Estate Planning

Minutes: February 29, 2000

Place: Conference Room of Tanner & Tanner, P.C.,
68 So. State Street, Suite 800, Salt Lake City, Utah;
February 29th, 2000, 12:20 PM.

Present: Kent Alderman, Steve Christensen, Cindy Crass, Steve Dixon, Mark Morrisse, Earl Tanner

Mark Morrisse reported that the March meeting will be held on March 22nd at the Alta Club. Senator Valentine will review recent legislation. April's meeting will be on April 11th. There will be a presentation on avoiding problems with the generation skipping tax. The May meeting is scheduled for May 9th, and is planned to address the Third District's ADR program for probate disputes. There is a related meeting on May 16th in which the ADR section of the Bar will discuss mediating probate disputes.

Earl presented a draft outline of ADR in probate and requested comments from members. Cindy suggested the mediator determine who is the "Plaintiff" in a probate matter for purposes of Rule 4-510 and Rule 26.

Tom pointed out that some objections to Petitions can be handled summarily in a five- or ten-minute hearing. Such matters should not be referred to a 60-day mediation. After some discussion, it was suggested that the court accommodate brief summary proceedings before referral to ADR. This could be a 10 o'clock calendar on probate days.

Tom also pointed out that the division of mediator fees is complicated in probate matters where often there are multiple parties on each side of an issue. Should fees be divided per capita, by sides, or should they be paid by the trust or estate involved?

Several persons expressed concern that the court was forcing mediation, rather than just giving the attorneys ADR as an option. Cindy pointed out that the existing Rule 4-510 requires mediation unless steps are taken to avoid it. She also emphasized that the court was determined to require ADR in probate disputes. Earl added that his primary concerns were giving counsel a convenient process for leaving ADR and permitting ongoing discovery.

Tom reported that SB 0246, amending the UUPC's rules on representation of interests, appeared to be headed for passage. He also reported that SB0061S1, a revision of Utah's Nonprofit Corporation Law, appeared likely to be passed. Cindy reported that she had little success finding volunteers to work on the Uniform Principal and Income Act legislation supported by Senator Hillyard. She suggested that we give it renewed attention at the end of April.

Earl presented a proposed Unauthorized Practice of Law statute drafted by Brad Bowen. He stated he liked the idea of providing a remedy for those who had paid for legal services from a person who is not an attorney. These cases are frequently small cases. If a consumer remedy was provided that gave the consumer a reward for bringing the case, and permitted the matter to be tried in small claims court, there could be a substantial disincentive for the unauthorized practice of law. Several members expressed concern as to what constitutes the unauthorized practice of law. Tom and Cindy believed that the legislature would have no interest in a bill framed in terms of protecting turf. They also suggested a bill framed in terms of consumer protection would receive a better reception. They suggested liability should not be based on the licensure of the provider, but on whether the services damaged the consumer.

Drafting the minutes permits Earl to add a comment gleaned after the meeting. In 1995 and 1997, the Supreme Court addressed unauthorized practice first in Utah State Bar v. Summerhayes and Hayden, Public Adjustors, 905 P.2d 867 (Utah 1995), then in Board of Commissioners of the Utah State Bar v. Petersen, 957 P.2d 1263 (Utah 1997). The second case specifically addressed drafting wills and a wide variety of constitutional issues. In upholding U.C.A. §78-51-25, the court stated in Petersen:

Although "the practice of law" has not been exactly defined, an "ordinary reader" would understand that certain services, when performed on someone else's behalf, are part of such practice. Such services would include not only appearing in court, but also drafting complaints, drafting or negotiating contracts, drafting wills, counseling or giving advice on legal matters, and many other things. In Utah State Bar v. Summerhayes & Hayden, Public Adjusters, 905 P.2d 867 (Utah 1995), this court, while noting that "[w]hat constitutes the practice of law in any given situation requires a casebycase decision," stated:

"The practice of law, although difficult to define precisely, is generally acknowledged to involve the rendering of services that require the knowledge and application of legal principles to serve the interests of another with his consent. It not only consists of performing services in the courts of justice throughout the various stages of a matter, but in a larger sense involves counseling, advising, and assisting others in connection with their legal rights, duties, and liabilities. It also includes the preparation of contracts and other legal instruments by which legal rights and duties are fixed."

Id. at 86970 (citations omitted). Further, when such services are performed for a fee, it is even more likely that they constitute the practice of law. In Nelson v. Smith, 107 Utah 382, 154 P.2d 634 (1944), this court stated that "[t]he practice of law, though impossible of exact definition, involves the carrying on of the calling of an attorney usually for gain." Id. at 389, 154 P.2d 634. The court further stated that an element of the practice of law is "the rendering of legal service or the giving of legal advice to another usually for gain." Id. at 390, 154 P.2d 634. Later, the court emphasized the point for the third time when it stated: " 'The holding out [as one qualified to practice law] may be evidenced by repeated acts indicating a course of conduct, or by the exaction of a consideration.' " Id. (quoting Liberty Mut. Ins. Co. v. Jones, 344 Mo. 932, 130 S.W.2d 945, 955 (1939)).

Steve reported difficulties in getting the Bar to make updates to the section's website. He suggested that one solution would be for the section to have its own website with links to the Bar's site. He thought the monthly cost would be around 40 dollars.

With regard to attorney discipline, there was a discussion of the ethical issues of practicing estate planning by lecturing and selling tapes and forms to the public without offering substantial individualized service.

The next meeting of the executive committee was set for April 25th, 2000.