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Earlier this year the Utah Legislature held its general session and did what lawmakers do, pass new and amend existing laws. This article will provide Bar Journal readers with ten of the
most important changes to the Utah Code.
HB349 Practice of Law Amendment
This amendment repeals and reenacts Utah Code Annotated 78-9-101, which defines "practicing
law." This is an effort by the Legislature to define what it " means" to be a lawyer. It is also a gauge of obvious discord between the Bar and the Legislature. As of right
now, the Bar reports that insofar as the Bar's efforts to stop the unauthorized practice of law it is business as usual.
However, since Utah Code Ann. 78-9-101 now defines
practicing law solely as appearing in court, it arguably opens the door to what traditionally would have been considered the unauthorized practice of law, i.e. all activities by a lawyer
except court appearances. It is hoped that cooperation between the Bar and the Legislature can readdress this issue in 2004, if not sooner.
SB138 Medical Malpractice Amendment
This bill amends the Utah Health Care Malpractice Act and the Health Care Providers Immunity Liability Act. It specifically amends 58-13-3, 63-55-278, and 78-14-17 of the Utah
Code. You might recall that Utah made national news when doctors, nurses and medical students held a rally at the Utah Capital during the legislative session in protest to the crisis in
medical malpractice insurance premiums. This bill amends provisions related to arbitration agreements between a health care provider and a patient. The Act now allows a provider and
patient to negotiate an arbitration agreement in non-emergency situations. In addition, this Act provides immunity from liability for some charity care by doctors helping those without
insurance, and sunsets the medical malpractice arbitration agreements section.
SB 48 Forced Entry to Make an Arrest
This bill amends 77-7-8 of the Utah Code. In order to
bring statutory law into harmony with recent court decisions, the Legislature modified the Code of Criminal Conduct regarding forced entry. Formerly, the police could only enter a
residence by force. This bill allows for forced entry for non-felony crime arrest.
HB 274 Rights of Way Across Federal Land
R.S. 2477 is a federal law that provides for a
right-of-way over public lands for roads which existed prior to 1976. During the last several years there has been a highly publicized debate over what constitutes a road on federal
lands. The bill amends 72-5-301 and 72-5-302 of the Utah and gives the Governor authority to grant right-of-way access across public lands for the construction of highways. This act
amends the definition of highway to recognize that a highway does not need distinguishable endpoints. It also authorizes the governor or the governor's designee to assess whether an R.S.
2477 has been accepted and requires the governor or a designee to provide a notice of acknowledgment to the owner of the servient estate in land over which the right-of-way runs. The act
authorizes an owner of the servient estate to file an action with the district court for a decision regarding the correctness of a notice of acknowledgment issued by the governor and
requires that the district court make a determination without deference to the notice of acknowledgment.
This act creates a presumption of acceptance of an R.S. 2477 grant if a
highway existed as of the cut-off date and currently exists in a condition suitable for public use. SB 274 provides that a proponent of the R.S. 2477 status of a road that is not presumed
bears the burden of proving acceptance by a preponderance of the evidence. So, the Governor will make decisions, rather than counties which have traditionally asserted the existence of
the pre-1976 roads across public lands .
SB 225 Limitation of Judgments Against Government Entities
This act modifies the Judicial Code and amends 63-55b-178 and enacts
78-60-101 & 102 addressing limits on judgments that may be awarded against government entities. This act establishes a mechanism for adjusting the amount of those limitations for
inflation. In addition this act provides a sunset date on December 31, 2004. Thereafter, the Limitation of Judgments Against Governmental Entities Act, is repealed. Keep a close watch
because as of now there is no replacement for when this Act expires. However, the Legislature will likely draft new legislation that puts limitations on lawsuits against government
entities.
HB201S1 Judiciary Amendments
If you are a lawyer who receives a telephone call from the local jail in the middle of the night please note, this new law makes it
possible to bail one out of jail with a debit or credit card. It amends 77-20-4 of the Utah Code.
SB207S1 Identity Fraud Amendments
The Act modifies the criminal code, by
amending 76-6-1102 of the Utah Code. In the past, local law enforcement agencies had the primary responsibility to investigate identity theft with the help of the Division of Consumer
Protection investigating the offenses. However, now the Attorney General will both investigate and prosecute the perpetrators of identity theft. Giving the Attorney General authority
should help in tracking down offenders and streamline the investigation and prosecution.
SB 103 Concealed Weapon Holder Amendments
The bill amends 76-10-523 of the Utah
Code. The act eliminates the 60-day waiting period for concealed weapons permits issued by another state of foreign jurisdiction to be valid. In the past, a sixty-day time period was
necessary before the concealed weapons permit was valid in Utah. This bill eliminates the waiting for sixty days so now the permit issued by another state is immediately valid when
arriving in Utah.
HB 247 Power of Attorney in Relation to a Trust
This bill amended 75-5-501 and enacted 75-5-503, and 75-5-504 of the Utah Code. This amends the Probate
Code. Specifically, the bill prohibits holders of "powers of attorney" without specific authorization in the power of attorney from creating, modifying, or revoking trusts. Also
prohibited without specific authorization in the "power of attorney" are changing interests in the principal's property; or making loans to the holders of the power of attorney.
So, in other words, exact instructions will be needed for the "power of attorney" holder or the agent of the trust to take certain actions without precise permission related to
the trust.
SB128 (First Substitute) Protective Order Amendments
This bill repeals 30-6-4.8 and amends 30-6-1,2,3,4.2, 62A-4a-412, 76-5-108, 77-36-2.1,2.4,2.5 and 2.6 as
well as 77-36-5, 78-3a-104, 105, 118, 305 and 78-3h-101-107. Utah is well-known for its younger population demographics. The Juvenile Code was modified in regard to child protective
orders. Most importantly, a protective order will now be entered into the statewide domestic violence network. This will ultimately provide more protection for children in the state of
Utah because of the necessity of protective orders being entered into a database.
Conclusion
This list by no means covers all the developments in the law made by the Utah
legislature this session, but the list offers an array of different practice areas where new bills impact the law. The latest developments by the Legislature try to improve and facilitate
the practice of law in the state of Utah. More importantly, the new bills and Amendments hope to improve the Utah law and government to better serve the needs of Utah citizens. Watch for
more updates and be sure to check the Utah Legislature at http://www.le.state.ut.us
for more bills passed in the 2003 session. Governmental Relations Committee http://www.utahbar.org/ committees/governmentrelations.
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