e.Bulletin for March 2015



In April, we will have an opportunity to vote for a new Bar President-elect and Third, Fourth, and Fifth Divisions Bar Commissioners.  Please visit election details for information on the candidates.  Here is the field of excellent candidates:


  • President-elect:  Robert Rice and Tom Seiler
  • Third Division Commissioner (two openings):  Kate Conyers, Janise Macanas, and Michelle Mumford
  • Fourth Division Commissioner (one opening):  Liisa Hancock and Tom Seiler
  • Fifth Division Commissioner (one opening):  Aaron Randall and Katie Woods

Also in April, the Magna Carta Traveling Exhibit will be touring Utah.  Local Bar associations are putting together some great events in St. George, Orem, Logan, and Ogden; click here for the exhibit schedule.  And for those on the Wasatch Front, please stop by after work on Friday, April 3, from 4 to 6:00 p.m. to see the exhibit and enjoy a reception at the Utah Law and Justice Center, 645 S. 200 E, SLC.  We are planning a Magna Carta Gala Celebration on the evening of April 14 at Rice Eccles Stadium, where Chief Justice Durrant and Governor Herbert will be speaking.  Please write to magnacarta@utahbar.org if you are interested in attending.  We are looking forward to hearing what Utah students write about Magna Carta; please encourage students in grades 8-12 to participate by March 30.  For information, see competitions.
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e.Bulletin for December 2014


election2013_JGilsonSeason’s greetings!

Please join us in helping local shelters this Friday, December 19 for the 25th Annual Food and Clothing Drive.  Drop off your items at the Bar from 7 a.m. to 6 p.m. at the back doors of the Bar where volunteers will help you unload your donations.  Click here for details.

I’m pleased to announce that the Bar has established a Commission on the Future of Legal Services in Utah to evaluate issues resulting from developments in technology and globalization, as well as changes in demographics and economics.  The charge and scope of this Futures Commission is to “gather input, study, and consider the ways current and future lawyers can provide legal and law-related services to the public, especially to individuals and small businesses.”  If you have thoughts on this issue, please contact me or co-chairs Nate Alder, nathan.alder@chrisjen.com or John Lund, jlund@scmlaw.com.
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e.Bulletin for September 2014


Classes are now available for the third annual September 17 Constitution Day Teach-in, for grades 5 through 12, with availability September 15-19.  Most classes are less than one hour long.  Helping young people understand the role of lawyers and the justice system is very enjoyable, makes a big difference in the classroom, and generates a lot of good will for our profession.  Click here to select a class to teach.  It’s easy to do: teach your own lesson or follow the lesson plan devised by the Bar’s Civic Education Committee (Co-chaired by Ben Hathaway and Gabe White).  An optional program review will be at the Law & Justice Center on Thursday, September 4, at 5 p.m. or Friday, September 5, at Noon; on-line video available next week; one-hour CLE credit for any option.  Click here for lesson plan and CLE registration.
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E.Bulletin for August 2014


Thanks to all those who attended the Bar’s Summer Convention, in Snowmass Colorado, July 16-19.  There was great CLE and opportunities to meet with other lawyers and judges, plus enjoy the outdoors.  Special thanks are due to Troy Booher for chairing this outstanding convention.  See these links for information about the Bar’s new leadership and our award winners, including Judge of the Year James L. ShumateLawyer of the year Charlotte L. Miller, and special awards to the Young Lawyers Division, Civics Education Committee, and Intellectual Property Section.  Please save the dates for next summer’s convention, which will be in Sun Valley on July 29-August 1, 2015.
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President’s Message: Fall Forum Awards


I am pleased to announce the recognition of the following people for outstanding service to the community and the profession. Awards will be presented at the Fall Forum.



  • Professionalism Award, given to a lawyer or judge whose actions and deportment represent the highest standards of courtesy, fairness and civility: William S. Britt.
  • Community Member of the Year Award, to recognize outstanding service toward the creation of a better public understanding of the legal profession and the administration of justice, the judiciary or the legislative process: Robert Austin, Education Specialist at Utah State Office of Education.
  • Outstanding Mentor Award, presented to an inside mentor from the January and July 2012 New Lawyer Training program: Brent H. Bartholomew.
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e.Bulletin for September 2013


commissioner_Jensen_CurtisI hope you had an enjoyable summer. At our last commission meeting we reviewed and assessed our performance on last year’s objectives as well as how we can continue to improve the programs currently being implemented by the Bar. We also had a great discussion on some of the challenges facing our profession in the coming years and how we can be better prepared to deal with these challenges. As a commission, we have identified specific objectives to focus on for the coming year. We will continue to promote the Pro-Bono and Modest Means programs. We have been very pleased with the success these programs have had since their launching, but realize that efforts must be made to assure their continued success.  Some of the objectives we have identified and will be focusing on for the coming year include:
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An Exciting Start to a Great Year

commissioner_Jensen_CurtisThe Summer Convention in Snowmass was an exciting beginning to my tenure as new Bar President. From serious break-out sessions to fun times with the family and colleagues in the Rockies and from learning about the difference between mastodons and mammoths to hearing about how the courts failed in Nazi Germany—I was constantly reminded about the value of our profession and the great people we get to work with at the Utah State Bar. It will be my honor and privilege to serve you for the coming year. I look forward to working with your commissioners as we continue to identify the important needs of our membership and continue to implement those programs that will best serve and assist you in your daily practices.

Thank You for Letting Me Serve the Profession


In my last e-bulletin I wanted to thank all the people who have made this year so successful. Thanks to Rob Rice and his committee for the yeoman’s work they have done on the pro bono commission. Thanks to Rob Jeffs for his inspiration and John Lund and Judge Su Chon for all the hours of work devoted to getting the Modest Means/Lawyer Referral program underway and working. Thanks to the Bar staff who have worked in extraordinary conditions while the HVAC system is being replaced and to Steve Burt, commission member and architect, for managing the contracts and bids for the work. Thanks to Angelina Tsu and Benson Hathaway for getting 174 lawyers and judges into classrooms on Constitution Day teaching on the constitution. Thanks to Rob Jeffs for heading up the new member benefits project to improve what the Bar can deliver to our members.

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The Legal Profession Today and Into the Future

Bar President Lori NelsonI recently attended a conference that seemed to imply that the sky was falling regarding law practice as we know it. The message was that lawyers and firms need to plan and adapt or fail. Every generation of attorneys has been confronted with change. We are no different. Lawyers have always risen to the challenge, and I am pleased to note that many of the changes recommended by other presenters, and presented below have already been adopted by Utah firms, law schools, and the courts. Based on the theory that knowledge is power, I thought I would share with you the thoughts of Frederic S. Ury and Thomas Lyons, who posited that there are five major trends impacting the practice of law: Globalization; Technology; Nature of clients; Demographics; and Legal education.
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President’s Message: Balance

Bar President Lori Nelson

President’s Message
by Lori W. Nelson

When I was thinking about what to write, a good friend suggested I write about balance. I took that to mean work/life balance. As I thought about work/life balance, it occurred to me that the way we define the topic changes the discussion. After all, isn’t work part of life? To discuss the topic as if work and life are separate and happen in isolation of each other ignores reality. We spend a huge amount of every day devoted to our profession, and it is part of life. I believe a much better way to define the topic is Life Balance.

We all have issues that we deal with every day: jobs, homes, families, health, service, etc. These aspects of our lives are what make us whole. It is how we balance all of these competing interests that determines our happiness.

Malcolm S. McNeil of Carlsmith Ball LLP discussed this topic at the ABA Midyear meeting in 2008. He stated that “lawyers must be aware of their priorities in life and make sure their personal and professional endeavors support those priorities.” The point is not that work and life compete, but rather that personal and professional efforts should aim for the same target.

The Young Lawyers Division of the American Bar Association produced a CLE Series called “101 Practice Solutions.” One of the topics was “Balancing Life and Work.” The suggestions included the following:

Define your values – “Life should be a reflection of what you value the most.”

Do not procrastinate – “Procrastinating keeps your mind busy and prevents you from relaxing….”

Organize, organize, organize – “Figuring out a way to organize your time, space and habits…can be very calming.”

As technology has made it easier to accomplish work related activities when we aren’t in the office, we have to ask ourselves if we are managing the balancing act better or worse than before we had access to instant email. Ron Ashkenas, a contributor to Forbes, wrote in the October 19, 2012, publication that we are no longer talking about work/life balance but rather work/life blend. (I still object to the notion that work isn’t a part of life, but for purposes of discussion, let’s just go with that phrase for now.) Ashkenas states that in managing the blend we should “stop feeling guilty about scheduling [work] during vacations and checking our emails at night” and similarly we should stop feeling guilty about “talking with our spouses, friends, and family members during work time.”

Cali Williams Yost, the author of the new book TWEAK IT: Make What Matters to You Happen Every Day, stated that work/life balance doesn’t exist and what we need to think about is work+life fit. She states in an interview with Dan Schawbel at Forbes, published January 8, 2013, that:

It is more important than ever that we bring the best of ourselves, physically, emotionally and creatively to our jobs and lives every day. Small actions and priorities, like a walk with your dog or shopping for healthy food, that are part of your weekly routine make a big difference.

Yost stressed that people need a “simple, weekly practice to deliberately capture the small actions that build the foundation of well-being and order we crave, but that’s missing for so many people today.” Often thinking and talking about the changes or actions a person can undertake to achieve balance feels like piling more things onto the list of obligations which already exist. It is true for me that trying to figure out and analyze life balance is much more difficult than simply acting.

Here I beg your indulgence as I get a little personal. Thirty years ago I was diagnosed with Crohn’s Disease. My son was 1 at the time and, given the little that was known about the disease and facing major surgery, I became very frightened. It was then that I realized I had to make every day count, and that life is short and unless each day mattered in some way, it would be wasted. Because of the Crohn’s I have had to learn several things: I can’t do everything; sometimes I have to stop and regroup; and, I am surrounded by supportive people.

I have been privileged to work in firms that support life balance, firms that understand each individual has different issues and are willing to accommodate those issues. I joined Jones Waldo, in part, because it had the technology to allow me to work from home on those days I simply couldn’t get to work (given the advances in medicine, those days are now few and far between). The firm is also very accommodating about my Bar service. Nevertheless, even though I love my house and hate the commute, I find myself going into the office simply because I like being there. Since I first joined a law firm, I found I liked being at work because it fulfilled one of my life goals: associating with competent people doing good in the world.

Fulfillment, for me and my husband (also a lawyer), comes many different ways: our jobs, Bar service, spending as much time as possible with our two grandsons, cooking, and spending time with good friends. We all dedicate hours and hours to our professional lives. This commitment to our profession can and should be fulfilling. It will be if it fulfills at least one of our life goals. I am proud to be part of our profession. The work we do is meaningful and because of it society is much better off. We also dedicate countless hours to community service in pro bono or other volunteer service enhancing the benefits to our community and ourselves.

One of the reasons the Bar continues to have out-of-state CLE conferences is to allow our members access to work-related activities and family related activities at the same location. You have asked for affordable CLE in affordable locations with options that are appealing to families. St. George and Snowmass/Aspen provide those opportunities. It is a chance for us to get together as members of the Bar away from the office and associate in comfortable and (hopefully) stress-free environments. We can fulfill our CLE requirements and still have rewarding family time, or even personal time, in surroundings that are conducive to relaxing and rejuvenating.

Life balance can be achieved. We need to acknowledge that our work, what we do day in and day out is part of life. Admitting that life doesn’t just start to happen when we leave for the day can be the first step in finding that balance. I agree with Yost that our lives will feel more balanced if we make what matters to us happen every day.

Utah State Bar President’s Message January 2013

Utah’s Lawyer Legislators

Not many of us are aware of the tremendous personal and financial sacrifices associated with being a lawyer-legislator. Long hours, limited family time and the difficulty of juggling demands make it prohibitive for most lawyers to run for office. Add time-consuming campaigns every other year, and becoming a legislator loses much of its appeal. Lawyers pay a big price, both personally and professionally, to serve in the legislature. Most claim a huge loss in time available for their families and a diminished earning capacity because of the tremendous amount of time required at the legislature and at the law office. Nonetheless, attorneys play a vital role in the legislature by virtue of the fundamental training they receive in law school. An attorney comes into the job with the knowledge and experience of the law and a lawyer’s unique ability helps them to watch for language in legislation that may be misconstrued and lose its original intention. Utah’s citizenry is well-served having 22 lawyers work as legislators.
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The Jewels on the Hill

by Rodney G. Snow
Thank You
This is my last President’s Message to the Bar. I have had the privilege of meeting many of you, including dozens of our new lawyers. I have made new friends, for which I am grateful. I continue to be impressed by the untold hours of quiet service many of you render for the benefit of the Bar and our community. For that and so many other reasons it has been an honor and pleasure to represent you as your Bar president.
Service is both a responsibility and a reward that comes with being professional. It is what distinguishes a profession from just another business.
As you renew your Bar license this year, please “Check Yes” to volunteer for the opportunity of a pro bono matter or case. Many of you will have read about or seen the video of Meghan Vogel, a track star from West Liberty Salem high school in Ohio, help Arden McMath across the finish line after she had collapsed in a 3400 meter race, ensuring that Arden finished ahead of Vogel. This moment of humanity exhibited in a competitive race should move us to offer our professional services to those who otherwise might not be able to finish their race for justice.
I thank the Bar Commissioners and the Executive Committee for their hard work and support this year. Your Commission provides many hours of service to Bar matters. I acknowledge, once again, the incredible work and service of our Young Lawyers Division and their leaders. The YLD continues to show us the way with their energy, compassion, and extraordinary service. I also express my thanks to John Baldwin, Richard Dibblee, and the entire Bar staff for their patience, support, and assistance this year.
Thank you to Lori Nelson, our President Elect, who has supported and participated in the launch of our new programs and is already working hard in preparation for next year. Lori pays close attention to critical detail and will be a superb President.
I thank my firm, Clyde Snow & Sessions, and my clients for their patience and understanding this past year.
And last but not least I thank my wife Bobbi and our family for their listening ears, support and constructive suggestions.
As many of you know, during the summer of 2002, I was diagnosed with laryngeal cancer. It was, of course, a shock. I am not a smoker. Among the possible suspects was acid reflux. I don’t know many lawyers, particularly trial lawyers, who do not experience acid reflux at least occasionally. Get checked and medicated, if necessary. Maalox and Tums may not solve the problem. The “C” experience opened windows and vistas I may have otherwise missed. I am pleased to be working and enjoying life with family and colleagues. My grandchildren who are fascinated with my robot friend (electronic larynx) are persistent in learning how to use it.
I also learned to appreciate the incredible resources and talent we have in Salt Lake City, the University of Utah Medical Center and the S.J. Quinney College of Law, two bright jewels that provide unparalleled service to our community and, indeed, the entire Rocky Mountain region. Of course, there are other jewels at the University of Utah, the business and engineering schools, humanities, and many others.

The University of Utah Medical Center
It was an afternoon, as I recall. I had been to Clinic 9 to see Dr. Kim Davis. Dr. Davis was the head of ENT and a skilled head and neck cancer surgeon with a national reputation. He is compassionate and hopeful. He operated on me several times, chasing my squamous cell, well-defined cancer from one spot to another. He moved to IHC during my experience and the care was equally satisfactory. Finally, in April of 2004, after radiation failed to eradicate the cancer, Dr. Davis informed me they had played “Russian Roulette” with me long enough and that a total laryngectomy was imperative to avoid significant risk to my life. My treatment had been prolonged in an attempt to preserve all or some of my vocal chords.
On this particular afternoon, as I entered the lobby of the Medical Center while leaving my appointment, I paused for several minutes to simply observe the mass of humanity moving in, out and around. I became overwhelmed. Just the number of patients, some critically ill, coming and going was amazing. When you add the nurses, staff, residents, interns, and doctors quickly bustling here and there, I began to feel like I was in Manhattan at 9:30 a.m. as the subways emptied. This moment of observance helped me realize the good that was being done every minute, every half-hour, and hour for so many patients, some of whom would never be able to pay for the care they were receiving.
In 2010 and 2011, University of Utah Health Care obtained a national top-10, five-star quality rating from the University Health System Consortium.1 The University of Utah Medical Center combines excellence in patient care, the latest in medical research, and teaching to provide leading-edge medicine in a caring and personal setting. The system provides care for Utahns and residents of five surrounding states and a referral area encompassing ten percent of the continental United States.2 As part of that system, the University hospitals and clinics rely on one thousand board-certified physicians who staff four University Hospitals (University Hospital, Huntsman Cancer Hospital, University Orthopaedic Center, and the University Neuropsychiatric Institute), ten community clinics, and several specialty centers.3 University of Utah Health Care is consistently ranked among US News and World Report’s best hospitals, and its academic partners, the University of Utah School of Medicine and Colleges of Nursing, Pharmacy and Health, are internationally regarded research and teaching institutions.4
The hospital experiences over one million outpatient visits a year; 30,000 inpatient admissions; 25,000 surgeries; and delivery of 3500 babies, including care for 500 critically ill newborns.5 Care provided for patients totaled $1,687,000,000 for fiscal year 2011. Charity services for patients unable to pay totaled $29,000,000.6
Those are just a few of the statistics available regarding the excellence being demonstrated by the University of Utah Medical Center and the University of Utah Health Care system. We express our appreciation and congratulations to the University of Utah Medical Center.
S.J. Quinney College of Law, Another Jewel on the Hill
In Utah, we are fortunate to have two top-tier law schools, the J. Reuben Clark Law School at Brigham Young University and the S.J. Quinney College of Law at the University of Utah. Both law schools make substantial contributions to our community and state by way of education and public service. Dean James Rasband and Dean Hiram Chodosh have demonstrated innovation, excellence and sensitivity to the changing economic and market conditions.
The S.J. Quinney College of Law, under the leadership and direction of Dean Chodosh, received approval from the 2012 Legislature to internally bond a new $60.5 million six-story facility to be built southeast of the current law school where Carlson Hall is located. It is hoped that groundbreaking will occur in the law school’s centennial year of 2013.7
The new law school facility is dedicated to improving the world around it through better forms of training, insights on the critical issues of the day, and direct public service.8 The new law school building will facilitate the College of Law’s vision. Key attributes of the new building will include:
• A wide variety of intimate learning environments for students both within and outside the classrooms.
• Advanced research areas in which faculty, staff, and students can effectively collaborate on major research projects.
• Flexible integration of technology to advance learning objectives, build community, and create broader national and global presence for the College’s programs.
• An emphasis on sustainable design and responsible resource use, with the goal of attaining LEED-Platinum certification and a commitment toward net-zero energy consumption.
• An exemplary approach to access for the disabled.
• Site and building planning that takes full advantage of exceptional views and environmental features and creates an appropriate identity for the College of Law with effective connections to the University and broader community.
• Significant commitment of space so that each student has an effective study and research space in a variety of settings and configurations. The law school is dedicated to keeping the first-year class small in size and maintaining the learning environment that comes from that dynamic. Square foot per student will be expanded from seven square feet to sixty square feet, and the conference center/moot courtroom on the top floor will display views of the valley and handle up to 450 students and/or community members.9
It is hoped the new law building will be yet another University gateway and entry point for the campus.
The new law building will be a resource to the legal community, as well as to the neighborhood and campus.
Recent major commitments from the S.J. and Jessie E. Quinney Foundation (over $15 million) and the LDS Church ($4 million) have facilitated the advancement of this new law facility.10
Of course, additional funds and/or commitment for funds are needed. If you or your law organization can make a commitment to the construction of this new law facility, we hope you will do so. Many lawyers and law firms have made donations and/or committed funds for the construction of this new facility. Those practicing in Utah, whether or not alumni of the U law school, are committing resources to what will be a valuable community and regional presence.
Through many of the law school’s outstanding programs, their student body produces more service per student than any other law school in the country, according to the office of the Dean. Last year alone, the student body of approximately 400 students produced over 45,000 hours of public service.11 For example, according to the law school, the Pro Bono Initiative (PBI), which commenced in 2006, has contributed approximately 29,980.25 hours of public service, and has filled a total of 1282 project placements. Free Legal Clinics are an important component of the PBI – examples are the American Indian Legal Clinic, Debtor’s Counseling Clinic, Family Law Clinic, Layton Family Law Clinic, Medical-Legal Clinic, Immigration Law Clinic, Rainbow Law Clinic, Street Law Clinic, and the new Employment Law Clinic.12 All of these legal clinics are staffed by the S.J. Quinney College of Law, volunteer law students, and volunteer on-site attorneys. In addition to the foregoing programs, the S.J. Quinney College of Law offers:
• The Center for Global Justice will work to ensure the role of law in guaranteeing basic human rights, security, socioeconomic justice, economic development, good governance, and the ability of individuals to realize their full potential regardless of their differences.
• The Center for Law and Biosciences will create innovative legal and public policy solutions to challenges posed by new developments in the biosciences and health care.
• The possibility of relocating from Columbia, South Carolina the National Criminal Justice Academy, which is a national training center for state and local prosecutors and will establish the first national indigent defense counsel training program.
• The Center for Innovation in Legal Education will use technology, simulation, experiential learning, and other improved legal pedagogies to create an integrated and dynamic learning and research environment to prepare future professionals.
• National Service Academy, which will integrate all law school service programs, including clinics, pro bono initiatives, and think tanks. This will also fill a critical need for national service training, both at home and abroad, and facilitate the concept of distributing legal service to different disciplines in national universities.13
The S.J. Quinney College of Law has been led to new levels of community service and global involvement. The new law building will be, as described by Dean Chodosh, “a virtual teaching hospital.”14 We can be proud of both our law schools and they deserve our support.
I conclude this last message echoing the remarks of Rob Jeffs, our past president, made in his last message. We encourage you to become involved in your community in whatever way works with your schedule, talents, and time. That might be serving in a Bar section or committee, in Bar leadership, as a state legislator, on a board of education, or volunteering to take a pro bono case by checking “yes” on your license renewal or to teach a civics course twice a year in one of our high schools. Of course, there are other community service opportunities available and we hope you will participate in those of your choice as your time and resources will allow. Again, thank you for the privilege and honor of representing you as your Bar president this past year.
Rod would like to thank Shannon Zollinger for her research assistance in preparing this message.
1. See 2011 Report to the Community, University of Utah Hospitals and Clinics, at 3, http://viewer.zmags.com/publication/56e89bed#/56e89bed/1.
2. See id. at 8-9.
3. See id. at 6.
4. See University of Utah Health Care, http://healthcare.utah.edu/about/ (last visited June 11, 2012); see also U.S. News Ranks U Programs Among The Best In Physician Assistant, Pharmacy, Nursing, Primary Care and Physical Therapy, March 13, 2012, http://healthcare.utah.edu/publicaffairs/news/current/03-13-2012_US_News_2013_Ranking.html.
5. See 2011 Report to the Community at 9.
6. See id. at 26-27.
7. See Governor, Legislature Show Support for the U in 2012, Continuum: The Magazine of the University of Utah, Summer 2012, at 4; see also Brian Maffly, University of Utah to build new law school, revitalize campus’ western gateway, Salt Lake Tribune, March 12, 2012, available at http://www.sltrib.com/sltrib/jazz/53684377-78/law-building-campus-chodosh.html.csp .
8. See Building Justice: Capital Campaign, Executive Summary from Pre-Programming (Phase 2), S.J. Quinney College of Law.
9. See id.
10. See, e.g., College of Law Announces $4 Million Gift from LDS Church for New Facility, ULAW Today, May 11, 2012, http://today.law.utah.edu/2012/05/college-of-law-announces-4-million-gift-from-lds-church-for-new-building/.
11. See Building Justice Through Service, S.J. Quinney College of Law, at 8, http://www.law.utah.edu/wp-content/uploads/Bulletin_2012.pdf.
12. See Pro Bono Initiative: Free Brief Advice Legal Clinics, S.J. Quinney College of Law, http://www.law.utah.edu/probono/free-legal-clinics/.
13. See Executive Summary from Pre-Programming (Phase 2), supra.
14. See Maffly, supra note 7.

President’s Message

Education on the Fundamentals of Our Government and Democracy is on Life Support: We Can Help
by Rodney G. Snow
As a nation, we are facing some of the most difficult decisions that have challenged us in a long time. Resolving today’s issues requires a citizenry that understands the fundamentals of our democracy. Unfortunately, education regarding our system of government has been lacking for many years. As reported by the Leonore Annenberg Institute for Civics at the University of Pennsylvania, the “lack of high-quality civic education in America’s schools leaves millions of citizens without the wherewithal to make sense of our system of government.”1 While most high school graduates can name the three judges on American Idol, very few can provide you the number or the names of the Justices of the United States Supreme Court. Surveys conducted over the past decade by the Annenberg Public Policy Center resulted in the shocking findings listed below.
• Only one-third of Americans could name all three branches of government; one-third could not name any.
• Just over a third thought it was the intention of the Founding Fathers to have each branch hold a lot of power, but the President has the final say.
• Just under half of Americans (47%) knew that a 5–4 decision by the Supreme Court carries the same legal weight as a 9–0 ruling.
• Almost a third mistakenly believed that a U.S. Supreme Court ruling could be appealed.
• When the Supreme Court divides 5–4, roughly one in four [Americans] (23%) believed the decision was referred to Congress for resolution; 16% thought it needed to be sent back to the lower courts.2
On the most recent National Assessment of Educational Progress for civics, more than two-thirds of all American students scored below proficient.3
On the same test, less than one-third of eighth graders could identify the historical purpose of the Declaration of Independence, and less than a fifth of high school seniors could explain how citizen participation benefits democracy.4
Civic learning is, at its heart, necessary to preserving our system of self-government. In a representative democracy, government is only as good as the citizens who elect its leaders, demand action on pressing issues, hold public officials accountable, and take action to help solve problems in their communities.…To neglect civic learning is to neglect a core pillar of American democracy.5
What has caused this decline in civics education over the last forty or fifty years? Some say it started with the disenchantment of the government brought on by Vietnam and Watergate.6 A primary reason cited is the unprecedented pressure to raise student achievement now measured by the standardized examination of reading and mathematics.7 The acronym STEM is often applied in measuring the value of success of our public and private school systems (science, technology, engineering, and math).
The No Child Left Behind, is also sharing the blame for standardized testing in math and reading. Pressure in these trends seems to have caused education regarding democratic principles to either take a back seat or disappear altogether.
Ironically, one factor driving national standardized testing for reading and STEM is an effort to maintain pace with China. Now, there’s an idea – let’s sacrifice education on the importance of the fundamentals of our democracy and the system we have in place to check government power to stay even with or exceed a people governed by a communist dictatorship where human rights are all but nonexistent8 and free elections are effectively out of the question.9
Did you know the constitution of Cuba is all but identical to ours? Many dictatorships or governments run by the military have written constitutions similar to or patterned after the United States Constitution. Why then is our government so different than that of Cuba or other countries? The people of those nations do not understand their rights and the courts exist for the government – not the people.
A citizenry educated on the concepts of our system of government is critical to our free society. As Abraham Lincoln stated:
Let it [reverence for the laws and Constitution] be taught in schools, seminaries and in colleges; let it be written in primers, in spelling books and in almanacs; let it be preached from the pulpit, proclaimed in legislative halls, enforced in courts of justice. In short, let it become the political religion of the nation.[10]
Perhaps one of the more famous quotes on this subject is that of Thomas Jefferson, “If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be.”11 In 2002, the Center for Information and Research on Civil Learning and Engagement (CIRCLE), in partnership with the Carnegie Corporation of New York, convened a series of meetings involving leading scholars and civic education practitioners to consider the current state of young people’s civic learning and engagement.12 The participants’ conclusions and recommendations were summarized in a 2003 report titled The Civic Mission of Schools.
The key reason the CIRCLE report suggests for our failure to provide effective and meaningful civic education is the lack of institutional commitment to formal civic education.13
Civics Education Program
In some states, civics is not taught at all in junior high or high school. In Utah, civics education is a required course at the high school level. While we are fortunate in that respect, much more could be done.
In July, the Bar Commission created the “Utah State Bar Committee on Civics Education” to work with and facilitate the Bar’s law-related education programs directed by Kathy Dryer. The co-chairs of this committee are Rich McKeown of Leavitt Partners; Christian Clinger at the Institute for Advanced Mediation and a member of the Bar Commission; and Angelina Tsu, who works as legal counsel to Zions Bank. Angelina served on the Bar Commission when she was president of the Young Lawyers Division. This committee, under the direction of its able co-chairs, developed a lesson plan for lawyers and judges to use to teach a one-hour civics course in our high schools, hopefully on a semiannual basis. The lesson course is on judicial independence. Pilot programs have been run in several of our high schools and have been well received.
This is a turnkey operation. Those of you who have already volunteered to participate in this exciting project will be provided a lesson plan you can follow and enhance. Participation will not require a lot of preparation. The lesson plan objectives are:
• To support public education by supplementing high school students’ classroom learning about civics, specifically learning about the judiciary and the rule of law, with an interactive program focusing on analytical and language art skills.
• To instill a sense of responsibility and participation, and appreciation for the rule of law in high school students, specifically graduating, soon-to-be-voting seniors.
• To enable students to identify the three branches of government and the role of each.
• To help students understand the concepts of “separation of powers,” “checks and balances,” and the role of the courts within these concepts.
• To better inform students how judges make decisions and who the court system’s other players are and what roles they play.
• To explore the concept of judicial review and the role of the third branch in examining the constitutionality of written laws and statutes.
Well over 200 lawyers have volunteered for this opportunity. If you are interested in volunteering, please contact Christy Abad at the Bar office.

Choose Law Program
We have a marvelous Bar. Our lawyers provide a great deal of service, most of which goes unheralded and unnoticed. The Bar Commission expresses its gratitude for all you do. One such project that has gone on quietly is an ABA program that has been instituted by our Young Lawyers Division under the direction of Betsy Haws of Snell and Wilmer is the “Choose Law Program.” The purpose of this program is to encourage students in middle school and high school and, in particular, underprivileged students in such schools to “choose law” early in their educational careers. Betsy and her dedicated committee of members have been visiting middle and high schools, and we thank them for their efforts.
The presenters in the “Choose Law Program” explain that lawyers are essentially everywhere in our society, performing many different and worthwhile tasks. As examples, the presenters show slides of Gandhi, Steve Young, Barack and Michelle Obama, Mitt Romney, Johnnie Cochran, and Abraham Lincoln, to name a few. The lesson emphasizes how rewarding it is to have a law degree to help yourself as well as your community. The duties and professional responsibilities of lawyers are explained in detail, including advising government officials; defending and prosecuting those charged with crimes; helping children in foster care; and enforcing human rights. The lesson ends by explaining what students need to do to become a lawyer. The following steps are emphasized:
1. Get good grades now.
2. Take the ACT and the SAT.
3. Graduate from college.
4. Take the LSAT.
5. Complete three years of law school and graduate.
6. Pass a Bar exam.
This is a program that gets students excited about the law and encourages them to get serious about their educational opportunities. Our congratulations to the Young Lawyers Division for developing and implementing this excellent program. Any lawyer who would like to participate in this program should contact Betsy Haws.
Books from Barristers
Another new and exciting Bar-sponsored program is “Books from Barristers.” It is a program initiated by Elaina Maragakis of Ray, Quinney & Nebeker. The mission of “Books from Barristers” is to provide new books to underserved children in Utah on the topics of law, government, history, and civics. The books are donated by Utah lawyers and other generous individuals and entities. The goal of “Books from Barristers” is to encourage children to read by emphasizing the importance and value of books.
Lawyers interested in participating in this program will have the choice to either donate a specific book from a selected list or make a monetary donation for the purchase of books by the program. The books will range in price from $4-$25. This program is off to a good start. Donations may be sent to the Bar office in the name of “Books from Barristers.” For additional information about “Books from Barristers,” see the article on page 47.
The Bar Commission expresses its appreciation to the co-chairs and the Committee for Civics Education, the Young Lawyers Division Choose Law Committee, and the chair and committee supporting “Books from Barristers.”
The Kids’ Court
Kids’ Court is an after school program organized and run by law students at the University of Utah S.J. Quinney College of Law. Law student volunteers teach fifth and sixth grade students about civics and our justice system at after-school programs in underserved areas in and around Salt Lake City. The program is made possible through a unique partnership involving the Minority Law Caucus, Pro Bono Initiative, and the Office of the Deans – all within the S.J. Quinney College of Law. Also partnering in this important effort are the Offices of Equity and Diversity and Student Recruitment and the College of Education at the University of Utah as well as the U.S. District Court for the District of Utah, the Utah Minority Bar Association, Holy Cross Ministries, Rose Park Elementary School, and Jackson Elementary School.
Students at the S.J. Quinney College of Law also volunteer to assist in coaching and judging high school students in annual Mock Trials.
A great deal of effort has gone into developing these programs, and this will add to what our law-related education program already accomplishes. There are, of course, other actions we can take to improve education on the fundamentals of our democracy. We can help elect people who support civics education and recognize its importance to the respective governing Boards. We can encourage teachers and administrators on an individual basis to take advantage of the Bar programs on civics education. We can help improve in our communities the “institutional commitment” to civics education. We can volunteer to participate in these programs and teach the importance of our three independent branches of government and the critical importance of an independent judiciary to middle school and high school students.
Thank you for recognizing and supporting this critical need.
1. Campaign for the Civic Mission of Schools, Guardian of Democracy: The Civic Mission of Schools, 4 (Jonathan Gould ed., 2011)
2. See id.
3. See id.
4. See id. at 14.
5. See id.
6. See Donovan R. Walling, The Return of Civic Education, 89 Phi Delta Kappan 285, 286 (2007).
7. See id.
8. See, e.g., U.N. Econ. & Soc. Council, Comm’n on Human Rights, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Summary at 2, U.N. Doc. E/CN.4/2006/6/Add.6 (March 10, 2006); U.N. Econ. & Soc. Council, Comm’n on Human Rights, Working Group on Arbitrary Detention, Report of the Working Group on Arbitrary Detention, Summary at 2-3, U.N. Doc. E/CN.4/2005/6/Add.4 (Dec. 29, 2004).
9. See also, e.g., Sharon LaFraniere, Alarmed by Independent Candidates, Chinese Authorities Crack Down, N.Y. Times, Dec. 4, 2011, at A4.
10. Lincoln, Speeches and Writings: 1832-1858, at 32-33 (Don Fehrenbacher ed., Library of America 1989).
11. Letter from Thomas Jefferson to Charles Yancey (1816).
12. Walling, supra, at 286.
13. See id.

President’s Message

Lend a “Learned Hand” – Check Yes and Volunteer for a Pro Bono Matter
by Rodney G. Snow
Judge Learned Hand was well known as a preeminent jurist and legal philosopher. He served on the United States District Court for the Southern District of New York and on the United States Court of Appeals for the Second Circuit. He has been quoted by the Supreme Court more often than any other judge. Judge Hand was an advocate for counsel for the underprivileged. In a speech to the New York Legal Aid Society in 1951, Judge Hand stated, “If we are to keep our democracy, there must be one commandment: Thou shall not ration justice.”
The Honorable Carolyn B. McHugh, Presiding Judge of the Utah Court of Appeals, reported last month at the leadership breakfast for “and Justice for all” that poverty is on the rise in Utah, with an increase between 2008 and 2010 of over 20%.

Utah Legal Services (ULS) fields, on average, 170 calls a day, of which thirty-three need attention for domestic violence, eighteen for disability issues, and fifteen for eviction. Overall, 23,000 cases last year were screened by a staff of twenty-four lawyers. Due to budget cuts for the Legal Services Corporation, ULS has had to reduce its staff. Last year Legal Aid Society of Salt Lake provided representation, advice and limited services to 10,334 clients. ULS provided representation for 10,414 low-income Utahns. ULS contracted for 334 hours of attorney time in rural areas and fifty-two volunteer attorneys provided 2328 hours of pro bono service last year.
Judge McHugh further reported 67.5% of low-income households in Utah will face a civil legal need this year, and only 13% of these people will be assisted by a lawyer. The Presiding Judge stated, “shockingly, 87% of this population’s legal needs will be unmet.”
As you know, the caption over the United States Supreme Court is “Equal Justice Under the Law.”
“Equal Justice Under the Law” is not merely a caption on the façade of the Supreme Court building; it is perhaps the most inspiring ideal of our society. It is one of the ends for which our entire legal system exists…it is fundamental that justice should be the same, in substance and availability, without regard to economic status.
Supreme Court Justice Lewis Powell, Jr.
In July of last year, the Bar Commission created a committee to study ways of better meeting the unmet legal requirements of many of our citizens who are in dire need of legal assistance but cannot afford an attorney. The Committee is co-chaired by Robert Rice of Ray Quinney & Nebeker, Professor James Backman of the J. Reuben Clark Law School, and Sue Crismon, an attorney with ULS. This committee includes judges, the Deputy Clerk of the United States District Court for the District of Utah, the State District Court Administrator, and several prominent attorneys from government and the private sector.
The Pro Bono Committee has proposed, and the Bar Commission has preliminarily approved, with some modifications, a program successfully used in several of our sister states. In the survey recently completed by 52% of you, we learned that over 70% of our Bar is engaged in pro bono work on a weekly basis. This is commendable and demonstrates that the Utah Bar takes its pro bono obligations seriously. The voluntary, non-mandatory program we hope to implement over the next few months will better organize our pro bono efforts and facilitate the delivery of legal representation to low-income families and individuals. The outline of the program is as follows:
1. When the license applications and renewals are sent out in May and June there will be a “Check Yes” box on the form that will allow you to volunteer to take a pro bono case or matter.
2. The Bar has hired a lawyer as the new Pro Bono Coordinator, Michelle Harvey. Michelle has experience handling pro bono cases and we welcome her to the Bar staff.
3. Michelle and the steady Lincoln Mead will maintain a database of all attorneys who have checked yes and/or volunteered for a pro bono matter or case.
4. Pro bono cases will be collected so that Michelle and others can determine which cases qualify for pro bono assistance pursuant to eligibility guidelines.
5. A Pro Bono Committee will be created in each of our judicial districts which will be co-chaired by a volunteer judge and the Bar Commissioner for that district or another lawyer. We may combine some of the districts. Each district committee will have access to the Bar’s database and the names of the volunteer attorneys in their district.
6. Qualified pro bono cases will be sent to the judicial district where the client resides. Utilizing an efficient, automated matching system, cases will be offered to volunteer attorneys in respective districts. Each district Pro Bono Committee can decide how best to distribute cases. In many instances an e-mail will be sent to the list of volunteers with a brief description of the case, allowing volunteers to select a case, perform conflict checks, and contact clients. The district Pro Bono Committees, with Bar assistance, will also provide training, free CLE for volunteers, and recognize those who have taken cases in some appropriate fashion. We are excited about utilizing Pro Bono Committees at the district level so that pro bono legal services can be customized to suit needs at as local a level as possible.
7. A statewide Pro Bono Commission is also being created: The co-chairs for this Commission are Judge Royal Hansen, the Presiding Judge of the Third District Court, and Judge Michele Christiansen of the Utah Court of Appeals. This Commission will encourage law firms, corporate law departments, and government offices to adopt pro bono policies that will encourage attorneys to volunteer for pro bono service without adverse effects on their compensation or advancement. This Commission will facilitate the organization of the district committees as needed and will help develop means and incentives to encourage support for attorneys who are assisting those who are unable to pay for legal services, but are engaged in adversarial proceedings where basic human needs are at stake. The Commission will also oversee the program and recommend adjustments where appropriate. We anticipate that the Commission will consist of lawyers from large and small law firms, judges, corporate law departments, a ULS representative, law school representatives, a representative from the governor’s office, and government lawyers.
The S.J. Quinney and J. Reuben Clark law schools are committed to the program and will allow students to assist on pro bono cases. Thus, research and drafting assistance will be available to our attorney volunteers. The contribution of our law schools to this program cannot be overstated.
With over 70% of the Bar engaging in pro bono work, it is not surprising that a great deal has already been accomplished. There are far too many organizations offering free, but limited, legal services to recognize in this article. Some examples include:
In 2007, the Southern Utah Bar Association under the guidance of Lowry Snow and Adam Caldwell, established the Southern Utah Community Legal Center (CLC), a facility dedicated to the provision of pro bono assistance in Southern Utah. Dozens of volunteers provide legal services to those in need on a monthly basis. Last year the CLC held forty-eight free clinics. Ninety-five attorneys participated in approximately 380 appointments. While the CLC works with litigants utilizing our courts’ Online Court Assistance Program, they also facilitate the assignment of pro bono cases.
In 2010, the J. Reuben Clark Law Society and the J. Reuben Clark Law School sponsored the Timpanogos Legal Center. Attorneys and law students work side by side to serve members of the community in need of legal advice and assistance. Hundreds of volunteers have participated. More than 100 BYU law students assist approximately seventy attorneys in client interviews, drafting documents, and preparing for hearings and trials. Professor James Backman, a co-chair of the Bar’s Pro Bono Commission, was a driving force behind the legal center. Professor Backman brings his rich experience and enthusiasm for pro bono work to the Bar’s new program.
The S.J. Quinney College of Law established its “Pro Bono Initiative” (PBI) in 2006. Law students volunteer to work with attorneys on pro bono projects in a variety of areas. The PBI co-runs the: American Indian Legal Clinic, Debtor’s Counseling Legal Clinic, Family Law Clinic, Layton Family Law Clinic, Medical-Legal Clinic, Rainbow Law Clinic, and the Street Law Legal Clinic. All legal clinics are staffed by College of Law volunteer law students and volunteer onsite attorneys. The class of 2011 had a total of 4,585.5 volunteer hours of service in these various clinics. Since the inception of PBI, the total number of pro bono hours provided by law students as of the fall of 2011 was 29,980.25 hours. We have been inspired by the vision of Dean Hiram Chodosh for the delivery of affordable legal services.
Our respective law schools have worked together to provide extraordinary public service to our communities, amounting to millions of dollars of donated time. We thank them and express our appreciation for their commitment to the Bar’s new effort to better organize the delivery of pro bono services to our communities. So much good work goes on quietly, without fanfare or notice, by so many members of our Bar.
Many attorneys are heroes in their own right for pro bono service. Lawyers who have actively engaged in pro bono service have found the work exceptionally rewarding.
David Barlow was only recently sworn in as the new United States Attorney for Utah. A Utah native, David returned from the Chicago law firm of Sidley Austin, where he managed dozens of complex cases involving millions of dollars. Yet, David reports his most satisfying experiences were representation of victims of domestic violence. His pro bono work earned him the Domestic Violence League Clinic’s Lawyer of the Year in 1999.
Last year, Tony Kaye, Steve Burt, Matthew Moncur, and Quinton Stephens, all of Ballard Spahr, donated 280 hours on a predatory lending case resulting in a successful settlement. They received the Pro Bono Attorney of the Year award for their dedicated service. Receiving the Law Firm Pro Bono Award last year was Strindberg & Scholnick, LLC for contributing hundreds of hours each year on pro bono cases for clients who otherwise would likely go unrepresented. And the Senior Pro Bono Attorney award went to Carolyn Morrow who had been working an average of twenty-five hours a week the past three years on cases others would not consider. She demonstrated a determination that leveled the playing field and brought justice to many of the almost homeless. These remarkable attorneys are continuing to provide pro bono assistance to low-income people who have a need.
In 2008, Alan Sullivan and Chris Martinez of the firm of Snell & Wilmer, along with Jensie Anderson of the Rocky Mountain Innocence Center, filed an action on behalf of Debra Brown pursuant to the “Determination of Factual Innocence Act,” which allows courts to review a conviction based on newly discovered evidence which may demonstrate innocence. Debra Brown had been convicted of aggravated murder in 1995 and was serving a prison sentence. In January and February of last year, Alan and Chris tried the case to Judge DiReda in the Second District Court. Investigators, court reporters, and experts generously donated their time to the preparation of this case. On May 2, 2011, the Judge issued a 47-page opinion finding Debra Brown innocent, vacating her conviction and releasing her from prison. Alan reports, “I don’t have to tell you how rewarding pro bono work can be.” The case is on appeal. Alan and “Deb” have become good friends and Alan has great admiration for her.
The vast majority of pro bono cases will not involve the time described above. And you will have the option of turning a case down if the timing is not right for you. The Bar’s new pro bono program is simply a reorganization and hopefully revitalization of our efforts. It starts with the “Check Yes” box on the Bar license application. The program will greatly facilitate the delivery of worthy and qualified pro bono cases to those who have volunteered. This program is working well in several other states. Thank you for checking yes when you receive your Bar license application this summer, and thank you for the pro bono service you are already providing.
Certainly, life as a lawyer is a bit more complex today than it was a century ago. The ever-increasing pressures of the legal marketplace, the need to bill hours, to market to clients, and to attend to the bottom line, have made fulfilling the responsibilities of community service quite difficult. But public service marks the difference between a business and a profession. While a business can afford to focus solely on profits, a profession cannot. It must devote itself first to the community it is responsible to serve. I can imagine no greater duty than fulfilling this obligation. And I can imagine no greater pleasure.
Justice Sandra Day O’Connor, 78 Or. L. Rev. 385, 391 (1999). Remarks by Supreme Court Justice Sandra Day O’Connor in a speech delivered to the University of Oregon School of Law in 1999.

Bar Commission Adopts New Policy on Inclusion and Diversity: It is No Longer Black and White

by Rodney G. Snow
With Martin Luther King Jr. Day this month, we should consider how close we are to living the dream – in particular, Dr. King’s dream that his children will “live in a nation where they will not be judged by the color of their skin but by the content of their character.” Please indulge a few observations regarding diversity from an aging white Bar president. Many of you have worked hard at improving diversity in the legal profession, including our law firms and the bench. We have adopted policies, recruited, and trained with the goal of increasing diversity. We have had some success and some failures. Still we have pursued. We thank you for your efforts at inclusion and diversity. Too often you do not get the recognition for what has been accomplished and for what you have attempted to accomplish in the diversity arena. But reevaluation now and then is a good thing for us all.

Last year the ABA published its report on the Presidential Diversity Initiative – “Diversity in the Legal Profession – The Next Steps.” The report deals explicitly with race and ethnicity, gender, sexual orientation, and disabilities. See ABA’s Presidential Initiative Comm’n on Diversity, The Aba’s Diversity in the Legal Profession: The Next Steps, http://www.americanbarfoundation.org/uploads/cms/documents/aba_diversity_report_2010.pdf. I recommend the report to each of you and believe that you will get a great deal out of it, as did I. Of particular interest in the report is the concept that diversity training is a journey and not a destination. The report describes the advantages of a diverse workforce: “A diverse workforce within legal and judicial offices exhibits different perspectives, life experiences, linguistic and cultural skills, and knowledge about international markets, legal regimes, different geographies, and current events.” Id. at 9.
The ABA report stresses the importance of understanding implicit bias, learning to recognize it and ways to work with it so it does not impact, in a negative way, our decisions. I am hopeful the Bar will sponsor some “implicit bias” CLE and training in the near future. I have encouraged the CLE Advisory Committee to work with the Bar to develop an implicit bias training program.
The ABA report is not particularly complimentary of the legal profession when it comes to race issues. The report states we are less racially diverse than most other professions and that racial diversity has slowed considerably since 1995.
The first step the report urges bar associations to take is to adopt a policy on diversity. To that end, several weeks ago the Bar Commission began developing a new policy statement on diversity, studying other state and ABA inclusion statements. The language (not the concept) was debated by your Bar Commission in vigorous e-mail exchanges, at the Bar leadership retreat at the end of August and again at the October Bar Commission meeting. The Executive Committee then took the suggestions of several Commissioners and proposed a final version of the statement at the Commission meeting on December 2nd, which was held at the Community Legal Center in Salt Lake City. Below is the statement unanimously adopted by the Commission:
Utah State Bar Statement on Diversity and Inclusion
The Bar values engaging all persons fully, including persons of different ages, disabilities, economic status, ethnicities, genders, geographic regions, national origins, sexual orientations, practice settings and areas, and races and religions. Inclusion is critical to the success of the Bar, the legal profession and the judicial system.
The Bar shall strive to:
1. Increase members’ awareness of implicit and explicit biases and their impact on people, the workplace, and the profession;
2. Make Bar services and activities open, available, and accessible to all members;
3. Support the efforts of all members in reaching their highest professional potential;
4. Reach out to all members to welcome them to Bar activities, committees, and sections; and
5. Promote a culture that values all members of the legal profession and the judicial system.
“Inclusion” is the new goal that goes beyond diversity. It has a broader reach, speaking in terms of making people of all backgrounds feel a part of the legal community, not just tolerated by it. We hope the Commission’s statement expresses all of our aspirations. It presents what the Commission would like the Bar as an organization to strive for in a world that is becoming increasingly diverse, complex, divisive, and interesting, all in the same moment. We sincerely hope you will embrace this new policy, talk about it in your organizations and implement its goals.
On October 21st of this year, the Utah Minority Bar Association (UMBA) celebrated twenty years of diversity. Judge Raymond Uno, a founding member of UMBA, was the keynote speaker. Judge Uno is a classic example of hard work and accomplishment. His first job was as a dishwasher at Heart Mountain, Wyoming Concentration Camp where he and his family were incarcerated for three years during World War II. Then he became a gandy dancer (railroad track laborer). He entered the military at age seventeen and became attached to a military intelligence unit. He is a Korean War veteran. He went on to become an attorney and a Third District Court Judge. Other founding members include Judge Glenn K. Iwasaki, Judge Tyrone E. Medley, Judge C. Dane Nolan, and Judge William A. Thorne, Jr. The Bar Commission extends its warm congratulations for the excellent work and progress UMBA has made on behalf of so many minorities.
In light of Martin Luther King Jr. Day this month, some have suggested we should do more as a Bar to honor Dr. King and raise the level of consciousness regarding racial inequality. Most of our universities in the state have sponsored some remarkable activities on Martin Luther King Jr. Day. See A Judicial Invitation, by Judge Lynn W. Davis of the Fourth Judicial District Court regarding Dr. King on page 12 of this issue.
Obviously a great deal of progress has been made. We need only look at our history to confirm the efforts this nation has made to eradicate racial inequality. Let me refer you to an early example that may not be as well known.
Robert Gould Shaw (“Shaw”) was born on October 10, 1837, to a family of wealthy merchants in New York.1 His parents were well-connected progressive reformers and abolitionists. At an early age, Shaw and his parents moved to Massachusetts. Shaw studied in Europe and at Harvard. He joined the Union army as the Civil War was ramping up and eventually became a commissioned officer in the 2nd Massachusetts Regiment. Shaw fought in the battle of Antietam under McClellan against Lee’s armies. It was a horrible battle that resulted in the highest causalities suffered on a single day in all the wars in American history. Shaw was wounded in the battle and fell unconscious. He was awakened by a black grave digger. A week later, January 1, 1863, Lincoln issued the Emancipation Proclamation, freeing the slaves. Shortly thereafter, Shaw was offered the command of the 54th Massachusetts Infantry – a Regiment of African Americans. African Americans from all over the northeast enlisted.
Shaw and his fellow officers were impressed with the discipline and development of their new recruits. On June 30, 1863, Shaw’s men were to receive their Union pay. They were aggrieved to discover that the standard monthly pay and allowance they had been promised had been reduced for “colored regiments” to ten dollars. Shaw was incensed and ordered his men to refuse all pay until full pay was offered to his Regiment. The Union Army acquiesced to Shaw’s demands.
Later, Shaw badgered his superiors into allowing his Regiment to engage in battle with their white brothers. Shaw knew his troops would acquit themselves well in battle and wanted the Union to see firsthand their obvious prejudices were unfounded. The chance came as the Union planned to take Charleston and Ft. Sumter. Having repelled a rebel force on James Island, the 54th was ordered to Morris Island where they were invited to lead an assault on Ft. Wagner – an incredibly dangerous assignment. It was not an order but a request Shaw could have refused. He did as his soldiers expected; he accepted the challenge. “Shaw knew the key to Charleston lay at the end of the beach. If black men could storm the fort and open the door to the birthplace of the rebellion, the symbolism would be enormous.”2 Shaw also had a premonition he would not survive the battle. Still he insisted on taking his African American troops into this historic battle.
On July 18, the 54th marched through thirteen supporting regiments of cheering white troops. Running shoulder to shoulder due to the narrowness of the beach, Shaw’s Regiment charged. As they came within 200 yards of Fts. Wagner and Sumter, Confederate artillery opened fire on Shaw. As they approached within 100 yards, 1,700 Confederate soldiers opened fire on the 54th. They fought on Ft. Wagner’s walls for over an hour before a retreat was ordered. Shaw was shot through the heart as he climbed over the wall at Ft. Wagner. Almost half of the Regiment was killed, wounded or captured.3
Shaw was buried in a common grave with his fallen troops. When a Union officer approached under a flag of truce to claim the body of his fellow officer, it is reported the Confederate commander turned him back saying, “We buried him with his [blacks].” When word of this offense reached Robert Shaw’s father, Francis Shaw, he responded that there could be “no holier place.” Francis Shaw wrote the War Department to insist that his son’s grave not be disturbed.
A nurse who treated some of the wounded after the failed attack noted how anxious they were about the fate of Colonel Shaw and how deeply they grieved when they learned he had perished. “They loved him,” she wrote.4
This small yet powerful piece of history inspires me to do what I can, both as Bar President and as an individual, to “rise up and live out the true meaning of [this nation’s] creed: ‘We hold these truths to be self-evident, that all men are created equal.’” I hope we all can find inspiration in the coming months to live the dream.
1. This summary of Robert Shaw and the 54th Massachusetts Infantry is based on the books, Where Death and Glory Meet: Colonol Robert Gould Shaw and the 54th Massachusetts Infantry; and Blue-Eyed Child of Fortune: The Civil War Letters of Colonel Robert Gould Shaw, both by Russell Duncan.
2. Duncan, ed., Blue-Eyed Child of Fortune.
3. See id.
4. News of the Regiment’s courage caused many African Americans to enlist in the Union Army. By the end of the Civil War nearly 180,000 African Americans had enlisted. President Lincoln expressed that a significant reason for Union victory was attributable to this fact.