Notice of Proposed Amendments to Utah Court Rules

The Supreme Court invites comments to proposed amendments to the following court rules. The comment period expires July 31, 2013.

Summary of proposed amendments

Revises the rules to more thoroughly address problems with misleading and inaccurate lawyer advertising, both potential and existing, in order to better protect the public. The changes are designed to help lawyers comply with the new rules, as they are more specific than current requirements. The basic components of the proposed rules provide fuller definitions of what constitutes false and misleading legal service communications. The proposed rules would tie compliance requirements to the Bar’s annual licensing renewal form. The new rules would require the lawyers to annually submit any Universal Resource Locator (URL) they use in advertising and to submit such advertising as mass mailings. There is no requirement for prior review of any advertising.
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A Judicial Invitation

by Judge Lynn W. Davis
“Almost always, the creative, dedicated minority has made the world better.”
– Reverend Dr. Martin Luther King Jr.
For a long time I have contemplated how we could pay greater tribute to Dr. Martin Luther King Jr. I wish to encourage the Utah State Bar and its members to be more involved in celebrating Martin Luther King Jr. Day. It has been my experience that we each can play a more supportive and impassioned role.

Opportunities to be involved abound in our communities. Utah Valley University, for example, now in its eighteenth annual celebration, has invited Julian Bond to be its guest this year. Last year Ambassador Andrew Young was featured. Two years ago, the Brown sisters of the 1954 U.S. Supreme Court case of Brown v. Board of Education of Topeka, 74 S. Ct. 686 (1954), were honored guests. The University, as part of its “being engaged” philosophy, welcomes and encourages lawyers to be involved in presentations and panels, as well as serving as speakers and moderators. The work of the Martin Luther King Advisory Board has been exceptional and serves as an example after which our own efforts could be patterned.
The NAACP Salt Lake Branch sponsors a luncheon each year on Martin Luther King Jr. Day at the Little America Hotel. The public is cordially invited to enjoy the atmosphere of tribute where they listen to guest speakers.
Brigham Young University sponsors an annual candle light march/vigil. That tradition, which started with a handful of us twenty years ago, now routinely has over five hundred marchers. Last year, Darius Grey gave a very poignant and touching tribute to Dr. King at the end of the march.
The University of Utah has traditionally conducted two or three days of events honoring Dr. King. Such celebrations are duplicated, principally in college and university communities, throughout the State of Utah.
When my children were young, I took them to meet Rosa Parks. She was warm, attentive, friendly, and responsive to our young daughters and tenderly and lovingly embraced them. That very personal interaction with such an iconic figure in such a historic setting continues to be an unforgettable, exceptional and treasured memory in our lives. Unfortunately, no other members of the Bar were present to greet and be enriched by this civil rights heroine.
If we cannot participate in such celebrations, I’ve contemplated how we can still pay tribute to this ongoing movement. One thought was that we simply take the time to read some of Dr. King’s speeches. I would recommend “Eulogy for the Martyred Children,” “I Have a Dream,” and “Letter from Birmingham City Jail.” They are lifting, stirring, thought provoking, life changing homilies from which we as individuals and as a legal community could greatly benefit.
I would encourage the Utah State Bar, in each January issue of the Utah Bar Journal, to publish a list of local celebrations honoring Dr. King, together with contact information. I would further encourage the Utah Bar Journal, also in each January issue, to publish a tribute to Dr. King and other leaders in this historic movement. We could solicit contributions from civil rights leaders, as well as practicing attorneys, judges, students, and others.
I believe that our support has been very measured and that we ought to step forward in our celebratory participation and charitable service. We must do more!
May we each thoughtfully consider the Reverend Dr. Martin Luther King Jr.’s simple, but profound, interrogatory: “Life’s most persistent and urgent question is ‘What are you doing for others?’”
Thank you for considering these reflections.
Respectfully,
Judge Lynn W. Davis
Fourth District Court

Message from the Chair

by Danielle Davis
As the new Chair of the Paralegal Division, I would like to take this opportunity to introduce the 2011-2012 Board of Directors and myself.
Chair-Elect – Thora Searle attended Weber State University and has spent thirty-three years working in the legal field. She worked as a legal assistant to William Thomas Thurman at McKay, Burton & Thurman for twenty-one years and currently works as a Judicial Assistant to Judge Thurman at the United States Bankruptcy Court for the District of Utah. She has served several terms as a Director of the Legal Assistant Division/Paralegal Division of the Utah State Bar serving several years as the Secretary and the Membership Chair. Thora’s husband of forty-eight years passed away in January of this year so her time outside of work is devoted to her children, grandchildren, and great-grandson. She loves to spend time with them and enjoys watching them participate in soccer, softball, dance, and tumbling.

Region II Director – J. Robyn Dotterer, CP has worked as a paralegal for over twenty years and has been with Strong & Hanni for eleven years. She works with Paul M. Belnap, Stuart H. Schultz, and Andrew D. Wright in the areas of insurance defense in personal injury, insurance bad faith, and legal malpractice litigation. Robyn achieved her Certified Paralegal Degree in 1994 and is a Past President of the Legal Assistants Association of Utah. She has served on the Paralegal Division Board in several different capacities, served as a Director-at-Large, and was co-chair of the Community Service Committee and the Young Lawyer Division (YLD) Liaison for several years. Robyn is excited to be back on the Board and is looking forward to getting to know the new Division and Board members. Robyn has been married to Duane Dotterer for thirty-seven years and lives in Sandy, Utah.
Region III Director (Secretary) – Jennifer Nakai, ACP serves the counties of Juab, Millard, Utah, Wasatch, Duchesne, Uintah, and Daggett. She has worked in the legal field since 1986 and currently works as a paralegal in the Investigations Division at the Utah County Attorney’s Office. Jennifer has an Associate’s Degree in Paralegal Studies and is working on her Bachelor’s Degree in Criminal Justice at Utah Valley University. She is a Certified Paralegal through the National Association of Legal Assistants (NALA) and also has an Advanced Certified Paralegal designation in Trial Practice.
Region IV Director – Colleen Wrigley is a paralegal with the firm of Clarkson Draper & Beckstrom in St. George.
Director at Large – Heather Allen is a paralegal at Ray Quinney & Nebeker (RQN). She has been with RQN since August 2010 and prior to that she was a paralegal at Snell & Wilmer since 2005. Heather works in product liability, personal injury/wrongful death actions, both defense and plaintiff. She graduated from Utah Valley University with a Bachelor’s Degree in Paralegal Studies and a minor in Psychology. She is also involved in the community as a volunteer at Intermountain Medical Center in Murray for the parent support group associated with the Neonatal Intensive Care Unit.
Director at Large – Kimberly Brenneman is a legal assistant with the Sundance Group for in-house-counsel. She has had experience in criminal defense and family law. She is currently learning transactional law. She has six years of experience in the legal field and attended Salt Lake Community College where she received an Associate’s Degree in Paralegal Studies. Kimberly is a member of the Paralegal Division of the Utah State Bar, Utah Paralegal Association, and NALA. She enjoys the outdoors, reading, and spending time with her family.
Director at Large (Parliamentarian) – Deborah Calegory (Deb) is a certified paralegal who works for the St. George office of Durham Jones & Pinegar. She has extensive experience in the areas of real estate, litigation, business and transactional law, and has worked on legal matters in Utah, Nevada, and Arizona. Deb has been active in the paralegal profession over the course of her twenty-nine year career. She prepared curriculum and provided instruction for paralegal programs for Dixie State College and the Utah Chapter of the American Paralegal Association. From 2007-2009, She was a charter member of the Paralegal Division of the Utah State Bar, and has maintained an active role in the Division since its inception. Deb has served in numerous leadership positions for the Division, including the Chair of the Division during 2001-2002. In 2008 she was selected as Utah’s Distinguished Paralegal of the Year.
Deb also maintains an active role in the local St. George community. She served on the Board of Directors of Leadership Dixie (an educational program for the benefit of new and seasoned community leaders) from 2007-2009. Deb has been on the Family Selection Committee for the Habitat for Humanity of Southwest Utah since 2007, and is currently serving on the PTA Board of Directors at Snow Canyon Middle School. She is currently the chair-elect of the Southern Utah Community Center Advisory Board and will take the reigns as the Chair in April, 2012. The Advisory Board oversees the programs and activities of the Southern Utah Community Legal Center, whose mission it is to increase access to civil legal aid for disadvantaged citizens of southern Utah.
Director at Large – Tally Ellison is a paralegal at Inthinc Technology Solutions, Inc. Tally is a former Chair of the Paralegal Division and has been involved in leadership in the paralegal community for many years having also served as President of the Legal Assistants Association of Utah (LAAU).
Director at Large (Finance Officer) – Julie Eriksson has been a paralegal for over twenty years, employed the last twelve years as a paralegal with the law firm of Christensen & Jensen, working in personal injury and civil litigation. She attended the University of Utah and Phillips Junior College graduating with an associates degree in Paralegal Studies in 1992. She has been an active participant in the Paralegal Division since its inception in 1996. Julie has served on the Board of Director’s as the Continuing Legal Education Chair and Finance Officer. She is a former Chair of the Paralegal Division and a former Ex-Officio member on the Board of Bar Commissioners representing the Paralegal Division. In addition to the Paralegal Division, Julie is also a member of the LAAU and served that association in many capacities including several years as its President.
Director at Large – Kari Jimenez received her Professional Paralegal Certificate from the University of Phoenix and has over nineteen years of experience as a litigation paralegal. She has a broad spectrum of experience, which includes criminal defense, criminal prosecution, civil litigation, and in-house corporate in Cache County; civil litigation insurance defense, medical malpractice, and products liability with the law firm Richards, Brandt, Miller & Nelson as well as in-house corporate for a mortgage servicing company in Salt Lake County and in-house corporate for a housing company in Washington County. She obtained her Real Estate license in 2005 and is currently the City Recorder for Ivins City. She received her Certified Municipal Clerks designation from the University of Utah and is currently working on her Master Municipal Clerk designation. Kari is the Southern Region Director for the Utah Paralegal Association (UPA) formerly known as LAAU. At the end of 2006, having experienced enough cold and snow, Kari and her spouse Wilson, who is originally from Ecuador, South America, and two children Garrett and Mariah, moved from Sandy, Utah to sunny St. George, Utah. Kari enjoys road and mountain biking, hiking, camping, and traveling.
Director at Large – Suzanne Potts has been a paralegal for over twenty years. She is employed by Clarkson Draper & Beckstrom in St. George, Utah, working primarily in civil litigation. Suzanne is a mediator having completed basic Mediation Training through the Utah State Bar, Alternative Dispute Resolution in 2001. She is a past member of LAAU, having served as the Southern Regional Director. She is currently a member of the Paralegal Division of the Utah State Bar and is serving as a Director at Large. She presently serves on the Paralegal of the Year Award Committee of the Division. Suzanne is very active in the community and is a public panel member for the Supreme Court Ethics and Discipline Committee, volunteer for the Southern Utah Community Legal Center as well as a paralegal member of the Board of the Southern Utah Bar Association.
Director at Large – Geneve Wanberg is a litigation paralegal at Ballard Spahr LLP. She has been a litigation paralegal for seven years and prior to that was a corporate paralegal for five years. She has served on the Education Committee for the past few years. She has also co-chaired the committee for the Paralegal Day Luncheon for 2011. Geneve enjoys education, from learning to teaching, and working with the education committee to create education situations that teach, assist, and inspire her fellow paralegals in Utah. In her office, she is known as the paralegal pastry chef and loves to cook. Geneve has nine grandchildren with another on the way. Her husband is a greenhouse manager for a high profile group of gardens in downtown Salt Lake City.
Director at Large – Lorraine Wardle is the senior paralegal at the firm of Thomas Henson & Associates, claims litigation counsel for State Farm Insurance. Prior to joining Henson & Associates, Lorraine worked at several highly esteemed insurance defense firms such as Richards Brandt Miller & Nelson, Dunn & Dunn, Hanson Epperson & Wallace, and Epperson & Rencher. She has been involved with the boards of both paralegal associations in Utah. Lorraine lives in West Jordan with her husband and two golden retrievers.
Carma Harper, CP is the immediate Past Chair of the Paralegal Division. She now serves as an ex-officio member of the Board and is Chairing the Membership Committee. Carma is a paralegal at the law firm of Strong & Hanni and has over eleven years of experience working on insurance defense, construction defects, and product liability defense cases. She graduated from Wasatch Career Institute’s paralegal program in 1989. She is a licensed realtor for Key Realty Group in her spare time. She began her service with the Paralegal Division working on the CLE Committee, assisting with the monthly brown bags and other CLE events. She also served as the Community Service Chair in 2009-2010 working closely with the YLD with the Wills For Heroes program. In 2009-2010, Carma served as the Region I Director, while continuing to work on the Community Service Committee. In 2010-2011, during her term as Chair of the Paralegal Division, she served as the Division’s liaison to the Bar Commission. She enjoys being involved in the Paralegal Division and in the legal community. She has always strived to “Pay it Forward,” by providing service to the community and by trying to be a positive influence to others.
As for me, I am a certified paralegal with the law firm of Strong & Hanni working with Peter H. Christensen in insurance defense litigation. I have worked as a paralegal for twenty years with experience in multiple areas of law. I received my paralegal certificate from Westminster College.
This is my second time around as Chair of the Paralegal Division. I served as Chair for 2005-2006 and have been involved with the Division and Utah State Bar in other capacities including Director-at-Large, Community Service Committee Chair, Bar Journal Committee liaison, Young Lawyers Division liaison, Governmental Relations Committee, Licensing Committee, and ex-officio member of the Board of Bar Commissioners of the Utah State Bar.
I am pleased to be involved again as Chair and look forward to working with the Board to achieve the goals of the Division and the Mission of the Utah State Bar.

Mission of the Utah State Bar

by Robert L. Jeffs
To represent lawyers in the State of Utah and to serve the public and the legal profession by promoting justice, professional excellence, civility, ethics, respect for and understanding of the law.
As President of the Bar, I have reflected on the Bars Mission almost daily. I dont know which of our Bar leaders had the foresight to pen those words, but I think it captures the essence of the goal I hope we all individually and collectively strive to achieve.

By the time you read this message, my term as President of the Utah State Bar will be coming to a close. I can honestly report to you that I have thoroughly enjoyed serving the Bar and its members. Having experienced Bar staff and dedicated Commissioners to work with makes the job of Bar President manageable. That is not to say I didnt get my share of irritating calls from the public complaining about the questionable pedigree of their lawyer or berating me about the injustice of the justice system and demanding that as Bar President, I need to change the law, remove a judge, or disbar their opposing counsel. I also received my share of calls or e-mails from myopic Bar members who believe the Bar is nothing more than a pestilence, that the Bars Mission is misguided. Instead, they advocate that the Bar should not promote ethics, professionalism, or service to the public. But those calls come with the territory. Nevertheless, I suspect my wife and law partners will appreciate more than I that my term is up. Soon I will turn the reins over to the able leadership of Rod Snow and Lori Nelson.
Like many of the members of the Utah State Bar, I was drawn to the profession not by the prospect of wealth or status, but by a desire to serve society and the public. Of course, I had the advantage of coming from a family of attorneys, so I knew first hand that the practice of law is not a road to riches. In a recent meeting I attended with leaders from the Montana Bar they related to me that median income for attorneys in Montana is between $50,000 and $70,000 and starting salaries average about $36,000. I suspect the economic realities for the attorneys of Utah are not much different. For most of us, the practice of law presents an opportunity to make a modest income while providing a valuable service to the community. As Bar President, I have had the chance to see the myriad hours of service provided to the public and the profession by our members. The service we provide can take many forms, such as traditional pro bono representation, service on committees and sections, as well as service on municipal or state government. I want to thank all of the members who volunteer their time either in Bar service, governmental office, or pro bono service.
The conference I referred to earlier included a report by the ABAs World Justice Project. Part of the work done by the World Justice Project included an assessment of the access to justice in many of the nations of the world. Some of those findings were very disturbing, showing that the United States is not the leader as I would have expected. The U.S. judicial system is still a model for other nations. Unfortunately, the United States ranks last of the eleven nations in its income group in access to civil justice.
In prior messages and when I have had the bully pulpit as Bar President, I have tried to focus the attention of our members on the dangers of a judicial system that the public feels is too expensive and too confusing to access. It is not just the lowest economic tier of our society that feels they cannot obtain legal representation. Increasingly it is the middle class, the foundation of our society, that cannot afford our services. Recognizing the importance of trying to address the affordability of legal services, the Bar Commission has been working on the design of a Modest Means program for the delivery of discounted legal services.
The Bar Commission obtained valuable feedback from its survey regarding the proposed Modest Means program. The program should be operational very soon. The program will marry the desire of our members to serve with the needs of lawyers to broaden their practice by providing discounted legal services. The Modest Means program will provide an option to an under-served economic group who earn too much to receive free legal services through one of the traditional pro bono programs, but do not earn enough to pay for legal services at our regular rates. The potential benefits of the program include reducing the press of pro se litigants that clog the courts, exposing a broader spectrum of the public to the benefits of legal services, reducing the frustration of members of the public that may feel they are unable to avail themselves of the judicial system, and providing unemployed or under-employed attorneys with a supplement to their regular practice revenues.
As attorneys we are uniquely suited to provide service and leadership to the community. Our training, experience, and ability to carefully analyze problems to formulate solutions can benefit every level of government. We have too few members of the Bar who sit on City councils or Planning Commissions, too few members serve as Senators or Representatives in the state legislature. While I recognize that few Bar members are able to devote the significant time commitment it takes to serve as a state legislator, there are plenty of other opportunities. As many of you know, Utah relies on a local and state caucus system for choosing candidates. With the Republican party enjoying significant political control, many elections are determined through the voting of the delegates rather than at a primary or general election. Bar members should become active in the local and state caucus process. As a delegate, you have the opportunity to have some positive influence in the shaping of the face of our State. In addition, a delegate is in a better position to communicate concerns about pending legislation to his or her respective representative.
I claim no power to divine the future. I believe that in the future, Bar members will likely see proposed legislation attempting to re-define the practice of law, taxing legal services, or affecting the publics access to justice. Attorneys have always played a pivotal role in shaping our national and local politics. Utah will benefit from increased participation of lawyers in this process to lend their wisdom and expertise in working for legislation that supports rather than detracts from the Rule of Law.
Thank you for the privilege of serving you as Bar President.

Civility Matters

by Robert L. Jeffs
Sitting in a deposition of an opposing party, I run through the options available to me as opposing counsel makes his tenth speaking objection designed to coach the witness on how he should respond to my question. I have already asked my colleague to limit his objections pursuant to the Rules of Civil Procedure. My options include: 1) reach across the table and constrict opposing counsel’s windpipe so no more sound comes out; 2) inform counsel that if he continues to coach his client, he will do so without his front teeth; 3) comment on opposing counsel’s pedigree and invite him to meet me at the Courthouse to continue our discussion. Recognizing that my list of options may be influenced by my rising temperature, I decide I should take a recess to reconsider my options.

Fortunately, the break gives me the chance to remember that civility is a two-way street. After I calm down, I am able to formulate a more rational response that actually defuses the situation rather than escalating it. Not only did I avoid behavior that might reflect badly on the profession, my client benefitted from not incurring attorneys’ fees in a dispute tangential to the matter being litigated.
Concerns of civility and the tempering of speech that is discordant or contentious have received a substantial amount of both national and local attention in recent months. Highlighted by the shooting of Gabrielle Giffords and Federal Judge John Roll, the nation seems truly interested in promoting civility. Locally, Mayor Becker of Salt Lake City and Lt. Governor Greg Bell co-chair the Utah Civility and Community 2011 Initiative. Former Utah Bar President Steve Owens sits on that Initiative on behalf of the Utah State Bar.
As the members of the Bar know, the Utah Courts and the Utah State Bar were on the forefront of the issue, adopting the Utah Standards of Professionalism and Civility several years ago. Lawyers have always held themselves to high standards of professionalism and ethical conduct. The Standards of Professionalism and Civility provide practical guidance for our day-to-day interaction with other attorneys, the Court and the public. The media enjoys portraying attorneys as a caricature, emphasizing aggressive, rude, or unethical behavior. I am proud to report that most of the attorneys I have the pleasure to deal with are defined more by their collegiality, professionalism, courtesy, and ethical conduct.
Many members of the Bar or the Court have written or spoken about those Standards of Professionalism and Civility. Hopefully, all of the members of the Bar are now familiar with the Standards and strive to incorporate the principles into their practice. I wish I were always a model of Professionalism and Civility. Unfortunately, at times I succumb to the pressures of a busy litigation practice and the contention inherent in our work and stray from those principles. I know I am not alone. I have on occasion been on the receiving end of uncivil or unprofessional conduct. But when I reflect on those occasions, I come to the realization that often my own conduct, my frustration, my anger or impatience played a significant role in escalating the problem rather than diffusing the situation.
While it is an easy justification for unprofessional conduct when you were not the first violator, that you are simply responding in kind to the conduct of opposing counsel. But try as I might, I can’t find an exception in the Standards of Professionalism and Civility that provides I only need to act civil when opposing counsel is civil. Based on my own experience, civility and professionalism invites civility and professionalism even in the face of uncivil behavior.
As a profession, I hope we continue to be on the leading edge of the civility movement. We are uniquely positioned in our role as problem solvers, as counselors, as advocates in contentious, acrimonious, and emotionally charged disputes to set an example for the community to foster civility.

Get Involved!

by Robert L. Jeffs
One of the “perks” of being Bar President is the opportunity to meet with or speak with so many of the leaders of the Sections, Committees, and Divisions of the Bar about the projects and initiatives they are working on for the benefit of their members and the public. Like many of you, prior to my Bar service, I suffered from the myopia that is a symptom of the significant time commitments of a busy law practice. This last month, Isaac Paxman from the Executive Committee of the Litigation Section told me about the new Topic Bank launched by the Litigation Section through its website. This project helps law students identify important, interesting, and current topics for research and writing in law journals or law school projects.

As I reflected on my discussions with Isaac, I realized that so much of the work done by the Bar is a product of our Committees and Sections. Philanthropic and pro bono programs include such programs as the Young Lawyers Division’s “Wills For Heroes” and “Walk Against Violence,” Women Lawyers of Utah’s “Cancer Bites” fundraiser, as well as Tuesday Night Bar programs sponsored throughout the State by local Bar Associations. Ethics opinions provided to members by the Ethics Advisory Committee, the legislative work of the Governmental Relations Committee, the handling of fee disagreements by the Fee Arbitration Committee, and the peer to peer counseling by the Lawyers Helping Lawyers Committee are just a few examples of the many services our Committees provide to Bar Members. The time donated by the volunteers that serve on the various committees of the Bar collectively amounts to thousands of hours per year.
I have the chance to serve on the Committees for the Annual Convention, the Fall Forum, and the Spring Conventions. A representative from each of the Sections of the Bar participates on those convention committees. Those representatives take the lead in designing the CLE breakout sessions. The Sections are able to focus on the specific needs of the various practice groups, to identify those issues that their members are most interested in for continuing education. Sections provide a network for the sharing of best practice tips and contribute to the overall professionalism of the Bar by fostering collegiality through the interaction of Section members.
Universally, the members of our Bar that I meet with report that their Bar service, whether it is participation in a Section, Committee, Division, or local Bar Association is rewarding. The experience enhances their work day life as an attorney. I would encourage all Bar members to expand their involvement in the Bar. At the very least, join a Section that involves an area of law that will assist your practice, get out of the office, attend Section meetings, meet other members of the Bar with similar practices. Like me, I think you will see your enjoyment from the practice of law increase.

The Pro Se Quandary

by Robert L. Jeffs
On October 13, over 300 new attorneys were admitted to practice in Utah. With the economic downturn, many law firms have curtailed hiring and, in some circumstances, laid off attorneys. As a result, the numbers of unemployed and underemployed attorneys, as well as attorneys who are trying to establish a new practice, have swelled.

While the decision of firms to limit their hiring may be due, in part, to decreases in demand for certain types of legal services, the demand for legal services in Utah in areas such as divorce, bankruptcy, etc. is actually increasing, as reflected in the substantial increase in court filings. In addition, the courts are being inundated with pro se litigants. That flood of pro se litigants bogs down the courts as the clerks’ offices and courts try to shepherd cases without the expertise of attorneys. Other areas of practice such as foreclosures, loan workouts and modifications, collections, and business liquidations, to name a few, have also experienced increased demand. Yet, those same potential clients see our services as unattainable and beyond their means.
Programs and services like public defenders, Utah Legal Services, Legal Aid of Utah, the Disability Law Center, and Tuesday Night Bars throughout the state provide some limited legal representation for the poorest members of our community. But, for a large segment of the middle class, obtaining affordable legal services is more difficult. To an increasing segment of society, we are becoming less relevant.
Real or imagined, we are increasingly perceived by consumers as a service only available to the wealthy. I do not believe that the public perceives that attorneys are not needed to access the judicial process. On the contrary, the judicial system, with its abundant rules and procedures, as well as the mass of laws that govern a particular dispute, makes the services of an attorney exceedingly valuable, if not essential. But, therein lies the frustration of the public. Steve Burt, a perceptive public member of the Bar Commission, expresses this frustration well with the observation that the judicial system is the only branch of government that “requires” an attorney for public access. Even if it does not “require” an attorney to access the courts, it is difficult without an attorney. There is a real danger that this frustration may result in changes to allow non-lawyers to represent individuals and businesses in areas currently requiring attorney representation.
I believe that our profession has an obligation to provide a means for the public to obtain more affordable legal services, and to assist the public in accessing the judicial system. Society is better served if our profession provides counsel and direction in the formation of business arrangements, in the formulation of estate plans, and in the myriad of other services that we provide. Our profession will reap long-term benefits by broadening the base of clients that enjoy legal representation. In addition, the efficiency of the courts would be improved if more litigants before them had attorneys representing them. I am not suggesting that the public has a right to legal representation without the obligation to pay a reasonable amount for those services. Rather, if we want to preserve our judicial system, and our right to practice our profession, we should have programs in place that make available reduced-cost legal representation for those with modest or limited means.
The public, the profession, as well as the judicial system would suffer if public frustration with the cost of legal services evolved into a movement to allow non-lawyers to represent individuals or businesses in areas previously limited to representation by attorneys. I have discussed with Bar leadership from other states their experiences with the nightmare of expanding representation of litigants to non-lawyers. The public becomes easy prey for quasi-professionals who have no actual knowledge or expertise. The courts experience similar, if not heightened, difficulties dealing with non-lawyer representation that they struggle with from pro se litigants. The non-lawyer “professionals” are not subject to discipline or the rules of professional conduct like attorneys. Additionally, the clients of these supposed “professionals” are subjected to further injustice when being represented by individuals who are unable to effectively navigate the system and actually do harm to their clients’ causes. The resulting harm merely breeds further distrust of the judicial system.
Like many of the members of our Bar, I am a member of a small firm whose clientele has always been predominated by middle class individuals and small businesses. Creative fee structures such as contingent fees or blended fees of reduced hourly rates combined with a contingent fee component, flat fees, and discounted legal services have long been a part of how we serve our core clientele. The rules adopted by the courts for limited-scope representation are an additional tool available for Bar members to use to provide legal services to a broader range of clients who may not be able to afford comprehensive representation.
The current market forces with increasing numbers of underemployed attorneys provide us an opportunity to reassess how we deliver our services, how those services are priced and to try to match those underemployed attorneys with the unmet needs of the public for more affordable legal services. The Bar intends to take a leadership role in forging a process or program to expand the availability of affordable legal services to the members of the public with modest means. I welcome your thoughts and suggestions.

New Lawyer Training Program:First Year of Implementation

by Tracy Gruber
Once again, the Utah State Bar is expanding its membership, admitting over 300 new lawyers in October 2010. Fortunately, these newly-minted members of the bar will not be alone as they embark on the next stage of their professional development. The experienced members of the bar will be there to guide, assist, and mentor the new lawyers through the New Lawyer Training Program (NLTP).

It is difficult for the new lawyer to face the reality that law school does not fully prepare recent graduates to practice law. After all, three years of intensive study, up to $100,000 in expenses, typically in the form of student loans, not to mention the many stressful months of preparing for the bar exam should prepare one for the profession. However, numerous studies continue to demonstrate that despite successfully teaching legal doctrine and analyses, and preparing one to “think like a lawyer,” law schools consistently fall short in providing the skills necessary for new lawyers to practice. The nature of the modern legal education is such that practical legal skills training is not the focus of the law school curriculum. Although this focus is changing with the expansion of law school clinical and externship programs, limited access to these programs for law students has failed to address the problem.
Brigham Young University Professor and member of the Supreme Court Committee on New Lawyer Training, James Backman, recently noted that law students are able to gain access to practical legal training through a variety of avenues, including law school clinical programs, externships, and summer clerkships. See James Backman, Externships and New Lawyer Mentoring: The Practicing Lawyer’s Role in Educating New Lawyers, 24 BYU J. Pub. 65, 73 (2009). However, these experiences are open to a limited number of students due to cost and the exclusive and competitive nature of summer clerkships, where typically only the top twenty percent of students are accepted into these programs. See id. at 73-74.
Although some large national firms attempt to address the training gap by establishing practical legal training programs for new associates, most firms continue to be unwilling to make the financial investment necessary to establish these programs. Moreover, training programs in firms are only open to a small number of new lawyers, particularly during this current economic time when the majority of new lawyers are working in small firms or as solo practitioners with no access to practical legal training. This piecemeal approach to training is insufficient in preparing new lawyers for the practical demands of the profession.
The inadequacy with which the gap in legal training is being addressed has led bars, with the encouragement and support of the judiciary, to develop uniform and regulated mentoring programs for new attorneys. Although there has not been one solution successfully addressing the disconnect between the law school emphasis on legal theory and the skills and experiences needed to handle clients, bars are turning to one-on-one mentoring. Historically, mentoring has been an effective method of training lawyers in the culture, standards, and skills of the profession.
In 2008, the Utah Supreme Court and the Utah State Bar reached a similar conclusion and established the mandatory NLTP. “The Court had concerns that the economic pressures on the legal profession were diminishing the opportunities for young lawyers to receive guidance, supervision and training from more experienced lawyers,” explains Chief Justice Christine Durham. “The Court hopes that the NLTP will help launch productive legal careers and anchor new members of the profession in the fundamental values that a learned profession espouses.” The NLTP represents the practicing bar’s commitment to the next generation of lawyers and an acknowledgement that all new lawyers need guidance in the profession after law school.
The NLTP, which began as a bold idea in new lawyer professional development, is gaining nationwide attention as other bars consider similar programs. The NLTP was modeled after Georgia’s mandatory mentoring program, “Transition Into Law Practice” and Ohio’s optional “Lawyer to Lawyer” mentoring program. The success and positive feedback of the NLTP and mentoring programs in these states has led many jurisdictions to establish mandatory or pilot programs, including Maryland, Oregon, Wyoming, and Arizona, among others.
Members of the Utah State Bar have embraced the NLTP by applying to become approved mentors. Since the NLTP was adopted, over 590 experienced and respected attorneys have been approved as mentors by the Utah Supreme Court. The program matches mentors with new lawyers to participate side-by-side in a series of activities and experiences designed to improve the new lawyer’s transition into the practice of law and more effectively teach ethics, civility, and professionalism.
The mentor and new lawyer relationship is central to the NLTP. Since starting in July 2009, there have been 311 new lawyers paired with 290 court-approved mentors. The program is benefiting both partners in this important relationship. In a recent anonymous survey conducted by the Utah State Bar, a mentor stated, “I feel good about my renewed commitment to the profession through this program.” Similarly positive, a new lawyer remarked, “I was assigned an amazing mentor who has helped introduce me to the local legal community, opened doors for me and helped me to have the confidence to open my solo practice.” (For more feedback see “What Mentors and New Lawyers are Saying” on the next page).
During the twelve-month NLTP term, mentors and new lawyers work through a comprehensive mentoring plan designed by the new lawyer and his or her mentor using a set of required activities and elective learning opportunities established by the Supreme Court Committee on New Lawyer Training and included in the NLTP Model Mentoring. “The plan is intended to expose new lawyers to a broad variety of activities that are common to the practice while allowing the flexibility to individualize the plan based on the new lawyer’s professional goals and interests,” remarked Margaret Plane, Co-Chair of the Supreme Court Committee on New Lawyer Training. “The ability to individualize the plan helps make the first year CLE requirements meaningful and effective in transitioning new lawyers to the practice.”
The plan includes a broad range of subjects for discussion often overlooked in the pressure of court deadlines and client expectations. These requirements in the plan include the following subjects: introduction to the legal community; ethics and professional conduct; conflicts and confidentiality; work-life balance; and law office management, among other subjects. “A well thought out war story can be an effective teaching tool,” said Rodney Snow, Co-Chair of the Supreme Court Committee on New Lawyer Training,
The NLTP, however, is not designed for a string of war stories or for the repeating of the same. Rather, the NLTP and the mentoring plan are designed to enable new lawyers to safely ask the tough questions about the profession as they are being taught the skills, habits, tools and ideals necessary to practice law competently and with integrity.
As experienced attorney Elaina Maragakis put it, “law school teaches you where the courthouse is but it doesn’t teach which bus to take to get there.” The vision of the Utah Supreme Court and Utah State Bar in establishing the NLTP hopes that new lawyers will learn “which bus to take” to the courthouse and how to competently represent clients, be they working in a firm, business, non-profit or public sector.
What Mentors Are Saying
Upon completion of the NLTP mentoring term, participants are asked to comment on their experience in the program. Recent positive comments from mentors include the following responses:
The NLTP helped me realize I have learned a lot about the practice of law and can pass this knowledge on to those with less experience.
The NLTP allowed me to have greater reflections on my own legal career the good, the bad and the ugly.
I feel good about my renewed commitment to the profession through this program. I have hope for the future with these younger lawyers.
The NLTP helped solidify ethical concepts and issues.
Seeing the practice of law through the eager and fresh eyes of a new lawyer renewed my perspective.
I was forced to learn about some of the USB programs of which I had little or no familiarity.
I felt good about helping someone learn the ropes. [New Lawyer] also introduced me to new concepts/ways of doing things that were not available when I was in law school.
The NLTP required me to review new materials.
The NLTP reminded me of how far I’ve come and what it took to get here which, in turn, reminded me that I needed to be more empathetic and patient with my mentee and new/younger lawyers in general.
The NLTP helped refresh my understanding of some of the issues I do not deal with regularly.
It was great to meet a new lawyer and see the world through his new eyes and not my own jaded view.
The new attorney’s enthusiasm reminded me how exciting the work can be.
What New Lawyers Are Saying
The New Lawyers who were mentored provide similar positive feedback resulting from the experience in the NLTP:
My mentor frequently gave tips on professionalism, ethics and civility when discussing cases, interaction with the courts and other attorneys.
I had the opportunity to work with an experienced criminal defense attorney.
My mentor and I had several discussions regarding professionalism issues that were based primarily on my mentor’s personal experiences. I found these discussions to be helpful and instructive.
My mentor was excellent and helped me to know what is good practice, rather than just acceptable practice.
I was able to meet an expert in my field of practice, learn about his methods, and have an additional resource to turn to.
I was assigned an amazing mentor who helped introduce me to the local legal community, open doors for me and helped me to have the confidence to open my solo practice.
I learned more than I expected.
My mentor pointed out some shortcomings I was committing or inclined to commit.
There is no way I would have gotten the experience I have thus far in my legal development without my mentor.
While most of the tasks in my mentoring plan were tasks I would perform naturally on the job, the sit-down discussions provided good opportunities to receive mentoring I would not otherwise have received.
My mentor and I often discussed how to advance an argument or case without maligning opposing counsel or being offensive to the court.
It helps enormously to have someone whose judgment you trust to use as a sounding board when you’re venturing into uncharted waters.
My mentor was always available for questions I had. Without a mentor I would not have felt confident in going into solo practice alone, applying for and obtaining a public defender contract, and generally feeling capable as a new attorney.
I had a great mentor who understood what it was like to be a new criminal defense attorney.
My mentor was courteous, accommodating, knowledgeable, and enjoyable.

UTAH SUPREME COURT TO HEAR ORAL ARGUMENTS AT J. REUBEN CLARK LAW SCHOOL

WHAT: The Utah Supreme Court periodically holds court sessions in other locations to provide an opportunity to enhance public understanding of the court’s work and to provide law students with an opportunity to see the Supreme Court in session.
Cases to be heard are as follows: (A summary of the cases is attached to the e-mail.)
State v. Hernandez, case no. 20090080-SC
State v. Morris, case no. 20090835-SC

WHEN: Wednesday, November 3, 2010, at 10:00 a.m. to approx. 12:00 p.m.
WHERE: J. Reuben Clark Law School, Brigham Young University
WHO: Utah Supreme Court Justices: Chief Justice Christine M. Durham, Associate Chief Justice Matthew B. Durrant, Justice Thomas R. Lee, Justice Ronald E. Nehring, and Justice Jill N. Parrish.
PHOTOGRAPHY:
One pool still photographer and one pool video camera will be permitted into the court session. To request to be the pool photographer, contact Public Information Officer Nancy Volmer at (801) 578-3994 by Nov. 2.
# # #

Mandatory 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. Should you have questions regarding your CLE compliance, please contact Sydnie Kuhre, MCLE Board Director at skuhre@utahbar.org or (801) 297-7035.
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.

Ethics Advisory Opinion Committee Seeks Applicants

The Utah State Bar is currently accepting applications to fill vacancies on the 14-member Ethics Advisory Opinion Committee. Lawyers who have an interest in the Bar’s ongoing efforts to resolve ethical issues are encouraged to apply.
The charge of the Committee is to prepare and issue formal written opinions concerning the ethical issues that face Utah lawyers. Because the written opinions of the Committee have
major and enduring significance to members of the Bar and the general public, the Bar solicits the participation of lawyers who can make a significant commitment to the goals of the Committee and the Bar.

If you are interested in serving on the Ethics Advisory Opinion Committee, please submit an application with the following information, either in résumé or narrative form:
• Basic information, such as years and location of practice,
type of practice (large firm, solo, corporate, government,
etc.) and substantive areas of practice, and
• a brief description of your interest in the Committee, including
relevant experience, ability and commitment to contribute to
well-written, well-researched opinions.
Appointments will be made to maintain a Committee that:
• Is dedicated to carrying out its responsibility to consider ethical
questions in a timely manner and issue well-reasoned and
articulate opinions, and
• includes lawyers with diverse views, experience and background.
If you want to contribute to this important function of the Bar,
please submit a letter and résumé indicating your interest by
September 25, 2009 to:
Ethics Advisory Opinion Committee
C/O Christy J. Abad, Executive Secretary
Utah State Bar
645 South 200 East
Salt Lake City, UT 84111

Utah Tax Review Commission to Meet

On Friday, May 1st, 2009 at 1:00pm the Utah Legislature will be hosing a meeting of the Utah Tax Review Commission. This meeting is currently scheduled to be held in room 445 of the State Capitol. The agenda for the meeting is below.
AGENDA
Utah Tax Review Commission
Utah Legislature
Friday, May 1, 2009 • 1:00 p.m. • Room 445 State Capitol
1. TRC Business

  • Call to Order
  • Approval of minutes of January 15, 2009 and February 18, 2009 meetings
  • Update on Severance Tax Collections and Deposits into the Permanent State Trust Fund
  • 2. Review of Tax Related Legislation Enacted During the 2009 General Session
    3. Review of Study Items for the 2009 Interim

  • Sales and Use Tax Study Required Under Section 59-12-104.5
  • Follow Up on September 2008 Request from Governor Huntsman
  • Request from Chairs of Revenue and Taxation Interim Committee
  • Definition of Business Income
  • Foreign Sales Corporation
  • Clarifying Definition of Residency Under the State Individual Income Tax
  • Other Study Items
  • 4. Overview of Cigarette and Tobacco Products Excise Taxes

  • Overview of Tax Structure, Use of Revenue, and Rate, Base, and Revenue Trends – Phil Dean, Policy Analyst
  • Invited Public Comment
  • TRC Discussion and Direction for Future Action
  • 5. Other Items / Adjourn

  • 2009 Meeting Schedule
  • It is the belief of the Bar leadership that the Professional Services Tax study committee will be included in the ‘Other Study Items’ portion of the agenda. If there are any changes to this agenda they may be found at the Utah Legislature website located at the website below. (Minutes and an audio recording of the meeting will also be uploaded to this location. )
    http://www.le.utah.gov/asp/interim/Commit.asp?Year=2009&Com=SPETAX
    PDF files that are labeled as supporting information for the meeting may be downloaded from this link
    http://www.le.utah.gov/interim/2009/pdf/00000488.PDF
    and a list of Tax Bills passed during the 2009 general session may be found here
    http://www.le.utah.gov/interim/2009/pdf/00000489.pdf
    The Utah State Bar has a section of its website dedicated to tracking this issue located at http://www.utahbar.org/prof_services_tax/

    2006 Spring Convention Awards

    2006 Spring Convention Awards
    The Board of Bar Commissioners is seeking applications for two Bar awards to be given at the 2006 Spring Convention. These awards honor publicly those whose professionalism, public service, and public dedication have significantly enhanced the administration of justice, the delivery of legal services, and the improvement of the profession. Award applications must be submitted in writing to Maud Thurman, Executive Secretary, 645 South 200 East, Suite 310, Salt Lake City, UT 84111, no later than Monday, January 16, 2006.
    1. Dorathy Merrill Brothers Award – For the Advancement of Women in the Legal Profession.
    2. Raymond S. Uno Award – For the Advancement of Minorities in the Legal Profession.

    The Young Lawyer

    Federal Judge Dee Benson Will Speak at Law Day 2001 Luncheon at the Grand America Hotel
    The Utah State Bar and guests will recognize Law Day 2001 on May 1st, highlighted by a luncheon at 12:00 noon at the new Grand America Hotel in downtown Salt Lake City.

    The Honorable Chief Judge Dee V. Benson, United States District Court for the District of Utah, will be the key note speaker. Judge Benson has served on the Federal bench since 1991 when he was appointed by President Bush. Prior to that, Judge Benson served as legal counsel to the Senate Judiciary Committee from 1984 to 1986, as Senator Orrin Hatch’s Chief of Staff from 1986 to 1988, and as United States Attorney from 1989 to 1991. For Law Day 2001, Judge Benson is expected to speak on the origins of Law Day. Judge Benson is always a popular speaker whose comments are certain to educate as well as entertain.
    The luncheon will be sponsored in part by Lexis-Nexis and held at the soon-to-open Grand America Hotel. The Grand America will be the first five-star hotel in Salt Lake City. Although the hotel will not be fully operational and open until later in the summer, this event will be one of the very first opportunities the public will have to see the hotel.
    Awards will be presented to members of the legal community as well as to high school students chosen as winners of the Law in the Community essay and art competitions.
    Please RSVP by April 25, 2001, by check for $30, made out to the Utah Bar, and mailed to Attn: Richard Dibblee, Utah State Bar Law Day Luncheon, 645 South 200 East, Salt Lake City, Utah 84111.