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Although any change in the law may have some effect on the practice of law, I have selected a few of the bills which were passed this session which may have some
broad interest among lawyers. As of the date of this writing, the bills have not been signed into law by the Governor.
Attorney Liens
H.B. 221 amends Utah Code Ann. Section 78-51-41. This statute broadens the right of an attorney to assert an attorney's lien. Previously,
the attorney's lien attached only to "any settlement, verdict, report, decision or judgment." Under the new statute, the lien may also attach to
"any real or personal property that is the subject of or connected with the work performed for the client." The statute also extends lien rights to
non-litigation matters by changing the commencement date to the "time of employment of the attorney." Previously the lien ran from the commencement of an
action or a counter-claim.
The statute also provides the procedure for filing the attorney lien which was absent in the previous statute.
The Bar's Office of Professional Conduct requested the sponsor to include an amendment which precludes an attorney from asserting a lien in a criminal or domestic
matter while the matter is still pending. This was requested in order to avoid the conflict of interest that may occur if an attorney asserts the lien while
continuing to represent the client.
The statute may settle a longstanding controversy regarding whether an attorney may assert a lien on child support payments. The statute provides that the lien
attaches to "property owned by the client." It is at least arguable that child support payments belong to the child, not the custodial parent and
therefore are not subject to a lien.
Bar Complaints
S.R. 3 is a joint resolution urging the Utah Supreme Court and the Utah State Bar to require any person filing a bar complaint to post a
bond. Although a joint resolution does not have the effect of law, because it carries the weight of the expressed opinion of the legislature, the Bar Commission
will consider it very carefully. The sponsor, Senator Terry Spencer, will present the resolution to the Bar Commission at the regular Commission meeting in April.
The Bar Commission encourages anyone who may wish to comment on this issue to contact a Bar Commissioner.
Litigation
H.B. 112 Prevention of Retaliatory Lawsuits enacts Utah Code Ann. Sec. 78-58-101 et seq. This new statute may have a significant effect in
certain types of lawsuits, especially libel and slander cases. It arose in response to a perceived problem that developers and others seeking government approvals
and licenses may file suits against citizens who oppose them in hearings before zoning boards, city councils and the like. The proponents of the bill claimed that
these protesters, faced with the possibility of having to defend costly lawsuits, are prevented from exercising first amendment rights.
This statute allows a defendant to assert in the Answer that the primary purpose of the lawsuit is to interfere with the defendant's public participation in the
process of government. The Answer may include a Motion for Judgment on the Pleadings and affidavits in support of the Motion. Upon the filing of such a Motion,
discovery is stayed unless the court orders otherwise. The Motion is given an expedited hearing. If the court finds that the "primary purpose" of the
action is to interfere with the defendant's participation in the process of government, the action is supposed to be dismissed.
It is interesting that if the court finds the suit was filed for the improper purpose, the case is dismissed, even though the underlying action may be meritorious.
Whether this runs afoul of the Open Courts provision of the Utah Constitution is a question.
H.B. 25 Civil Stalking Amendments. Several years ago the legislature passed a bill creating the crime of stalking. The law did not include a civil remedy, however,
allowing a citizen to seek a protective order against a stalker. A co-habitant can secure a protective order under the spouse abuse law. This statute seeks to
provide a similar remedy to persons who are placed in fear by a person who they have not lived with.
H.B. 129 amends Utah Code Ann. Section 78-14-7.1 This bill raises the damage cap on medical malpractice claims to $400,000 with an automatic inflation adjustment
after July of 2002. A bill was also introduced to eliminate the "per occurrence" cap on claims under the Governmental Immunity Act. This bill passed in
the Senate, but was not funded and didn't come to a vote in the House.
H.B. 13 amends Utah Code Ann. Section 78-11-12. This clarifies that pre-death lost wages are recoverable under the survival statute. The previous statute allowed
for recovery of pre-death "out of pocket" losses and some courts had held that literally interpreted, lost wages are not "out of pocket."
Family law
S.B. 136 requires the formation of a parenting plan in order for a court to order joint legal custody. The purpose is apparently to force
divorcing parents who choose "joint legal custody" to define what they mean by that term, including allocating parenting functions, responsibilities, and
decision making authority. This requirement should avoid a host of post divorce disputes and is something many domestic practitioners already do.
SB 117 enacts Utah Code Ann. Section 78-7-36. This gives the court the authority to appoint private attorneys as guardians ad litem in criminal and visitation and
custody cases. The court is given the power to order recovery of costs against the parties. For every five cases in which an attorney is appointed and receives
compensation, the attorney is obligated to take one appointment pro bono. The Judicial Council is directed to establish standards for appointment as guardian ad
litem. This statute takes effect on July 1, 2001 in the Second, Third and Fourth Judicial Districts and on July 1, 2002 in the remainder of the State.
H.B. 269 amends Utah Code Ann. Sections 78-3a- 104 and 105 and 78-3a-119. This gives the juvenile court exclusive jurisdiction over adoptions in which the juvenile
court has previously entered an order terminating the parental rights of a parent.
H.B. 148 amends Utah Code Ann. Section78-3a-109. This statute authorizes the juvenile court to order a "family unity conference" to resolve disputes
between the Division of Child and Family Services and the parties in neglect and abuse actions.
S.B. 64 allows Utah courts to take consents and finalize
adoptions for non-resident adoptive parents if the child was conceived and born in Utah.
Probate
HB 349 amends Utah Code Ann. Section 78-5-401. This provides that a court cannot refuse to appoint a conservator solely because a power of
attorney is in effect.
Liens and Real property
H.B. 305 amends a number of sections of the Utah Code to change the long standing law that a judgment creates a lien against all
the real property of the judgment debtor in the county in which the judgment is rendered. This bill, instead, requires the judgment creditor to record the judgment
with the county recorder. This is presumably meant to make life easier for title companies and others researching liens. The effective date of the bill was delayed
until July 1, 2002. Some lawyers have expressed concerns about this legislation, and the real property section may want to propose amendments in the next session,
prior to the bill becoming effective.
HB 335 enacts Utah Code Ann. Sections 38-1-28 and 29 to allow a person who has had a mechanics lien filed against his or her property to post alternate security and
have the lien released.
SB 53 amends a number of sections of the Utah Code to modify and detail the duties of trustees of trust deeds.
SB 254 amends the Residence Lien Recovery Fund. This is a fund financed by payments from contractor licensing fees. It allows homebuyers and home owners who do
remodels to collect from the fund if the homeowner pays a licensed contractor, but the contractor fails to pay a sub or a supplier and the homeowner has to pay a
second time to release a lien. The Department of Professional and Occupational Licensing then attempts recovery against the defaulting contractor. This has proven
to be a very successful program. It is especially popular among subcontractors and suppliers. The statute removes the lifetime cap of $500,000, which was declared
unconstitutional. A $75,000 per residence cap is left in place. The procedure for filing these claims is simplified.
Criminal Law
Enhanced penalties for certain crimes was an issue of some controversy during this legislative session. A "hate crime" bill was
proposed in both the House and the Senate. The bill was supported by The Statewide Association of Prosecutors, the Attorney General and the Utah Sentencing
Commission. A similar bill had failed in previous legislative sessions, ostensibly because it singled out specific groups for special protection (i.e. racial
minorities and gays). This year, the bill proposed to enhance the penalty for crimes committed against a person "primarily" because he or she was a
member of a "group." The bill failed in House Judiciary Committee but passed in the Senate after some amendment. Upon referral to the House, the bill was
assigned to the Rules Committee, and never brought out for debate or vote.
It is interesting that the argument most often made against the Hate Crime Bill was that a crime should be punished according to the seriousness of the conduct
only, not the underlying motivation. Nevertheless, H.B. 322 was enacted in this session which imposes enhanced penalties for crimes committed with the intent to
interfere with an "animal enterprise." A bill also passed the House (but failed in the Senate) which would have imposed enhanced penalties for crimes
committed against referees and coaches at athletic events.
In addition, a bill was passed which enhances the penalty for committing a violent crime with a weapon if the perpetrator is wearing body armor. H.B. 238.
As usual, the legislature created a number of new crimes (e.g. soliciting minors for sexual activity over the internet, H.B. 181; spiking a drink with drugs or
alcohol, H.B. 113; jail or prison guards having sex with prisoners S.B. 4; and pointing a laser pointer at a car, H.B. 101). It extended others (e.g. burglary was
extended to include entering a building with the intent to commit lewdness H.B. 220). And it increased the penalties for some (e.g. performing unlawful marriages
involving minors, S.B. 146; possession of forgery tools, H.B. 215).
As usual, no crimes were eliminated, restricted, nor penalties reduced.
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