Utah Bar Journaltag:webster.utahbar.org,2008:/barjournal//22008-11-17T15:44:51ZMovable Type 3.33Vol. 21 No. 6 Nov/Dec 2008tag:webster.utahbar.org,2008:/barjournal//2.16442008-11-17T15:33:46Z2008-11-17T15:44:51ZVol. 21 No. 6 Nov/Dec 2008 PDF Version Letters to the Editor President’s Message: Professional Relationships by Nathan D. Alder Riding High With Your Mediator: The Do’s and Don’ts of Effective Mediation Advocacy by Tracy L. Allen ERISA: License to...BlogStaffwww.utahbar.orgVol. 21 No. 6 Nov/Dec 2008PDF Version
Letters to the Editor
President’s Message: Professional Relationships by Nathan D. Alder
Riding High With Your Mediator: The Do’s and Don’ts of Effective Mediation Advocacy by Tracy L. Allen
ERISA: License to Cheat, Lie, and Steal for the Disability Insurance Industry by Loren M. Lambert
A Primer on the National Vaccine Injury Compensation Program by Christopher J. Rogers
An Open Letter to the Newly Established Utah Supreme Court Professionalism Counseling Program Board by Eric K. Johnson
John Hill, Public Defenders’ Long-Time Leader, Retires
Views from the Bench: Report from 7500 Feet by Justice Michael J. Wilkins
Views from the Bench: Statements of Material Fact: Increasing Effectiveness and Avoiding Pitfalls by Judge Anthony B. Quinn and Joanna E. Miller
Book Review: Convictions: A Prosecutor’s Battles Against Mafia Killers, Drug Kingpins, and Enron Thieves by John Kroger Reviewed by Ralph Dellapiana
Book Review: How to Build and Manage an Estates Practice, Second Edition by Daniel B. Evans, Esq. Reviewed by Nathan C. Croxford and Andrew L. Howell
Paralegal Division: Introducing the Paralegal Division’s New Officers and Directors for 2008-09 by Julie L. Eriksson, Chair
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Dear Editortag:webster.utahbar.org,2008:/barjournal//2.16432008-11-17T15:29:49Z2008-11-17T15:44:51ZDear Editor, Thank you, UBJ, for publishing Eric K. Johnson’s “Open letter to the Newly Established Utah Supreme Court Professionalism Counseling Program Board” (Sept/Oct.2008). This piece is a refreshing alternative voice for those of us who are already regulated to...BlogStaffwww.utahbar.org
UBJ, for publishing Eric K. Johnson’s “Open letter to the Newly Established Utah Supreme Court Professionalism Counseling Program Board” (Sept/Oct.2008). This piece is a refreshing alternative voice for those of us who are already regulated to death and don’t feel the need for still another layer of micromanagement and regulation of our practices. Eric’s counterpoint, like Alexander Pope’s “wit,” contains views “oft thought, but ne’er so well expressed.”
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pro bono (another failed attempt to force attorney “goodness”) civility should be encouraged, with judges and those who would impose regulated civility on those of us who do the daily “heavy lifting” to lead the way, set the example and let their lights shine on for the rest of us to absorb and thus be guided.
Do we really need this “Program Board?”
Do we really need courts using “civility” of counsel as a basis for decision, rather than case merit? Is there even a sensible way to define “civility” in the context of attorney misconduct sans contradiction, vagueness, dissonance, and overbreadth?
I would not object were the entire “Program Board” scheme to be returned to the committee that hatched it, for reconsideration, internal commentary, and asphyxiation.
Sincerely,
R. Clayton Huntsman
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Dear Editortag:webster.utahbar.org,2008:/barjournal//2.16422008-11-17T15:28:20Z2008-11-17T15:44:53ZDear Editor, In the most recent Utah Bar Journal, Eric K. Johnson wrote a letter to the newly-established Utah Supreme Court Professionalism Counseling Program Board. The law firm Smart, Schofield, Shorter & Lunceford wishes to make it known that the...BlogStaffwww.utahbar.org
Dear Editor,
In the most recent Utah Bar Journal, Eric K. Johnson wrote a letter to the newly-established Utah Supreme Court Professionalism Counseling Program Board. The law firm Smart, Schofield, Shorter & Lunceford wishes to make it known that the opinions expressed in the letter are not a reflection of the attitude and position of our firm. This letter was published without the knowledge or consent of the shareholders. Our firm supports the efforts to improve the civility and professionalism of attorneys toward each other.
Very truly yours,
Smart, Schofield, Shorter & Lunceford Shareholders
The Bar is Looking for a Few Good Mentors Actually, We Need Hundreds of You to Step Forwardtag:webster.utahbar.org,2008:/barjournal//2.16412008-11-17T15:25:50Z2008-11-17T15:44:54ZThe Bar is Looking for a Few Good Mentors Actually, We Need Hundreds of You to Step Forward by Nathan D. Alder On September 30, 2008, the Bar petitioned the Utah Supreme Court to replace the first year of mandatory...BlogStaffwww.utahbar.orgThe Bar is Looking for a Few Good Mentors Actually, We Need Hundreds of You to Step Forwardby Nathan D. Alder
On September 30, 2008, the Bar petitioned the Utah Supreme Court to replace the first year of mandatory New Lawyer Continuing Legal Education (“NLCLE”) with a one-on-one mentoring program called the New Lawyer Training Program (“NLTP”). While we await the Supreme Court’s final action on the petition, as well as Bar members’ comments, the Court has endorsed the mentoring concept and approved the Bar’s recruitment of mentors. Many new lawyers indicate that they do not feel well-prepared for the practical aspects of practicing law. And, adequate on-the-job training too often is subordinated to billable hours and business pressure. The new program matches a newly-admitted lawyer with an experienced attorney to help the new lawyer acquire the practical skills and judgment necessary to practice in a highly competent manner. The mentor can also help the new lawyer to better understand ethical and professional requirements and constraints and to develop networking and long-term relationships within the profession.]]>
http://www.utcourts.gov/resources/rules/comments/. You may also get additional information and apply to be a mentor at www.utahbar.org/nltp.
This is a major step forward for our Bar. I encourage you to help a new lawyer and our profession by participating in this program.]]>
Does the Wrongful Lien Statute Apply to Mechanics’ and Other Types of Liens?tag:webster.utahbar.org,2008:/barjournal//2.16402008-11-17T13:11:57Z2008-11-17T15:51:52ZDoes the Wrongful Lien Statute Apply to Mechanics’ and Other Types of Liens? by R. Spencer Macdonald Although the response to the question in the title of this note may seem obvious, attorneys in Utah may be surprised to learn...BlogStaffwww.utahbar.orgDoes the Wrongful Lien Statute Apply to Mechanics’ and Other Types of Liens?by R. Spencer Macdonald
Although the response to the question in the title of this note may seem obvious, attorneys in Utah may be surprised to learn that several district courts have concluded that the Wrongful Liens and Wrongful Judgment Liens Statute, (the Wrongful Lien Statute), see Utah Code Ann. § 38-9-1 to -7 (2005), categorically does not apply to mechanics’ liens. However, recent developments on this issue have demonstrated that the Wrongful Lien Statute can, in fact, apply to mechanics’ liens (and other types of liens) in some circumstances.]]>
Introduction
In Utah, liens are exclusively creatures of statute, most of which are found in title 38 of the Utah Code. See id. § 38-9-1(6)(a) (prohibiting all liens not “expressly authorized by this chapter or another state or federal statute”). One of the most common types of lien is a “mechanics’ lien,” which is available to “all persons performing any services…in the construction, alteration, or improvement of any building or structure or improvement to any premises…for the value of the service rendered.” Id. § 38-1-3.
A mechanics’ lien, like all liens recorded against real property, constitutes a cloud on title and must be cleared if the owner wishes to sell or refinance the property. Getting rid of a lien can be particularly time-sensitive, for example, in a new construction situation where the owner wishes to convert a construction loan into permanent financing. Unfortunately, there are only two ways an owner can expeditiously remove a cloud on title caused by a lien (other than paying off the lien claimant).
First, the owner can litigate the enforceability of the lien and, during the pendency of the litigation, have the lien released by posting alternate security (a surety bond or cash deposit) pursuant to section 38-1-28. This option can be expensive (the bond amount varies between 150% and 200% of the lien amount) as well as odious to a property owner who believes the lien is frivolous or otherwise improper. It may also be unavailable to a property owner whose financial condition may not enable him to qualify for a bond.
The second option is to file a petition and request an expedited hearing to have the lien declared wrongful pursuant to the Wrongful Lien Statute. A sufficient petition will trigger a hearing “within ten days to determine whether the document is a wrongful lien.” Id. § 38-9-7(3)(b). No other matter may be heard at this summary proceeding, as its sole purpose is “to determine whether or not a document is a wrongful lien.” Id. § 38-9-7(4).
A successful petition under the Wrongful Lien Statute will not only result in the release of the lien, but also an award of damages, attorney fees and costs. The statute contemplates two possible penalties. The lesser penalty applies to a lien claimant who receives written notice from the property owner that the lien is wrongful and refuses to remove or correct it within ten days. See Utah Code Ann. § 38-9-4(2). The penalty under this provision is $3000 or treble actual damages, whichever is greater, as well as reasonable attorney fees and costs. See id.
The other, more severe penalty applies to a lien claimant who records a lien while knowing or having reason to know that the lien is wrongful, groundless or contains a material misstatement or false claim. See id § 38-9-4(3).1 The penalty under this provision is $10,000 or treble actual damages, whichever is greater, as well as reasonable attorney fees and costs. See id § 38-9-4(3).
Some attorneys and district courts in Utah are under the impression that the Wrongful Lien Statute does not apply to mechanics’ liens. This note explores this question and concludes that a recent Utah Court of Appeals case, Foothill Park, LC v. Judston, Inc., 2008 UT App 113, 182 P.3d 924, holds that the Wrongful Lien Statute can and does apply to mechanics’ liens if a petitioner, in a summary proceeding, can show that the lien claimant was not entitled to a mechanics’ lien at the time the lien was recorded.
Historical Overview of the Wrongful Lien Statute2
Utah’s Wrongful Lien Statute became law in 1985 and was later amended in 1997 and 1999.
In 1985, Senator Matheson of the Utah State Senate brought the wrongful lien bill in response to liens that were being filed by members of certain fundamentalist groups in southern Utah against local city and county officials who attempted to enforce Utah law against these fundamentalist groups.
Senator Matheson stated that approximately $12 million in liens had been filed against these public officials, and that these liens were generally referred to as “common law liens” and had no basis or support in the law. At that time, Senator Carling raised his concern that the language of the bill as proposed would also apply to statutory liens such as mechanics’ liens. He further indicated that this bill should not apply to those liens. The original language of the bill defined a wrongful lien as a lien that was without basis in the law, or that was “otherwise invalid.” The senators agreed that this language was too broad inasmuch as it could be read to include any statutory lien such as a mechanics’ lien. In order to protect statutory liens, Senator Matheson agreed that the phrase “or is otherwise invalid” be stricken from the bill.
Furthermore, Senator Moll indicated that the purpose of the bill was to keep fringe groups from filing common law liens and that the bill should have no application whatsoever to mechanics’ or materialmen’s liens. See Senate Floor Debates, afternoon session, February 21, 1985, [10] 4:05 – 4:39 / [1] 01-64.
District Court Interpretations of the Wrongful Lien Statute
As noted previously, some confusion exists among attorneys and at the district court level as to whether the Wrongful Lien Statute applies to mechanics’ liens (or other statutory liens). One district court judge, noting the legislative history of the statute, concluded: “It is clear from the plain language of the wrongful lien statute, as well as the legislative intent that the wrongful lien statute is not to apply to mechanic’s liens or any other liens filed by lien claimants who are authorized by statute or law.” See infra, note 2.
Another source of confusion is undoubtedly Utah Code section 38-9-2(3), which states: “This chapter does not apply to a person entitled to a lien under Section 38-1-3 who files a lien pursuant to Title 38, Chapter 1, Mechanics’ Liens.” One district court judge recited this provision and then concluded that “the Wrongful Lien Act is expressly inapplicable to mechanic’s liens,” and that “the penalty provisions of the Wrongful Lien Act were not intended to apply to mechanic’s liens.” See Ruling and Order issued by Judge Bruce C. Lubeck in the Third Judicial District, Summit County, on June 19, 2007 (Strata Dev., LLC v. Weaver, Case No. 070500246). As will be seen below, these categorical statements are, to some extent, incorrect.
Appellate Court Interpretations of the Wrongful Lien Statute
Two recent decisions by the Utah Court of Appeals have clarified the applicability of the Wrongful Lien Statute to mechanics’ liens (these cases clarify the application of the statute to other types of liens as well):
Packer v. Cline
In Packer v. Cline, 2004 UT App 311 (mem.), the Utah Court of Appeals affirmed the trial court’s invalidation of a mechanics’ lien pursuant to the Wrongful Lien Statute. The defendant, Mr. Cline, recorded a purported mechanics’ lien for $70,000.00 against the plaintiffs’ residence for the value of a mural painted in the residence by a third party.
The trial court found, and the appellate court affirmed, that Cline’s lien was not a mechanics’ lien because it did not substantially comply with several requisite provisions within the mechanics’ lien statute, including (A) what work, if any, he performed on the mural; (B) the value of that purported service; (C) how he derived a value for his service; (D) when the work was allegedly performed; and (E) notice of the steps the Packers could take to have the lien removed. See id.
The appellate court further affirmed the trial court’s finding that because Cline’s lien did not comply with the mechanics’ lien statute, “Cline’s purported mechanics’ lien was a wrongful lien under section 38-9-1(6) because it was not authorized by statute, by order or judgment of a court of competent jurisdiction, or by the Packers.” Id. (emphasis added) (citation omitted).
This is a sensible conclusion. Mechanics’ liens, and indeed all liens in Utah, are creatures of statute. See AAA Fencing Co. v. Raintree Dev. & Energy Co., 714 P.2d 289, 291 (Utah 1986); Utah Code Ann. § 38-9-1(6)(a). As such, a document that purports to be a mechanics’ lien, but does not substantially comply with the mechanics’ lien statute, is, by definition, not a mechanics’ lien and is instead a “wrongful lien” actionable under the Wrongful Lien Statute. However, Packer was not a published decision, and the facts of the case left the question of the applicability of the Wrongful Lien Statute unclear.
Foothill Park, LC v. Judston, Inc.
The Utah Court of Appeals definitively addressed whether the Wrongful Lien Statute applies in Foothill Park, LC v. Judston, Inc., 2008 UT App 113, 182 P.3d 924, in which the trial court had found that the defendant’s mechanics’ lien was void when it was not enforced within 180 days of the first notice as required by statute. See id. at 927-28.
The court of appeals analyzed the trial court’s finding that the void lien was a “wrongful lien” under the Wrongful Lien Statute. The defendant argued that “mechanics’ liens are outside of the scope of [the Wrongful Lien Statute].” Id. at 930. The court of appeals qualifiedly agreed, noting that while the statute “is inapplicable under the unique facts of this case,” it is not so broad “as to exempt any filing that purports to arise under the mechanics’ lien statute” but instead “only excludes persons ‘entitled’ to a mechanics’ lien.” Id. (emphases added) (internal citation omitted). That is, the provision that seemingly excludes mechanics’ liens from the Wrongful Lien Statute (Utah Code section 38-9-2(3)) in fact only excludes mechanics liens filed by “a person entitled to a lien under Section 38-1-3.” Id. (quoting Utah Code Ann. § 38-9-2(3)). Liens that are filed by persons not entitled by statute, including those styled as mechanics’ liens, are therefore subject to the Wrongful Lien Statute.
The court went on to reverse the trial court’s finding of liability under the Wrongful Lien Statute because the case was one of first impression, and thus whether or not the defendant was entitled to file its lien was “unresolved…at the time of [the lien’s] filing.” Id. However, the court also noted: “With this decision, however, any uncertainty about whether a laborer in [the defendant’s] position is entitled to file a mechanics’ lien has been eliminated.” Id. at 930 n.11. In other words, Judston created a precedent that lien claimants should heed.
GUIDELINES FOR APPLYING THE WRONGFUL LIEN STATUTEJudston establishes the basic principle that the Wrongful Lien Statute applies to all wrongful liens, including those styled as mechanics’ liens. Some additional considerations are in order.
First, the Wrongful Lien Statute “only applies to liens and encumbrances which are wrongful from inception, and not to documents which are justifiably recorded.” Jack B. Parson Cos. v. Nield, 751 P.2d 1131, 1134 n.1 (Utah 1988); see also Judston, 182 P.3d at 930; Eldridge v. Farnsworth, 2007 UT App 243, ¶50, 166 P.3d 639, (citation omitted) (noting that the statute “requires a court to determine whether a lien is wrongful by evaluating it ‘at the time it is recorded or filed’”). Consequently, scrutiny of a lien’s validity must be restricted to the point in time in which the lien was recorded.
Second, an attorney challenging a lien under the Wrongful Lien Statute need not restrict the challenge to the face of the lien. Rather, the practitioner may present any evidence of the lien’s objective wrongfulness at the time the lien was recorded (several of which are outlined below).
Third, the Wrongful Lien Statute contemplates invalidating a lien in a summary proceeding. Consequently, district courts generally will be reluctant to invalidate a lien under this statute unless the petitioner can unequivocally show at the summary proceeding that the lien claimant was not entitled to maintain a lien at the time the lien was recorded. Following are a few illustrations as to when such an unequivocal showing is possible:
Lien Claimant Has Not Made Improvements to Real Property:
A lien is susceptible to attack under the Wrongful Lien Statute if the lien claimant has not made improvements to the encumbered real property. See Utah Code Ann. § 38-9-3. The lien in Packer was invalidated under the Wrongful Lien Statute because the lien claimant had not made improvements to the property. The so-called “common law liens” noted in the legislative history would also be susceptible to summary invalidation under the Wrongful Lien Statute because Utah Code section 38-9-1(6)(a) only allows liens that are “expressly authorized by this chapter or another state or federal statute.” Id. 38-9-1 (6)(a).
Lack of Licensure: A person who makes improvements that require licensure as per Utah Code section 58-55-604 but is not properly licensed “may… not commence or maintain any action in any court of the state for collection of compensation for performing any act for which a license is required.” Utah Code Ann. § 58-55-604. Because an individual’s licensure status is a matter of public record, this can be an effective challenge to a lien under the Wrongful Lien Statute. However, the individual circumstances of each case must be taken into account.
For example, a lien claimant might be able to proceed with a mechanic’s lien despite lacking the requisite licensure if (A) the property owner is not a member of that class of individuals the statute requiring licensure was designed to protect; (B) the property owner receives by other means the benefit of the protection contemplated in the statute; or (C) the property owner did not rely on the contractor’s licensure status to infer the contractor’s competence. See Lignell v. Berg, 593 P.2d 800, 805 (Utah 1979). The trial court has substantial discretion on this point, because “‘the general rule’ (of nonenforceability [of a contract due to lack of licensure]) is not to be applied mechanically but in a manner ‘permitting the court to consider the merits of the particular case and to avoid unreasonable penalties and forfeitures.’” Id. at 805 n.7 (quoting Corbin on Contracts, Vol. 6A, § 1512).
Challenging a mechanics’ lien under the Wrongful Lien Statute based on the lien claimant’s lack of licensure is obviously fact-sensitive and must be evaluated on a case-by-case basis.
Untimely Notice of Lien: A party wishing to encumber property with a lien must record a “written notice” of the lien with the county recorder’s office. Utah Code Ann. § 38-1-7(1)(a)(i). The deadline for filing such a notice is, depending on the circumstances, either 180 days after “final completion of the original contract” or 90 days after a “notice of completion” is filed. Id. § 38-1-7(1)(a)(i)(A) and -(B).
An untimely written notice will invalidate the lien claim. For example, in Interiors Contracting v. Smith, Halander & Smith Assocs.,, 881 P.2d 929 (Utah Ct. App. 1994), the court of appeals affirmed the trial court’s invalidation of a mechanics’ lien “since it was not timely filed within the requirements of [Utah Code] § 38-1-7.” However, attempting to invalidate a lien based on an untimely written notice does not always lend itself to disposition in a summary proceeding because the actual deadline is somewhat malleable and often disputed by the parties.
Failure to File Preliminary Notice: In 2005, the Utah legislature amended Title 38 of the Utah Code to include provisions pertaining to the “State Construction Registry” (the SCR). The SCR is designed to “provide a central repository for notices of commencement, preliminary notices, and notices of completion filed in connection with all privately-owned construction projects as well as all state and local government-owned construction projects throughout Utah.” Utah Code Ann. § 38-1-27(2)(c). Primary filing and access to the SCR, as well as notification to interested persons, are all done electronically.
To claim the benefit of the SCR’s preliminary notice requirements on a project to which they apply, a property owner must file a “Notice of Commencement” within fifteen days of building permit issuance by the local authority issuing the permit. See Id. § 38-1-31(1)(a)(i)(A)(II).
A subcontractor who wishes to maintain a lien must comply with the SCR by filing a “Preliminary Notice” within the later of either “20 days after commencement of its own work or the commencement of furnishing labor, service, equipment, and material to a construction project” or “20 days after the filing of a notice of commencement.” Id. § 38-1-32(1)(a)(i)(A) and - (B). This provision only applies to subcontractors who do not contract directly with the property owner or laborers compensated with wages. See id. § 38-1-32(1)(a)(i).
If a subcontractor fails to file a Preliminary Notice, it is statutorily barred from holding a lien on the Property. See id. at § 38-1-32(d)(1)(A). Consequently, a lien that is expressly prohibited by statute (such as by Utah Code § 38-1-32(d)(1)(A)) is, by definition, not “expressly authorized by statute,” see id. § 38-9-1(6)(a)), and is therefore a wrongful lien subject to dismissal under the Wrongful Lien Statute.
In additional to mechanics’ liens, other types of encumbrances are also potentially actionable under the Wrongful Lien Statute. For example, in Winters v. Schulman, 1999 UT App 119, 977 P.2d 1218, the Utah Court of Appeals found a “Notice of Lis Pendens” to be invalid and actionable under the Wrongful Lien Statute.3 In Centennial Investment Company, LLC v. Nuttall, 2007 UT App 321, 171 P.3d 458, the court of appeals also found an improperly-filed “Notice of Interest” to be actionable under the Wrongful Lien Statute.
CONCLUSIONJudston corrected the notion that the Wrongful Lien Statute is per se inapplicable to liens recorded under color of law. Rather, the Statute can be used to invalidate a lien where the lien claimant was not entitled to a lien at the time the lien was recorded. Foothill Park LC v. Judston, 2008 UT App 113, ¶¶18-21, 182 P.3d 924. Careful scrutiny of the documents and underlying facts of each case is nevertheless required to ensure that challenging a lien under the Wrongful Lien Statute will succeed.
1. A lien is “groundless” if it is not (A) expressly authorized by this chapter or another state or federal statute; (B) authorized by or contained in an order or judgment of a court of competent jurisdiction in the state; or (C) signed by or authorized pursuant to a document signed by the owner of the real property. Utah Code § 38-9-1(6).
2. Most of the material in this section is found in an order issued by Judge W. Brent West in the Second Judicial District, Ogden Department, on May 10, 2004 (Case No. 040900301).
3. The Wrongful Lien Statute expressly provides that “[t]he provisions of this chapter shall not prevent a person from filing a lis pendens…” Utah Code § 38-9-2(2) Eldridge v. Farnsworth, 2007 UT App 243, ¶48, 166 P.3d 639 (citing Utah Code Ann. § 38-9-2(2)(2005)). However, the court in Eldridge also cited, without commentary, Winters for the proposition that a lis pendens may be evaluated “[for] compliance with statutory requirements,” which includes compliance with the Wrongful Lien Statute. Id. ¶49.]]>
Unbundled in Utahtag:webster.utahbar.org,2008:/barjournal//2.16392008-11-17T11:59:21Z2008-11-17T15:51:54ZUnbundled in Utah by Virginia Sudbury There are certain keys to a better life; among them world peace, the Cubs in the World Series (next year!), and, of course, accessible legal services. Few things are more keenly needed than the...BlogStaffwww.utahbar.orgUnbundled in Utahby Virginia Sudbury
There are certain keys to a better life; among them world peace, the Cubs in the World Series (next year!), and, of course, accessible legal services. Few things are more keenly needed than the latter, and often at cruelly unexpected times. I am an attorney who believes passionately in public interest law, and yet I want to eat relatively well. I want a way to engage in the private practice of law while wearing public interest clothes. Practicing “unbundled” law is providing me that satisfaction.]]>
What is “Unbundled” Law?
The terms “unbundled legal services,” “limited scope legal assistance,” and “a la carte legal services” all mean the same thing: that a lawyer assists clients with only those legal services that the clients want and specifically engage the lawyer to do. This might sound obvious, but the traditional model for providing legal services is a different picture. In that customary image, the client hires the attorney to handle an entire matter. The client remains involved, but may have very little meaningful input or involvement in his or her case. Unbundled services contemplate that the client and lawyer – together – select the services the office will provide.
When I first heard of this notion, I didn’t much like it. I graduated from law school in 1982, when we still used the term “Shepardize.” A few years ago, I read about Forest Mosten’s unbundled practice in California and was taken aback. I contemplated the potential aspects of an unbundled legal practice. I foresaw a nightmarish oral argument, before an impatient court, reliant upon an incoherent memorandum written by a client. No, no, no. But – there was that desire to help only where the client wanted or could afford.
I’ve had seven years of family, criminal, and civil law litigation experience, including founding and operating a non-profit legal services firm in another jurisdiction. I’ve also had four-plus years of disability law experience in Utah. I opened a private practice doing unbundled family law in Salt Lake in June of 2007.
Who Needs Unbundled Legal Services?
Groups whom an unbundled practice could benefit are those who are above income for legal aid but who are unable to come up with a big retainer or pay the expense of full-service representation. In fact, this may describe most of the middle class (I know it describes me). There exists an enormous number of bright client/litigants who have the wherewithal to draft a Petition to Modify Child Support utilizing the Online Client Assistance Program (OCAP), but who may want limited procedural advice on that petition – or advice on attendant pleadings, next steps, or coaching for an upcoming mediation. Or, just to be told that they’re doing it right.
Pro se litigants are another obvious group that will benefit from unbundled services. It’s the cost of traditional full-service representation that is not affordable for many clients. Clients frequently pay lawyers an adequate amount to obtain the entire limited representation they need, but that amount is used as a deposit for full-service legal representation. When the client can’t pay a later installment of the full-service fee, the attorney discontinues the legal work. This rarely ends well. However, many pro se litigants have enough available income to pay for the limited representation they truly need.
Many litigants visit the Legal Aid and Family Law clinics housed in the Matheson Courthouse. Some are completely capable of handling their own case but have the occasional question or discrete request for specific guidance. Others are comfortable completing their own pleadings, using a service such as the OCAP, but may want an attorney to review those pleadings prior to filing – or step in as needed, when needed. Others want more constant involvement. Unbundled representation is tailored to the litigants’ specific needs.
Another group that will benefit greatly from unbundled legal representation is the judiciary. In the great majority of family law cases filed in the Third District, one or both of the parties is appearing pro se. This corresponds to a lot of explaining by the patient clerks – and commissioners and judges. No matter what level of professional assistance a client needs, judicial expediency will be improved if pro se litigants possess the relevant information assistance to make knowledgeable and informed procedural decisions and presentations to the court.
Unbundled representation will help the courts to manage their dockets more efficiently and fairly. It can enhance the quality of pleadings, narrow and focus the issues, and lead to outcomes that are more fair and just.
Opposing counsel will also benefit from an unbundled, limited-scope approach as well. There are many aspects to litigation that can be easily navigated with a quick call to opposing counsel. Many pro se litigants are unaware that they can, and may even be expected to, speak directly with opposing counsel. Worse (and more likely) they may feel ill-equipped to deal directly with them. Having an attorney “on call” to represent a party in a limited capacity, even on procedural aspects only, will enable the litigant to focus on the substantive aspects of her case, and hasten resolution.
What are the Parameters of Unbundled Representation?
Rule 75 of the Utah Rules of Civil Procedure provide the procedural basis for unbundled representation. This Rule states:
Rule 75. Limited appearance.
(a) An attorney acting pursuant to an agreement with a party for limited representation that complies with the Utah Rules of Professional Conduct may enter an appearance limited to one or more of the following purposes:
(a)(1) filing a pleading or other paper;
(a)(2) acting as counsel for a specific motion;
(a)(3) acting as counsel for a specific discovery procedure;
(a)(4) acting as counsel for a specific hearing, including a trial, pretrial conference, or an alternative dispute resolution proceeding; or
(a)(5) any other purpose with leave of the court.
(b) Before commencement of the limited appearance the attorney shall file a Notice of Limited Appearance signed by the attorney and the party. The Notice shall specifically describe the purpose and scope of the appearance and state that the party remains responsible for all matters not specifically described in the Notice. The clerk shall enter on the docket the attorney’s name and a brief statement of the limited appearance. The Notice of Limited Appearance and all actions taken pursuant to it are subject to Rule 11.
(c) Any party may move to clarify the description of the purpose and scope of the limited appearance.
(d) A party on whose behalf an attorney enters a limited appearance remains responsible for all matters not specifically described in the Notice.
Utah R. Civ. P. 75.
That the Utah State Courts endorse some level of limited legal representation is illustrated by its Self-Help Resources page, which notes that “limited scope legal representation” or “unbundled services” are alternative ways to get legal help. Indeed, the website provides lists of attorneys in the Second, Fourth, and Fifth Districts who offer limited legal services.
Utah State Bar Ethics Advisory Opinion Committee Opinion No. 08-01 also addresses whether an attorney may provide legal assistance (including the preparation of written documents) to pro se litigants without disclosing the nature or extent of such assistance to opposing counsel or party. In so doing, it offered an inclusive, considered opinion and history of limited scope representation. It also analyzed the potential difference in the ways the Utah State Courts and the Tenth Circuit may treat some aspects of limited scope representation.
It also is noteworthy that this Main Advisory Opinion sparked a Dissenting Opinion. Both are well-reasoned and I would recommend them to any practitioner considering unbundled law. The Opinion describes the “global” evolution of the traditional legal representation model with an informed and informal client base, which has resulted in a more responsive, timely, and precise delivery of legal services. At the same time, the opinion acknowledges that difficulties in that delivery may arise. Not surprisingly, one solution may be more communication between litigants, limited scope counsel, and opposing counsel.
Logistics: the Devil is in the Details
This is the hard part. The boundaries of representation must be clearly understood by both the attorney and the client. For instance, a client may draft and file a motion, but then hire me to represent him, via a limited appearance, at the motion hearing. Leaving aside substantive issues for the moment, let’s say I represent him at that hearing, prevail, and the court orders me to prepare the order. Is that preparation included in the client’s understanding of “representation at a hearing”? Or is the client responsible for drafting the order? Is the very common “back and forth” with opposing counsel to achieve an approved order also included? Client agreements must be particularly distinct.
Client Agreements should also be easily understandable. It serves no one – least of all the attorney – if the agreements are a muddle of legalese. If we are to encourage an unbundled practice, we must also encourage a genuine understanding of our agreements by both clients and attorneys. Eschew obfuscation.
I have run into another issue that is potentially concerning. Assume I am hired in a limited scope capacity. The initial pleadings have been filed, and the next step is mediation. The client wants to attend mediation without me. However, the opposing party will have counsel present. Opposing counsel is wary of going into mediation with a pro se opposing party whom he knows has counsel – in whatever limited role.
When opposing counsel calls me, a good response might be to discuss the precise parameters of my limited representation. While this may not alleviate counsel’s concern, communication is certainly a positive step towards an understanding of, and familiarity with, the notions of unbundled representation.
Utah State Bar Ethics Advisory Opinion Committee Opinion No. 08-01 also addressed the communication issues attendant in the above scenario.
Another aspect of limited representation that warrants comment is Rule 4.2, which prohibits communicating with persons a lawyer “knows” to be represented “in the matter” without that lawyer’s permission. When the lawyer has entered a limited appearance in court, Utah Rule of Civil Procedure Rule 75 governs and explicitly provides that “the party remains responsible for all matters not specifically described in the Notice” of limited appearance. When there is no appearance in the court, the matter is less clear.
Why One Would Want to be Unbundled in Utah, Even in WinterCost: Limited scope representation limits the huge expenses of representation. Obtaining records, files from the Court, and performing other “legwork” are a few tasks that clients can do themselves. The client pays only for those services the client needs or can afford, and hires the attorney to perform.
Empowerment: Unbundled legal services empower clients. They bring a higher level of client understanding, personal investment, and ownership in outcomes. They can result in improved compliance with agreements and orders. They help to “demystify” the law and the daunting legal system. Oftentimes the litigant has an excellent grasp of the substantive issues, but doesn’t know how to go about bringing the matter before the court procedurally to obtain relief. Unbundling can bring those procedural aspects of the law into focus and provide crucial prospective to the litigant.
However, unbundled representation is not for every litigant. I tried at first to do exclusively unbundled work – thinking that I would empower and educate clients even if I had to push them off the cliff – but I soon learned that an unbundled approach is not always appropriate. I respect that reality and now try to assess the appropriate approach for a specific client.
Coordinated Solutions: Other factors fueling demand for limited scope assistance include the loss of the middle class, the increase in consumerism, the self-help ethic (reinforced by forms available on OCAP and the Internet), and disaffection with the excesses and high cost of the traditional adversarial legal system.
Conclusion
A shift in the paradigm of providing legal services is occurring. I urge Utah Bar members to think sideways, and inclusively, about the interactions between litigants, lawyers, and the courts. Yes, this can be time consuming and foreign. It’s innovative and unusual and may be out of our comfort zone. But remember – Bertrand Russell said, “In all affairs it’s a healthy thing now and then to hang a question mark on the things you have long taken for granted.”]]>
A Notary Primer for Utah Attorneystag:webster.utahbar.org,2008:/barjournal//2.16382008-11-13T12:02:25Z2008-11-17T15:51:54ZA Notary Primer for Utah Attorneys by Scott M. Ellsworth We all know the frustration of having a notary form attached to a document that innocently asserts that the document was signed in front of a notary when in fact...BlogStaffwww.utahbar.orgA Notary Primer for Utah Attorneysby Scott M. Ellsworth
We all know the frustration of having a notary form attached to a document that innocently asserts that the document was signed in front of a notary when in fact it has already been signed and all that’s needed is an acknowledgement. Few people are even sufficiently into notarial minutiae to distinguish among jurats, acknowledgements, copy certifications, and pronotarial oaths (and, of course, such people could, with some justification, reply “that’s what attorneys are for”). The problem is, however, that chapter 46-1 of the Utah Code (the Notaries Public Reform Act) just doesn’t come up all that often, and we can hardly expect our assistants and paralegals to comprehend the ins and outs of notarial verification (at least, not without some training) unless they themselves are notaries. And even notaries are often unaware of which kind of document requires what kind of certificate.]]>
Penta Creeks, LLC, v. Olds, 2008 UT 25, 182 P.3d 362, had occasion to remind us of the distinction between “verification on oath” and “mere notarization”:
[I]n order for there to be a valid verification “(1) there must be a correct written oath or affirmation, and (2) it must be signed by the affiant in the presence of a notary or other person authorized to take oaths, and (3) the latter must affix a proper jurat.” Mickelsen v. Craigco, Inc., 767 P.2d 561, 564 (Utah 1989) (interpreting the Utah Code section 38-1-7 (1974) requirement that a mechanics’ lien “must be verified by the oath of [the claimant]”). Verification on oath is distinguished from a mere notarization in that verification requires that “the applicant swears to the truthfulness of the representations made in the application.” Longley v. Leucadia Fin. Corp., 2000 UT 69, ¶ 31, 9 P.3d 762 (Howe, C.J., concurring).
The requirement of verification contemplates the presence of visible evidence that the person submitting the objection appreciated that its contents were to be prepared with the utmost rectitude.
2008 UT 25, ¶¶18-19. A review of my firm’s form files revealed a large number of notarial variations, most of them variations on the same theme:
On this _____ day of _____________, 2003, appeared before me Ms. Anne Ominous, who acknowledged before me that she had executed the foregoing document for the purposes stated therein.
_____________________
Notary Public
On the _____ day of ________________, 2005, there appeared before me Mr. José Quienquiera, the president of S” Food, LC, who, after being duly sworn, acknowledged that he signed the above agreement.
_____________________
Notary Public
On this _____ day of _____________, 2001, appeared before me Mr. Walker Nampe, who executed the foregoing as chairman of the Hakateweh Mosquito Abatement District, for the purposes set forth therein.
_____________________
Notary Public
These, and many other, similar acknowledgements, turn up on affidavits, contracts, deeds, license applications, and so on and on. Without recourse to chapter 46-1, though, there is no way to tell whether any of these notary statements sufficed for the documents upon which they appeared, nor what those documents actually required by way of notary certification, nor where the form of certification that was used on each came from in the first place.
After noting the suspicious (and rather disheartening) homogeneity of all these various forms, we decided to update our cache of certifications, rediscovering in the process the proprieties of notarization: the several kinds of notarial acts, which to use when and on what sort of document, and what needs to be done to validate each type of certification.
It was quite an instructive review, actually, and we immediately set about creating a database of notary forms for every conceivable document. We’ll never be done, I expect, but we’ll be far less likely to overlook or have to repair defective notarial certificates, either.
In an effort to assist our fellow attorneys – at least those who have, as we had, stumbled into the quagmire of certificate recycling, losing the tree in the forest, as it were – we offer for their review the brief table and outline of essentials we created for quick reference, along with an example or two of each type of notarial act. Included in our review was the totally nonnotarial “self-authentication” statute, designed to streamline procedures under the Utah Rules of Criminal Procedure, Civil Procedure, and Evidence. See John H. Bogart & Scott D. McCoy, 20 Utah B.J. 22 (July/August, 2007).
I. JURATS
Aver the truth of the document notarized.
The signer –
(a) (i) is known to the notary, or
(ii) has been satisfactorily identified;
(b) has signed the document
(i) voluntarily, and
(ii) in the presence of the notary; and
(c) vouches for the truthfulness of the document signed.
E.g.: Verified Complaints
STATE OF ________ )
: ss
COUNTY OF ______ )
On this ___ day of __________, 20___, appeared before me __________, who is personally known to me, or whose identity has been satisfactorily established, and voluntarily executed the foregoing Verified Complaint in my presence, avouching thereby the truthfulness thereof.
____________________
Notary Public
Affidavits
STATE OF ________ )
: ss
COUNTY OF ______ )
Affiant __________ declares upon oath as follows:
[text of affidavit]
Subscribed and sworn to before me this ___ day of __________, 20___, by __________, who is personally known to me or whose identity has been satisfactorily established.
____________________
Notary Public
Note: Obviously, most of this language is omitted from affidavits, since it is assumed (a) that the affiant is who he or she claims to be, and (b) that the whole point of the affidavit is to speak what the affiant believes to be true.
II. ACKNOWLEDGEMENTS
Verify that the signer did in fact agree to the provisions of the document.
The signer –
(a) (i) is known to the notary, or
(ii) has been satisfactorily identified;
(b) has signed a document,
(i) voluntarily,
(ii) for the purpose stated therein; and
(c) has, in the presence of the notary, admitted doing so.
E.g.: Deeds
STATE OF ________ )
: ss
COUNTY OF ______ )
On this ___ day of __________, 20___, personally appeared before me __________ & __________, the Grantors herein, personally known to me, or whose identities have been satisfactorily established to me, who duly acknowledged to me that they had voluntarily executed the foregoing deed for the purpose stated therein.
____________________
Notary Public
Or
STATE OF ________ )
: ss
COUNTY OF ______ )
On this ___ day of __________, 20___, appeared before me __________, the president of IncCo, LC, the Grantor herein, who, [his her] identity and position having been satisfactorily established to me, affirmed to me upon oath that the governing body of IncCo, LC, has authorized [him her] to execute the foregoing quitclaim deed, and did duly acknowledge in my presence having executed the same for the purpose stated therein.
____________________
Notary Public
III. COPY CERTIFICATION
for Evidence and the like.
A photocopy – is an accurate copy of a document neither
(a) a public record, nor
(b) publicly recorded.
STATE OF ________ )
: ss
COUNTY OF ______ )
On this ___ day of __________, 20___, I hereby certify (1) that the foregoing [or attached] document is an accurate and unaltered copy of __[the name or a description of the document]_, presented to me by __________, the document’s custodian, and (2) that, to the best of my knowledge, the copied document is neither a public record nor publicly recorded.
____________________
Notary Public
Note: Many notaries appear to be unaware of this particular aspect of their office: the examination and certification of photocopy accuracy, which can become rather burdensome if the copy to be certified is bulky (an unpublished manuscript, for example, or a journal, or a lengthy but unrecorded will) or deeply detailed (such as a photograph, engineering drawings, or a map). Obviously, the best practice would be to make the photocopy with the notary there to see; failing that, well, this particular exercise of the notarial authority might require rather more time than taking oaths, watching signatures, or listening to simple acknowledgements.
IV. OATH /AFFIRMATION
Certifies that a vow or affirmation was made in the notary’s presence.
A person – has made a vow or affirmation
(a) on penalty of perjury
(b) in the presence of the notary.
STATE OF ________ )
: ss
COUNTY OF ______ )
I hereby certify that, on this ___ day of __________, 20___, [the name of the oathtaker] did swear [or affirm], in my presence and on penalty of perjury, that [the words or substance of the oath or affirmation].
____________________
Notary Public
V. SELF-AUTHENTICATION UTAH CODE SECTION 78B-5-705
Grants certain unsworn written declarations the same force as a declaration upon oath.
A signer – satisfies a URCrP, URCP, or URE provision requiring or permitting a written declaration upon oath by affixing instead an unsworn written declaration, expressly under criminal penalty (class-B misdemeanor), that a document is true and correct.
(This is essentially just a non-notarial Jurat.).
I certify, under criminal penalty of the State of Utah, that the foregoing [the name or description of the document] is true and correct.
Note: The self-authentication provision, enacted at the Utah Legislature’s 2007 General Session (2007 Utah Laws c. 278), was originally codified at Utah Code Section 46-5-101. This section, however, no longer exists, having been renumbered as Utah Code Section 78B-5-705 by the 2008 Legislature (2008 Utah Laws c. 119) as part of its sweeping rearrangement and bifurcation of former Title 78, the Utah Judicial Code.
1. It’s not entirely clear why this same option is not available under either the Utah Rules of Juvenile Procedure or of Court-Annexed Alternative Dispute Resolution.]]>
The Spider to the Flytag:webster.utahbar.org,2008:/barjournal//2.16372008-11-13T11:58:45Z2008-11-17T15:51:55ZThe Spider to the Fly by Just Learned Ham I have a confession to make. I am an in-house lawyer, and I’ve been one for a long time. I am the reason your clients no longer think of you as...BlogStaffwww.utahbar.orgThe Spider to the Flyby Just Learned Ham
I have a confession to make. I am an in-house lawyer, and I’ve been one for a long time. I am the reason your clients no longer think of you as a trusted advisor, but just another cost in need of control (well, that plus your $450 billing rate – for that kind of money, shouldn’t you at least offer to wash my windshield?). It’s my fault your bills have those incomprehensible matter numbers. If it’s any comfort, those numbers don’t mean anything to me, either. The whole point is so you, and my CEO, will think I’m watching you (that’s the kind of thing we talk about at those corporate counsel CLE’s in the Lesser Antilles). And I still get to tell people I practice law (and no, I don’t feel bad saying that – Jim Matheson still gets to call himself a Democrat, doesn’t he?). ]]>
Faust as undergrads, and they decided to go to law school anyway, so I figure my hands are pretty clean. I mean, it’s not something really evil, like selling mortgage-backed securities. I’d never do that. Unless you want to say my home loan was actually a security I sold to my bank, but I think that’s a stretch, even for the Utah Court of Appeals. And if you’re going to go down that path, my obligations under that divorce decree are probably securities, too. There’s an idea…all the ex-spouses of the world get together, pool their alimony and child support obligations, and sell the securitized payment streams to pension funds. If any nervous Nellie fund managers get scared, I’m sure they could buy a swap from AIG to cover the risk (they could call it ex-wife swapping). I’m surprised nobody’s thought of it before.
Where was I? That’s right – hiring (got to stay on-message, stick to the talking points, re-fill the Ritalin prescription before Dan’s closes).
So we call the headhunter and 72 hours later I’m looking at 114 resumes. And here’s the head-scratcher: why would 114 otherwise intelligent people be so eager to devote their lives, or at least a few slow, under-compensated years of their lives, to the daily legal misadventures of a pesticides company? Maybe it works better as a multiple choice question.
a. a lifelong dream to rid the world of creepy crawly things, amp up crop yields, and alleviate the human drudgery of weeding;
b. the irresistible power and celebrity;
c. law firm life has fewer giggles and yucks than you’d expect;1
d. part of a cunning plan to infiltrate and overthrow corporate America;2 or
e. ask a lemming.
“Why are you leaving your old job?” The question startles some people, as if there were something unfair about it. But if someone’s trying to sell me a used Buick, I always ask why it’s for sale. It’s usually pretty easy to figure out who’s telling the truth – and they never get the job. “Well, where I work now they’re looking for a new general counsel, and it’s pretty clear they aren’t even going to interview me.” I didn’t ask the obvious follow-up because it doesn’t really matter, does it? Whether it was how he embarrassed himself at the Project Toadstool negotiations or at the Christmas party, if he can’t come up with a better answer than that, there is no hope.
I stare at those fresh faces – full of confidence and anxiety – and I get nostalgic…or neuralgic, I get them confused.
I can’t help but reflect on my own experiences as an interviewee. It was only a summer clerkship, but I think it still counts. My landlord, who I will call Fred, worked in the print shop at the world headquarters of the John Birch Society – back in the good old days when they still used people to operate presses. Before the liberal media (not to mention the international banking conspiracy and the Bilderberg Group) made everybody go electronic. He knew the general counsel, who I will call Harry, and told me he could arrange an interview. I accepted because I was curious, and because I didn’t want Fred, or Harry, to think I was some bomb-tossing pinko.
I showed up on the appointed day, and was surprised to find the world headquarters so poorly secured. Why, anyone could have just walked in there and fluoridated the place. Harry was kind enough to give me a tour (and this is the thanks he gets…). I met people and made small talk. “So, why do you work for the JBS?” “Because contrary to what the Libs think, we can’t all be on welfare.” I met the movie reviewer. Yes, the John Birch Society had a movie reviewer. He liked Patton. Harry led me to Robert Welch’s office and told me he thought he could get Mr. Welch3 to spend a few minutes with us. While I waited in the hall, Harry ducked into Mr. Welch’s office. He slipped back out quietly and apologized that Mr. Welch was taking a nap and would not be able to see us. I recall saying “the price of freedom is eternal vigilance,” but no one seemed to think that was very clever.
We went back to Harry’s office and talked about legal stuff. I remember bringing up Gertz v. Welch, since we’d just read it in Constitutional Law (although I no longer have the faintest idea what it was about…the constitution, as I recall). I remember Harry dismissing the case with a casual “We were clearly without malice.” I pointed out the irony of the antichrist William O. Douglas authoring an opinion favorable to the JBS, to which Harry responded with an ambiguous “hmm.”
I actually considered accepting. A summer at the John Birch Society was bound to be interesting. On the other hand, how would I explain it on a resume to anyone I really did want to work for? In the end it didn’t matter – I didn’t get an offer.
And speaking of offers, by the time you read this, I will have sent 113 polite decline letters, and made one person surprisingly happy. The horror! The horror!
1. To be fair, although the giggles are scarce, there is a fair amount of yuck.
2. My first year Property professor announced this as his personal and sincere hope for each of us – just before we learned the rule against perpetuities by reciting it out loud repeatedly as a class. I sense your skepticism, but it worked much better than the Socratic Method. I remember it like it was yesterday, “No interest is good unless it must vest, if at all, no later than 21 years of the expropriation of surplus capital by the bourgeoisie.” Professor K will go down in history as one of the pioneers of the Dogmatic Method.
3. For those readers whose minds have been anesthetized by lifelong exposure to New World Order propaganda and who therefore have never heard of Robert Welch, Mr. Welch was the founder of the John Birch Society. He attended the U.S. Naval Academy and Harvard Law School, but dropped out of both because of their liberal political leanings. He went into the candy business instead, and is generally credited with inventing the Sugar Daddy, Sugar Babies, Junior Mints, and Pom Poms. He retired and founded the JBS. A keen judge of character, he once denounced Dwight Eisenhower as a “conscious, dedicated agent of the communist conspiracy.” (I found that quote in Wikipedia – I never heard him say it, and I don’t want anyone to think I’m maliciously defaming the man…you never know who might be listening.) Robert Welch passed away in 1985, which gives you some idea of how old I am.]]>
Utah Legislative History Research Tipstag:webster.utahbar.org,2008:/barjournal//2.16342008-11-12T10:44:54Z2008-11-17T15:51:56ZUtah Legislative History Research Tips by Mari Cheney Researching legislative history can be daunting. It is often a multimedia experience that includes print, online, and audio resources. You may have to visit more than one place, including your law library,...BlogStaffwww.utahbar.orgUtah Legislative History Research Tipsby Mari Cheney
Researching legislative history can be daunting. It is often a multimedia experience that includes print, online, and audio resources. You may have to visit more than one place, including your law library, the Archives, and Capitol Hill. A renumbered code section can complicate your research. And sometimes you will go through the entire process and have no more insight into what the legislature’s intent was than when you started.
Don’t be discouraged. Here are some tips to help you through the process.]]>
Know What Resources to Use
A complete legislative history includes all documents and audio files related to the introduction and passage of a law. Be sure to look at both House and Senate documents, regardless of where the bill was introduced. These documents can include:
• Bill proposal by legislator, lobbyist, citizen, or special interest group
• Bill request to the Office of Legislative Research and General Counsel
• Draft of bill to the Rules Committee
• Standing Committee reports and hearings (including audio tapes)
• Floor debate and votes (including audio tapes)
• House and Senate Journals
• House and Senate versions of bill
• “Enrolled” (final version) bill
• Governor’s action
• Session law(s)
• Annotated version of the law as it appears in the Code
Don’t Reinvent the Wheel
Check law review articles for legislative histories and in-depth discussions of Utah legislation. Your best bet would be to search the journals of the J. Reuben Clark Law School at Brigham Young University and the S.J. Quinney College of Law at the University of Utah. HeinOnline, LexisNexis, or Westlaw can be used to search for articles that discuss legislative histories and Utah legislation.
Understand the Utah Code
The Utah Code Annotated was completely recodified in 1953. Since then, the Utah Code has been updated with pocket parts, supplements, and replacement volumes. The Utah State Law Library, Brigham Young University Howard Hunter W. Law Library, and University of Utah S.J. Quinney Law Library should all have superseded versions of the Utah Code.
What we call the Utah Code today was also known as the Revised Statutes of Utah and the Compiled Laws of Utah in the past. The Laws of Utah (session laws) or House and Senate Journals may refer to the Utah Code by these other names. Also, the term “bill” is often used interchangeably with statute, law, and code.
Start Your Research With the Current Code and Work Your Way Back in Time
• Check the history line after the law in the current edition of the annotated Code. This provides information about the original enactment and all subsequent amendments.
• Use the history information to get session law information (chapter and section) for the dates you are interested in researching.
• Check the Laws of Utah (session laws) to get the House or Senate bill number and date of passage.
• If the law was enacted in 1990 or later, search the legislature’s website (http:/le.utah.gov) for history information.
• If the law was enacted before 1990, use the print House and Senate Journals to find more information about the bill, including which committees handled it.
• Identify whether audio material is available. This may include committee hearings and floor debates.
Vary Your Research Strategy When Researching Older Statutes
The steps above can vary slightly if you’re researching older statutes because fewer resources are available (such as audio recordings and meeting minutes) and the books have fewer finding aids.
The House Journal didn’t include an index until 1901; the Senate Journal didn’t have one until 1899. Additionally, both the House and Senate journal didn’t include indices in 1905 and 1907. The only way to locate information in the House and Senate Journals during the years without indices is to scan the pages for references to your bill.
House and Senate Journals are organized chronologically, so you can start your search for references to a bill with the passage date and work your way backwards. Luckily the early House and Senate Journals are relatively thin volumes.
Put the Law in Context
The Laws of Utah and the Utah Code are organized differently. The Laws of Utah are organized chronologically. The Utah Code is organized by chapter and section number under a subject heading.
Once a bill has been signed into law, the Office of Legislative Research and General Counsel determines where provisions of the bill belong in the Utah Code. Provisions can be split up, so that pieces of the new law appear in different parts of the code. This is another reason why reading the final version of a bill in the session law is useful. If you are looking for context, reading the bill in the session law is useful because you can see what other laws were included in the bill.
Use Research Guides to Locate Information
Legislative Research Library and Information Center, Legislative History Research Resources, available at http://le.utah.gov/documents/researchresources.pdf
University of Utah S.J. Quinney College of Law, Utah Legislative History, available at http://www.law.utah.edu/_webfiles/library/UT_Leg_Hist08.pdf
Utah State Archives, Legislative Intent and Legislative History, available at http://historyresearch.utah.gov/guides/leghist.htm
Utah State Law Library, Research Guide: Utah Legislative Resources, available at http://www.utcourts.gov/lawlibrary/docs/legislative_website.pdfAsk a Law Librarian for Help
Utah State Law Library
Matheson Courthouse
450 South State Street
Salt Lake City
801-238-7990
library@email.utcourts.govhttp://www.utcourts.gov/lawlibrary/
Howard W. Hunter Law Library
Brigham Young University
J. Reuben Clark Law School
256 J. Reuben Clark Building
Provo
801-422-3593
http://lawlib.byu.edu/
S.J. Quinney Law Library
University of Utah
332 South 1400 East
Salt Lake City
801-581-6438
http://www.law.utah.edu/library/]]>
Legislative Update: Senate Bill 83 “Check Cashing and Deferred Deposit Lending Registration Act”tag:webster.utahbar.org,2008:/barjournal//2.16322008-11-10T16:58:03Z2008-11-17T15:51:56ZLegislative Update: Senate Bill 83 “Check Cashing and Deferred Deposit Lending Registration Act” by Jill O. Jasperson Senate Bill 83 modified what was known as the Check Cashing Registration Act to the more correct title of Check Cashing and Deferred...BlogStaffwww.utahbar.orgLegislative Update: Senate Bill 83 “Check Cashing and Deferred Deposit Lending Registration Act”by Jill O. Jasperson
Senate Bill 83 modified what was known as the Check Cashing Registration Act to the more correct title of Check Cashing and Deferred Deposit Lending Registration Act (the Act). It was sponsored by legislator Karen Mayne and approved by the governor on March 14, 2008. The Act went into effect May 5, 2008. The bill makes technical and conformation amendments to the Utah Code, found mainly in Title 7. In part, the bill was a housekeeping effort to add the words “deferred deposit lender” or “deferred deposit lending” alongside the words “check casher” already used in other parts of the code. The bill was considered a compromise between legislators and consumer advocates in trying to establish further regulation of check cashers and deferred deposit lenders.]]>
a. average deferred deposit loan amount that the deferred deposit lender extended;
b. average number of days a deferred deposit loan is extended by the deferred deposit lender before the deferred deposit loan is paid in full;
c. minimum and maximum amount of interest or fees charged by the deferred deposit lender for a deferred deposit loan.
The last requirement also asks for interest or fees in relationship to a $100 loan, and a one-week extension. Further information to be reported by the deferred deposit lender is the total number of loans rescinded by request of the customer.
The Operation Statement is confidential between the state and deferred deposit lender: the records supplied are not subject to Government Records Access Management Act requests. However, as part of the Department of Financial Institutions’ (DFI) annual report to the governor and legislature as required by Utah Code section 7-1-211, the commissioner of DFI shall report findings from one or more of those Operation Statements. The report, however, cannot be so specific as to identify a particular deferred deposit lender. The next annual report of July 1, 2007 to June 30, 2008 may include some Operation Statement information from the effective date of the Act, May 5, 2008, to the end of the annual reporting period of June 30, 2008. This report and future reports will further help the legislature, consumer advocates, and the public at large determine the effects deferred deposit lenders have in Utah.
There was another change in the bill that made sponsor Mayne happy. A deferred deposit lender could not offer a new loan on the same day that a customer makes their last payment on an old loan. The customer has at least a day to think it over before making another loan with the lender.
1. Seehttp://le.utah.gov/~2008/htmdoc/sbillhtm/SB0083.htm]]>
Commission Highlightstag:webster.utahbar.org,2008:/barjournal//2.16312008-11-10T16:55:23Z2008-11-17T15:51:57ZCommission Highlights The Board of Bar Commissioners received the following reports and took the actions indicated during the September 12, 2008 Commission meeting held at the Law & Justice Center in Salt Lake City, Utah. 1. The Commission approved a...BlogStaffwww.utahbar.orgCommission Highlights
The Board of Bar Commissioners received the following reports and took the actions indicated during the September 12, 2008 Commission meeting held at the Law & Justice Center in Salt Lake City, Utah.
1. The Commission approved a Distinguished Service Award for “and Justice for All” in recognition of their outstanding service toward the creation of a better public understanding of the legal profession and the administration of justice.
2. The Commission approved appointments to the Bar Operations Review Committees for evaluations of the Office of Professional Conduct, Continuing Legal Education, Fee Dispute Resolution, the Fund for Client Protection, and the Law & Justice Center. Evaluations of these Bar programs are set to begin in October 2008.]]>
Whistle-Blower Policytag:webster.utahbar.org,2008:/barjournal//2.16302008-11-10T16:54:08Z2008-11-17T15:51:57ZWhistle-Blower Policy Bar Commissioners, Bar staff, and any member of the Bar may anonymously report concerns regarding fraud, violations of law, conflicts of interest, other breakdown in internal controls, financial reporting issues, and other areas of major governance concern to...BlogStaffwww.utahbar.orgWhistle-Blower Policy
Bar Commissioners, Bar staff, and any member of the Bar may anonymously report concerns regarding fraud, violations of law, conflicts of interest, other breakdown in internal controls, financial reporting issues, and other areas of major governance concern to the Chief Justice of the Utah Supreme Court for investigation and action as is deemed by the Chief Justice to be appropriate.]]>
The Utah State Bar may not discharge any employee or otherwise discriminate against any employee with respect to the employee’s compensation, terms, conditions, or privileges of employment because the employee or any person acting pursuant to a request of the employee has reported concerns about operations, management or governance issues of the Bar; testified or is about to testify in any investigation or proceeding dealing with such concerns; or assisted or participated or is about to assist or participate in any manner in such investigation or proceeding.
Notice of Election of Bar Commissionerstag:webster.utahbar.org,2008:/barjournal//2.16292008-11-10T16:50:02Z2008-11-17T15:51:58ZNotice of Election of Bar Commissioners Third, Fourth, and Fifth Divisions Pursuant to the Rules for Integration and Management of the Utah State Bar, nominations to the office of Bar Commission are hereby solicited for two members from the Third...BlogStaffwww.utahbar.orgNotice of Election of Bar CommissionersThird, Fourth, and Fifth Divisions
Pursuant to the Rules for Integration and Management of the Utah State Bar, nominations to the office of Bar Commission are hereby solicited for two members from the Third Division, one member from the Fourth Division, and one member from the Fifth Division, each to serve a three-year term. To be eligible for the office of Commissioner from a division, the nominee’s mailing address must be in that division as shown by the records of the Bar.]]>
completed petitions must be received no later than February 2, 2009, by 5:00 p.m. Ballots will be mailed on or about April 1 with balloting to be completed and ballots received by the Bar office by 5:00 p.m. May 1. Ballots will be counted on May 4th.
In order to reduce out-of-pocket costs and encourage candidates, the Bar will provide the following services at no cost:
1. Space for up to a 200-word campaign message plus a photograph in the March/April issue of the Utah Bar Journal. The space may be used for biographical information, platform or other election promotion. Campaign messages for the March/April Bar Journal publications are due along with completed petitions, two photographs, and a short biographical sketchno later than February 2nd.
2. A set of mailing labels for candidates who wish to send a personalized letter to the lawyers in their division.
3. The Bar will insert a one-page letter from the candidates into the ballot mailer. Candidates will be responsible for delivering to the Bar no later than March 16th enough copies of letters for all attorneys in their division. (Please call Jeff Einfeldt at 297-7020 for count of the number of lawyers in your respective division.)
If you have any questions concerning this procedure, please contact John C. Baldwin at 531-9077.
NOTE: According to the Rules for Integration and Management, residence is interpreted to be the mailing address according to the Bar’s records.
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Notice of Election of Bar President-Electtag:webster.utahbar.org,2008:/barjournal//2.16282008-11-10T16:46:42Z2008-11-17T15:51:59ZNotice of Election of Bar President-Elect Any active member of the Bar in good standing is eligible to submit his or her name to the Bar Commission to be nominated to run for the office of president-elect in a popular...BlogStaffwww.utahbar.orgNotice of Election of Bar President-Elect
Any active member of the Bar in good standing is eligible to submit his or her name to the Bar Commission to be nominated to run for the office of president-elect in a popular election and to succeed to the office of president. Indications of an interest to be nominated are due at the Bar offices, c/o Executive Director John Baldwin, 645 South 200 East, Salt Lake City, Utah, 84111 or via e-mail at director@utahbar.org by 5:00 p.m. on January 2, 2009.]]>
Utah Bar Journal, a 500-word campaign statement on the web site, and will include a one-page statement in the ballot envelope. For further information, please contact John Baldwin at 531-9077, or at john.baldwin@utahbar.org.
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Mandatory CLE Rule Changetag:webster.utahbar.org,2008:/barjournal//2.16272008-11-10T16:44:50Z2008-11-17T15:52:00ZMandatory CLE Rule Change Effective January 1, 2008, the Utah Supreme Court adopted the proposed amendment to Rule 14-404(a) of the Rules and Regulations Governing Mandatory Continuing Legal Education to require that one of the three hours of “ethics or...BlogStaffwww.utahbar.orgMandatory CLE Rule Change
Effective January 1, 2008, the Utah Supreme Court adopted the proposed amendment to Rule 14-404(a) of the Rules and Regulations Governing Mandatory Continuing Legal Education to require that one of the three hours of “ethics or professional responsibility” be in the area of professionalism and civility.
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Rule 14-404. Active Status Lawyers
(a) Active status lawyers. Commencing with calendar year 2008, each lawyer admitted to practice in Utah shall complete, during each two-calendar year period, a minimum of 24 hours of accredited CLE which shall include a minimum of three hours of accredited ethics or professional responsibility. One of the three hours of ethics or professional responsibility shall be in the area of professionalism and civility. Lawyers on inactive status are not subject to the requirements of this rule.
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