President’s Message: Looking Back, Looking Forward

by Nathan D. Alder
No leader knows exactly what he or she will face when taking over the reins of an organization. We anticipate, and hope, that things will turn out in our favor, and that we can positively influence the issues. Sometimes it may turn out easier to serve than one might originally expect; other times it may be exactly as envisioned. But sometimes the service required of a leader is heightened and intensified by dramatically changing conditions. Leaders must rise to the occasion and shepherd their cause to safety when storms suddenly appear.

When I took the oath of office a year ago, the issues facing me as a new president seemed manageable and in many ways just what I was used to dealing with as a five-year member of the Bar Commission. However, within two months, the landscape changed dramatically. The mortgage meltdown and lending crisis showed its true identity in the form of collapsed financial institutions, including the bankruptcy of Lehman Brothers (at $640 billion, the largest in history at the time), massive foreclosures, world stock market devaluation, lost retirements, ruined 401(k)s, rising unemployment, and general crises in the business, governmental, and institutional environments. We all watched this develop day by day. The economic collapse in the fall of 2008 set the nation on a course that directly affected all of us. At first, I heard jokes about how lawyers were recession proof. By the end of October, however, those comments were no more; instead I listened to Bar members describe how they were being affected by the economy. I had these conversations with many of you throughout this year. I appreciate that you confided in me, and looked to me as a friend, leader, and resource in a troubled time. Many of our new lawyers were the hardest hit. Some of our senior lawyers cannot retire just yet. My heart goes out to you, and I encourage you to take the long view and to believe in the future.
The challenges and issues presented to me, and all leaders of our profession, have been serious, consistent, and profound. There are no quick fixes. Although I have done my level best to address each challenge and issue as it arose, I am writing to you, as my colleagues, to ask you once again to join in our greater cause and to help our community address the many issues we now face. This is a time for many leaders and many volunteers. All of us need to roll up our sleeves. This is a time when you as members of the Utah State Bar need to become engaged. A lawyer who is defined only by his or her billable hour is missing the point of our current time. We must certainly work to support ourselves, our families and to help our clients, but I also encourage you to get out of your offices and find causes that will lead to solutions for society’s greater problems. This is also a time to read and reflect, listen and observe, learn and understand so we can help now and in the future. Do not think in solitary terms; the profession is a fellowship. We must unite and work together. We will succeed if we all choose to contribute. Lawyers have always stepped forward when society needed leaders. Lawyers are privileged by education, training, and experience. Society needs us now. I am grateful I am surrounded by lawyers who are leaders in our society.
As I have done throughout this year, let me address a number of issues of great concern, and by doing so impart a word of farewell, and offer my best wishes to those who will take up the issues that remain.
Bar Finances
The Bar has had to tighten its belt. And we have held back on expenditures for many years now. To hold the line this year we had to make some even tougher cuts. We would like to fund some of our more critical programs at their full levels, but we have not been able to. Unfortunately, our situation will not correct itself when the economy turns around and interest income comes back up to historical levels. The Bar has been on course for a licensing fee increase for many years now, particularly because the number of lawyers has doubled since the last increase twenty years ago. You probably read the e-bulletin announcement about the petition the Commission is working on and will present to the Supreme Court by year end. I encourage you to study the financial documents and understand that the Bar cannot hold off any longer. As fiduciaries, the Commission must protect the future of the Bar; we must do so now. More information will come to you following the Commission’s upcoming meetings. I anticipate that the next Bar Journal will have a detailed explanation of the petition we will submit to the Court. In the meantime, we have created a page on our website, at www.utahbar.org/documents, where you can learn more about the Commission’s ongoing work in this area.
The Functioning and Funding of our State Court System
I have spent much of my year focused on this issue. I did not necessarily choose this as a focus going in, but it became an issue by virtue of the events from this year. It was my privilege to take up the Bar’s seat at this table. It was a tough fiscal year at the Legislature, and I appreciate the dedication and sacrifice of those who worked so hard on behalf of the courts to bring about favorable results. Although the Legislature, with input from Judicial Council representatives, found a way to provide a measure of adequate funding for the court system this year, I know that Utah’s economy has not yet turned the corner, and we must diligently watch state revenue levels for next year to see how the court system and all other functions of government will fare. I have addressed this numerous times this year. I am anxious for what has been lost to be restored. Long term, the court system should be funded at prior levels and beyond or otherwise face systemic problems. The down economy has flooded the courts with cases. Yet the court system is smaller by proportion. I believe strongly that properly funding the court system is, and should always be, a priority for our elected leaders.
I have truly appreciated my experience this year working with elected leaders. I am grateful for their service and their understanding of the critical issues we face as lawyers. At the heart of our interests as lawyers is a fair and impartial judiciary. Citizens expect nothing less. The Constitution requires it. We should never tire of advocating for this noble goal. It unifies us. I recently attended an amazing national conference on this topic. I learned a lot during those two days in Charlotte, as I am sure others did. I hope to share more thoughts on this later when things settle down and I can focus on fewer than twelve things at one time. I anticipate Justice Sandra Day O’Connor will address this issue when she speaks on July 18th at our annual convention. Her speech in Charlotte inspired me. I am so grateful she accepted our invitation to speak to Utah lawyers. We have experienced a lot of activity in this regard the last few years, including the creation of the Judicial Performance Evaluation Commission, which will independently survey and evaluate our judges. I am confident in their work and grateful for their dedication. I believe that “justice is the business of government,” and that our elected leaders and judicial leaders should always make it a priority to assess whether we are on the road to a superior justice system which is fair, impartial and appreciated, or something less. I applaud our elected leaders and court leaders who found ways to have dialogue on these topics, and I encourage all lawyers and their clients to help in this important cause.
Public Service
I encourage you to consider public service. This is the time for involvement in public life. At our Fall Forum, Governor Huntsman challenged all of us to consider public service. I reiterated his call numerous times throughout the year. I applaud those of you who have chosen to serve. The profession needs lawyers to engage in public service. It is our calling, particularly as we are officers of the court. There are many ways to serve, from Bar committees, to Court committees, to judicial nominating committees, to community boards, to state boards and commissions, to becoming a legislator or other elected official, to serving on the bench. Eight judicial openings will be filled over the course of the coming year. Three are on the Court of Appeals. This is an important time.
Mentoring aka the “New Lawyer Training Program”:
Being involved in this program will be one of the best things you will do as a lawyer. I say that without hesitation. We know the value of mentors. We would not be here without them. I am asking you to mentor a new lawyer. The Bar’s website has all that you need to learn more and join this effort; I hope you will also take the time to watch the inspirational video we created about mentoring in Utah. Go to www.utahbar.org/nltp. To launch mentoring and help recruit mentors, I have been surrounded by incredibly capable committee co-chairs Rod Snow and Margaret Plane, and Utah’s mentoring mentor, Jim Bachman, as well as a host of leaders devoted to the cause, including Chief Justice Christine Durham, Associate Chief Justice Matthew Durrant, Justice Jill Parrish, Matty Branch, John Baldwin, Jeff Hunt, Annette Jarvis, our Bar Commissioners and Bar staff, and all members of the larger mentoring committee and its sub-committees. This has been a labor of love. It is where my heart is. I am honored to have been at the helm for the start of this transforming program. It will change our profession and ensure the future. Helping new lawyers find sure footing benefits everyone.
Professionalism
If you had not noticed already, this has been the decade of professionalism in Utah. I have been privileged with a front row seat to these transpiring events, going back to 2001. I could not have envisioned in 2001 what 2009 would look like, in part because cynicism and skepticism ruled the day back then. But the Supreme Court and leaders of our profession felt differently, and thus an Advisory Committee on Professionalism was created, and the rest, as they say, is history. The changes in this area of our professional experience have been institutional, personal, purposeful, and profound. It has been an honor to participate in recent admissions ceremonies and hear our new lawyers pledge to uphold the highest standards of the profession, including dedication to the Standards of Professionalism and Civility. It is also an honor to sign my licensing renewal now and make the same pledge. Mostly, it is rewarding to litigate with other lawyers who I know value honor and integrity and who uphold the highest standards of our profession. It is a privilege, not a right, to practice law. We must care for that privilege and honor it deeply. I encourage you to read Jeff Hunt’s tribute to Judge Winder. We are fortunate to have examples like Judge Winder after whom we can pattern a higher path. For new lawyers now being admitted, you can thank those who have gone before you for the professional environment you inherit. You can thank Court and Bar leaders who have toiled to bring about a mentoring program designed to inspire and empower you; it is a priceless gift. You can thank colleagues who are dedicated to practicing at the highest levels of the profession. You can commit to starting your own career with dedication to these standards and principles. And you can promise to help others who will follow you. I am grateful to have had the experience of serving on the Supreme Court’s Advisory Committee on Professionalism and to see through to the end the amazing developments that were only ideas years ago. To all colleagues who have labored with me in this arena, I thank you. You honor us with your dedication and service.
Lawyer Assistance
I encourage you to seek help if you need it. We all want you to come through your challenges, whatever they may be. We want you to succeed and overcome what holds you back. The Bar funds two outside programs to help you. Several of you called me or stopped me on the street to identify problems in your life or in your career. I am glad you reached out. I encouraged some of you to call either Lawyers Helping Lawyers, 800-530-3743, or Blomquist Hale Professional Counseling Services, 800-926-9619. We used Bar funds to pay for the services that these entities provide. The services are confidential. The Bar does not know who calls or what transpires in your call. We want all lawyers to be productive, healthy, and well so that we may achieve our mutual goals together.
Pro Bono Service
In October we will join with all other lawyers in the United States to celebrate pro bono service as a hallmark of our profession. I encourage you to prepare for October by clearing some time to engage in your own pro bono work. I am sure you are getting more requests now, in a down economy, than before. For those of you who are diligently engaging in pro bono outreach, thank you. I am pleased that the Bar has made great strides this year, particularly under the direction of our pro bono coordinator, Anna Jespersen, hired this year. Unfortunately for us, she recently decided to move to Houston for school. Due to budget cuts, we are not immediately able to fill her position. We are hopeful, however, that you will find ways to step in and provide meaningful service with existing agencies and other avenues for pro bono work. As a Bar, we will find ways to communicate and coordinate in Anna’s absence. And we will celebrate the good that comes from pro bono service in October.
General Services Tax
I spent considerable time this year preparing for what we had been told would be a 2009 bill to broaden the sales tax liability to all services, including legal services. Despite the dramatic impact this would have on our community, I thoroughly enjoyed my work in this area. This is a unifying issue for all lawyers. And I must say that the Bar was the first to respond. We had important discussions with decision makers. We offered assistance, perspective, and resources to leaders who were considering this sweeping change. My work with legislators, the governor, and members of the Tax Review Commission (TRC) has been positive, civil, and professional. I have been treated well, and in turn, I greatly respect the work of these leaders in trying to find solutions to our state’s ever growing list of problems. I am grateful to our public servants. In my discussions with leaders, I encouraged them to consider alternatives, namely increasing the cigarette tax and restoring the sales tax on food while exempting the lowest income individuals on whom the food tax would be a hardship. Implementing the proposed sales tax on all services will present political pitfalls for years to come. It is a complicated tax, and not just for us, but for hundreds of thousands of professionals. If the tax excludes business inputs, it will be borne on the backs of households. For lawyers, the tax is problematic for a host of reasons that I previously addressed. We have a page on the Bar’s website devoted to this issue, www.utahbar.org/prof_services_tax/. For now, I do not have much more to report, other than to say we are diligently monitoring this issue. The TRC is doing its work and is studying the issue. Public comment hearings scheduled for June were postponed, but we anticipate the TRC will hold hearings on this issue in the near future. If this tax issue gains momentum or if there is some related development, we will update you immediately. I encourage you to stay in contact with John Baldwin and Richard Dibblee at the Bar regarding this issue.
Look to the future
There is so much I could say in this regard, but let me specifically address one issue. In 2010, your voice needs to be heard at the Legislature. But know that being heard and being effective are two different things. Lawyers need to effectively engage now in order to be heard later on. You cannot wait until then and expect that an email will carry the day. Relationships, at the Legislature and elsewhere, are as important now as ever before. If you are not developing relationships with people who can influence issues, then you are not as effective as you could be. Lawyers are academically trained and tend to rely on argument and factual information; that is the business of courts. Outside of court, however, relationships gain importance, particularly in government and business. I encourage you to develop relationships across the board so that when critical issues arise the Bar can count on you to help and be effective. I encourage you also to become acquainted with Bar leaders in order to offer your services and connections to them so we may work together toward mutually beneficial goals.
Frankly, it is hard for me to consider my future beyond July 17th when I am no longer your president. I thoroughly enjoyed every aspect of this service. I was challenged more than I ever thought I would be. Honestly, I am grateful to be standing at the end of the day; at times I wondered if I could. Maintaining a demanding practice, caring for a young family, and meeting the demands of this year’s events as president has been heavy. I feel like I have been in trial for ten months straight. I am grateful to my closest friends, family members, colleagues, bar junkies, mentors, law partners, associates, and staff for supporting me in this incredible endeavor. My wife, Laurel, and children sacrificed the most. I can not nominate Laurel as the Bar’s volunteer of the year, but you should thank her when you see her. She gave more than I ever imagined she would have to give. It is now my turn to support her in whatever she chooses to do. I am certainly in her debt, as is the Bar. As president, I had the privilege of working with and being supported by the finest people you could ever hope to meet. John Baldwin and Richard Dibblee and their staff are a tremendous credit to our profession. I am grateful I received their full support. The Bar Commission has worked very hard these last two years. The issues drove us to do more and achieve more. To each of our Commissioners, thank you. And to each of you who volunteers and who is dedicated to our legal system, and to the hallmarks of our profession, your service is an honor to the profession and to society. It makes a huge difference. Honorable lawyers lift up society. Thank you. And thank you for the privilege of being your president. I wish you all the best.

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