 71 P.3d 296 (Cal. 2003), may provide grounds for a tort action against pop-up advertisers. In Intel Corp., the California Supreme Court applied California's "trespass to chattels" doctrine to unsolicited email advertisements (commonly known as "spam"). Although the court concluded that the spam complained of by Intel does not constitute trespass to chattels because it did not interfere with Intel's use or possession of its computer system, the court also indicated that interference with the functioning of the computer system would constitute trespass to chattels. Given this broadened application of the trespass to chattels doctrine, a plausible trespass to chattels claim may be made against producers of both adware and spyware as the programs cause "momentary dispossession" by interfering with the computer user's work and by slowing the computer down. Thus, trespass to chattels may provide a means for a viable civil cause of action against adware vendors who distribute programs that automatically or covertly install on a user's computer.

However, the trespass to chattels doctrine would be inapposite to affirmative downloads agreed to by computer users. And as long as adware vendors continue to bury disclosure in EULAs and as long as consumers agree to EULAs (either with or without reading them thoroughly), it is unlikely that courts will rule against adware in and of itself. It is more likely that legislation - like that recently passed in Utah - will be necessary to require more overt disclosure by vendors and more affirmative acceptance of the agreement by users.

Spyware
Actual spyware, as opposed to the relatively benign adware, is software used to covertly monitor actual computer activity - including Web sites visited, passwords, and other confidential information. In addition to monitoring users' online activities, spyware can also monitor offline computer activity. A spyware program gathers confidential information (such as bank account information, credit card numbers, social security numbers, etc.) and then transmits the information to criminals who either use the information to steal funds and identities or who sell the information to other criminals.

Spyware/adware programs have spread rapidly. One recent study found that more than 85% of all computers (both personal and corporate) scanned for spyware/adware were infected, see Webroot Report: Spyware Industry Worth Billions, CoolLawyer, Inc., at http://www.coollawyer.com/webfront/lawnews.php (June 2005), yet the vast majority of consumers were unaware that their computers had been compromised. Although users may have noticed the appreciable slowing of the computer, the increase in pop-up advertisements, and/or the increased incidents of computer freezes (or crashes), many simply blamed the Internet service provider, the legitimate software installed on the computer, or the computer hardware manufacturer itself.

The costs of spyware, coupled with the misplaced consumer blame, extend into the general economy as well. For example, service calls to Internet service providers as a result of spyware/ adware-based pop-up advertisements reduce an ISP's corporate profit margins, and computer software and hardware companies fear that decreased performance as a result of spyware/adware negatively impacts their brands. The companies have found that consumers often mistakenly blame the computer hardware itself for spyware created problems. Additionally, corporations worldwide are impacted by reduced productivity caused by sluggish computers and by the time required to repeatedly purge company computers of unwanted programs. Finally, companies marketing spyware programs have been known to sue anti-spyware programmers to force them to exclude their products from anti-spyware programs. See, e.g., New.Net.Inc. v. Lavasoft, 356 F. Supp. 2d 1071 (C.D. Ca. 2003). Although the spyware companies have yet to win a suit, the litigation costs the anti-spyware vendors both time and money and may further discourage companies from developing and producing anti-spyware programs.

Many consumers, legislators, and government agencies believe that spyware legislation is not the answer. Agencies like the Federal Trade Commission (FTC) believe that the real problem is with finding and catching the scammers, not with prosecuting them once caught. As support for its position, the FTC points to the recent CAN-SPAM Act of 2003, which has been largely ineffective 2 because officials cannot locate the spammers before the spammers change locations or products. This is due in large part to the fact that spammers often hide their identities and investigations may take months. The President's Working Group on Unlawful Conduct on the Internet agrees. The group issued a report in March of 2000 in which it indicated that legislation is needed to enable law enforcement agencies to more effectively police Internet crimes in "real time." See The Electronic Frontier: The Challenge of Unlawful Conduct Involving the Use of the Internet, United States Dept. of Justice, at http://www.usdoj.gov/ criminal/cybercrime/unlawful.htm (Mar. 2000) (hereafter "The Electronic Frontier"). Other opponents include the IT industry (which favors a more forgiving "opt out" law rather than the proposed "opt in" or express consent bills), and, not surprisingly, adware manufacturers such as 180Solutions, WhenU, and Claria (each of whom has contributed more than $100,000 to anti-regulation lobbying efforts). The Internet Alliance, a trade organization made up of merchants such as eBay, America Online, and Microsoft, has also opposed anti-spyware legislation, concerned that any enacted legislation would infringe upon legitimate activities by bona fide Internet e-commerce sites.

These concerns are not without merit. One of the biggest challenges with anti-spyware legislation is its broad scope. Although it would be most effective to define a species of computer program as malignant spyware and nothing else, in reality the only difference between the technically similar spyware and "supportware" (programs which provide beneficial programs such as pop-up reminders, program update utilities, and Internet browser security features) is the intent of the programmer. Given the broad application of most anti-spyware legislation it is virtually inevitable that some of the "good guys" will get swept up with the "bad." Because of the inevitability of such over-inclusiveness (or, in the alternative, under-inclusiveness), some lawmakers are considering "bad acts" legislation that focuses on specific prohibited behavior.

"Bad acts" legislation, though, may be substantially - and unnecessarily - duplicative. As the FTC noted, most criminal statutes do not distinguish between crimes committed over the Internet and those committed through other media.

For example, laws governing fraud - such as credit card fraud, identity theft, securities fraud, gambling, and unfair and deceptive trade acts or practices - apply with equal force to both online as well as offline conduct. To the extent these existing laws adequately address unlawful conduct in the offline world, they should, for the most part, adequately cover unlawful conduct on the Internet.

The Electronic Frontier. However, some legislation has been determined to be inapplicable because it applies only to "unauthorized" software downloads and spyware/adware vendors have continued to circumvent these laws by burying "authorization" language in long-winded EULAs.

Despite the flurry of legislative, judicial, and political activity, no solution to the spyware/adware problem is likely any time soon.

1. Despite being motivated by and specifically addressed to eliminating adware, most anti-adware legislation is known by the broader term "anti-spyware" legislation. There are some exceptions, however. See, e.g., legislation recently passed in Arizona, Virginia, and Washington directed specifically at actual spyware. 2005 State Legislation http://www.ncsl.org/programs/lis/spyware05.htm (last updated Aug. 9, 2005).

2. In January of 2005, one year after the CAN-SPAM Act of 2003 took effect, industry experts indicated that a mere 7% of all e-mails surveyed complied with the law Ð spam levels continue to rise despite the legislation. Gregg Keizer, CAN-SPAM Can't Slam Spam, Information Week, at http://www.informationweek.com/shared/printableArtcileSrc/jhtml?articleID=56900503, (Jan. 4, 2005).

Posted by BarStaff at 11:00 AM

Finding a Solution to the Problem With Finders in Utah

Finding a Solution to the Problem With Finders in Utah

by Brad R. Jacobsen and Olympia Z. Fay

A significant issue facing attorneys and their clients in Utah is the use of unregistered securities brokers by small businesses and start-up companies to raise investment capital. The unregistered securities brokers are commonly referred to as "finders," however, other titles exist to describe these individuals, including, unlicensed broker-dealers, intermediaries, private placement brokers, merchant bankers, investment bankers, financial public relations advisors and business consultants.1 Black's Law Dictionary, Sixth Edition, defines a finder as "an intermediary who contracts to find, introduce and bring together parties to a business opportunity, leaving ultimate negotiations and consummation of business transactions to the principals." For convenience of reference throughout this Article, these unregistered securities brokers will be referred to as "finders." Finders usually charge a transaction fee based on the amount of capital which the finders are responsible for bringing to the company. This type of compensation is commonly referred to as a "finders fee" and is usually paid in either securities or in cash (or a combination of both) as a percentage of the money raised (generally around 5-10%).

However defined, or by whatever name used, the use of a finder and the payment of a finders fee in Utah (subject to very narrow exceptions) is illegal and will likely cause a company, its officers, directors and agents to be subject to criminal sanctions and civil liability (on a personal and company level). Despite the illegal nature of using a finder in capital raising transactions, the American Bar Association (the "ABA") has recognized that in numerous instances, finders can provide beneficial services in raising capital for small businesses and start-up companies that is often not available from traditional lending sources or licensed broker dealers.2 On June 30, 2005, the ABA released a report titled "Reports and Recommendations of the Task Force on Private Placement Broker-Dealers" (the "ABA Report"), in which the ABA task force made a series of recommendations that seek to provide a uniform means by which individuals could more easily be licensed to act as finders. Such recommendations, however, will likely take years to implement due to the reviews and compromises required among many parties, including the National Association of Securities Dealers ("NASD"), the U. S. Securities and Exchange Commission ("SEC"), the North American Securities Administrators Association ("NASAA"), state regulators and others. This article discusses the current law and regulations facing finders as well as the ABA Report and recommendations for providing a reasonable solution to the current capital raising regulatory quandary facing small businesses and start-up companies.

I. SECURITIES BROKER-DEALERS vs. FINDERS
There is an important legal distinction between securities broker-dealers and finders. "Securities brokers are required to register with the SEC pursuant to Section 15 of the Securities and Exchange Act of 1934 (15 U.S.C. 78(a)(4)), which broadly defines any person engaged in the business of effecting transactions in securities for the account of others to be within the scope of the registration mandate."3 The SEC enacted the statute to combat abusive sales tactics and to protect investors by imposing standards of professional conduct on the securities brokers which are enforced through disciplinary actions.4 The activity of a securities broker-dealer is monitored by registered national securities associations and exchanges, in which membership is compulsory for all registered brokers. Most broker-dealers belong to, and are monitored by, the NASD. Additionally, registered brokers are governed by the SEC through its enforcement of federal securities laws, educational requirements and financial responsibility rules. These registration, compliance and educational requirements are not cheap, and such costs must be passed through to the consumer of a broker-dealer's services. Therefore, many small businesses and start-ups are often priced out of using valid capital raising services or otherwise not targeted by registered broker-dealers as clients.

Unlike a registered broker-dealer, a finder is an unregistered intermediary that assists companies in raising capital. Within certain limits, a finder may operate within applicable legal requirements. The SEC has recognized that a person who only occasionally makes mere introductions of potential investors to issuers, either for free or under a non-contingent fee arrangement, and not more, is a finder who does not need to register as a broker. Through the use of No-Action letters, the SEC has attempted to promote additional standards by which finders may legally operate and, in certain circumstances, receive a transaction based fee.

In a well-known No-Action letter, the Ottawa Senators Hockey Club retained entertainer Paul Anka ("Anka") to act as a finder for purchasers of limited partnership units issued by the Senators.5 While initially proposing a much broader role, Anka eventually agreed to only furnish the Senators with the names and telephone numbers of persons in the United States and Canada who he believed might be interested in purchasing the limited partnership units. Anka additionally agreed that he would neither personally contact these persons nor make any recommendations to them regarding investments in the Senators. Anka's proposal letter to the SEC stated that he would be paid a finders fee equal to 10% of any sales traceable to his efforts. The SEC indicated that it would not recommend enforcement action if Anka engaged in the proposed activities without registering as a securities broker-dealer. The following summarizes the important factors considered by the SEC when issuing the Anka No-Action letter:

¥ Anka only provided names and contact information for prospective purchasers;

¥ The sales of the securities were to be made in compliance with the Securities Act of 1933;

¥ There was a bona fide, pre-existing relationship between Anka and his referrals;

¥ Anka would not advertise, endorse or solicit investors;

¥ Anka would not have personal contact with prospective investors regarding the investment;

¥ Only officers and directors of the Senators would contact the potential investors;

¥ Compensation paid to the Senators' officers and directors would comply with SEC Rule 3a-1, which governs compensating issuer agents;

¥ Anka would not provide financing for an investor;

¥ Anka would not perform due diligence on the SenatorÕs offering; and

¥ Anka had never been a broker-dealer or registered representative of a broker-dealer.6

While the Utah Division of Securities has stated that it will respect the Anka No-Action letter, it must be emphasized that the exception to using finders in capital raising transactions offered by such Letter is extremely narrow. It amounts to basically paying a well-connected person for a list of names and phone numbers. Rarely do finders act in such a limited capacity or are companies willing to pay such a high fee for such limited information.

II. CONSEQUENCES OF FINDERS' UNLAWFUL ACTIVITY
Federal and state securities administrators have enacted statutes detailing the consequences of finders' unlawful activities. Failure to comply with such statutes can result, in among other things: (1) a company losing its exemption for its securities offering; (2) a company, its officers, directors and agents being subject to criminal sanctions resulting from violations of applicable securities laws; and (3) company investors having the right to seek rescission of the applicable offering.7 In order to avoid the pitfalls of using a finder, it is important to understand the case law, applicable statutes and consequences of using one.

Federal Statute for Finders and Case Decisions
Section 15(a) of the 1934 Securities Act provides that "it shall be unlawful for any broker or dealer . . . to make use of mail or any means or instrumentality of interstate commerce to effect any transaction in, or induce or attempt to induce the purchase or sale of, any security . . . unless such broker or dealer is registered." As previously discussed, a finder is an unregistered party attempting to induce others to purchase or sell securities.

In SEC v. Walsh, the SEC sued former Tyco director and the chairman of its compensation committee for signing a Tyco registration statement that he knew contained a material misrepresentation regarding the payment of a finders fee. In late 2000, Frank E. Walsh ("Walsh") recommended that Tyco consider acquiring CIT Group Inc. (ÒCITÓ).8 Subsequently, L. Dennis Kozlowski ("Kozlowski"), Tyco's former Chief Executive Officer, asked Walsh to set up a meeting between Kozlowski and CIT's Chief Executive Officer. After that meeting, Kozlowski proposed to pay Walsh a finders fee for his services if the transaction was completed. When the transaction was submitted to Tyco's Board ("Tyco Board"), Walsh voted in favor of the transaction but intentionally did not disclose to the Tyco Board that he would receive a finders fee in connection with the transaction.

The terms and conditions of the Tyco/CIT merger were set forth in the Agreement and Plan of Merger dated March 12, 2001 (the "Agreement and Plan of Merger"). The Agreement and Plan of Merger contained a representation by Tyco that, other than Tyco's investment bankers for the transaction, no other investment banking or finders fees were to be paid in connection with the transaction. The Agreement and Plan of Merger was incorporated by reference in, and attached to, a registration statement (the "Tyco Registration Statement") filed by Tyco with the SEC for the securities that were issued in connection with the contemplated merger. As a director, Walsh signed the Tyco Registration Statement even though he allegedly knew that the Tyco Registration Statement contained a material misrepresentation regarding the payment of a finders fee and was aware that he would obtain a substantial fee if the transaction was completed.

After completion of the transaction Walsh received a finders fee of $20 million. The fee was paid by Tyco pursuant to the Walsh/ Kozlowski agreement. Additionally, the fee was disbursed without the knowledge of CIT's or Tyco's shareholders. Under the Agreement and Plan of Merger, the payment to Walsh was not permissible.

After investigation by the SEC, Walsh, without admitting or denying the allegations, consented to the entry of a final judgment permanently enjoining him from violations of the federal securities laws (Section 17(a) of the Securities Act of 1933 and Section 10(b) of the Securities Exchange Act of 1934 (the "Exchange Act") and Exchange Act Rule 10b-5). Consequently, Walsh was permanently barred from acting as an officer or director of a publicly held company, and ordered to pay restitution of $20 million.

Utah Rules and Penalties Concerning Finders
Issuers, due to a failure to plan in advance, often find themselves in a position of attempting to fit their offerings into the Anka No-Action letter exception after the fact. The Utah Division of Securities (the "Division") actively reviews Form Ds filed, and aggressively pursues instances where the issuer has indicated that it paid a sales commission or finders fee.9 Unless any such issuer used a licensed broker-dealer, it will need to demonstrate that it adhered to the procedures permitted by Anka (or used a licensed Issuer-Agent (discussed below)), otherwise such issuer, its officers, directors and agents will likely face significant consequences.

Described below are a number of the applicable sections of the Utah Code (the "Utah Act") that set forth certain of the consequences for using a finder in Utah.

Section 61-1-3(1) of the Utah Act provides that "[i]t is unlawful for any person to transact business in this state as a broker-dealer or agent unless the person is licensed under the Utah Act." Section 61-1-3(2) then goes on to provide that "[i]t is unlawful for any broker-dealer or issuer to employ or engage an agent unless the agent is licensed." The term "agent" is broadly defined as "any individual other than a broker-dealer who represents a broker-dealer or issuer in effecting or attempting to effect purchases or sales of securities."10

Section 61-1-11(11) of the Utah Act requires that if an issuer wishes to use an agent, employee or other person to effect or attempt to effect a securities transaction, such person must either (i) be licensed and associated with a licensed broker-dealers or (ii) be an officer or director of the issuer; provided, that, with respect to clause (ii), such person also (A) does not receive any commission or other remuneration; and (B) is licensed (generally as an issuer agent). While Section 61-1-11 generally applies only to registrations by qualification, coordination or notification, an aggressive view of Section 61-1-11(11), in and of itself, could be read to include any securities issuances.

Section 61-1-22(1)(a) of the Utah Act provides that "[a] person who offers or sells a security in violation of Subsection 61-1-311 . . . is liable to the person selling the security to or buying the security from him, who may sue either at law or in equity to recover the consideration paid for the security, together with interest at 12% per year from the date of payments, costs, and reasonable attorney's fees."

Section 61-1-22(4)(a) of the Utah Act adds that "[e]very person who directly or indirectly controls a seller or buyer liable under Subsection [61-1-22(a)], every partner, officer, or director of such a seller or buyer, every person occupying a similar status or performing similar function, every employer of such a seller or buyer who materially aids in the sale or purchase, and every broker-dealer or agent who materially aids in the sale are also liable jointly and severally with and to the same extent as the seller or purchaser, unless the nonseller or nonpurchaser who is liable sustains the burden of proof that he did not know, and in exercise of reasonable care could not have known, of the existence of the facts by reason of which the liability is alleged to exist."

Violations of the securities laws in Utah will not only subject the issuer, its officers, directors and agents to rescission claims (e.g., return of investment, plus 12% annual return from time of investment, plus attorneys fees) described above, but also criminal sanctions, including: (1) cease and desist proceedings; (2) fines; (3) disgorgement of any fees or other profits; (4) injunction orders; and (5) the potential conviction of a third degree felony (punishable by up to two years in jail).12 The investigative proceedings and orders by any federal or state regulatory authority will also be a reportable event for any person who is a broker-dealer, investment advisor or other NASD registered individual.

Limited Exceptions Under Utah Law
Certain limited finding activities may be conducted under applicable law. The limited involvement described in the Anka No-Action letter is followed in Utah. As previously mentioned, however, few individuals can qualify for such an exemption and still effectively assist a company in obtaining financing. Additionally, Utah permits a licensed "Issuer-Agent" to represent a company in the issuance of securities. Such an Issuer-Agent, however, must first be registered and licensed with the State of Utah. The applicant must (1) file a NASD Form U-4; (2) provide proof that such applicant has passed the Series 63 or Series 66 examination; (3) pay a fee of $50; and (4) in certain circumstances post a surety bond.13 A registered Issuer-Agent, however, may not be involved in more than one offering in any twelve-month period.14 An individual who wishes to represent more than one company in any given twelve-month period must register as a licensed broker-dealer to do so. The ABA Report described below, argues that between an Issuer-Agent only being permitted to represent one company in a twelve-month period and the formal procedures of registering as a broker-dealer, there should be a middle ground (e.g., private placement broker-dealers subject to limited registration requirements that are permitted to engage in certain finding activities for a greater number of companies). The ABA Report refers to these licensed finders as "Private Placement Broker-Dealers."

III. ABA Recommendations

Registration Requirements for Finders
On June 30, 2005, the Task Force on Private Placement Broker-Dealers (the "Task Force") released the previously described ABA Report.15 The ABA Report discusses the problems that are associated with using a finder at both the state and federal level and makes recommendations for permitting expanded finders activities. The objectives of the ABA Report were:

¥ To present a comprehensive survey of the relevant issues relating to this vast gray market of securities brokerage; and

¥ To propose a solution that the Task Force believes will provide a reduced, but appropriate, level of regulation in the M&A and private placement arenas.

The ABA Report additionally set forth four critical goals for the proposed solution:

¥ To modify the amount and scope of the regulations that will apply such that they would be in proper balance with the scope of activities to those being regulated;

¥ To make possible and encourage the effective licensing of those finders who do adhere to honest and ethical business practices;

¥ To diminish the number of unlawful securities brokers to a level that will make effective enforcement actions more feasible; and

¥ To provide issuers and finders a means of distinguishing the good from the bad.

The ABA through the Task Force recommends that the SEC, NASD and state administrators work toward creating a simplified system for finders to be licensed. The system the ABA Report is proposing will permit finders to engage in activities similar to those of securities broker-dealers with a few limitations. The Task Force's new recommended limitations for finders include:16

¥ No participation in public offerings registered pursuant to the Securities Act of 1933, but with the ability to receive referral fees for introducing such offerings to full service broker-dealers.

¥ No statutory disqualification of the firms or its principals.

¥ Offerings by finders could be made only to accredited investors and other "qualified purchasers" when the SEC defines such term. Issuers, however, could separately offer to any investors qualified by the type of exemption.

¥ The finders may not handle or take possession of funds or securities.

¥ All offerings would be done on a best effort basis.

¥ All funds from offerings will be placed in escrow in an unaffiliated financial institution and in accordance with escrow requirements in SEC Rule 15c2-4.

¥ The finders may not engage in secondary market or trade activity, including assisting with maintenance of "desk drawer" markets at the issuer or the broker-dealer.

¥ Finders shall have successfully completed simplified NASD examinations appropriate to the scope of activities of the finders.

Statement of Activity and Examination Requirements
The Task Force recommends that a finder be required to file an annual statement of activity with the NASD and applicable states. The annual statements will summarize the transactions the finder has participated during the past calendar year and provide sufficient statistical information for regulators to analyze the effects of the finders program or conduct appropriate inspection.

The Task Force is proposing an examination requirement similar to that of the securities broker-dealers. Currently, examinations are not required for finders since the scope of their coverage does not exceed the knowledge required to perform obligations that the ABA anticipated for securities brokers. The Task Force recommends the securities regulators "develop new targeted examination for registered representatives and principals, such as finders, testing only relevant topics of their duties."17

Create an Environment Where Applicants Want to Register
An obvious concern for those finders who have engaged in transactions without registration in the past is that regulators, particularly state administrators, will require disclosure of past activities in their states. The Task Force recommends that states establish a period procedure under which prior activities would not require disclosure. If an applicant faces virtual certainty of a state regulatory proceeding and a demand for rescission, there is little incentive for compliance. The Task Force is urging the NASAA to promote among its members a system of encouraging, rather than discouraging, appropriate registration. Many states require letters from an applicant for securities registration stating that the entity has not engaged in securities transactions in the state in the past (often without a time limit). These letters have the effect of terrorizing the applicant who wants to come forward and become compliant. The Task Force is recommending a one-year hiatus in the use of such letters to permit individuals or firms to come to compliance.

CONCLUSION
Small businesses and start-up companies in need of investment capital are often in a "catch 22"18 when it comes to raising funds. Without additional capital, such companies may not survive, but if they raise capital through the use of a finder, they will likely be violating the law which, in turn, may lead to their demise. Such companies, additionally, are often not large enough to draw from traditional sources of capital or do not otherwise have contacts with available investment capital. Often, through no knowing violation of the law, these companies end up using finders to obtain desperately needed capital. The ABA acknowledges the difficult position small businesses and start-ups are in when it comes to raising capital. The ABA, through the Task Force, has recommended that by permitting individuals to be licensed simply as finders, smaller businesses and start-up companies would likely have additional access to legitimate investment capital not currently available. The licensing requirements, while less stringent than that of a broker-dealer, would provide protections and regulatory oversight not currently imposed on finders operating on and beyond the grey line of legality.

Until the SEC, state administrators and NASD resolve their concerns and issues regarding the licensing on finders recommended by the Task Force, Utah companies and attorneys would do well to steer clear of their unauthorized use. While some states, such as Michigan, have chosen to license finders ahead of final federal rules, little can effectively be done at the state level until federal securities laws and regulations expand activities permitted by finders. Practitioners who believe a limited exemption and registration for finders would be a beneficial addition to the current securities regulatory environment are encouraged to work with their legislators and regulators to push such recommendations through to adoption.

The authors would like to thank Benjamin N. Johnson, Director of Corporate Finance, and George A. Robinson, Director of Licensing & Compliance, with the Utah Division of Securities for their review and comments on this article.

1. See Mary M. Sjodquist, ABA Reports and Recommendations of the Task Force on Private Placement Broker-Dealers, June 20, 2005 at 2.

2. See id.

3. See Steven M. Hecht, Securities Law: Are finders also broker-dealers? The National Law Journal, March 8, 2004.

4. See id.

5. See Paul Anka, SEC No-Action letter (July 24, 1991)

6. See id.

7. See Utah Code Ann. ¤ 61-1-22 (2005).

8. See United States Securities and Exchange Commission Litigation Release No. 17896 (Dec. 17, 2002), at http://www.sec.gov/litigation/litreleases/lr17896.htm

9. See Form D, Section C, Question 4a.

10. See Utah Code Ann. ¤ 61-1-13(2) (2005).

11. Utah Code Ann. ¤ 61-1-22(1)(a) (2005) provides that a violation of "Subsection 61-1-3(1), Section 61-1-7, Subsection 61-1-17(2), any rule or order under Section 61-1-15, ... Subsection 61-1-10(4) or 61-1-11(7), or offers, sells, or purchases a security in violation of Subsection 61-1-1(2) ..." subjects the issuer and certain affiliated parties to rescission liability. Note, however, that a violation of Utah Code Ann. ¤ 61-1-11 (11) referenced in the prior paragraph is not included in the litany of violations that provides grounds for a rescission offer.

12. See Utah Code Ann. ¤ 61-2-17 (2005).

13. See Utah Regulations R164-4-1(E)(4).

14. See Utah Regulations R164-4-1(E)(4)(A).

15. See ABA Report and Recommendations.

16. Id.

17. See id. at 4.

18. The phrase "Catch 22" comes from Joseph Heller's novel of the same name. The paradox that trapped members of the US military: Anyone who applied to get out of military service on the grounds of insanity was behaving rationally and thus couldn't be insane.

Posted by BarStaff at 10:39 AM

April 17, 2006

A Guide to the Administrative Safeguards of HIPAA's Security Rule

A Guide to the Administrative Safeguards of HIPAA's Security Rule

by Michael P. Barry

The Health Insurance Portability and Accountability Act ("HIPAA") was originally signed into law in 1996. To implement HIPAA, the U.S. Department of Health and Human Services ("HHS") published the "Standards for Privacy of Individually Identifiable Health Information" (the "Privacy Rule")and the "ecurity Standards for the Protection of Electronic Protected Health Information"(the "Security Rule"). See 45 C.F.R. Parts 160 and 164, Subparts A, C, and E. Both the Privacy Rule and the Security Rule include important compliance deadlines for entities subject to HIPAA.

April 20, 2005 marked the Security Rule compliance date for most health care organization. Despite this deadline, the Bureau of National Affairs recently reported that only 43% of health care providers have achieved Security Rule compliance.1 The Security Rule includes administrative safeguards, which are policies, procedures and actions that protect the security of electronic protected health information ("EPHI"). This article will discuss the steps necessary to comply with the administrative safeguards of the HIPAA Security Rule.

Who is subject to HIPAA?
HIPAA standards and requirements apply to Òcovered entities.Ó These entities are:

1. Health plans (i.e., any individual or group plan that provides or pays the cost of health care),

2. Health care providers who transmit any health information in electronic format, and

3. Health care clearinghouses.

With the passage of the Medicare Prescription Drug, Improvement and Modernization Act of 2003 ("MMA"), Congress added a fourth entity to the list - Medicare prescription drug card sponsors. 42 U.S.C.A. ¤ 1395W-141(h)(6) (West 2004). This fourth category of covered entity will remain in effect until the MMA drug card program ends in January 2006.

Compliance dates
Compliance with HIPAA regulations is both challenging and complex. For this reason, HHS established a series of compliance deadlines that allow a covered entity to gradually implement HIPAA. The following are some of the HIPAA major compliance deadlines:

* Standards for Electronic Transactions and Code Sets: October 16, 2002.

* Privacy Rule: April 14, 2003 (the Privacy Rule established standards that govern the use and disclosure of protected health information).

* Standard Unique Identifier for Employers: July 30, 2004. The compliance date for small health plans (defined as health plans with $5 million or less in annual receipts) was August 1, 2005.

* Security Rule: April 20, 2005. The compliance date for small health plans is April 20, 2006.

* Standard Unique Health Care Provider Identifier: May 23, 2007. The compliance date for small health plans is May 23, 2008.

What is the Security Rule?
The Security Rule is probably best understood by its four general obligations. First, a covered entity must ensure the confidentiality, integrity, and availability of all EPHI that it creates or receives. Second, it must protect against any reasonably anticipated threats or hazards to the security of EPHI. Third, it must protect against any reasonably anticipated uses or disclosures of EPHI in violation of HIPAA. And fourth, a covered entity must ensure compliance with the Security Rule by its workforce.

The Security Rule is divided into the categories of administrative, physical, and technical safeguards. Each safeguard includes general standards with which a covered entity must comply. The standards are comprised of "implementation specifications" that are either "required" or "addressable." If an implementation specification is required, then the covered entity must implement those policies and/or procedures. If it is addressable, then the covered entity must assess whether it is a reasonable and appropriate safeguard in the entity's environment. Should a covered entity decide not to implement an addressable specification after this assessment, it must document the reason and, if reasonable, document an equivalent alternative measure.

A covered entity has some discretion when implementing the Security Rule. It may consider any security measures that allow it to reasonably and appropriately implement the standards and implementation specifications of the Security Rule. When making this determination, the covered entity can consider its own size and complexity, its technical infrastructure, its software and hardware capabilities, the cost of implementing the security measures, and the probability and criticality of potential risks to its EPHI.

Administrative Safeguards

1. Security Management Process
Every covered entity must implement a Security Management Process ("SMP") to "prevent, detect, contain, and correct" security violations. 45 C.F.R. ¤ 164.308(a). The SMP consists of four required implementation specifications: (a) risk analysis, (b)risk management, (c) sanction policy, and (d) information system activity review. Each of these four requirements will be discussed in greater detail below.

First, a covered entity must conduct a risk analysis. Specifically, this requires an accurate and thorough assessment of the potential risks to and vulnerabilities of the covered entity's EPHI. The risk analysis should probably be conducted before any of the other required implementation specifications so the covered entity can make an initial evaluation of all the risks and vulnerabilities to its EPHI.

Second, the risk management requirement requires a covered entity to implement security measures that are sufficient to reduce risks and vulnerabilities to a reasonable level. These security measures must remain current and should be periodically updated as needed. Third, a sanction policy is necessary to appropriately sanction workforce members who fail to comply with the security policies and procedures of the covered entity. Finally, a covered entity must have an information system activity review. To achieve this, a covered entity must implement procedures to regularly review records of information system activity, such as audit logs, access reports, and security incident tracking reports.

2. Appoint a Security Officer
A covered entity must designate a member of its workforce as the HIPAA security officer. This individual is responsible for the covered entity's implementation of the Security Rule's policies and procedures. A corresponding position - a privacy officer - is required by HIPAA's Privacy Rule (see 45 C.F.R. ¤ 164.530(a)(1)). The security officer can be the same person as the privacy officer.

3. Company Training
The Security Rule requires that a covered entity train its workforce to implement security awareness. All members of an organizationÕs workforce, including management and executive-level employees, should participate in this training. A record should be maintained to verify which employees have received the training.

4. Amend Business Associate Agreements
HIPAA's Privacy Rule requires each covered entity to have contracts with business associates who have access to the covered entity's PHI. These contracts are called ÒBusiness Associate Agreements' ("BAAs"). If the business associate receives or maintains EPHI on the covered entity's behalf, then the BAA must be amended to include the standards of the Security Rule. These amendments must provide that the business associate will:

a. Implement administrative, physical, and technical safeguards that reasonably protect the confidentiality, integrity, and availability of the EPHI that it maintains on behalf of the covered entity;

b. Ensure that any agent, including a subcontractor, to whom it provides EPHI agrees to implement reasonable and appropriate safeguards to protect the EPHI;

c. Report to the covered entity any security incident2 of which it becomes aware; and

d. Permit the covered entity to terminate the BAA if the covered entity determines that the business associate has violated a material term of the contract.

5. Contingency Plan
Each covered entity must establish policies and procedures for responding to an emergency or other similar occurrence (i.e., fire, vandalism, system failure, natural disaster, etc.) that damages the systems that maintain EPHI. This contingency plan includes three mandatory implementation specifications:

a. Data backup plan. A covered entity must develop procedures to maintain retrievable, exact copies of its EPHI.

b. Disaster recovery plan. Procedures must be established to restore any loss of data.

c. Emergency mode operation plan. A covered entity must establish procedures to protect the security of EPHI while operating in an emergency mode.

6. Physical and Technical Safeguards
As noted earlier, the Security Rule is divided into two additional categories of safeguards: Physical and Technical. A detailed discussion of these safeguards is beyond the scope of this article, but a brief description here will suffice. In general, Physical safeguards are the mechanisms required to protect electronic systems, equipment, and their data from threats, environmental hazards and unauthorized intrusion. They include restricting access to EPHI, retaining off-site computer backups, workstation security, and data backup and storage. See 45 C.F.R. ¤ 164.310(a)-(d).

Technical safeguards are primarily the automated processes used to protect and control access to EPHI. They include using authentication controls to verify that a person signing onto a computer is authorized to access EPHI, encryption and decryption of EPHI as it is stored and transmitted, and mechanisms to protect data from being altered or destroyed in an unauthorized manner. See 45 C.F.R. ¤ 164.312(a)-(c).

Conclusion
Although the April 20, 2005, deadline for the Security Rule has passed for most covered entities, compliance is a continuing obligation. As the Centers for Medicare and Medicaid Services ("CMS") explained on their website: "Security is not a one-time project, but rather an on-going, dynamic process that will create new challenges as covered entities' organizations and technologies change." A covered entity must therefore regularly review its Administrative Safeguards and modify them as needed to ensure continued compliance with HIPAA.

1. Many Organizations Not in Compliance with HIPAA Rules, According to a Survey, Pension & Benefits Reporter (BNA) 1718-19 (August 9, 2005).

2. A "security incident" is defined as "the attempted or successful unauthorized access, use, disclosure, modification, or destruction of information or interference with system operations in an information system." 45 C.F.R. ¤ 164.304.

Posted by BarStaff at 02:15 PM

April 11, 2006

There's a new Lien Law in Town: Are Your Lien Rights Protected?

There's a new Lien Law in Town: Are Your Lien Rights Protected?

by Jim Barber

On March 22, 2004, House Bill 136 was signed into law. More commonly known as the "Electronic Filing of Preliminary Lien Documents" bill, H.B. 136 took effect on May 1, 2005, and made significant modifications to the laws governing Mechanics' Liens (Utah Code Ann. ("UCA") ¤¤ 38-1-1 et seq.) and Contractors' Bonds (UCA ¤¤ 14-1-20 and 14-2-5), as well as amending UCA ¤63-56-38.1 of the Utah Procurement Code and UCA ¤38-11-204 of the Residence Lien Restriction and Lien Recovery Act. This article provides an overview of both H.B. 136 (2004) and the further amendments made by H.B. 105 (2005), commonly referred to as the "Construction Filing Amendments."

The New Law - H.B. 136
H.B. 136 is intended to protect all parties involved in a construction project: owners, contractors, subcontractors, suppliers, lenders, sureties, and the general public. The bill requires that certain information be provided by those entities that may file liens. The availability of such project knowledge among the interested parties affords protection to all involved. Until now these protections have been unavailable to construction-project participants.

Significantly, H.B. 136 imposes new requirements on those entitled to lien property by requiring them to file a preliminary lien notice. This new step will profoundly affect the administration of lien rights. Under this new law, all preliminary lien notices must be filed through the newly developed online system called the "State Construction Registry."

The State Construction Registry (UCA ¤ 38-1-27)
H.B. 136 mandates the development of the State Construction Registry, a standardized, online system for filing and managing notices of commencement, preliminary notices, and notices of completion, thus facilitating compliance with the new law. Noncompliance, of course, is fatal to the assertion of lien rights. Key features of the State Construction Registry are its Internet access, ease of use, password protection, standardized process, and automatic-notification system, which generates and sends e-mail notices to all interested parties. The Diagram below illustrates how the State Construction Registry works.

Detailed information concerning the State Construction Registry, including information regarding registration, may be found at http://www.ConstructionRegistry.utah.gov

Local Government Entities Must Transmit Building-Permit Information
One of the key requirements of the new law involves the tracking and reporting of building permits issued by counties, cities, and towns within fifteen days after the issuance of such permits. When building-permit information is transmitted by the local government entity to the State Construction Registry, the new law mandates that such information shall form the basis of a notice of commencement of the Construction Project.

Commencement-Notice Requirement for Projects Commenced without a Building Permit (UCA ¤ 38-1-31)
For projects which do not require a building permit, the contractor, under UCA ¤ 38-1-31(1)(b), must file a notice of commencement with the State Construction Registry within fifteen days after commencement of physical construction work. A notice of commencement is effective as to all labor, service, equipment and material furnished to the construction project after the filing of the notice of commencement (UCA ¤38-1-31(1)(e)).

Preliminary-Notice Requirement (UCA ¤ 38-1-32)
The new provisions also require subcontractors and suppliers to file a preliminary lien notice with the State Construction Registry within twenty days after either (a) commencement of their work or the commencement of furnishing labor, service, equipment, and material to a construction project of (b) the filing of a notice of commencement. However, when subcontractors or suppliers fail to file a preliminary-lien notice within the twenty-day period, they are precluded from seeking any claim for compensation earned for performance of labor or service or supply of materials or equipment furnished to the construction project prior to the expiration of five days after their late filing of a preliminary notice Ð a prerequisite now to the filing of a notice of lien. However, such a late subcontractor or supplier may still may pursue the person with whom they contracted.

Completion-Notice Requirement (UCA ¤ 38-1-33)
Upon final completion of a construction project, the owner, an original contractor, a lender that has provided financing, or a surety that has provided bonding for the construction project, may file a notice of project completion with the State Construction Registry.

Filing a notice of completion modifies the time periods in ¤38-1-27, so that all preliminary notices shall be filed subsequent to the notice of completion and shall be filed within ten days from the date the notice of completion is filed.

Filing a Lien with the County Recorder is Prohibited Prior to Preliminary-Lien Notice (UCA ¤ 38-1-32(d))
The new law specifically prohibits the filing of a lien with the County Recorder prior to a preliminary notice being filed pursuant to ¤38-1-7. Failure to comply with the preliminary-notice requirements of ¤38-1-7 may defeat the assertion of lien rights.

Lien Recovery Fund (¤38-11-204(4)(b))
At times, parties involved with a project feel compelled to file a claim under the Residence Lien Restriction and Lien Recovery Fund Act. One of the conditions precedent to filing a claim is assurance that the owner possesses a written contract with the original contractor, real estate developer, or factory built housing retailer and has paid in full the original contractor, real estate developer, or factory built housing retailer with which the owner contracted.

It is hoped that reliance on the Residence Lien Restriction and Lien Recovery Fund Act will diminish as the new law is implemented and that the need for the Act will ultimately disappear.

Conclusion
One of the many benefits of this new law should be revealed in the near future when contractors, subcontractors, and suppliers see an increase in timely payments, while lenders, sureties, and the general public enjoy protection from and a reduction of unjustifiable liens and fraud. However, benefits of this new law do not stop here. Future benefits may include enhancements to the State Construction Registry such that it will become a useful tool in preventing "unlicensed or uninsured" contractors from obtaining building permits, thus, reducing "poor construction practices and construction fraud." This new law is only the first step of better things to come.

The author wishes to thank Utah Interactive for their support and for providing the diagram used in this article.

Posted by BarStaff at 06:56 PM

Standard 12

Standard 12

by Fran Wikstrom

Previous articles have discussed Standards that encourage lawyers to maintain civility in their written communications. When committing oral understandings to writing, lawyers should do so accurately and completely. (Std. 7) Letters should not attribute "improper motives" to an opponent. (Std. 3) They should not contain "hostile, demeaning, or humiliating" language, nor should they "disparage the integrity, intelligence, morals, ethics or personal behavior of an adversary." (Id.) Lawyers should not use written communications to "attribute to other counsel a position or claim that counsel has not taken," or to "create an unjustified inference," or to "create a 'record' that has not occurred. (Std. 4)

If a lawyer should be the author or recipient of improper, hostile, or disparaging correspondence, Standard 12 counsels her not to make a bad situation worse by bringing it to the attention of the court. Standard 12 provides:

Lawyers shall not send the court or its staff correspondence between counsel, unless such correspondence is relevant to an issue currently pending before the court and the proper evidentiary foundations are met or as such correspondence is specifically invited by the court.

The appropriate way to communicate with the court is by motion, not by letter. In rare instances, correspondence from opposing counsel may be attached as an exhibit to a motion. For example, counsel may have admitted certain facts in a letter that are relevant to a motion for summary judgment. Here, the letter has independent evidentiary significance because it is an admission by a party opponent. Alternatively, correspondence evidencing an offer and acceptance of a settlement agreement between counsel may be relevant to a motion to enforce the settlement.

If the purpose of attaching a chain of correspondence is only to demonstrate that opposing counsel is unreasonable or behaving badly - it shouldn't be done. Even if a lawyer feels himself the victim of hostile correspondence, the court likely will not react with the same level of umbrage. More importantly, filing this type of correspondence does not generally advance a client's cause. Judges don't like to get involved in these kinds of issues and both sides usually suffer when the court is forced to do so.

A good rule of thumb is for the lawyer to imagine herself at a hearing before the court and to ask herself if the letter would be admissible as an exhibit relevant to the purpose of the hearing. If the answer is yes, there should be no problem attaching it as an exhibit to the motion or memorandum. If no, do not attach it. If in doubt, she should seek permission from the court.

Posted by BarStaff at 06:52 PM

Commission Highlights

Commission Highlights

During its regularly scheduled meeting of December 2, 2005, which was held in Salt Lake City, Utah, the Board of Bar Commissioners received the following reports and took the actions indicated.

1. David Bird reported on the Professional Services Tax status meeting with the UACPA.

2. David Bird appointed Rod Snow to serve on the Judicial Performance Evaluation Committee. David noted that the JPEC is made up of twelve judges including two appellate judges along with a few lay members. It was stated that only judges who are up for retention are evaluated.

3. David Bird noted that the deadline for President-elect notices are due no later than January 2nd. John Baldwin stated that a letter of intent mailed to the Bar will suffice as "notice".

4. Discussion was held on holding a Commission meeting outside of the Salt Lake County area. David Bird stated that we usually meet with the 5th District members during the Spring Convention and Commissioners will check with the local bars and see what dates and places might be available.

5. David Bird reported that the Judicial Council met recently and members for the Judicial Compensation Committee were appointed. The Council has asked for a 19% increase. The Executive and Judicial Compensation Committees will recommend to the Legislative Appropriations Committee a 21% increase.

6. David Bird reported there is a vacancy in the 3rd Judicial District with Pat Brian retiring.

7. Governor Jon Huntsman met with Dan Becker (State Court Administrator) and Chief Justice Christine Durham on the judicial budget requests which included five new district law clerks, a new judge in the Fourth District and new juvenile judges in three different districts.

8. David Bird reported on the recent quarterly meeting with Chief Justice Christine Durham, John Baldwin, Gus Chin and himself. They discussed: (1) the Bar's performance review status; (2) the status of LAP; (3) the status of recently filed petitions (House Counsel rule, faculty pro bono rule, inactive full service increase); and (4) the recent admission ceremony. David also noted that Chief Justice Durham will write an article relating to the Bar's 75th anniversary for the Bar Journal.

9. John Baldwin said when lawyers fail to pay the annual renewal fee, their status becomes "suspended for non-payment". A number of lawyers have complained that the term "suspended for non-payment" is too harsh and John recommended changing the language to "failure to renew". John concluded his report by stating that where we can replace the term "suspension" we will and noted that changes will need to be made in various rules and policies.

10. John Baldwin reported that petitions for Law School Faculty Providing Pro Bono Services and the new House Counsel admission rule are currently before the Court. If approved, the Bar's membership database will reflect a different status for these limited types of practice categories which staff will need to develop.

11. John Baldwin stated that some time ago the Commission recommended that we establish a procedure for lawyers who have missed the licensing deadline to sign an affidavit so that they are not subject to a late fee. The affidavit would be a notarized form with the attorney attesting that they either did not receive the annual licensing form or that the payment was mailed before the deadline and that the Bar did not receive it.

12. John Baldwin reported that the Bar will no longer send notices of suspensions to the AOC for lawyers on inactive status who have been administratively suspended for non payment. The rational behind this change is that those on inactive status are not eligible to appear in court and practice law regardless of whether they are suspended for nonpayment.

13. John Baldwin reported on the Law and Justice Center Corporation Trustees meeting. John said that when the Law and Justice Center building was built, it was co-owned by the Bar and Law and Justice Center. The promissory note will be paid off in a few years. The LJC corporation currently exists with John Baldwin and Arnold Birrell as officers and Jim Davis, Kate Lahey, Din Whitney and others serving as trustees. Once the Bar buys the building when the note is paid off, the Bar has the ongoing commitment to subsidize renting of the building etc., when the non-profit LJC corporation dissolves.

John noted that space in the northeast corner of the building's basement area will be available in July when the Judicial Conduct Commission offices moves to the Ogden area. A suitable tenant has not been designated yet.

14. John Baldwin reviewed the current status with LegalMatch. John reviewed the Bar's impetus to adopt LegalMatch as follows: (1) the Bar's former lawyer referral service was losing money; (2) a majority of potential clients wanted pro bono legal service; and (3) the number of lawyers electing to participate in the lawyer referral program was decreasing annually. John further stated that a recent issue with LegalMatch assigning social security disability cases to an out-of-state organization of non-lawyers created problems with lawyers who practice in this area of law. John said the Bar is trying to resolve concerns where we can. John said we will keep this item on the agenda and continue to monitor the situation.

15. John Baldwin reported that the Fall Forum held on November 11th was a huge success. There were 507 registrations and it is a good event for the group of lawyers who typically do not attend Annual or Spring Conventions.

John Baldwin also reported on the North Western Conference in Portland, Oregon he recently attended with Joni Seko (Deputy General Counsel for Admissions). This meeting typically concentrates on admission and multijurisdictional practice of law issues.

John Baldwin announced that letters were recently sent to chairs of Bar sections containing ideas of how to spend section funds. He said the Bar is continuing to encourage expenditures commensurate with section goals.

16. Yvette Diaz reported on mandatory disclosure of insurance. She reviewed the Bar's recent e-mail poll. The responses reflect that a significant majority of the membership is opposed to the proposed mandatory disclosure rule. A lengthy discussion ensued. The motion to table the proposed mandatory disclosure via amending the applicable rule passed unopposed. The motion to continue asking questions on the licensing form and facilitate providing educational materials/information and disseminate information to members passed with one commissioner opposed. The motion for the Committee to re-examine the issue of the Bar self-funding malpractice insurance passed unopposed.

17. David Hamilton reported on the Client Security Fund and outlined the CSF claims. He noted that if all the claims were approved, $152,000 would remain in the fund. The motion to approve the CSF claims passed unopposed.

18. Rob Jeffs reported on the Bar Operations Review Committee. He related that the Court may feel a "disconnect" with what the Bar does and how it is accomplished and that the proposed review will better educate the Court about the Bar's policies and procedures. He continued that the review will be somewhat broader in scope than originally anticipated and that the Court believes that it is essential that the process be an independent process. We need to draft a RFP as soon as possible and David Bird suggested having the Commission's Executive Committee assist with the RFP to help speed up the process.

19. George Daines reported on the Lawyers Assistance Program and stated that he had met with the two finalist EAP providers, both of which could interact with LHL. George suggested a start date of March 1st in order to publicize the change and availability of service early. George suggested sitting down with LHL staff to discuss the peer component aspect of the new program, meeting with OPC to discuss the disciplinary diversion aspects of the program and hold discussions with the AOC for attorney referral purposes from judges. This proposal passed unopposed.

20. John Baldwin reported on the October financials.

21. The Jacket Rabbit Bar is scheduled for June 1-3, 2006 in Jackson Hole, Wyoming with Justice Scalia as the speaker. Due to this event, the Bar Commission retreat will be held on June 9-10, 2006.

22. Gus Chin reported on the Bar's 75th Anniversary Recognition plans, which will take place on September 21, 2006 at Rice Eccles stadium. The Commission will hold its regularly scheduled meeting on Friday, September 22, 2006. The August Commission meeting will be held at one of the law schools.

23. Scott Sabey noted that there was great response and participation at the Bar Leadership Conference.

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 05:52 PM

2006 Annual Convention Awards

2006 Annual Convention Awards

The Board of Bar Commissioners is seeking nominations for the 2005 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 22, 2005. The award categories include:

1. Judge of the Year

2. Distinguished Lawyer of the Year

3. Distinguished Section/Committee of the year

Posted by BarStaff at 05:50 PM

Notice of Ethics & Discipline Committee Vacancies

Notice of Ethics & Discipline Committee Vacancies

The Ethics & Discipline Committee of the Utah Supreme Court is seeking volunteers to fill vacancies on the Committee. The Ethics & Discipline Committee is divided into four panels which hear informal complaints charging unethical or unprofessional conduct against members of the Bar and determine whether or not informal disciplinary action should result from the complaint or whether a formal complaint shall be filed in district court against the respondent attorney. Appointments to the Ethics & Discipline Committee are made by the Utah Supreme Court upon recommendations of the Chair of the Ethics and Discipline Committee. Please send your resume to Lawrence E. Stevens, Chair of the Ethics and Discipline Committee, Parsons, Behle & Latimer, 201 South Main Street, #1800, P. O. Box 45898, Salt Lake City, UT 84145-0898 no later than May 2, 2006.

Posted by BarStaff at 05:49 PM

Notice of Legislative Rebate

Notice of Legislative Rebate
Bar policies and procedures provide that any member may receive a proportionate dues rebate for legislative related expenditures by notifying the Executive Director, John C. Baldwin, 645 South 200 East, Salt Lake City, UT 84111

Posted by BarStaff at 05:48 PM

April 04, 2006

Pro Bono Honor Roll

Pro Bono Honor Roll

Selina Andrews
Joseph Bean
Alan Boyack
Maria Booth
Howard Chuntz
David Connors
Roberto Culas
Michael Deamer
Reha Deal
Frank Falk
Richard Gallegos
Samuel Gardiner
Chad Gladstone
Anthony Grover
Richard Henriksen
Joseph Henriod
Neil Harris
Daniel Irvin
Troy Jensen
Matthew T. Johnson
Louise Knauer
Steven Kuhnhausen
Dan Larsen
Suzanne Marelius
Daniel McKay
Sam Meziani
Robert Neeley
William Ormond
James Peters
Bret Randall
Scott Thorpe
David Turner
Todd Turnblom

Utah Legal Services and the Utah State Bar wish to thank these attorneys for either accepting a pro bono case or volunteering at clinic during the months of December and January. Call Brenda Teig at (801) 924-3376 to volunteer.

Posted by BarStaff at 07:29 PM

Call for Historical Bar Photos

Call for Historical Bar Photos

In celebration of the 75th Anniversary of the Utah State Bar, the Bar Journal board is considering placing a montage of historical Utah Bar photos on the Bar Journal cover for a special issue scheduled for publication in the fall. Examples of old photos we have in mind would be early group photos of bar members, judges, and photos of bar offices, court houses, and the like.

Please send a copy of the photo only (no originals) that you would not expect to be returned to you, to Randall L. Romrell, Regence BlueCross BlueShield of Utah, 2890 East Cottonwood Parkway, Mail Stop 70, 84121. The board will consider all photos that are submitted, but we cannot guarantee we will use them. Be sure that you identify what the photo is, the names of people in the groups or at least a description of what the group is, the names of the buildings, etc. Thank you in advance for your extra work in searching out old photos and making copies to submit.

Posted by BarStaff at 07:24 PM

Utah State Bar Request for 2006-07 Committee Assignment

Utah State Bar Request for 2006-07 Committee Assignment

The Utah Bar Commission is soliciting new volunteers to commit time and talent to one or more of 18 different committees which participate in regulating admissions and discipline and in fostering competency, public service and high standards of professional conduct. Please consider sharing your time in the service of your profession and the public through meaningful involvement in any area of interest.

Name___________________________________________________________ Bar No._______________________
Office Address_____________________________________________________ Telephone_____________________

Committee Request:
1st Choice_____________________________________ 2nd Choice_______________________________________

Please describe your interests and list additional qualifications or past committee work.
___________________________________________________________________________________________
___________________________________________________________________________________________
___________________________________________________________________________________________
___________________________________________________________________________________________

Instructions to Applicants: Service on Bar committees includes the expectation that members will regularly attend scheduled meetings. Meeting frequency varies by committee, but generally may average one meeting per month. Meeting times also vary, but are usually scheduled at noon or at the end of the workday.

Committees
1. Admissions. Recommends standards and procedures for admission to the Bar and the administration of the Bar Examination.

2. Annual Convention. Selects and coordinates CLE topics, panelists and speakers, and organizes appropriate social and sporting events.

3. Bar Examiner. Drafts, reviews and grades questions and model answers for the Bar Examination.

4. Bar Exam Administration. Assists in the administration of the Bar Examination. Duties include overseeing computerized exam-taking security issues, and the subcommittee that handles requests from applicants seeking special accommodations on the Bar Examination.

5. Bar Journal. Annually publishes editions of the Utah Bar Journal to provide comprehensive coverage of the profession, the Bar, articles of legal importance and announcements of general interest.

6. Character & Fitness. Reviews applicants for the Bar Exam and makes recommendations on their character and fitness for admission.

7. Client Security Fund. Considers claims made against the Client Security Fund and recommends payouts by the Bar Commission.

8. Courts and Judges. Coordinates the formal relationship between the judiciary and the Bar including review of the organization of the court system and recent court reorganization developments.

9. Fee Arbitration. Holds arbitration hearings to resolve voluntary disputes between members of the Bar and clients regarding fees.

10. Ethics Advisory Opinion. Prepares formal written opinions concerning the ethical issues that face Utah lawyers.

11. Governmental Relations. Monitors proposed legislation which falls within the Bar's legislative policy and makes recommendations to Bar Commission for appropriate action

12. Law Related Education and Law Day. Organizes andpromotes events for the annual Law Day Celebration

13. Law & Technology. Creates a network for the exchange of information and acts as a resource for new and emerging technologies and the implementation of these technologies.

14. Lawyer Benefits. Reviews requests for sponsorship and involvement in various group benefit programs, including health, malpractice, insurance and other group activities.

15. Spring Convention. Selects and coordinates CLE topics, panelists and speakers, and organizes appropriate social and sporting events.

16. Law and Aging. Assists in formulating positions on issues involving the elderly and recommending appropriate legislative action.

17. New Lawyers CLE. Reviews the educational programs provided by the Bar for new lawyers to assure variety, quality and conformance with mandatory New Lawyer CLE requirements.

18. Unauthorized Practice of Law. Reviews and investigates complaints made regarding unauthorized practice of law and recommends appropriate action, including civil proceedings.

Detach & Mail by June 30, 2006 to:
Gus Chin, President-Elect - 645 South 200 East - Salt Lake City, UT 84111-3834

Posted by BarStaff at 07:17 PM

Utah Bar Foundation

Utah Bar Foundation

Notice of Annual Meeting & Open Board Position

The Utah Bar Foundation is currently soliciting nominations for an open position on the Board of Directors. All attorneys licensed in Utah and currently in good standing are welcome to apply. A nomination form must be completed and submitted to the Foundation offices by Friday, April 28, 2006. Nomination forms can be obtained from the Foundation offices at (801) 297-7046 or on the website at www.utahbarfoundation.org.

The Utah Bar Foundation will hold its Annual Meeting on Friday, July 14th between 8-9am at the Marriott Hotel in Newport Beach, CA. For additional information, please contact the Foundation offices.

Posted by BarStaff at 07:13 PM

Paralegal Division Celebrates 10th Anniversary

Paralegal Division Celebrates 10th Anniversary

The Paralegal Division is celebrating its 10th Anniversary. The Division was created by the Utah Supreme Court on April 6, 1996, pursuant to petition by the Utah State Bar and the Board of Bar Commissioners. The Paralegal Division is planning a celebration event on the evening of April 6, 2006 at Rice Eccles Stadium in the Scholarship Reception Room. Please watch for your invitation and plan to join them at this milestone event.

Posted by BarStaff at 07:13 PM

Seeking Nominations

Seeking Nominations

The Paralegal Division of the Utah State Bar and Legal Assistants Association of Utah are seeking nominations for "Distinguished Paralegal of the Year". Nomination forms and additional information are available online at http://www.utahbar.org/sections/paralegals or you may contact Suzanne Potts at (435) 634-1940 or spotts@clarksondraper.com. The deadline for nominations is April 15, 2006. The award will be presented at the Paralegal Day luncheon on May 18, 2006.

Posted by BarStaff at 07:11 PM

American College of Trial Lawyers Announces Induction

American College of Trial Lawyers Announces Induction

The Utah Fellows of the American College of Trial Lawyers are proud to announce that Walter F. Bugden has been inducted into the College.

The American College of Trial Lawyers strives to improve the standards of trial practice, the administration of justice and the ethics, civility, and collegiality of the trial profession. Invitation to Fellowship is extended only after careful investigation to those experienced trial lawyers who have mastered the art of advocacy and whose professional careers have been marked by the highest standards of ethical conduct, professionalism, civility, and collegiality.

Lawyers must have a minimum of fifteen years' trial experience before they can be considered for Fellowship and membership in the College cannot exceed 1% of the total lawyer population of any state.

The Utah Fellows of the College congratulates Wally Bugden, and welcomes him to the Fellowship.

Posted by BarStaff at 07:10 PM

Discipline Corner

Discipline Corner

DISBARMENT
On November 15, 2005, the Honorable William W. Barrett, Third Judicial District Court, entered Findings of Fact, Conclusions of Law, and Order of Disbarment, disbarring Gregory P. Cohen from the practice of law for violations of Rules 8.4(b) (Misconduct), 8.4(c) (Misconduct), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
The Third Judicial District Court entered a Judgment in a criminal case against Mr. Cohen for the crime of enticing a minor over the Internet, a third degree felony, pursuant to Utah Code section 76-4-401. The Court in the disciplinary matter found that Mr. CohenÕs criminal act reflects adversely on his fitness as a lawyer. The Court also found that Mr. Cohen engaged in conduct involving dishonesty, fraud, deceit or misrepresentation by misrepresenting his age to the agent for the Utah Internet Crimes Against Children Task Force, who posed as a 13-year-old.

INTERIM SUSPENSION
On December 1, 2005, the Honorable Anthony B. Quinn, Third Judicial District Court, entered an Order of Interim Suspension, suspending Wesley Sine from the practice of law pending final disposition of the Complaint filed against him.

In summary:
On February 4, 2005, Mr. Sine was found guilty of four counts of mail fraud in violation of United States Code, Title 18, section 1341. The interim suspension is based upon this conviction pursuant to Rule 19 of the Rules of Lawyer Discipline and Disability.

RECIPROCAL DISCIPLINE
On December 21, 2005, the Honorable Robert K. Hilder, Third Judicial District Court, entered Findings of Fact, Conclusions of Law and Order of Reciprocal Discipline: Disbarment against Robert F. Dodenbier for violations of Rules 1.1 (Competence), 1.2(a) (Scope of Representation), 1.3 (Diligence), 1.4(a) and (b) (Communication), 1.5(c) (Fees), 1.7(b) (Conflict of Interest: General Rule), 1.16(a) (d) (Declining or Terminating Representation), 8.1(b) (Bar Admission and Disciplinary Matters) and 8.4(a), (c), and (d) (Misconduct) of the Rules of Professional Conduct.

In summary:
Mr. Dodenbier was disbarred from the practice of law by the Supreme Court of the State of California. The disbarment was based on two underlying matters.

In the first matter, Mr. Dodenbier was hired to represent two clients in a personal injury matter. One client signed a contingency fee agreement, while the other did not. There was no documentation that excluded one client from representation, or a written waiver of any potential conflict of interest. Mr. Dodenbier failed to serve notice on the entities being sued. He filed suit on behalf of one client after which he did nothing further to pursue the case. The clients began contacting Mr. Dodenbier. Mr. Dodenbier informed them that the matter was being settled. During his representation of the clients, he moved offices and did not provide them with new contact information.

In the second matter, Mr. Dodenbier was hired to represent a client in a child support and custody matter. Mr. Dodenbier failed to file the necessary documents on behalf of his client. Mr. Dodenbier stipulated, without his client's consent, to a reduction in support payments and joint legal custody. Mr. Dodenbier also failed to inform his client of hearings, failed to consult his client concerning continuations in the case, and failed to appear for a hearing. After the client retained new counsel, Mr. Dodenbier failed to return the client's file.

The California Order of Disbarment set forth the following aggravating factors:

1. Mr. Dodenbier had two prior instances of discipline.

2. Mr. Dodenbier engaged in multiple acts of misconduct.

3. Mr. Dodenbier's misconduct significantly harmed his clients.

4. Mr. Dodenbier demonstrated indifference toward rectification of the consequences of his misconduct.

There were no mitigating factors.

ADMONITION
On December 21, 2005, the Chair of the Ethics and Discipline Committee entered an Order of Discipline: Admonition against an attorney for violation of 1.5(b) (Fees), 1.15(b) (Safekeeping Property), and 8.1(b) (Bar Admission and Disciplinary Matters) of the Rules of Professional Conduct.

In summary:
The attorney was hired for a criminal matter and the retainer was paid by a third party. The attorney did not have a written fee agreement or written explanation of how the fee was to be paid beyond the retainer. The client requested that the attorney file income taxes on behalf of the client. The client signed a power of attorney permitting the attorney to take over the tax refund. The attorney did not render an accounting of the tax refund. The attorney failed to provide attorney trust account records to the OPC.

PUBLIC REPRIMAND
On November 22, 2005, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against David VanCampen for violation of Rules 1.4(c) (Communication), and 3.2 (Expediting Litigation) of the Rules of Professional Conduct.

In summary:
Mr. VanCampen was hired for a criminal matter. Mr. VanCampen did not adequately advise his client. Mr. VanCampen communicated to his client in a minimal way even though his client required more information to help the client understand the risks the client faced concerning the criminal conviction. Mr. VanCampen, on at least one occasion, failed to appear and the court appointed other counsel to finish the case.

PUBLIC REPRIMAND
On November 22, 2005, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against Richard Hackwell for violation of Rules 1.3 (Diligence), 1.4 (Communication), 1.16(d) (Declining or Terminating Representation), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
Mr. Hackwell was hired to pursue an action against a public entity as well as pursuing a reduction of the client's conviction. Mr. Hackwell failed to appear at a conviction reduction hearing. Mr. Hackwell failed to notify his client of a court date in the public entity action. Mr. Hackwell failed to respond to his client's attempts to contact him. Mr. Hackwell failed to appear for a hearing in the public entity action and the case was dismissed for failure to prosecute. Mr. Hackwell took no action on behalf of his client, took no steps to withdraw from the action and failed to give any notice to his client.

PUBLIC REPRIMAND
On November 22, 2005, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against Brent E. Johns for violation of Rules 1.2 (a) (Scope of Representation), 1.8(f) (Conflict of Interest: Prohibited Transactions), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
Mr. Johns was hired to represent a mother and the mother's new husband where the child's father would relinquish parental rights in exchange for the mother's waiver of past due child support. The birth father was not the client, but paid Mr. Johns's fees. Mr. Johns filed an adoption decree which did not include the stipulation of waiving past due child support. The birth father insisted that Mr. Johns file another decree with the court that included the waiver. Mr. Johns knew his client's then-decision that she was not willing to waive the past due child support but he filed an amended decree that contained the waiver.

ADMONITION
On November 22, 2005, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Admonition against an attorney for violation of Rules 8.1(b) (Bar Admission and Disciplinary Matters), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
The OPC received an overdraft notice on the attorneyÕs trust account. The OPC sent requests for information concerning the overdraft to the attorney. The attorney took more than four months to supply the OPC with the requested financial information.

PUBLIC REPRIMAND
On December 15, 2005, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against Curt W. Morris for violation of Rules 1.3 (Diligence), 1.4(a) (Communication), 1.4(b) (Communication), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
Mr. Morris was hired to filed a chapter 13 bankruptcy on behalf of a client to stop the foreclosure on the client's home. Mr. Morris failed to file the chapter 13 bankruptcy before the deadline. Mr. Morris did not keep his client informed about the progress of the matter. Mr. Morris failed to timely remind his client that the client needed to meet with him prior to the bankruptcy filing. Mr. Morris's staff informed the client that they would call her for an appointment and either failed to do so or failed to make a new appointment with the client, or warn the client when the client allegedly cancelled the first appointment.

RECIPROCAL DISCIPLINE
On January 6, 2006, the Honorable Sandra N. Peuler, Third Judicial District Court entered an Order of Discipline: Admonition against an attorney for violations of Rules 5.5(a) (Unauthorized Practice of Law), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
The attorney was placed on an administrative suspension for non-payment of membership fees. During the suspension, the attorney practiced law.

ADMONITION
On December 21, 2005, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Admonition against an attorney for violation of Rules 1.1 (Competence), 1.15(b) (Safekeeping Property), and 8.1(b) (Bar Admission and Disciplinary Matters) of the Rules of Professional Conduct.

In summary:
The attorney was hired for a personal injury matter, a debt collection matter, and a bankruptcy. During the course of the bankruptcy the attorney did not discover and discharge the lien associated with the debt collection matter. The attorney did not notify the previous attorney that handled the personal injury matter of the settlement and failed to protect the previous attorney's lien. The attorney also failed to secure and provide trust account documents to the OPC.

ADMONITION
On September 15, 2005, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Admonition against an attorney for violation of Rules 1.3 (Diligence), 1.4(a) (Communication), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
The attorney was retained for a personal injury matter. The attorney did not return the client's calls or reply to the client's letter requesting a status update. The client made several requests that the attorney pursue the case, but the attorney did not progess the matter. After the client terminated the relationship with the attorney, the client learned that the matter should have been filed in another jurisdiction and that the statute of limitations had already passed in that jurisdiction.

Posted by BarStaff at 07:00 PM

2005 Year in Review - Looking Ahead to 2006

2005 Year in Review - Looking Ahead to 2006

2005 was an outstanding year for the Young Lawyers Division of the Utah State Bar ("YLD"). With several committees staffed by capable volunteers, the YLD continues to offer significant contributions to the Bar and the public. Here are some of the 2005 highlights from the YLD committees as well as a look at what is coming up in 2006.

YLD's Leadership/Executive: More than 2,000 YLD members had the opportunity to elect new officers this past summer. Debra Griffiths Handley of Dart Adamson & Donovan was elected as the 2005-2006 YLD president. Sean Reyes of Parsons Behle & Latimer, is Treasurer, and Ruth Hawe of Van Cott, Bagley, Cornwall & McCarthy is Secretary. David Hall of Parsons Behle & Latimer, is the President-Elect for 2006-2007, and Candice Anderson Vogel of Manning Curtis Bradshaw & Bednar, is the Past-President of YLD.

and Justice for all: (Karthik Nadesan and Jonathan Benns, co-chairs) In conjunction with several individuals and law firms, the YLD sponsored the annual "Bar Sharks for Justice" pool tournament in November. Participants and spectators enjoyed themselves while raising money in support of Utah Legal Services, Disability Law Center, and Legal Aid Society of Salt Lake City. YLD is seeking volunteers and organizational committee members for the next "and Justice for all" fundraising phone-a-thon coming up. The committee also plans to co-sponsor the Law Day Run this spring. Please contact Karthik Nadesan if you would like to help.

Tuesday Night Bar: (Amy Poulson and Jonathan Pappasideris - co-chairs) At "Tuesday Night Bar," volunteer attorneys provide free legal assistance to the general public, including helping unrepresented individuals obtain counsel. As its name suggests, Tuesday Night Bar is held on Tuesday evenings between 5:30 and 7:00 PM at the Utah Law & Justice Center (645 South 200 East). In addition, the Young Lawyers Division and the Tuesday Night Bar program sponsor four CLE luncheons per year on areas of law that frequently come up at Tuesday Night Bar. If you would like more information about the program or would like to volunteer, please contact Amy Poulson at 595-7800.

Continuing Legal Education: (Michael Young and Matt Tarkington - co-chairs) The CLE committee is planning a series of CLE luncheons for 2006. In 2005, YLD members taught and attended seminars on family law, landlord-tenant law, and other basics of law in conjunction with "Tuesday Night Bar." In 2006, the CLE Committee will work directly with the NLCLE Committee to host useful and affordable education seminars. Watch for more information about the seminars planned for this year.

Needs of Children: (Lance Rich and Sammi Anderson, co-chairs) The Needs of the Children Committee has been working with the Utah Heart Gallery. This is a charitable organization that helps raise awareness of foster children waiting for adoption, with the goal of matching prospective adoptive families with children. The Committee is also working to assist the office of the Guardian Ad Litem with ongoing projects.

Public Education: (Stephanie Pugsely and Marianne MacGregor Guelker, co-chairs) The Public Education Committee is working with the ABA to bring the "We the Jury" project into Utah classrooms. The project aims to teach young people about the value and importance of jury service. This year the committee hopes to bring the program to more than three times the number of students as in 2004. In addition, lawyers and their coworkers are encouraged to volunteer as a judge or coach with the Utah Law Related Education Project. Every year hundreds of Utah teens participate in these mock trials. Watch for more information coming soon.

Community Service: (Kelly Latimer and Christina Micken, co-chairs) The Community Service Committee worked hard this past June landscaping the front yard of the Avenues Children's Justice Center. Upcoming projects include a game drive and game night at the YWCA, sorting food for the Utah Food Bank, and hosting the annual "Law Suit" Day during which professional clothing is gathered and donated to the Road Home and Assistance League of Salt Lake City. Please contact Kelly Latimer at (801) 368-7782 to volunteer for upcoming projects.

Law Day: (Kim Neville and Angela Stander, co-chairs) This year's Law Day activities will focus on "Separate Branches - Balanced Power." Plans are in the works for a Law Day luncheon to be held May 1. Watch for more information coming soon. The Law Day Committee is responsible for hosting the annual Law Day Reception and related Law Week activities. The event honors those individuals and groups who have committed their time and resources towards serving our legal community and its members. The event also honors members of our local youth who participate in the Mock Trial, Art-and-the-Law, and Law-Related Education Essay contests. This year's Law Day Reception will be held at the Little America Hotel on Monday, May 1, 2006. Individuals interested in assisting with the event may contact Kim Neville or Angela Stander at 257-1900 for more information.

Utah State Bar Conferences: (Sonia Sweeney and Kendra Shirey, co-chairs) The YLD sponsors and coordinates with various practice sections of the Utah Bar to organize the Back to Basics CLE sessions at the Bar's Spring and Annual meetings. The goal of the Back to Basics sessions is to provide valuable training to new lawyers in various fields of practice as well as refresher courses for more experienced practitioners.

Professionalism and The Practice of Law: (Christopher M. Von Maack and Paul Farr, co-chairs) The Professionalism and The Practice of Law Committee is new to the Young Lawyers Division and replaces the Professionalism Committee, which was formed to assist the Utah Supreme Court's Advisory Committee on Professionalism. Broadly, the Professionalism and The Practice of Law Committee stands ready to assist the Bar in any meaningful way to foster and improve professionalism and civility, such as CLEs, workshops, and Utah Bar Journal articles. More specifically, the Committee is currently developing a free, on-line mentoring resource, designed for new lawyers, but also available to the public. This resource will enlist accomplished and respected attorneys, judges, and lawyers who work outside the traditional practice of law. The purpose of this resource is to hopes to consolidate and disseminate these lawyers' cumulative years of experience and advice into accessible packages of information available any time through the Utah Bar website.

Membership: (Doug Larson and Geoff Landward, co-chairs) The Membership Committee works to increase participation of the 2,000 young lawyers within the Bar. Attorneys who are under age 36 or in their first three years of law practice are automatically enrolled in YLD. There are no annual dues or membership fees for division membership. If you would like to be involved with the YLD or serve on a committee, please contact Doug Larson at (801) 363-5678 or Geoff Landward at (801) 366-0100. You can also visit the YLD web page: http://www.utahbar.org/sections/newyl.

Utah Minority Bar Association: (Sean Reyes, UMBA President and YLD liaison) Through fundraising, service projects, and other activities, the YLD supports the Utah Minority Bar Association.

Utah Bar Journal: (Nathan Croxford and Peter Donaldson, co-chairs) The YLD Bar Journal Committee and the Utah Bar Journal are actively seeking article submissions from young lawyers for publication in the Utah Bar Journal. Please send submissions or questions to Nathan Croxford (ncroxford@berrettandassoc.com) or Peter Donaldson (pdonaldson@swlaw.com).

Paralegal Division: (Robyn Dotterer, YLD Liason and past utilization chair; Danielle Price, chair). The Paralegal Division is pleased to join in supporting the Young Lawyers Division with its activities. The Division sponsors several activities and fundraisers. The Division sponsors fundraisers for the legal profession, with proceeds going to "And Justice For All."

High School Debate Tournament: (Chad Derum, YLD Liason): The High School Debate Tournament Liason organizes and coordinates the YLD's sponsorship of the Young Lawyers Invitational Debate Tournament. Specific responsibilities include fundraising for the event, advertising and promotion, ensuring that judging commitments are met, and conducting public relations on behalf of the YLD in the high school debate community. The tournament took place in October 2005. The YLD co-sponsored the event with the Litigation Section.

Governmental Relations Committee Liaison - David Bernstein, liason. The liason represents the YLD at the weekly committee meetings while the Utah Legislature is in session. The committee's purpose is to review and analyze proposed legislation.

The YLD is continuing with its commitment to serve our profession and the community as a whole. We want to thank the Bar, our members and volunteers, and all the organizations that sup-ported us in 2005. We look forward to an exciting year in 2006!

Posted by BarStaff at 06:43 PM

The "How To Guide" for Membership in the Paralegal Division:

The "How To Guide" for Membership in the Paralegal Division:
What are the Requirements and Career Benefits of Membership?

by Peggi Lowden

Are you wondering how to apply for membership in the Paralegal Division of the Utah State Bar (the "Division")? Am I a paralegal by the Division's definition? What are the educational and experience requirements for membership? How can I get the application forms? Once I'm a member, are there any CLE requirements to maintain my membership? We are frequently asked these questions. We are glad that you asked. To better serve you - a future member - we offer this "How To Guide" to answer your questions and to assist you in your application for membership in the Division.

First, what is a paralegal? The Division follows the Utah Supreme Court's definition of a paralegal:

[A] person, qualified through education, training or work experience, who is employed or retained by a lawyer, law office, governmental agency, or other entity in a capacity or function which involves the performance, under the ultimate direction and supervision of an attorney, of specifically delegated substantive legal work, which work, for the most part, requires a sufficient knowledge of legal concepts that, absent such an assistant, the attorney would perform the task.

Second, let's look at who is eligible for membership in the Paralegal Division. You are eligible for membership if you meet the following qualifications:

1. Currently work under the ultimate supervision of a duly licensed Utah attorney whenever you perform duties that are reserved to the practice of law. To meet this requirement, you must currently work under the ultimate supervision of a member of the Utah State Bar and perform the duties of a paralegal on a full-time or part-time basis. For example, you might be employed by (or volunteer with) a law firm, governmental agency, corporation, or nonprofit association.1 Or, you might be a freelance contract paralegal working for a variety of entities.

2. Meet certain educational and/or work experience requirements. The Division attempts to capture the great variety of career paths one may take to become a paralegal. As a result, there are many choices that are available to help you meet this requirement. Please don't let the many educational/experience options stop you from reading on. It's painless! You need to meet only one of the following options:

A. Successful completion of a formal ABA-Approved program of paralegalism.

B. Successful completion of an institutionally accredited formal education program of paralegalism that consists of a minimum of 60 semester hours (or equivalent quarter hours) is required for this category. However, at least 15 of the 60 hours must be substantive legal courses, such as, contract law, civil litigation, constitutional law, etc.

C. Successful completion of an institutionally accredited formal course of college study that consists of 16 semester hours of substantive legal courses and 45 semester hours of general college courses, and at least one year of full-time experience as a paralegal under the ultimate supervision of a duly licensed attorney.

D. A minimum of five continuous years of full-time experience as a paralegal under the ultimate supervision of a duly licensed attorney and at least 16 hours of Continuing Legal Education (CLE) within the immediately preceding two years of your application for membership.

E. Successful completion of a baccalaureate degree in any field and two continuous years of full-time experience as a paralegal under the ultimate supervision of a duly licensed attorney.

F. Successful completion of the voluntary certification examination given by the National Association of Legal Assistants (CLA®/CP®), or comparable examination approved by the Division, and six months of full-time experience as a paralegal under the ultimate supervision of a duly licensed attorney.

3. No felony convictions for which you have not been pardoned or otherwise had your full rights restored.

4. No misdemeanor convictions involving theft, embezzlement, or fraud.

5. No expulsion or suspension from membership in a law related professional association without being fully reinstated.

6. Read and understand the Utah Supreme Court's definition of a Paralegal.

7. Read and agree to be bound by the Division's Code of Ethics and Guidelines for the Utilization of Paralegals.2

8. Agree to notify the Division of any change in employment status, address, or supervising attorney.

Third, how do you find the forms to apply for membership in the Division? The Division membership forms are available on the Utah State Bar's web site: http://www.utahbar.org. To navigate to the membership forms, go to the Bar's web site and find the link for Sections & Committees. Next, find the link to the Paralegal Division. At the Division's page, find the link to Membership Forms. The membership forms are available in PDF format and include instructions that are useful to help you submit your application. You may print and mail your completed application to the Utah State Bar, together with your annual membership dues in the amount of $50.00.3

Fourth, the Division requires the completion of yearly CLE credit hours. The requirement consists of a minimum of ten CLE hours, including one hour of Ethics to be completed within each membership year after your initial application for membership. Proof of completion of the CLE hours is required upon renewal of your membership. The membership year runs from July 1 to June 30.

Now that you've learned about how you can become a member of the Division, explore a bit while you're visiting the Bar and Division's web sites. Check out the benefits available to you as a Division member. Briefly, membership benefits offer you a variety of options to help you meet your professional responsibilities and enhance your career options. The Division offers continuing education, networking with a variety of professionals, discounts on products and services offered to Bar members,4 the Utah Bar Journal, CLE opportunities sponsored by the Bar (including special discount rates exclusively for members of the Division to Bar conventions throughout each year), along with affiliate membership offered to Division members in specific practice areas. Currently, affiliate practice area membership status is available to Division members as follows: Alternative Dispute Resolution, Appellate Practice, Collection Law, Corporate Counsel, Family Law, Franchise Law, Intellectual Property, International Law, Real Property, Securities, and Young Lawyers.

Finally, you know more about the benefits, professional opportunities, and professional responsibilities of membership in the Division. Now is the time to consider making your application for Division membership a priority. Complete and submit your application, today. We welcome your questions and concerns as you work on your application for membership in the Division. Inquiries that you make to the Bar are forwarded to a member of the Division who is qualified and available to respond to you. Of course, if you can track one of us down directly, it will be our pleasure to assist you as you complete your application for membership. We look forward to receiving your application for membership. We also look forward to welcoming you as a member of the Division. Make a positive move in your career and network circle by submitting your application for membership in the Paralegal Division. Then, consider becoming a volunteer leader in the Division. Membership and leadership are rewarding and may "super charge" your career!

1. There are other entity types that utilize paralegals.

2. Available on the Division's web site: http://www.utahstatebar.org

3. If you are not accepted as a member, your check will be returned to you. There is no fee to process your application.

4. Membership in the Paralegal Division does not confer membership in the Utah State Bar, nor does membership authorize a paralegal to practice law.

Posted by BarStaff at 06:15 PM