utah bar journal

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UTAH BAR JOURNALVol. 5 NO.7 August/September 1992

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Publishcd by Thc utah Statc Bar645 South 200 East

Salt Lakc City, Utah 84111Tclcphone (801) 531-9077

PresidentRandy L. Dryer

President-ElectH. James Clegg

Executive Director

John C. Baldwin

Bar Journal Committeeand Editorial Board

EditorCalvin E. Thorpe

Associate Editors

Randall L. RomrellWiliam D. Holyoak

M. Karlynn Hinman

Articles EditorsLeland S. McCullough Jr.

David BrownChristopher Burke

Letters EditorVictoria Kidman

Views from the Bench EditorJudge Michael L. Hutchings

Legislative Report EditorsJohn T. NielsenBarbara Wyly

Case Summaries EditorsClark R. Nielsen

Scott Hagen

Book Reviews Editor

Betsy L. Ross

AdvertisingD. Kendall Perkins

Kathryn BalmforthDavid Benard

Barbara BerrettSanford BeshearBrad Betebenncr

Glen CookDavid Erickson

David HartvigsenPhil Ray Ivie

Thomas JeppersonMargaret Nelson

Brian RomriellJ. Craig SmithDenver Snuffer

John SteigerJan Thompson

Juclge Stephen VanDykeBarrie VernonTerry Welch

Judge Homer WilkinsonElizabeth Winter

StaffLeslee A. Ron

Aiigusi/September 1992

UTAH BAR JOURNAL -Vol. 5 NO.7 August/September i 992

Letters ..........................................................................................4

President's Message .....................................................................5by Randy L. Dryer

A Rush to Fil the Void: Legislation andCase Law on Warranties of Habitability ......................................7by Gretta C. Spendlove and Kathryn 0. Balmforth

Avoiding Breaches of Peace in"Self-Help" Repossessions ........... ............. ...... ......... ................. 12by R. L. Knuth

Driving in High Gear: How WordPerfectCan Prevent Mistakes in Legal Documents ...............................15by Mark J. Morrise

Judicial Profiles

Judge Bruce S. Jenkins ..........................................................20by Terry E. Welch

State Bar News...........................................................................22

The Barrister.... ............ ............... ............. ............ ..... ..... ........... .35

Case Summaries.................... ............................ ............... ........ ..37

Book Review... ....... ....... ..... ................ ................. ....... ... ....... ... ...42

Utah Bar Foundation..................................................................44

CLE Calendar............................................................................ .45

Classified Ads........................................................................... .46

COVER: Cactus in Bloom, San Rafael Swell/Goblin Valley area, taken by Reid Tateoka,Esq., shareholder/director, McKay, Burton & Thurman, P.e.

Members of the Utah Bar who are interested in having their photographs published on the cover of the UtahBar Journal should contact Randall L. Romrell, Associate General Counsel, Huntsman Chemical Corporation,2000 Eagle Gate Tower, Salt Lake City, Utah, 841 i 1,532-5200. Send both the slide (or the transparency) anda print of each photograph you want to be considered. Artists who are interested in doing illustrations are alsoinvited to make themselves known.

The Utah Bar Journal is published monthly, except July and August, by the Utah State Bar. One copy of eachissue is furnished to members as part of their State Bar dues. Subscription price to others, $25; single copies,$2.50. For information on advertising rates and space reservation, call or write Utah State Bar offces.

statements or opinions expressed by contributors are not necessarily those of the Utah State Bar, andpublication of advertisements is not to be considered an endorsement of the product or service advertised.

Copyright (i 1992 by the Utah State Bar. All rights reserved.

3

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~LETTERSDear Utah Bar Journal Readers:

At the Annual Meeting in Sun Valley we attended a session onthe public perception of attorneys - whether they have hearts, etc.We recently had an experience that has shown that lawyers are trulywarm, caring and concerned individuals.

As many of you know, our daughter Anne was seriously inj uredat Sun Valley and was life-flighted to Primary Children's Hospital.The support and kindness expressed by members of the legalprofession - judges, secretaries, court reporters, clerks, lawyers,etc. - was unending. Thank you for the notes, calls, visits andgifts. The thoughtfulness and caring helped us through a horribletime. If we have not had the opportunity to thank you personally,please accept this letter as an expression of our gratitude.

Simply saying thankhelped so much during ourThe best we can offeropportuni ty to repay the

you seems so minimal when many of youcrisis. It is impossible to repay you.is our hope that there is never ankindness you showed to us.

a;;;/Charlotte ~:~:~Greg Skord~'le~¡-

Dear Editor, eral years I can vouch for the fact that not benefit of the large firm's practices. YourJohn Baldwin recently advised me that one in two hundred referral calls involved current officers of the bar need to consider

several members had urged the bar to drop anything substantial enough to present risk whom you intend to serve by bar referraL.the requirement for malpractice insurance of malpractice damages. As for the stated determination to makein order to be on the bar referral program, What accounts then, for the unrealistic bar referral self-supporting, isn't that an

I have practiced in both Virginia and rule requiring malpractice insurance in example of the haves being unwilling toTexas, where the bar referral service order to be on the referral list? Are the help the have nots and the bar being

served the purpose of letting new attor- established firms in the bar merely control- unwilling to subsidize a program to makeneys get a few referrals, a little office ling this referral service to be available only legal services more available to the public?traffic, and a little business to help start for their young associates to cut their teeththeir practice, It is obvious that a new on client relations, and a few small cases? Sincerely yours,

attorney just starting out without a bank- Since my move to Utah, I have beenroll, cannot afford malpractice insurance. quite disappointed at how often the Utah Bar Edwin H. Beus

Having been on the referral list for sev- is controlled and manipulated for the sole Attorney at Law

4 Vat. 5 No.7

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Ruminations on Challenges Past, Presentand Future Facing the Utah Bar

Lam convinced that five years fromnow, we wil look back and mark

1992 as the beginning of a new era in thehistory of the Utah Bar. An era marked byfinancial stability, significantly greaterparticipation in the organized bar by previ-ously disaffected members and a return tothe bar's historical commitment to publicservice through volunteerism, Althoughmy term as President is purely coincidentalwith its new beginning, I am excited aboutthe prospect of being on the front end.

PAST CHALLENGESThe preceding era - a period encom-

passing the last five years or so - was aperiod of dissatisfaction for many mem-bers and a period where the Bar engagedin an introspective self evaluation wherethe very relevancy and necessity of anintegrated Bar was questioned, It was aperiod where the Bar struggled with amyriad of issues surrounding mandatoryCLE and the building of the Law & Jus-tice Center, endured a controversial duesincrease, witnessed a growing number ofdisciplinary complaints and felt the stingof a new national pastime - lawyer bash-

ing, The challenges thrust upon the

By Randy L. Dryer

profession the past five years have come insuch an intense, staccato fashion that themembers, the Bar Commission and theSupreme Court had little time to react toone issue before another surfaced and

demanded attention. Crisis management,rather than long term planning, became theoperative norm.

PRESENT CHALLENGESWhile the issues and problems of the

past five years have not been completelyresolved, I believe it fair to say that mosthave been thoroughly addressed either bythe Bar Commission, the Utah SupremeCourt's Special Task Force on the Manage-ment and Regulation of the Practice of Law,or by one or more of the myriad of taskforces and commissions created by theCommission, the Supreme Court or theJudicial CounciL. Much of next year will bespent implementing the recommendationsof these study groups. Many of the prob-lems studied, however, have already beenaddressed by the Commission. For example,the Commission has recently approved thehiring of an additional lawyer in the Officeof Bar Counsel to deal with the increaseddisciplinary case load. A new supervising

attorneys panel of the Ethics & DisciplineCommittee has been established whichwil provide needed supervision and men-

toring to attorneys on probation. TheCommission has implemented a new sys-tem of accounts, has established theposition of financial controller and hassignificantly upgraded the Bar's financialsystems and controls. The indebtedness onthe Law & Justice Center has been signifi-cantly reduced to the point where the

mortgage is now below one milion dollars,If current plans are followed the mortgagewill be completely retired by 1997.

A representative of the Minority BarAssociation has been made an ex-officiomember of the Commission in an effort toaddress the needs of our minority mem-bers and increased effort to involve greaternumbers of members in Bar committeeshas met with astonishing success, Thisyear, over 620 members requested

appointment to a bar committee, 65% ofwhom indicated they had never beforeserved on a committee. By increasingcommittee size, I am pleased to report thatwe were able to accommodate the first andsecond choices of 85% of the requests.

August/September 1992 5

THE CHALLENGESOF THE FUTURE

Although the past five years have seenthe rise of many difficult and challengingissues, the next five years promise contin-ued challenges, albeit of a different nature.During the next few years I expect the fol-lowing issues to be paramount in theminds of the Bar Commission and the gen-eral membership:

1. Implementing and fine tuning courtconsolidation;

2. Adopting and implementing a modi-fied lawyer disciplinary system;

3, Dealing with increasing hostilitytoward lawyers by members of the publicand the legislature;

4, Coping with the changing economicsof the legal profession and its concomitantimpact on professionalism and collegial-ity;

5. Defining the relationship betweenthe Bar Commission and the UtahSupreme Court; and

6. Struggling with how to make theorganized Bar more relevant to thoselawyers who historically have not been inthe mainstream of the Bar - minority

lawyers, solo and small firm practitioners,and government/public service lawyers.

All of these issues pose great challengesto the Bar Commission, the Supreme Courtand each and every lawyer in the state. I ampleased to report that the Commission iscognizant of these issues and, for the firsttime in many years, has had the opportunityto deal with future issues in an organized,

proactive manner. The Commission recentlycompleted a day long planning workshopwhere future goals and initiatives were dis-cussed and defined. The Commission andthe Supreme Court, in a historic occasion,met together for an entire day with a profes-sional faciltator to begin the task of

defining the role and relationship of theCommssion as the Court's agent in regulat-ing the profession.

Some of the specific actions the Com-mission intends to take to address the issuesof the future include the following:

1. Creation of a blue ribbon solo/small

law firm practice task force to identify theunique needs of the solo practitioner and tomake recommendations for programs orother services that the organized Bar shouldprovide to satisfy these needs.

2. Creation of a "Futures Commssion,"the purpose of which wil be to describethe composition of the bar and predict themarket for legal services in Utah in theyear 2002.

3. Increased emphasis on communica-tions between the Bar Commission and themembership in general through mailingsto members on current issues, holdingmonthly Commission meetings throughoutthe state, scheduling meetings between theCommission and local Bar Associationsand publishing and distributing to allmembers a Bar Resources Directory iden-tifying the various services available to

members through the Bar office.Immediate past presidents Jim Davis

and Pam Greenwood have struggledmightily to restore financial health to theBar. They have successfully done so, andin so doing, they have laid the necessary

groundwork for restoring confidence inthe organized bar and renewing the profes-sion's commitment to public service. I amappreciative of their efforts and look for-ward to the coming year.

RIFF AND CHRISTIAN, P. C.CLYDE, PRATT & SNOW

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July 1992JULY I, 1992

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RIFF AND CHRISTIAN, P. C.LAWYERS

CITY CENTRE I#330

175 EAST 400 SOUTHSALT LAKE CITY, UTAH 84111-2314

(801) 521-3773

6 Vol. 5 No. 7

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A RUSH TO FILL THE VOID:Legislation and Case Law

on Warranties of HabitabilityBy Gretta C. Spendlove and Kathryn O. Balmforth

Partners, Wood and Wood

KATHRYN O. BALMFORTH is apartner with Wood and Wood, where shepractices in the areas of commerciallitigation, bankruptcy, and family law.

GRETTA C. SPENDLOVE is a partnerwith Wood and Wood, where shepractices real estate law and commerciallaw. Ms. Spendlove has been Presidentof Women Lawyers of Utah for 1991-1992and is a former Chairman of the RealProperty Section the the Utah State Bar,

The Utah Bar Journal last visitedthe topic of the implied warrantyof habitability in 1990.1 At that time, the

Journal described the opinion of the UtahCourt of Appeals in P,H. 1nvestment v,

Oliver,' in which the court recognized thatUtah had not established a warranty ofhabitability in residential leases, The courtasserted that this area of the law "badlyneed(ed) reform" and was "exceptionallysenseless and anachronistic,"3 The Courtof Appeals, however, refrained fromestablishing such a warranty for a numberof policy reasons. The court wOlTied that itwould be unable to draft a coherent policyor to fully assess the economic impact ofsuch a warranty based solely on the record

before it.4 Instead, the court invited the leg-islature to act.

In the intervening two years, legislativebodies and the courts have rushed to fil thevoid. First, the Utah Legislature enacted theUtah Fit Premises Act.5 Then, the Utah

Supreme Court, apparently less inhibited bypolicy concerns than the Court of Appeals,

recognized a common-law implied waiTantyof habitability.6 Finally, the Salt Lake CityCouncil has adopted its own Fit Premises

ordinance.7

The Utah Fit Premises ActWhile the Fit Premises Act does not use

the term "warranty of habitability," its clearpurpose is the same - to eliminate the doctrine

of caveat emptor in landlord/tenant trans-actions8 and require landlords to maintainrental units "in a condition fit for humanhabitation."9 By its terms, the Act appliesonly to residential rental property,IO

The Act requires landlords to complywith applicable local building ordinances

and health regulations, ii and to rent onlypremises which are "safe, sanitary, and fitfor human occupancy."12 The Act does

not, however, apply to defects in the rentalunits "which do not materially affect thephysical health or safety of the ordinary

renter."13 The landlord must provide andmaintain electrical systems, plumbing,heating and hot and cold water, providegarbage receptacles and removal if a


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building contains two or more rental units,and maintain common areas in a "sanitaryand safe condition,"t4 Landlords are notresponsible for repair of damages causedby the tenant or his family, guests or

invitees. 15

The Act also places various duties ontenants, The tenant has a general duty tocooperate with the landlord in maintainingthe property in compliance with the Act. 16

The tenant must be current on all rentalpayments and comply with "all appropri-ate requirements" of his rental agreement.Other specific duties of the tenant includemaintaining the premises in a safe andsanitary manner, occupying the unit in themanner for which it was designed," andusing the electrical, plumbing, sanitaryand heating facilities, as well as otherfacilities and appliances "in a reasonablemanner." The tenant must also refrainfrom "unreasonably burden(ingJ" the com-mon areas, damaging the unit, andinterfering with the peaceful enjoyment ofother renters, t7

The tenant's remedy for a landlord'snoncompliance with the Act is to com-mence a summary court action in which hemay recover damages, rescind the lease,and obtain injunctive relief. Damages"include rent improperly retained or col-lected," but are not specifically limited tothose items. IS The Act specifically disal-lows damages for mental suffering oranguish,19 The prevailing party is awardedattorney fees.20

The renter may not employ self-help bywithholding rents, because he is requiredto be current on rent and to be in compli-ance with all his other obligations underthe Act before he may bring an action forrelief.21 Presumably, this requirementwould bar a tenant from raising the FitPremises Act as a defense in an action forunlawful detainer based on failure to payrent or to comply with some other contrac-tual obligation.

Before commencing an action underthe Fit Premises Act, the tenant is requiredto give written notice to the landlord of theproblem within a "reasonable time," thetenant must "serve" a second writtennotice on the landlord, making known thetenant's intention to commence an actionif the premises are not repaired withinthree days.

The Act allows a landlord to elect notto bring a unit into compliance, but instead

to terminate the rental agreement "if the unitis unfit for occupancy."22 The Act also permitsthe landlord and tenant to agree to reallocatetheir statutory duties by "explicit written

agreement signed by the parties."23 Whilethis provision has been interpreted to allow"as is" rental agreements"4 the Act does notby its terms allow waiver of the requirementthat all rental units be habitable. Thus, thisprovision could be interpreted to only allowa tenant to assume the obligation to makethe rental units habitable.

The Act drew prompt criticism as beingtoo pro-Iandlord.25 Specifically, the Act hasbeen criticized because it does not allowtenants to make repairs and deduct repaircosts from rent payments, because it placestoo many conditions upon a tenant's right tobring suit by requiring the tenant to be incompliance with all his duties under the Actbefore he can seek relief, because it requiresthe tenant to give notices to the landlord

before bringing suit, because it does notallow damages for mental suffering,because it allows reallocation of statutoryduties, and because it allows a landlord toterminate a rental agreement rather thanrepair the premises.26

"The renter may not employself-help by withholding rents,because he is required to becurrent on rent and to be in

compliance with all his otherobligations under the Actbefore he may bring an

action for relief. "

Common Law ImpliedWarranty of Habitabilty

In 1991, the Utah Supreme Court enteredthe arena by creating a common law impliedwarranty of habitability in Wade v, lobe,818 P,2d 1006 (Utah 1991), a case whicharose before enactment of the Fit Premises

Act. Lynda Job rented a house in June,1988, and moved in with her three children.Almost immediately, sewage and waterbegan to accumulate in the basement.

Between July and October, the landlord

pumped the sewage and water from thebasement several times.

In November, Ms. Jobe notified the land-lord she would withhold rent until thesewage problem was permanently solved. Inresponse, the landlord called the city inspec-tor who discovered that the house had nosewer connection, and that various othercode violations existed which were a sub-stantial hazard to the health and safety ofthe occupants. Accordingly, the city issueda notice that the property would be con-demned if the violations were not corrected.There was no evidence that the landlordhad notice of the lack of a sewer connec-tion before renting the house to Ms. Jobe.

Apparently, the landlord chose not tocorrect the problems, and Ms. Jobe movedout. The landlord sued for the withheldrent, and Ms. Jobe counterclaimed for off-set and damages under theories of impliedwarranty of habitability and application ofthe Utah Consumer Sales Practices Act. Aunanimous Court held that Ms. Jobe had acause of action under the common lawimplied warranty of habitability.27

The warranty of habitability as cur-rently outlined by the Utah Court issimilar in scope to the Fit Premises Act.

Like the Act, the warranty of habitabilitydoes not apply to minor housing code vio-lations or cosmetic problems, but only todefects which "impact on the health orsafety of the tenant," such as failure tosupply heat or hot water. "Substantial

compliance" with any applicable buildingcodes is evidence that the landlord has notbreached the warranty,28

In a holding which is somewhat analo-gous to the provision of the Fit Premises

Act which allows reallocation of statutoryduties, the Utah Supreme Court held in acompanion case to Wade, P.H. Investmentv, Oliver, 818 P.2d 1018 (Utah 1991) (thesame case which precipitated the passagethe Fit Premises Act), that the protectionof the warranty of habitability can bewaived when a tenant chooses to rentpremises which do not conform to thewarranty of habitability, However, anysuch waiver must be "express," and "theexpress waiver wil be effective only as toany specific defects listed as waived,"29 In

addition, any waiver may not be "uncon-scionable or significantly against publicpolicy,"30

Like the Fit Premises Act, the warrantyof habitability requires a tenant to give his

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8 Vol. 5 No.7I.1

landlord notice of a defect and a "reason-

able time" to make repairs. However,unlike the Fit Premises Act which requireswritten notice, the warranty of habitabilityonly requires the tenant to give "actual orconstructive notice."31

It is in the area of remedies that thejudicially created implied wananty of hab-itability differs radically from the FitPremises Act. The wananty of habitabilityallows for tenant self-help, If the landlordis in breach, the tenant may withholdrent,' The Court left open the question ofwhether the tenant may make repairs anddeduct the cost from his rent.33

The tenant may bring an affirmativeaction for rent abatement, includingretroactive abatement for periods of timewhen rent was not being withheld by thetenant, or the tenant may raise the land-lord's breach of the warranty as a defenseof counterclaim to a landlord's unlawfuldetainer action.34 A breach of the impliedwarranty gives rise to all usual contractremedies, including special damages, suchas "personal injury, property damage, relo-cation expenses, or other similarinjuries."35 Presumably, "personal injury"would include emotional injury,

The Court has not yet indicatedwhether, as under the Fit Premises Act, alandlord may choose not to bring a non-conforming property into compliance, andinstead to terminate the rental agreement.However, the Court relied heavily on thewell-known Skelly Wright opinion, Javinsv. First Natt Realty Corp., 528 F.2d 1071(D.C. Cir. 1970), in fashioning Utah'simplied warranty of habitability. In a lateropinion, Robinson v. Diamond HousingCorp" 463 F,2d 853 (D.C. Cir. 1972),Judge Wright refused to let a landlord takea deteriorated housing unit out of therental market, requiring instead that thelandlord bring the unit into compliancewith the implied warranty of habitabilitybefore the landlord could evict a tenant atsufferance who had been withholdingrents. Furthermore, two Utah justices inWade found it "shocking" that the land-lord In that case had his property

condemned and evicted the tenant, ratherthan make the repairs necessary to bringthe property into compliance with the war-ranty of habitability,36 It is certainlypossible, therefore, that the judicially cre-

ated warranty of habitability will beinterpreted to require landlords to make

extensive repairs to bring occupied proper-ties into compliance, even when suchrepairs do not make economic sense,

The Salt Lake OrdinanceRenters in Salt Lake City have been

granted a limited "repair and deduct" rem-edy by the City's Fit Premises ordinance,3?

The ordinance sets out a specific list of defectsas to which the tenant can invoke the rem-edy.38 Within 24 to 96 hours after receipt of

written notice, depending on the defect, thelandlord must take "reasonable steps tobegin repairing" the defects, and must"complete the repairs with reasonable dili-gence,"39If the landlord fails to timely beginmaking repairs, and if the tenant is currenton all rent, the tenant may begin the self-help process as laid out in the ordinance.4o

"It is certainly possible,therefore, that the judicially

created warranty of habitabilty

wil be interpreted to requirelandlords to make extensiverepairs to bring.occupied

properties into compliance,even when such repairs donot make economic sense. "

If the problem is deemed "critical," suchas an inoperable toilet, lack of heat whenheat is required, or disconnected utilities,the tenant may begin repairs. The tenantmust, however, use a licensed contractor,obtain at least two bids, and use the lowestbidder. The tenant may then deduct hisexpenses to a maximum of four hundreddollars, if all original paid receipts are fur-nished to the landlord. If the problem isdeemed "noncritical," the tenant must serveon the landlord a "second written notice ofintent to repair and deduct." If repairs havenot been begun within forty-eight hours ofservice of this second notice, the tenant mayundertake repairs, subject to the same limi-tations set out for "critical" repairs. Theremedy does not apply to damages causedby the tenant.

The Salt Lake Ordinance also imposes

various other duties on both landlord andtenant. The landlord must comply withapplicable codes, and rent only premises

which are "safe, sanitary, and fit for humanoccupancy." In addition, the Ordinance listsseveral specific standards which the prop-erty must meet, most of which appearalready to be covered by applicable codes:1The tenant is required to abide by therental agreement and to generally maintainthe property in a clean and safe condition,

The Ordinance specifically allows thelandlord to "allocate any duties to the ten-ant by explicit written agreement." Theagreement "must be clear and specific,boxed, in bold type or underlined,".'

While the Utah Fit Premises Act allowsa landlord to terminate the lease ratherthan make repairs, presumably the land-lord could use this provision to rid himselfof a troublesome tenant by evicting, thenmaking repairs and renting to someoneelse. By contrast, the Salt Lake Ordinancespecifically forbids a landlord from retali-ating against a tenant for exercising his

rights by evicting the tenant:3 Jurisdic-

tions which recognize the implied

warranty of habitability also typically for-bid retaliatory evictions". although thisissue has not yet arisen in Utah.

ConclusionAfter the spate of lawmaking in the

area of landlord-tenant relations, Utahpractitioners advising both parties facemany unanswered questions about theinterpretation of legislation and case law,the exact contours of the common-lawimplied warranty of habitability, and theinteraction of common-law and statutes.Some of those questions are:

(1) What is the relationship of the com-mon-law implied warranty of habitabilityto the Utah Fit Premises Act? At leastthree Justices of the Utah Supreme Courtare concerned about his issue:' The FitPremises Act carefully limits tenant reme-dies when housing is substandard, and theSupreme Court subsequently expandedthose remedies dramatically, Clearly, theLegislature could, if it chose, abrogate theholding of Wade by statute. But is there anargument that they have already done soby passing the Fit Premises Act at theexpress invitation of the courts to legislatein the area of habitability guarantees?46 Is

it possible that the holding of Wadeapplies only to tenants whose cause of

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action arose before passage of the FitPremises Act?

(2) What about commercial property?The Utah Fit Premises Act by its termsapplies only to residential leases, The judi-cially created implied warranty ofhabitability, for now, applies only to resi-dentialleases. Wade expressly leaves openthe question of whether the warranty is

implied in commercial leases.4? A fewcourts have extended the implied warrantyrationale into the area of commercial prop-erties to create an "implied warranty ofquality" in contracts involving commercialproperty.48 Interestingly, while the lan-

guage of the Salt Lake Ordinance appearsto be aimed at residential property, speak-ing in terms of "dwelling units" and

specifically requiring provision of suchthings as kitchens and bathtubs, the Ordi-nance does not by its terms limit itscoverage to residential propert by excludingcommercial property from its coverage.49

(3) What wil be the effect, if any, onlenders for apartment complexes? Underthe implied warranty of habitability, ten-ants can withhold rents after onlyconstructive notice to the landlord ofdefects, raising the possibility of unpre-dictable interruptions in the stream ofincome or even concerted action amongtenants such as rent strikes,

(4) How broadly or narrowly wil thenew law be interpreted? For example,what is a "reasonable time" in whichdefects can be repaired under the FitPremises Act or the implied warranty ofhabitability? Wil tenants actually beallowed to expressly waive defects in theirrental units, or wil most waivers be foundto be unconscionable when there isunequal bargaining power? What defectswil be serious enough to trigger the provi-sions of the Fit Premises Act or breach theimplied waranty of habitability?

Hopefully, the development of Utahlaw in this area wil curtail oppression of

tenants without creating economic disin-centives for landlords which mayultimately diminish the supply of availablelow-income housing.

IDavid J. Winterton, Landlord and Tenant Law: Implied

Warranty of Habitability, 3 Utah B.J. 9 (1990).2778 P.2d 11 (Utah App. 1989).

3ld. at 14.

4ld. at 13-14.

5Utah Code Ann. § 57-22- 1 et seq.

6See Wade v. Jobe, 818 P.2d 1006 (Utah 1991). In Wade,

two Utah Supreme Court Justices indicated that they would,in addition, extend the protections of the Utah ConsumerSales Practices Act, Utah Code Ann. § 13-11-1 et seq., tolandlord/tenant transactions. Id. at 1013-18 (opinion ofDurham and Zimmennan, II.).)7 Salt Lake City Ordinances ch. 18.96.

8 See e.g., Wade, 818 P.2d at 1009; Winterton, supra, at n.9.

9Utah Code Ann. § 57-22-4.

lOSee Utah Code Ann. § 57--22-2.

I1Utah Code Ann. § 57-22-3(1.

12Utah Code Ann. § 57-22-4(1)(a).

13Utah Code Ann. § 57-22-3(3).

14Utah Code Ann. § 57-22-3(1), -4.

15Utah Code Ann. § 57-22-4(3).

16Utah Code Ann. § 57-22-3(2).



19Utah Code Ann. § 57-22-4(5).

20Utah Code Ann. § 57-22-6(3)(e).

21Utah Code Ann. § 57-22..6.

22Utah Code Ann. § 57-22-4(4).

23Utah Code Ann. § 57-22-3(4).

24Note, The Utah Fit Premises Act and the Implied Warranty

of Habitability: A Study in Contrast, 1991 Utah L. Rev. 55,73.25 See generally Id.

26ld

27Wade, 818 P.2d at 1010.

28ld. at 1010-11.

29P.H.Investment, 818 P.2d at 1022.

30ld.

31 Wade, 818 P.2d at lO12n.5.

32ld. at 1011.

33ld. at n.3.

34P.H.lnvestment, 818 P.2d at 1021.

35Wade, 818 P.2d at 1012.

36ld. at 1018 (opinion of Durham and Zimmerman, II.)37SaltLake City Ordinances ch. 18.96.

38Salt Lake City Ordinance § 18.96.100.

39ld

40Salt Lake City Ordinance § i 8.96.120.



43SaltLake City Ordinance § 18.96.130.

44See, e.g., Robinson v. Diamond Housing Corp., 463 F.2d at

856-57.45See Wade, 818 P.2d at 1018 (Howe, Hall and Stewart, II.,

concurrng).46See, e.g., 73 Am.Jur.2d, Statutes § 185 ("Where a statute is

clearly designed as a substitute for the common law, suchpurpose should be given effect. ")47ld. at n.2.

48See Frona M. Powell and James P. Mallor, The Case for

An Implied Warranty of Quality in Sales of Commercial RealEstate, 68 Wash. U. L.Q. 305, 327-30 (1990).49Salt Lake City Ordinance § 18.96.020.

Vol. 5 No. 7

r

THE LIMITED LIABILITY COMPANYBy Wiliam D. Bagley and Philip P. Whynott

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11E UMITED UABllIn COMPAN' .(FORMS ~D~ ~~r:R ALnRNATlVE

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j

Avoiding Breaches of Peace in"SELF -HELP" Repossessions

"When a strong man armed keepeth hispalace, his goods are in peace. , . "

-Luke 11:21

The so-called "self-help" provisionsof Article 9 of the Uniform Com-mercial Code provide a quick and easysolution to the problem faced by a securedcreditor in personal property. Upondefault, the secured party is permitted totake physical possession of tangible collat-eral for disposition as prescribed

elsewhere in the Code, so long as nobreach of the peace occurs.

Like so many short-cuts outside directjudicial supervision, however, the self-help remedy may be quick and cheap forthe client, but it is fraught with the poten-tial for abuse, This article is intended toassist in advising clients of what consti-tutes a breach of the peace, what

consequences of a breach of the peace are,and how collateral can be "peacefully"repossessed.

DEFAULT AND REPOSSESSIONUnder the Code, once the fact of

default can be shown, three options arise:The creditor can 1) waive the security andsue on the obligation; 2) enforce the secu-rity interest by disposing of the collateraland seek a deficiency; or, 3) keep the col-lateral in full satisfaction of the debt,

so-called "strict foreclosure". A securedcreditor who decides to enforce the secu-rity interest against tangible collateralmust then obtain actual, physical posses-sion of the collateraL.

With tangible collateral, Utah CodeAnn. Section 70A-9-503 provides that asecured party has the right to take posses-sion of the collateral upon default, unlessit has been otherwise agreed between theparties. The secured party may proceedeither with or without judicial process.

Obtaining possession of the collateral

By R. L. Knuth

R. L. KNUTH, a 1980 graduate of theUniversity of Utah College of Law, is ashareholder in the Salt Lake firm ofParsons, Davies, Owen & Knuth. Hepractices chiefly in the areas ofcommercial law, bankruptcy, real estateand water law, Mr. Knuth has written ona wide variety of legal topics; this is histhird article for the Utah Bar Journal.

without judicial process is known as "self-help". As wil be seen below self-help issubject to some rather severe limitations,

VOLUNTARY REPOSSESSIONSBefore analyzing the limitations of the

self-help remedy, it is worth noting thatavoiding self-help entirely may be the wis-est course. An alternative overlooked,surprisingly, by many secured creditors, issimply to ask the debtor to surrender thecollateraL. A voluntary surrender of collat-eral by the debtor is usually the best methodby which to proceed, since it will generallyobviate any claim by the debtor that the col-lateral was illegally repossessed, Often, thedebtor realizes he or she is in deep trouble

and is willing to surrender the collateral toreduce potential exposure.

Il

i,

The secured creditor, on the other hand,should be prepared to give concessions tothe debtor in order to obtain immediate,

voluntary surrender of the collateral, suchas a liquidated credit being granted for thegoods prior to sale, of some discount ofthe debt. The parties can often agree onwhat wil constitute a commercially rea-sonable method of sale or sale price inexchange for voluntary surrender. Everyvoluntary surrender agreement should,however, be reduced to writing, andshould specify that the creditor is notwaiving any right to a deficiency inexchange for voluntary surrender, unlessan agreement for such a waiver has actu-ally been made.

A voluntary surrender of collateralshould, first and foremost, be voluntary,that is, the debtor is making a knowing,informed decision in the absence of anyfraud or deceit. A creditor who repos-sesses fraudulently, in bad faith,unreasonably, or without justification maybe liable for compensatory and, whereappropriate, punitive damages, For exam-ple, in Clayton v, Crossroads EquipmentCo.,' the debtor was a contract harvesterwho had purchased a combine harvesteron credit. When the secured party learnedthat the debtor was preparing to take thecollateral out of the state where he claimedto have work, the collateral was repos-sessed, ostensibly under the "insecurity"

provision of the security agreement. Thedebtor was not in default of payment at thetime of repossession, The secured partyclaimed to have received information indi-cating that the debtor was a poor creditrisk, thus justifying repossession.

The Utah Supreme Court affirmed thetrial court's award of compensatory andpunitive damages. The Court observedthat the case before it did not involve dete-rioration of the debtor's credit, but wasbased on information the secured party

12 Vol. 5 No.7

had had in its possession when it made theloan in the first instance.2 Thus, the Courtconcluded, the secured party did not act ingood faith when the collateral was repos-sessed,3 The Court may also have beeninfluenced by the fact that the repossessionwas made at the very beginning of the har-vest season when the debtor would havehad a very pressing need for the collateraL.

BREACHES OF PEACEWhere a voluntary surrender cannot be

negotiated or where making the requestwould be futile, the secured creditor canstill look to his self-help rights under theCode. Section 9-503 specifically permits asecured party to take possession of the col-lateral in the absence of judicial processwhere possession can be had without a"breach of the peace", The prohibitionagainst breaches of the peace is designed

to prevent violence or other lawless actionby either party. The secured creditor whocommits a breach of the peace in the processof repossession is subject to tort liabilityfor conversion, possible loss of rights ofdeficiency and, in the most egregiouscases, punitive and exemplary damages" aconsummation devoutly to be avoided.

The Code does not define a "breach ofpeace" and, therefore, the peculiar facts ofeach case are important in the determina-

tion of whether a breach of the peace hasoccurred. Very generally, a breach of thepeace occurs where repossession contin-ues in the face of circumstances

provocative of violence.s There need be noviolence, only the real potential for vio-lence. In determining whether a breach ofpeace has occurred, courts generally relyon the potential immediate, physical con-frontation and the precise nature of the

debtor's premises being entered by thesecured party seeking to repossess.6

Suppose, for example, that the securedcreditor forces his way into the debtor'shome and hearth and seizes the collateralover the profane objections of the debtor.Is this a breach of the peace? Obviouslyso, because there is a reasonable possibil-ity of an immediate escalation to violence.Any forced entry into the debtor's resi-dence will most likely be held to be abreach of the peace,7 not to mention beingdownright dangerous to the creditor.

What if there is no one at home, or thebuilding containing the collateral is not adwelling? Although not decided in Utah,

the majority of courts hold that any unautho-rized breaking of locks, regardless of thetype of premises, is a per se breach of the

peace,sWhat if the collateral is not enclosed?

Generally, the courts will not find a breachof the peace simply for seizing a vehicle, inthe open, from a street or parking lot, with-out a confrontation.9 It has been held thatrepossession of an automobile from a"remote and private" driveway at 5:00 a.m.,even when done in a noisy manner is not,standing alone, a breach of peace wherethere was no physical or verbal confrontation.

10

In summary, a secured creditor is gener-ally privileged to enter upon the property ofthe debtor for the limited purpose of repos-session, so long as no buildings or

enclosures are entered, and such is not atrespass, 1 1

"The secured creditor whocommits a breach of the peace

in the process of repossession issubject to tort liabilty for

conversion, possible loss of rightsof deficiency and . . . punitiveand exemplary damages. . . "

The most recent discussion of the con-cept of breach of the peace by the UtahSupreme Court was in the 1989 case of Cot-tam v, Heppner,12 In that case, the collateralwas a herd of cattle which the secured partyhad removed from corrals belonging toanother of the debtor's creditors. TheSupreme Court noted especially that therepossession had occurred with the permis-

sion of the owner of the corrals and at atime when neither the debtor nor thedebtor's employees were present or able toresist the repossession as it was takingplace. The debtor was unable to establishthat he had a lease for the corrals or that atrespass had occurred in the act of reposses-sion, Further, the Court noted that the debtor's"telephoned displeasure" at the proposedrepossession did not, by itself, indicate thata breach of peace was threatened,13

Occasionally, secured creditors go to

extreme lengths in the act of repossession,resulting in tort liability. An object lessonin how not to conduct a repossession isprovided by Vogel v. Carolina Intl., Inc.

14

There, the debtor manufactured kitchencabinets, which it supplied to builders,including the creditor. After several

months of doing business together, thecreditor became aware that the debtor washaving financial difficulties and offered toloan the debtor money, secured by thedebtor's manufacturing equipment. Thecreditor loaned the debtor over

$12,000.00, payable on April 17.Thereafter the creditor apparently

learned that the debtor was in worse finan-cial trouble than was thought earlier. OnMarch 9th, before the note was due, thecreditor set up a meeting with the debtor'spresident to discuss the possibility of mov-ing the debtor's business to Ft. Morgan,Colorado. When the debtor's presidentarrived at the creditor's office, he wasfalsely told that the creditor's general

manager had been called out of state on anemergency. At that moment, however, thecreditor's general manager was at thedebtor's factory in Windsor, Coloradorepossessing the debtor's equipment. Thiswas never revealed to the debtor's presi-dent. Rather, the debtor's president wasassured that the secured creditor did notfeel insecure and that payment of the noteswhen due the following month would besatisfactory.

Meanwhile, back at the debtor's fac-tory, the creditor's general manager, whowas supposedly in another state at thetime, told the debtor's employees that hewas there to move the debtor's business toFt. Morgan. The creditor's employees cutthe telephone lines so that the debtor'spresident could not be reached and pro-ceeded to load up all of the debtor's toolsand office equipment, without regard towhat was collateral and what was not.When the debtor's president returned, itwas to an empty factory, Not surprisingly,the jury awarded nearly $19,000,00 inactual damages for conversion, $73,000.00in punitive damages and $16,000,00 to thedebtor's president for the intentionalinfliction of emotional distress. The Col-orado Court of Appeals affirmed:

There is abundant evidence in therecord to show that Century's taking ofthe property was not an exercise ofrights under the Uniform Commercial

Atlgust/Sepiember 1992 13

5Restatement (Second) of Torts, § 116 (1965):"A breach of the peace is a public offense done by

violence, or one causing or likely to cause an immediatedisturbance of public order."

6See, McKee v. State, 132 P.2d 173, 177 (Okla, 1942):

"To constitute a 'breach of the peace' it is not nec-essar that the peace be actually broken, and if what isdone is unjustifiable and unlawful, teuding with suff-cIent directness to break the peace, no more is required,nor is actual personal violence an essential element ofthe offense."

7 See, Girard v. Anderson, 257 N.W. 400 (Iowa 1934).

8See e.g., Laurel Coal Co. v. Walter E. Heller Co., 539 F.Supp. 1006, 1007 (W. D. Pa. 1982); Riley State Bank ofRiley v. Spilman, 750 P.2d 1024, 1030 (Kan. 1988); Hender-son v. Security Nat'l Bank, 140 Cal. Rptr. 388, 22 UCC Rep.Servo 846 (Dist. Ct. App. 1977).9See, e.g., Kroeger v. Ogden, 429 P.2d 781, 786 (Okla.

1967) (airplane repossessed from an open hangar); Raffa v.Dania Bank, 321 SO.2d 83, 85 (Fla. Ct. App. 1975) (autorepossessed from a private driveway); Gill v. MercantileTrust Co., 347 S.W.2d 420, 423 (Mo. Ct. App. 1961) (autorepossessed from debtor's front yard).IORagde v. People's Bank, 767 P.2d 949, 951 (Wash. Ct.

App.1989).i 1 Gregory v. First Nat'l Bank, 406 P.2d 156 (Ore. 1965)12777 P.2d 468 (Utah 1989).

13ld. at 472. See also Massey-Ferguson Credit Corp. v.Peterson, 626 P.2d 767, 773-74 (Idaho 1980).14711 P.2d 708 (Colo. Ct. App. 1985).

15 Id. at 713.

16792 S.W.2d 530, 12 UCC Rep. Servo 1169 (Tex. Ct. App.

- E1 Paso, 1990).17 Id. at 531.

18Id. at 532.

19588 P.2d 863 (Arz. Ct. App. 1978).

20Id. at 866.

21463 P.2d 651, 7 UCC Rep. Servo 135 (Wash. Ct. App.

1970).22Id. at 655.

23Harris V. Cantwell, 614 P.2d 124,12629 UCC Rep. Servo

1097 (Ore. Ct. App. 1980).

Code. The promissory notes whichwere secured by the security agreementwere not yet due. Century took every-thing in the Kitchen Kraft factorywithout any effort to select those itemslisted on the security agreement. Thisaction effectively shut down KitchenKraft, rendering it unable to do busi-ness. Moreover, this result was

achieved by holding Kitchen Kraft'schief executive officer and managerincommunicado and by depriving itsemployees of the means to reach him.This evidence is sufficient to show mal-ice beyond a reasonable doubt. t5A creditor should be especially cau-

tious in the choice of any agents he uses toconduct the repossession, since the credi-tor may be liable as a principal for anytorts committed on his behalf. In thisrespect, Sanchez v. MBank of El Paso16 isboth instructive and cruelly amusing.

There, the secured creditor, an ostensiblyrespectable bank, was held liable in tortfor the offenses of two "repo-men" hiredto repossess the debtor's car. Withoutannouncing their purposes, the two mencommenced towing the debtor's car fromher driveway, In an effort to delay them,the debtor locked herself in the car andwas thereafter transported inside the car tothe repossession lot "and parked in afenced and locked yard with a loose guarddog, She was rescued sometime later byher husband and the police."t7 The TexasCourt of Appeals found the bank vicari-ously liable, because "the duty to refrainfrom a breach of the peace is nondelegableand the employer cannot escape liabiltyfor the tortious performance of the inde-pendent contractor."18

Clients should be advised against usinga public officer in a self-help situation.

The infamous case of Walker v. Walthallt9involved a secured creditor exercisingself-help, but accompanied by a deputysheriff, armed and in uniform. The debtordid not resist the repossession, and thedeputy sheriff said nothing. However, theArizona Court of Appeals held that themere presence of the ared and uniformeddeputy sheriff, who said and did nothing,was intimidating and by itself constituted"state action". The Court found that thedeputy's presence, in effect, made therepossession a judicial action withoutproper notice or hearing.20

A different analysis was employed by

the Washington Court of Appeals in StoneMachinery Co. v. Kessler,it where the credi-tor brought along an armed sheriff's officerto the repossession, though he had no writof replevin. The court found that the pres-ence of the sheriff without sanction of thecourt constituted "constructive force, intimi-dation and oppression" and was amisrepresentation of the creditor's actualauthorization to proceed over the objectionsof the debtor.22

There is, however, authority for theproposition that the police may witness therepossession as long as the debtor is notpresent or arrives after the repossession hasalready taken place; in such circumstances,

there is no danger that the debtor wil beintimidated by the offcer's presence.23

If moving the collateral is difficult,impractical or inconvenient, Utah CodeAnn. Section 70A-9-503 allows the creditorto "render equipment unusable" and then todispose of the collateraL, by sale or other-wise, on the debtor's own premises.

A good rule of thumb is to retreat anduse the courts where there is any resistanceat all, whether verbal or physical, to entry ofthe premises for seizure of collateraL. Theadvantage to be gained by using even a

threat of force, or in simply being tooclever, is not worth either the potentialexposure or the risk of losing rights thecreditor would otherwise have had,

1655 P.2d 1125 (Utah 1982).

2Id. at 1129.

31d. at 1127-30

4B/oomquist v. First National Bank, 378 N.W.2d 81 (Minn. Ct.

App.1985).

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DRIVING IN HIGH GEAR:How WordPerfect Can Prevent Mistakes

in Legal Documentsí'

By Mark J. MorriseCopyright (Ç 1992 by Mark J, Morrise. All rights reserved.

I

II

'I\

¡

If a word processor were a car, it wouldnot make sense to drive it in just firstgear. Yet that is what happens when aword processor is used as just a computer-ized typewriter, i,e" to simply enter andrevise text.

One of the most popular word proces-sors in law firms today is WordPerfect.!

Like other leading word processors,WordPerfect is a powerful tool that can domuch more than simply enter and revisetext. Among its capabilities is the power toautomatically prevent mistakes in legaldocuments.

As an example of the type of mistakesthat can be prevented, consider the follow-ing scenario:

It is Friday at 4:00 p,m. AttorneySmith's Motion for Summary Judgmentis due today. As she reviews the finaldraft of her supporting memorandum ofpoints and authorities, Smith discovers

that:. The caption does not include a

party that was recently added to thecase.

. The page numbering starts at "3"instead of "1",

. Although a paragraph wasinserted halfay through the "Undis-puted Facts" section, the remainingparagraphs were not renumbered.

. The heading of the second point of

her argument is split between twopages, with "Point II" appearing at thebottom of the first page, and thedescription of Point II at the top of thenext page.

· Although a new month has begun,the date before the signature line stilcarries the previous month.For several years, I routinely encoun-

MARK J. MORRISE graduated from J,Reuben Clark Law School in 1982. Hepractices commercial law and estateplanning with Corbridge Baird &Christensen in Salt Lake City. Mr.

Morrise is a member of the recentlyformed Law Practice ManagementCommittee of the Utah State Bar.

tered these types of mistakes in proofread-

ing legal documents. Then in June 1991, mylaw firm invested in WordPerfect 5.1. Atthat time, I began to investigate how Word-Perfect's features could help me in mypractice.

I found that several of WordPerfect'sfeatures wil automatically prevent commonmistakes in legal documents, For attorneys,this translates into reduced proofreadingtime, fewer drafts, and reduced cost to theclient. Thus, implementation of these fea-tures directly benefits attorneys, whether ornot theyuse WordPerfect themselves.

I also found that most of these features

could be included in WordPerfect "macros,"

or pre-recorded series of keystrokes. Thisbenefits WordPerfect users (either secre-taries or attorneys) by making the featuressimple and fast to use,

Based on my experience, this articlediscusses several common mistakes inlegal documents and how the features andmacros in WordPerfect 5.i can be used toprevent them. After reading this article,attorneys may want to give it to their sec-retary to implement the techniques

discussed.

COMMON MISTAKES ANDFEATURES TO PREVENT THEM1. Typos and Misspelled Words.

The Speller feature (Control-F2),which detects and corrects typos and mis-spelled words, is well-known. This featurealone can significantly reduce an attor-ney's proofreading time.

Speller does not, of course, do awaywith the need for proofreading, since itwil not detect an incorrect word that iscorrectly spelled (such as the substitutionof "or" for "of'). But the misspellings itdoes catch easily justify the time it takesto use Speller.

2. Misnumbered Paragraphs.

A very useful feature for documentswith numbered paragraphs, such as com-plaints, memoranda of points andauthorities, or contracts, is ParagraphNumbering (Shift-F5, 5). This featureprevents misnumbered paragraphs byautomatically renumbering all paragraphswhenever new paragraph numbers areinserted or old ones deleted,

Paragraph Numbering becomes mucheasier to use when it is included in aWordPerfect macro. As mentioned above,a "macro" is simply a pre-recorded seriesof keystrokes. (Macros can also include

Augiist/September 1992 15

T

macro commands, discussed below in sec-tion eight, "Lost Documents.") A macro iscreated using the Macro Define (Control-FlO) feature, which first asks the user toidentify the macro by either a name or anAlt-key combination. For example, a

macro that inserts an automatic paragraphnumber could be called "NUM" or "Alt-N." The user can also give the macro abrief description. Thereafter, MacroDefine records the user's keystrokes untilMacro Define is terminated by pressingControl-FlO.

To invoke a macro, i.e., play back thepre-recorded keystrokes, the Macro (Alt-FlO) feature is used. If the macro wasidentified by a name, the macro is invokedby pressing Alt-FlO, typing the macroname, and pressing the Enter key. If themacro was identified by an Alt-key com-bination, then the macro is invoked bysimply pressing that combination.

The obvious benefit of macros is toreduce the number of keystrokes requiredto perform routine tasks. For example, ifParagraph Numbering is recorded as amacro called "Alt-N," the number ofkeystrokes required to use that feature isreduced from five to two, a savings ofthree keystrokes. When this savings ismultiplied by the number of times a secre-tary uses Alt-N in one day, it can easilyamount to 600 or more keystrokes.

One other feature of Paragraph Num-bering should be mentioned. Some

documents, such as complaints, havemore than one sequence of numberedparagraphs. Paragraph Numbering accom-modates this situation with the Definefeature (Shift-F5, 6, 1), which allows theuser to reset the paragraph number to oneat any point in the document.

3. Splitting Blocks of Text Between

Pages.There are certain blocks of text that

attorneys prefer to keep on the same page,Examples include signature blocks, notaryblocks, certificates of service, and multi-line headings in memoranda of points andauthorities, Although allowing the blockto split between two pages may not techni-cally constitute a mistake, it at least lookspoor as a matter of style.

Ordinarily, such splitting of text blocksis corrected in the final draft by manuallypositioning the text with hard returns orhard page breaks. But sometimes lastminute changes to the document can undo

this careful positioning, resulting in

unwanted page breaks that either are missedin proofing or require re-positioning.

The Block Protect feature (Block Text,Shift-F8) automatically prevents a selected

block of text from being split between twopages. Once set up, it does away with theneed to manually position that block beforeprinting the final draft.

The use of Block Protect can be madeautomatic through macros. For example, themacro that creates a certificate of serviceblock can be set up to automatically protectthat block. This makes the Block Protectfeature invisible to the user, who does noteven realize it has been used.

A related feature is Conditional End ofPage (Shift-F8, 4, 2), which protects a spec-ified number of lines from being splitbetween pages. This feature works wellonly when the number of lines in the blockcannot change.

Another related feature is Widow/Orphan (Shift-F8, 1, 9), which you do nothave to be an estate planning attorney touse, This feature guards against solitarylines, sometimes refeITed to as "widow" or"orphan" lines, at the top or bottom of apage. Use of this feature can also be madeautomatic by including it in a document set-up macro (explained in the next section).

4. Pagination Mistakes.

Two common types of pagination mis-takes in legal documents are (1) the failureto paginate a document at all, and (2) mis-numbered pages. The first type of mistakeoccurs when the page numbering code isinadvertently omitted at the beginning ofthe document. The second type of mistakeoccurs when the user combines two legaldocuments (such as a motion followed bya memorandum) into a single word pro-cessing "document," and forgets to resetthe page numbering at the beginning of thesecond legal document to one, WordPer-fect numbers the pages of the second legaldocument as a continuation of the first, sothat the second document does not startwith page one,

The way to guard against these mis-takes is to begin each document with adocument set-up macro that automaticallyuses the Page Numbering feature (ShiftF-8, 2, 6) to paginate the document and setthe page number to one. Such a set-upmacro can also suppress the page number-ing on the first page, turn on theWidow/Orphan feature discussed above,and perform other routine document set-uptasks. When such set-up macros are usedfor pleadings, letters, and memos, theywil virtually eliminate pagination mis-

16

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takes in those documents,An alternative to using macros for doc-

ument set-up is the Style feature (Alt-F8)which inserts a pre-defined "style," orseries of feature codes, into the document.The main drawback to Style is that unlikefeature codes inserted by macros, its fea-ture codes cannot be displayed or deletedwithin the document.

5. Incorrect Dates.

Many types of legal documents, includ-ing letters, pleadings, and contracts,include the document's date either at thebeginning or before the signature line atthe end. If such a document is not com-pleted the day it is begun, the user mustmanually update the document's datebefore printing the final draft. Occasion-ally, such updating is overlooked,

WordPerfect's Date feature (Shift-F5)frees attorneys and secretaries from everhaving to watch for incorrect documentdates. This feature allows the user to insertinto a document a "Date Code", which isautomatically updated each day by thecomputer's internal date/time clock.

The Date Code can appear in any for-mat the user chooses. For example, a Date

Code at the beginning of a letter can bedefined to appear as "January 1, 1993,"

"01101193," or "1-1-93." In a pleading, a

Date Code can be defined to appear as "Jan-uary, 1993" for use in the phrase

"the_day of January, 1993."Like some of the features previously dis-

cussed, the use of Date can be madeinvisible to the user when it is included in amacro. For instance, the Date Code for"(month), (year)", which takes ninekeystrokes to manually set up, can be madeautomatic by including it in a macro thatinserts the phrase "Dated this _ day of(month), (year)," Similarly, the Date Code atthe beginnng of a letter can be included in aletter set-up macro, and the Date Code in acertificate of service can be included in acertificate of service macro.

For the Date Code to work properly, thecomputer's internal date/time clock must ofcourse be properly set. Ordinarily this is nota problem, because the internal clock auto-matically advances each day. If for somereason a user does experience problemswith the internal clock, he or she shouldmanually set the date and time at the begin-ning of each day to ensure that the Date

Code is correct.The use of Date Code has one slight

disadvantage, After a document is signedand sent, WordPerfect continues to updatethe Date Code each day. If the documentis subsequently displayed on the computerscreen, it wil show the current day's dateand not the date it was signed. To see thedate the document was signed, the usermust either pull a paper copy of the docu-ment from the file or check the "RevisionDate" using the List Files (F5) feature.

6. Problems with Page Headings in

Letters.A common format in business letters of

more than one page is to place a three-lineheading in the upper left-hand corner ofeach page except the first. Such a letterpage heading usually includes the name ofthe recipient, the date of the letter, and thepage number. Many attorneys prefer theseheadings because they give letters a pro-fessionallook.

When done manually, letter page head-ings present some problems. One is thatthey may need to be manually reposi-tioned if revisions are made which movethe headings up or down. A second is that

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the date on each page may need to bemanually updated. A third is that the pagesmay need to be manually renumbered,

The Header feature (Shift-F8, 2, 3)solves these problems by allowing the userto create a page heading that will automat-ically appear in the upper left corner ofeach page. When creating the heading, theuser inserts a Date Code instead of manu-ally typing the date, so that the date wilbe automatically updated. In addition, theuser types a Control-B (AB) character inplace of the page number. WordPerfectautomatically substitutes the correct pagenumber for the Control-B character at thetime the letter is printed.

The Suppress Page Format feature(Shift-F8, 2, 8) allows the user to suppressthis header on the first page of the letter.

The creation of such page headings canbe made invisible to the user by includingthe Header feature in a letter set-up macro.This approach can save about 80keystrokes each time a letter is created,

7. Problems with Pleading Captions.

Pleading captions present two distinctproblems. The first problem stems fromthe fact. that when a pleading is created,the user wil typically locate a prior plead-

ing in the same case and copy the captionfrom that pleading. The problem with thismethod arises when the prior caption hap-pens to not be the most recent version.Changes in subsequent versions, such asthe addition of new parties, do not getpicked up. Similarly, if the prior captioncontains mistakes that were corrected insubsequent versions, the old mistake getsreintroduced. For example, an incorrectcase number which had been correctedcould reappear.

The solution to this problem is to storethe caption to each case as a separate doc-ument. All revisions and changes to thecaption are first made to this document.Then, when the user wants to create a newpleading in that case, he or she brings thecaption document into the pleading usingthe Retrieve (Shift-FlO) feature. There-

fore, all revisions and changes areautomaticaly picked up in the new pleading.

The foregoing approach works bestwhen a separate WordPerfect directory isset up for each client/matter. Such a direc-tory structure allows the user to name eachcaption document the same name, such as"CAPTION." Retrieving the caption for agiven client/matter is then as simple as

changing the default directory to thatclient/matter (F5, =), using the Retrieve fea-ture, and entering "CAPTION."

A second, separate problem with plead-ing captions arses because of the caption'sunique two-sided format, which makesrevising the left side of the caption quitedifficult. When revisions to that side resultin a line being shorter or longer than it orig-inally was (which usually is the case), theneach subsequent line must be manuallyadjusted for the decrease or increase inlengt, This is a dicult, tie-consuming task.

When faced with this task, the user mayelect to simply retype the entire caption ratherthan revise an existing caption. Retypingthe caption, however, allows new mistakesto be made. The attorney may not proofreadfor such mistakes because he or she doesnot even know that the caption was retyped.

The solution to this problem is to use theColumns (Alt-F7, 1) feature to create cap-tions. In this feature, the user first defines acolumn format consisting of three parallelcolumns. The first column is the left side ofthe caption; the second is the center line;and the third is the right side. When createdin this fashion, a caption is very simple torevise, because the text on each side of thecaption "wraps" independently of the otherside. The insertion of paries to the left side,for example, simply pushes the text down tothat side, No manual readjustment isrequired.

Using Columns the first time is a littletricky, The user must set the column mar-gins and distance between columns, andsome experimentation is required to arriveat the right settings. Resort to the WordPer-fect reference manual may be necessary.Once the correct settings have been deter-mined, however, the use of Columns can bemade very easy by including it in (youguessed it) a macro. Such a macro greatlyreduces both mistakes in captions and thetime required to create and revise them.

An alternative method for setting upeasy-to-revise captions is to use the Table(Alt-F7, 2) feature. A table is created withtwo columns and one row, Initially, it lookslike a rectangle with a line down the center.The Table feature, however, allows the userto delete the lines on the sides, top, and bot-tom of the rectangle, so that only the centerline remains. The caption information isthen entered in the left and right cells of thetable. This approach has both advantagesand disadvantages compared to Columns,

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i

8. Lost Documents.

A document can get lost on the com~puter when the user does not know thedirectory where the document is saved orthe document's computer file name (e,g.,"MOTION.MSJ.") This may ultimatelyrequire the document to be retyped.

A simple way to avoid this situation isto institute a policy at the end of everydocument, the document's directory andfie name is typed. This document "LD."can be printed in small type so that it isunobtrusive.

In WordPerfect 5.1, the document LD.procedure can be automated by settng up

a very simple "ID" macro, as follows:f SYSTEM Jpath- f SYSTEM Jname-

The ID macro automatically inserts thecurrent document's directory (called its"path" in computer jargon) and its fiename into the document. Before invokingthe macro, the user positions the cursor atthe end of the document. Of course, the IDmacro wil not work until the documenthas first been saved,

Unlike the macros described previouslyin this article, the ID macro is not a pre-recorded series of keystrokes. It contains amacro command, "fSYSTEMJ," repeatedtwice, To create this macro, the WordPer-fect macro editor must be used. The userfirst presses the Home key, then presses

Control-FlO. WordPerfect asks for a macroname and a description. WordPerfect thendisplays a screen with the macro name anddescription at the top and a large box in thecenter. To place the fSYSTEMJ commandinside the box, the user presses Control-

PgUp, types "system", and presses Enter.The user then types "path," followed by atilde (-). The user then repeats the process,but instead of typing "path" types "name."Finally, the user presses F7 to exit.

The ID macro can be enhanced to auto-matically display the document LD. in smalltype and to automatically go to the end ofthe document.

IMPLEMENT A TION ISSUESIf an entire law firm decides to imple-

ment the macros discussed above, severalissues wil need to be addressed. First, even

though macros directly benefit the law firm,WordPerfect users may not use the macrosunless they are trained to do so, One way toaddress this issue is to hold lunch timesem-inars for all WordPerfect users to learnabout the macros available to them. Also,for firms with a network, a list of suchmacros can be made available on the net-work. If a user forgets a macro name orfunction, he or she can simply look it up onthe list.

A second issue is that many legal secre-

taries already use macros and may havealready assigned all their Alt-key combi-nations to existing macros, One solution tothis problem is to give all new macrosnames. The secretaries can either use themby name or assign a Control-key combina-tion to the macro using the KeyboardLayout (Shift-Fl, 5) feature, If secretariesare not using Keyboard Layout, theyshould have all their Control-key combi-nations free to assign to macros.

A thid issue is to decide who wil createand maintain the macros. If a standardizedset of macros is to be implemented firm-wide, then a logical choice would be tochoose just one or two persons to do this,and then channel all requests for changesin the macros through them. If a firmneeds outside assistance, there are consul-tants who specialize in creating andimplementing WordPerfect macros.

CONCLUSIONLegal documents are often an attor-

ney's primar work product. The featuresand macros discussed above offer a sys-tematic method of improving the qualityof that product. When a firm uses its wordprocessor in "high gear," attorneys, secre-taries, and clients wil all benefit.

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~ JUDICIAL PROFILES

the guidelines purportedly were designedto increase efficiency, they actually haverequired increases in staff and procedures,

For example, Jenkins states that whatused to take approximately three weeks tocomplete, now requires a minimum of sixweeks, sometimes eight. While the districtcourt in Utah used to employ 16 probationstaff personnel, they now require 23.Finally, Jenkins states that while theguidelines purportedly eliminated or sub-

stantially reduced discretion, they, in fact,simply transfened the discretion from thejudge to the prosecutor. This is truebecause the precise nature of the chargedetermines, to a large extent, the sentencethat must be given. It is difficult to fullypromote "justice" (i.e., to treat like casesalike and different cases differently) undersuch a system,

Since becoming Chief Judge in 1984,

Jenkins has overseen dramatic changes inthe court. Under Jenkins' direction, thecourt recently provided new Local Rulesto all active members of the bar. Jenkinscurrently has administrative responsibili-ties for a court family of more than 125persons, an extensive and almost com-pleted building program at the courthouseand the automation of the district court'srecord-keeping system.

ii

iiii

¡i

Profile of Honorable Bruce S. Jenkins

BACKGROUNDChief Judge Jenkins grew up locally

and attended East High SchooL. Jenkins'

father was a teacher and Jenkins dreamedin his early years of becoming a professor.Jenkins, instead, opted for law school,

always intending to practice upon gradua-tion. Jenkins lists the fact that his brotherwas a practicing attorney and his mother acourt reporter as influential in his choiceof the legal profession. Jenkins' brother

later became a member of the NationalLabor Relations Board.

Upon graduation from law school,Judge Jenkins entered private practice andbecame an astute general practitioner andlitigator, handling a wide spectrum ofcases. At the age of 31, Jenkins wasappointed a Utah State Senator and, afterbeing re-elected, became President of theSenate at the age of 36, Jenkins says thathis experience in the senate helped preparehim for the policy and decision-making

responsibilities associated with judging aswell as the organizational and administra-

tive responsibilities associated with hisposition as chief judge, Jenkins unmistak-ably enjoys his role on the bench. In fact,he states without hesitation that he finds itmuch more pleasant than he found privatepractice.

Chief Judge Jenkins states that he has"the finest judicial job in the world," "Ithoroughly enjoy what I do," he statesgood-naturedly. Jenkins lists three aspectsof his current position as among the mostenjoyable. First, assisting people toresolve problems that they have beenunable to resolve among themselves isboth challenging and rewarding. Second,

Jenkins states that "the world drops in tosay 'Hello' ," People from all walks of life,including people of amazing accomplish-ment, pass through the courtroom eachyear. Thus, judging provides an excellenteducational opportunity. Finally, Jenkinsgenuinely enjoys working with his clerks- all of whom are members of his"alumni association" which tries to meet

By Terry E. Welch

Honorable Bruce S. JenkinsChief Judge - United States

District CourtDistrict of Utah

Appointed: 1978 by President Carter, became ChiefJudge in December, 1984

Law Degree: 1952, University of UtahPractice: General Practice including construction

and communications lawLaw Related State Senator at age 3 I; President -Activities: State Senate at age 36; Member - Inns

of Court; President - Federal DistrictJudges Association for the Tenth Circuit;Tenth Circuit Representative-National Federal Judges Association;Alumni Board - University of UtahCollege of Law; Member of Committeeappointed to study issues of sovereigntybetween states and Indian Tribes;Member, Advisory Committee Centerfor Health Policy Research - GeorgeWashington University on Science inthe Courtroom; Former Adjunct Profes-sor, University of Utah; Fellow-American Bar Association.

at least once each year.Without question, Jenkins states, the

least enjoyable, most demanding and mostdifficult aspect of his job involves sentenc-ing criminals and the sentencing process.

The Federal Sentencing guidelines haveseverely slowed the administrative processand have resulted in the mechanical applica-tion of rules designed to fit people withinpredetermined categories. In addition, while

VIEWS ON LEGAL SYSTEMChief Judge Jenkins is a "great fan of

our legal system." Our system, he states,really is like no other system in the world.Jenkins believes that, by and large, thelegal system has done a superb job withthe tools it has and that it historically hasbeen the stabilizing factor in our society.Jenkins also is a fan of the jury system -which he lists as among our system'sgreatest strengths. The Utah District Courtroutinely conducts written surveys ofjurors after they have served on a jury todetermine, among other things, whatimprovements could be made in the sys-tem, Jenkins states that in all the time hehas been on the bench, not one juror ever

fII

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j-20 Vol. 5 No.7

-,

has expressed a negative feeling in writing the funding it requires to adequately accom- a whole. On the other hand, viewing one-about the system itself. They uniformly plish its purposes including the just and self - the attorney - as a teacher, the

are proud to have been a part of the pro- efficient resolution of small matters. Such a judge or jury as the pupil and the process

cess - and they stand in wonderment of focus on adequate funding of the existing as an education can positively impactthe process. Perhaps this is because the system would obviate the need for many so- one's attitude and wil better the system,

jurors have a much better understanding of called "new ideas." the process and - perhaps - the result.the system and why it works after having Jenkins encourages new attorneys toserved on a jury than do most Americans. STRATEGY FOR SUCCESS BEFORE come down on occasion to observe trialsAlong that line, Jenkns notes that public JUDGE JENKINS in action, Such observation can be a greateducation could take a more active role in Chief Judge Jenkins believes that the learning experience. Jenkins also encour-

educating young people about their legal quality of litigators in Utah is among the ages attorneys or others with questions

system to help them understand that it best in the country, Jenkns does, however, concerning procedures in his courtroom toactually works quite well. offer a word of advice to some of the best call his secretary or clerks. On the other

Chief Judge Jenkins believes that the attorneys: Do not feel compelled, as the hand, Jenkins stresses, they are not theresystem, particularly the state system, has senior partner, to argue a case or motion to give legal advice or to render an opinion,been on "rations" for too long and is being when the junior attorney clearly has donestarved. The state system has all the tools the bulk of the work in preparation, On OUTSIDE ACTIVITIESit needs to accomplish its intended ends if occasion, Jenkins states, it is obvious that Chief Judge Jenkins enjoys travelingthe various states simply would provide the junior attorney more effectively could with his wife, so long as it is not job-the necessary funding. The tremendous argue the case - let them. related - a form of travel he engages in

effort for so-called "Alternative Dispute Jenkins also stresses that the failure to extensively. Jenkins is an avid book col-Resolution" (ADR) really is unfair in listen to and accept the court's ruling is a lector and owns a wide variety of booksJenkins' opinion, because the state system, common mistake, one that frequently is and literature from all around the worldif inadequate, (and it is adequate in many made by out-of-state counseL. Once the comprising a large private library. Jenknsrespects) simply has not been furnished cour has ruled, do not attempt to re-argue. loves books - particularly those notthe requisite means. Jenkins feels strongly If you believe the court simply is wrong, directly related to law - and he loves col-that all of the "new" ideas and approaches take your argument up on appeaL. There is lecting and reading books on a myriad ofthat collectively make up the various ADR no justification for argument after the fact. subjects. Favorite works are numerous andmechanisms, in reality, are not new at alL. Finally, Chief Judge Jenkns stresses that include Wendell Johnson's "People inAll of these approaches - he stresses - all attorneys should view the litigation pro- Quandaries" and a compilation of essaysexist, perhaps potentially with greater effi- cess as an educational process and not to by Sydney Harris, a former essayist for theciency, within the current system. liken it to a "war," a "battle," or a "game." Chicago Daily News, Jenkns also is inter-

Perhaps we should rethink the system's The use of such inappropriate and inaccu- ested in photography.direction somewhat and funnel our ener- rate metaphors, in Jenkins opinion, aregies into ensuring that the state system has damaging to attorneys and to the system as

CLAIM OF repayment of the loaned funds. Shortly after make the loan. Clearly, once the decision

THE MONTH

the loan was made, the borrowers defaulted was made by the client to make the loan,by failing to the make the requisite pay- the Insured should have made certain thatments. It is alleged by the claimant that the it was fully secured by sufficient collateral

Alleged Error or Omission borrowers were on rather shaky financial in order to protect the client's interests andThe Insured attorney allegedly failed to ground when the loan was made and that assure replacement.

investigate the credit worthiness of a the Insured failed to discover this fact The investigation of the borrowersprospective borrower who was to borrow through a prudent, necessary and thorough should have been conducted in a thoroughmoney from the Insured's client. Addi- examination of the borrower's financial and painstaking manner. The investiga-tionally, the Insured allegedly failed to condition, Further, the loan was not secured, tion, and all conclusions drawn from it,secure the loan. should have been memorialized in a letter

How Claim May Have Been A voided to the client - both as the means for theResume of Claim This claim might have been avoided if client to make the most informed decision

The Insured represented a client who the Insured had scrupulously and thor- possible and for the Insured to protectinformed the Insured that he was contem- oughly investigated the financial condition himself against later claims that a thor-plating making a loan to a business and of the borrowers, This would have allowed ough investigation had not been made.desired to ascertain both the credit worthi- the Insured to determine whether the Also the Insured should have discovered

ness of the prospective borrowers as well prospective borrowers where a good loan the existence of collateral to secure theas be certain that the loan would be risk, thereby providing the necessary infor- loan and completed the necessary work tosecured so that, in the event of default, the mation for the client in order to determine perfect the security interest of his client.client could protect himself and obtain whether said client would or would not

August/Séptember 1992 21

. STATE BAR NEWSCommissionHighlights

During its regularly scheduled meetingof April 30, 1992, the Board of Bar Com-missioners received the following reportsand took the actions indicated.

1. The minutes of the Commissionmeetings of March 12, 1992 and

March 13, 1992 were approved withminor revisions.

2. Jim Davis reported that an ad hoc

Court Reorganization committeemade up of Helen Christian, GilbertAthay, Bill Bohling, Debra Mooreand Dennis Haslam has been createdto help coordinate the Bar's involve-ment in court reorganization.

3. Haslam recapped the April 27, 1992

Judicial Council meeting, distributedcopies of the agenda, and com-mented on items of particular note.

4. The Board voted to encourage the

Court Transition Committee and thelegislature to study the MinnesotaCourt consolidation plan as a trueconsolidation as opposed to creatinga "second-tier" system.

5. The Board discussed the JudicialCouncil's proposed Rule 4-806 forselection of guardians and askedBaldwin to have the Family LawSection review the proposed rule.

6, The Board voted to approve the cre-ation of a Collection Law Sectionwith the provision that Bar Counselreview the new section Bylaws to besure they are consistent with currentBar-approved section Bylaws.

7. The Board voted to support the work

of the National Conference of Com-missioners on Uniform State Laws(NCCUSL).

8, Baldwin reported that the Law &

Justice Center Board of Trustees isawaiting a tax opinion regarding

issues related to property tax pay-ments and the effect of dissolutionon the contributions made to theCenter.

9, Baldwin reported that the Bar has dis-continued mailing Bar Journals tonon-paying subscribers.

10. Baldwin reported on the status of theBar Commission election and notedthat as of April 30th there was onlyone candidate running uncontested inthe Second District and four candi-dates running in the Third District.

11. The Board voted to approve the A wardsCommittee nominees as submitted.

12. Baldwin referred to the Budget &Finance Committee report exhibit.After discussion, by the Board andbased on current available figures, theBoard directed the Financial Adminis-trator, Arnold Birrell, to immediatelymake another principal payment of$100,000 on the mortgage.

13. Steve Kaufman, Chair of the Unautho-rized Practice of Law Committee,reported that the committee feelsstrongly that it should continue toscreen unauthorized practice of law(UPL) cases. The committee also sug-gested that the Bar upgrade the levelof importance of UPL cases.

14, The Board voted to authorize the pur-chase of computer network equipmentfor the Offce of Bar CounseL.

15. The Board voted to accept the Char-acter & Fitness Committee's recom-mendation to grant reinstatement to apetitioner who had complied with allterms of suspension and to grantadmission to the Utah State Bar to a Barapplicant who had successfully metthe Character & Fitness requirements.

16. The Board voted to adopt the February1992 Bar examination scores and toadmit the passing applicants to theUtah State Bar.

17. The Board assigned an ad hoc com-mittee to reconsider the current

Admission Rule which allows out-of-state applicants to carry forward MBEscores for a two year period but didnot make the same allowance for in-state applicants,

i 8. Dr. Marlene Lehtinen appeared anddistributed a status report on the UtahDispute Resolution program andexplained the progress made to date,She reported that fourteen volunteermediators had been trained for theprogram, and the success rate ofmediating parties reaching agreementis about 85%.

19. Barbara Algarin and Don Roney, ofRollins Burdick Hunter presented astatus report on the Bar professionalliability program.

20. The Board voted to give approval tothe Member Benefits Committee tofurther investigate a cellular phonepurchase program and to present therecommendation to the Board forapproval.

21. Charlotte L. Miler reported that theYoung Lawyer Section Officer elec-tion would be held concurrently andjointly with the Bar Commissionelection,

)

IIII

During its regularly scheduled meetingof May 28, 1992 the Board of Bar Com-missioners received the following reportsand took the actions indicated.

1, The minutes of the commission

meeting of April 30, 1992 were

approved.2. The Board voted to appoint Herm

Olsen and Reed W. Hadfield to theFirst District Trial Court JudicialNominating Commission as com-missioners and Omer 1. Call and L.Brent Hoggan as alternativecommissioners.

3. The Board voted to appoint Kathleen

M. Nelson and Brian R. Florence ascommissioners to the Second Dis-trict Trial Court Judicial NominatingCommission and Douglas M. Dur-bano and Felshaw King asalternative commissioners.

4. The Board voted to appoint Michael

N, Martinez and Barbara K. Polich

as commissioners to the Third Dis-trict Trial Court Judicial NominatingCommission and Robert H. Hender-son and John Paul Kennedy as

alternate commissioners,5, The Board voted to appoint Brent D.

Young and D. David Lambert ascommissioners to the Fourth DistrictTrial Court Judicial NominatingCommission and M. Dayle Jeffs andRay Philip Ivie as alternate com-missioners.

6. The Board voted to appoint John W,

Palmer and David Nuffer as com-missioners to the Fifth District Trial

'i~\ I

I

22 Vol. 5 NO.7

in

-,

Court Judicial Nominating Com- B, Lee to serve a four-term as the 1992-93 Budget which had beenmission and Wilard R. Bishop and Bar's representative on the State mailed May 15 to the Bar Commis-Dale W. Sessions as alternate Executive and Judicial Compensation sion. The Board voted that thecommissioners. Commission. budget be approved as a preliminary

7, The Board voted to appoint Tex R. 13. The Board voted to approve proposed budget and that it be made availableOlsen and Paul R. Frischknecht as chairs to the various Bar Committees. for review by the Bar membershipcommissioners to the Sixth District Randy Dryer indicates the Bar would as indicated in the May Bar Journal.Trial Court Judicial Nominating be publishing in its Rules Directory a 19, Dennis Haslam outlined issues whichCommission and Richard K. Cham- listing of the committees with their were discussed by the Judicialberlain and Michael R. Labrum as chairs and members in addition to the Council at his last meeting. Thealternate commssioners. various Bar rules. Board voted that the Commission

8. The Board voted to appoint L. Robert 14, The Board voted to approve new Bar communicate to the Judicial CouncilAnderson, Sr., and Margret Sidwel Journal advertising rates. its belief that lawyers, judges andTaylor as commissioners to the Sev- 15. Ray Uno, Mike Martinez, Robert commissioners on the various courtenth District Trial Court Judicial Archuleta, James Esparza and Robert transition teams be allowed to voteNominating Commission and Dan Booker appeared before the Commis- on official actions of the teams,C. Keller and Michael A. Harrison sion to discuss formalizing the 20, Dennis Haslam indicated that theas alternate commissioners. relationship between the Minority Bar Admissions Committee had met to

9, The Board voted to appoint Kenneth Association and the Commission and discuss a modified Rule 9-1 regard-G, Anderton to fil the remainder of to involve Minority Bar members into ing the transfer of MBE scores fromthe term of Clark Allred on the existing Bar Sections and Commit- out-of-state applicants. The Com-Eighth District Trial Court Judicial tees. The Board voted to give the mission voted to adopt a proposed

Nominating Commission. Minority Bar Association an ex-offi- Rule 9-1 to read: Scores achieved on10. The Board voted to appoint Harry cio membership on the Commssion. the Multistate Bar Examination

H. Souvall and Kenneth G. Ander- 16. Charlotte Miller and Keith Kelly, (MBE) administered in a jurisdictionton as commissioners to the Eighth President-Elect of the Young Lawyers other than Utah wil not be acceptedDistrict Trial Court Judicial Nomi- Section, appeared to outline the pro- unless the examination is taken con-nating Commission and John C. posed operating budget for the Young currently with the Utah Examination.Beaslin and Machelle Fitzgerald as Lawyers Section for the next fiscal year,alternate commissioners, 17. Mike Hansen referred to the Budget A full text of the minutes of these and

11, The Board voted to reappoint Reed & Finance report and the monthly other meetings of the Bar Commission isM. Marineau as the Bar's represen- financials exhibit, and Arnold Birrell, available for inspection at the office of thetative to the ABA for another Financial Administrator, appeared and Executive Director.two-year term. answered questions.

12. The Board voted to appoint James 18. Randy Dryer referred to the proposed

Estate Planning FallInstitute Announced

~

The Estate Planning Section of theUtah Bar invites all those who areinvolved or interested in estate planning toattend the Salt Lake Estate PlanningCouncil's Fall Institute. The institute wilbe held October 30, 1992 from 8:00 a.m.

to 5:00 p,m. at the Little America Hotel inSalt Lake City.

This institute promises to be an out-standing event with excellent speakers

scheduled.The first speaker in the morning session

wil be Charles Bennett, JD, with the law

firm Callister, Duncan & Nebeker in SaltLake City, Utah. Mr. Bennett wil discuss"When a Fiduciary's Agent Errs: Who paysthe bil- Fiduciary, Agent or Beneficiary?"

After the morning break, Alden Tueller,JD, of Provo, wil discuss "Recent Develop-ments in Planned Giving". Mr. Tueller isAssistant to the President at Utah ValleyCommunity College and a member of theboard of the National Committee onPlanned Giving.

Jonathan Blattmachr, JD, wil address

institute attendees. Mr. Blattmachr is withMilbank, Tweed, Hadley & McCloy of NewYork City, one of the largest law firms inthe country, He wil discuss "Recent Devel-opments Under Chapter 14".

Ed Ahrens, JD, Director of FamilyWealth Planning for the Pacific Northwestwith Arthur Anderson & Co. in Boise,Idaho, wil be the first afternoon speaker.He wil discuss, "Practical Uses of Trusts inGeneration Skipping Planning".

Following the afternoon break, Tim

McDevitt, JD, with the law firm Cairn-cross & Hempelmann of Seattle,Washington, wil discuss "Insurance inEstate Planning - Where Does it Fit"?

Jonathan Blattmachr, JD, wil then cap

the afternoon off with a presentation on

"Post-Mortem Planning".There wil be time allowed for ques-

tions and answers with all the speakers.Lunch wil also be provided.

The cost for the institute is:$ 80.00 Salt Lake City Estate Planning

Council Members$100.00 Salt Lake City Estate Planning

Council Non-Members($11.00 additional for CLE Credits)

For additional information, please callCommittee Chairman, Blair Whiting, at(801) 266-5611


ii

,i

ii

Activitiesat the 1992

Annual Meeting¡,

.i

Discipl~DISBARMENTS

El Ray F. Baird was disbarred pursuantto stipulation on June 16, 1992, for contin-uing to practice law in violation of aprevious Order of Discipline entered bythe Supreme Court on November 6, 1991.The evidence submitted in support of aMotion for Order to Show Cause substan-tiated that Respondent continued torepresent his clients in a personal injury

case and in bankruptcy cases following hissuspension. In each instance he failed tonotify his clients he had been suspended,accepted new clients following his suspen-sion and collected or attempted to collectlegal fees. Additionally, he failed to com-ply with Rule XVII(a) of the Procedures

of Discipline of the Utah State Bar whichrequires that within 20 days of the effec-tive date of his suspension he notify his

clients of his suspension, return client filesand within 40 days of his suspension fileproof of compliance with this Rule withthe Supreme Court.

Jay W. Fitt was disbarred by the UtahSupreme Court on June 25, 1992, for vio-lating Rule 1.3, (Diligence), Rule lA,(Communication), Rule 1.S(a), (Fees),Rule 1. 3(b), (Safekeeping of Property),

and Rule 8A(c), (Misconduct), of theRules of Professional Conduct. These vio-lations stemmed from accepting fees fromclients to represent them in criminal mat-ters and, thereafter, providing no legalservices, On September 24, 1990, heaccepted $2,500.00 to represent a client inhis appeal of drug related charges but didnot file the appeal: In October 1989, Mr.Fitt accepted $25,000.00 from the parentsof an inmate in the Utah State prison, Nomeaningful legal services were provided.On August 1, 1990, Mr. Fitt accepted a feeof $20,000.00 to represent another pris-oner in Utah State Prison seeking to havehis conviction overturned. In this instance$5,000.00 was to be kept as a retainer andthe balance of the funds were to be placedin Mr. Fitt's trust account and withdrawnupon consent of the client as legal serviceswere provided, Mr. Fitt failed to depositthe money in the trust account and per-formed no legal services. Mr. Fitt has beenordered to make restitution to these clientsas a condition precedent to readmission tothe Bar.

SUSPENSIONSOn May 19, 1992, the Supreme Court

entered an Order suspending John R.

Bucher from the practice of law for a mini-mum period of 6 months and i day pursuantto Rule XIX, SUSPENSION FOR DIS-ABILITY, of the Procedures of Disciplineof the Utah State Bar. This Order wasentered pursuant to Discipline by Consentwherein Mr. Bucher stipulated to this actionin settement of the complaints, described

hereinafter, which charged that he violatedRules 1., (Diligence), Rule 1., (Conflictof Interest), Rule 1.3(b), (Safekeeping ofProperty), Rule 1.4, (Declining or Termi-nation Representation), and Rule 8A(c)(Misconduct).

Case number 1 involved the allegationthat upon learning that he had a conflct ofinterest in a domestic relations matter, hefailed to withdraw from the case or takeaction to adequately protect the client'sinterests including returning the client fileand arranging for new permanent counseL.

Consequently, counsel failed to appear onbehalf of the client at a Show Cause hearingwhich operated to the detriment of theclient. Additionally, when the clientrequested return of the unearned attorney'sfees they were not then available having notbeen separately maintained and preserved asrequired by Rule 1.3.

Case number 2 alleged improprietiesinvolving the use of his trust account andinvolved a situation wherein Respondentplaced funds in his account in connection

with the sale of a client's personal propertystemming from a domestic relations mátter.All of the funds were not available whenrequested by the client and a full accountingof the funds was not provided. Respondenthas since made complete restitution to theclient in the amount of $810,00

Case number 3 involved the representa-tion of clients in criminal matters who hadinterests in conflict with each other. One ofthe clients was charged with burglary whichwas the means whereby he supported a drughabit. The other client was a suspected sup-plier of drugs to Respondent's other client.This dual representation prevented Respon-dent's first client from entering a pleabargain'which included testimony againsthis drug supplier.

Jerald N. Engstrom was placed on indefi-nite interim suspension by the Supreme

Court on June 25, 1992, pending final dis-position of disciplinary action currently

pending against him as a result of his con-viction on January 31,1991, in the UnitedStates District Court, District of Utah, of 5counts of Misapplication of Funds by aBank Officer. The conviction arose whenMr. Engstrom became involved with agroup of people who were forming a cor-poration to purèhase the IML terminalwhen that company was in bankruptcy in1984, Mr. Engstrom had an interest in thetransaction in that it was proposed that hewould be an officer and general counsel inthe new corporation. The purchase was tobe facilitated through the bank where Mr.Engstrom was employed, Mr. Engstrom

represented to the bankruptcy trustee, as arepresentative of the bank, that funds total-ing $250,000.00 had been deposited in hisbank by the proposed purchasers of theterminal when in truth and in fact no suchfunds were deposited. This ultimatelycaused Mr. Engstrom to have to pay$256,712,67 to the trustee of bank fundsfor which no corresponding deposit hadbeen made. Through other fund manipula-tions by Mr. Engstrom relating to thistransaction his bank ultimately lost thesum of $2,081,712,00.

PUBLIC REPRIMANDSOn June 9, 1992, the Supreme Court

entered an Order Publicly ReprimandingGary J. Anderson. Mr. Anderson wascharged with violating Rules 1.3 (Dili-gence) and l.4(a) (Communication) in thathe was retained in November 1989 by theComplainant to fie and complete an

uncontested divorce. The case was finallyconcluded on January 8, 1991 following adefault hearing. Mr. Anderson denied theallegations of the disciplinary complaintbut his Answer was stricken, defaultentered and a sanction imposed for hisfailure to respond to discovery requestsfiled by Office of Bar Counsel and his fail-ure to participate in a pre-trial conference.

Arden E, Coombs was publicly repri-manded for violation of Rule 1.3,(Diligence), and Rule l.4(b), (Communi-cation), of the Rules of ProfessionalConduct. On or about June 15, 1988; Mr.Coombs agreed to represent two clients ina civil suit which had been filed againstthem in the Circuit Court of WeberCounty. Mr. Coombs failed to file a timelyAnswer to the Complaint resulting in a

26 V~)L. 5 No.7

'0

Default Judgment. Mr. Coombs fied aMotion to Vacate the Judgment but themotion was denied, Judgment was enteredagainst his clients in the amount of$3,724.36.

PRIVATE REPRIMANDSAn attorney was privately reprimanded

and placed on one year supervision by aScreening Panel for violating Rule 1.13(Safekeeping of Property) of the Rules ofProfessional Conduct. Prior to April 1990,the attorney was retained to defend theclient in several criminal matters. Theclient was ultimately incarcerated. In Aprilof 1990, the attorney agreed to manage thefinancial affairs of the client through theuse of the client's First Security BankATM card during the incarceration. FromApril Through July of 1990 and again

October through December of 1990 theattorney and individuals under his controlmade numerous withdrawals using theATM card, failing to provide an account-ing notwithstanding the client's repeatedrequests, There was conflcting testimonyas to the validity of the document purport-ing to give the attorney a limited power ofattorney pursuant to which the with-

drawals were made. The attorney kept noledger regarding payments made to thirdpersons on behalf of the client. Should theattorney fail to comply with the terms andconditions of the supervision the matter

wil be reconsidered by the Screening Panel

for imposition of a formal complaint.An attorney was privately reprimanded

and ordered to make restitution for violatingRules 1.3 (Diligence), 1.4 (Communica-tion) and l.13(b) (Safekeeping Property)

of the Rules of Professional Conduct of theUtah State Bar. The attorney was retained inAugust 1990 to fie a complaint involving acontract dispute. The attorney researchedthe issues and concluded there was no causeof action. However, he failed to communi-cate his opinion to the client and failed torefund the unused portion of the retainerfeéSnotwi thstanding the client's writtendemands.

An attorney received a Private Repri-mand for violation of Rule 1.3, (Diligence),and Rule 1.3(b), (Safekeeping of Prop-

erty), of the Rules of Professional Conduct.The attorney was retained on or about Jan-uary, 1990, to represent a client in abankruptcy matter. Respondent failed toinform a collection agency of the filing ofthe petition for bankruptcy which resultedin garnishment of the client's payroll check.Additionally, the attorney deposited

$944.75 belonging to the client into a trustaccount on or about October 18, 1990, and

failed to deliver the funds to the client untilon or about January 3, 1992.

An attorney .received a Private Repri-mand and agreed to make restitution to theclient in the amount of $7,000.00 for viola-tion of Cannon 6, DR-6-10l(A) (3),(Diligence), and Rule 1.4(a) (b), (Commu-nication), of the Rules of ProfessionalConduct. The client retained the attorney inAugust, 1981 to pursue a wrongful deathclaim arising out of the death of her hus-

band. During the course of thisrepresentation the attorney entered intonegotiations with the client to purchase cer-tain real property from the client. Theattorney drafted the Real Estate Purchasecontract which provided for brokerage com-

missions and attorney's fees both of whichwere to be paid to the attorney, The attor-ney never disclosed to the client that theattorney would be paid both fees.

ADMONITIONSAn attorney was admonished for lack

of diligence (Rule 1.) in failing to obtaina timely judgment. The attorney wasretained on or about February 21, 1991 torepresent a client in a collection matter.

The attorney filed the complaint on April2, 1991, and a default was requested in

June, 1991, but not signed by the judge

because it contained a request for attor-ney's fees. The attorney delayed fiing theAmended Default, deleting the request forattorney's fees, until October 8, 1991. OnOctober 21, 1991 the attorney misrepre-sented to his client that he had obtained aWrit of Execution and had delivered it to aConstable. In fact, the Writ was notobtained until December 30, 1991 anddelivered to the constable on December26, 1991, lacking proper execution. Thedelay in serving the Writ permitted thedebtors to move and liquidate their assets.

REINSTATEMENTSOn May 12, 1992, Kenn Martin Hansonwas reinstated by the Supreme Court hav-ing complied with the terms of hissuspension and Rule XVIII of the Proce-dures of Discipline.

On May 27, 1992, David K. Smith wasreinstated by the Supreme Court havingcomplied with the terms of his suspensionand Rule XVIII of the Procedures ofDiscipline.

Appellate CourtsJudicial Nominating

CommissionApplicants Sought

The Board of Bar Commissioners isseeking applications from Bar membersfor the Bar appointments of alternates tothe Appellate Courts Nominating Com-mission to fill the unexpired terms ofMichael N. Martinez and John Paul

Kennedy, ending August 1, 1994. Alter-nates would serve in the place of Bar

appointed commissioners, Francis M. Wick-strom and Peter Stirba, if they were unableto serve, Bar appointed alternates must beof different political parties, This nominat-ing commission is for the Supreme Courtand the Court of Appeals,

Bar members who wish to be consideredfor this appointment must submit a letter ofapplication, including resume and designa-tion of political affiliation, Applications areto be mailed to John C. Baldwin, ExecutiveDirector, Utah State Bar, 645 South 200East #310, Salt Lake City, Utah 84111, andmust be received no later than 5:00 p.m., onSeptember 1, 1992,

Attorney GeneralCandidates' ForumThe Women Lawyers of Utah and the

University of Utah Women's Law Caucuswill co-sponsor a political forum for theAttorney General candidates on Thursday,August 20, 1992. All are welcome toattend this free event. The forum wil beheld in the Governor's Board Room at theUtah State CapitoL. Refreshments wil beserved at 5:30 p.m, Candidate presenta-

tions wil begin at 6:00 p.m. with

questions to follow. For more information,contact Monica Whalen Pace at 532-1234.


1992 Annual Meeting AwardsJudge of the Year -Hon. Michael R.

MurphyJudge Michael R.

Murphy was appointed tothe Third District Courtin 1986. He is presidingjudge for this court

which serves Salt Lake,Summit and Tooele

Counties. Prior to his appointment to thebench, he was an attorney with the law firm ofJones, Waldo, Holbrook & McDonough, JudgeMurphy received his law degree from the Uni-versity of Wyoming College of Law where hewas editor-in-chief of the Law Review. He is amember of the Supreme Court Advisory Com-mittee on Civil Procedure and Child SexualAbuse Task Force.

DistinguishedSection/CommitteeA ward - Ethics andDiscipline Committee,Dale A. Kimball, Chair

Nearly two thirds ofall disciplinary casesbrought before the Barare resolved by four

screening panels whichhear all cases in the initial stage. The screeningpanels, composed of attorneys and lay mem-bers who volunteer their time, also mediatedisputes between lawyers and clients. The pan-els are overseen by the Ethics and DisciplineCommittee chaired by Dale A Kimball, seniorpartner in the Salt Lake City law firm of Kim-ball, Par, Waddoups, Brown & Gee,

Utah Trial Lawyer ofthe Year - Robert S.Campbell, Jr.

The American Boardof Trial Advocates pre-sents an annual award tothe Utah Trial Lawyerof the Year. The awardfor 1992 is presented toRobert S. Campbell, Jr

He is senior lawyer in the Salt Lake City lawfirm of Campbell Maack & Sessions where hispractice is comprised of trial and appellate liti-gation in the fields of complex business,corporate, and commercial litigation. He is amember of the American Board of TrialLawyers and has been elected a Fellow in theAmerican College of Trial Lawyers.

Distinguished Lawyer ofthe Year - Hardin A.Whitney

Harden A Whitney ispresident of the Salt LakeCity law firm of Moyle &Draper where his practicefocuses on corporate law,business litigation,construction and adminis-

trative law, He holds a juris doctor from theUniversity of Michigan Law SchooL. Mr. Whit-ney is chair of the Bar's Alternative DisputeResolution Committee, vice chair of the UtahSupreme Court's Special Task Force on Manage-ment and Regulation of the Practice of Law. Heis co-founder, former chair, and emeritus mem-ber of the Friends of KUED.

Distinguished Non-Lawyer A ward forService to the Profession- Stanley B. Bonham

Stanley B. Bonhamhas served two 3-year

terms as a volunteer laymember on the Utah StateBar Screening Panel "B"which convenes monthly

to hear complaints determined by the Bar Coun-sel to be meritorious. During the last six years,he has never missed a hearing, He is known forhis insightfulness, careful questioning, and cour-tesy to both respondents and complainants, andfor his mastery of the facts in each case. Mr.Bonham is a retired farm equipment wholesalerand Arabian horse breeder.

Family Law Lawyer ofthe Year - Sharon A.Donovan

Ms. Donovan is apartner in the law firm ofDart, Adamson & Dono-van in Salt Lake City,Uta1l She was admitted tothe Ùtah State Bar in

1979. In 1989, she wasadmitted to the Washington State Bar. Ms. Dono-van is the past Chairman of the Utah State BarCommittee for the Delivery of Legal Servicesand was Chairman of the Utah State Bar FamilyLaw Section in 1987-1988. She curently sits onthe Executive Committee of the Family LawSection. Ms. Donovan's practice is primarily inthe area of domestic relations.

Distinguished YoungLawyer of the Year -Gordon K. Jensen

Gordon K. Jensen isa lawyer in private prac-tice where his focus ison plaintiff's personalinjury litigation and

commercial litigation.He is a 1984 graduate

from the University of Utah College of Lawwhere he was a Leary Scholar. For the Bar'sYoung Lawyers Section, where he chaired theLaw-Related Education Committee, he hascoordinated the People's Law Program, LawSchool for Non-Lawyers, and the High SchoolGuest Lecture Program, He is a delegate to theAmerican Bar Association National Convention,

Distinguished ProBono Lawyer of theYear - Betsy L. Ross

Betsy L. Ross isAssistant Attorney

General in the Govern-mental Affairs Section.She received her jurisdoctor from the Univer-sity of Utah College of

Law where she was administrative editor of theUtah Law Review and a Leary Scholar. Shewas chair of the Bar's Young Lawyers SectionPro Bono Committee where she has beeninstrumental in establishing the AIDS-relatedPro Bono Project and a domestic relations pro-ject for the Salt Lake County Bar.

Special A ward -Sandra N. Peuler

Ms. Peuler wasappointed as a CourtCommissioner for theThird District in July

1982 and continues toserve in that capacity.

Ms, Peuler was recog-nized by the Family Law

Section and the Utah State Bar for her out-standing contribution to the justice system ofthe State of Utah as one of the pioneers of thecommission concept in the area of Family Law.She helped set the standard by paving the wayfor future commissioners.

28 Vol. 5 No. 7

Randy L. Dryer Utah Sports Authority, the public agency Denise A. Dragoo, Salt Lake City; Janwhich oversees the expenditure of $56 mil- Graham, Salt Lake City; J. Michael

- Elected New lion of tax money to be used to build Hansen, Salt Lake City; Dennis V.

President of the Olympic facilities. He is also a member of Haslam, Salt Lake City; Steven Michaelthe University of Utah Hospital Board of Kaufman, Ogden; Paul T. Moxley, Salt

Utah State Bar Trustees and the Commission on Justice in Lake City; Craig M. Snyder, Provo; Gaylethe 21st Century, F. McKeachnie, Vernal; and Jeff R.

The Utah State Bar elected Salt Lake Mr. Clegg is a shareholder in the Salt Thorne, Logan, Ex-officio members of the

City attorney Randy L. Dryer as president Lake City law firm of Snow, Christensen & Bar Commission are Keith A. Kelly, Pres-

for 1992-93. Salt Lake City attorney H. Martineau. He received his juris doctor ident of the Young Lawyers, H. ReeseJames Clegg is president-elect. from the University of Utah College of Hansen, Dean of the J. Reuben Clark

Mr. Dryer is a shareholder in the Salt Law, He was President of the Salt Lake School of Law, Brigham Young Univer-

Lake City law firm of Parsons Behle & County Bar and was first elected to the Utah sity, Lee E, Teitelbaum, Dean, University

Latimer where his practice focuses on State Bar Commission in 1988. He is a of Utah College of Law, Norman S, John-

media and telecommunication law. He member of the Supreme Court Special Task son, ABA Delegate, Reed L. Martineau,

received his juris doctor from the Univer- Force on the Management and Regulation State Bar Delegate to the ABA, Michael

sity of Utah College of Law in 1976, of the Practice of Law and is a Fellow in the N. Martinez, Minority Bar Association,where he was editor of the Utah Law American College of Trial Lawyers. and John C. Baldwin, Executive Director,

Review. He is active in community affairs Other Bar Commissioners are: James Z. Utah State Bar.

and presently serves as chairman of the Davis, Immediate Past-president, Ogden;

Thomas Jeffersonat the State BarAnnual Meeting

By Betsy L. Ross

Rather than John Locke's trinity of"life, liberty and property," Thomas Jef-ferson wrote of "life, liberty and thepursuit of happiness," When questionedregarding why "pursuit of happiness,"Thomas Jefferson, a.k,a, Clay Jenknson,responded that it did not seem right toencourage in the people a sense of prop-erty as an inalienable right; but a chance tofarm, to engage in free discussion withothers - those were rights that should

properly be denied to none.It was as though Thomas Jefferson

himself were speaking to a twentieth cen-tury audience, Clay Jenkinson, who holdsa doctorate in history and is presently pur-suing another doctorate, is currentlywriting a book about Thomas Jefferson,and who travels around the country lectur-ing not on Thomas Jefferson, but asThomas Jefferson, spoke during two ses-sions of this year's Utah State Barconvention.

He spoke both about events during hisday, and, as a "time-traveler," made obser-vations about our day, In commentingabout America today, he lamented that itappeared his brother Alexander Hamil-

ton's design for America had won out -that today's world was "Hamiltonian with aJeffersonian veneer, rather than Jeffersonianwith a Hamiltonian veneer."

The audience was given the opportunityto question Mr. Jefferson. The questionsoften focused on the Bil of Rights, and hisviews of the application of bil of rights pro-tections in today's world.

In responding to a question on FirstAmendment rights of freedom of the press,Jefferson responded that even though hewas often "calumniated" as a free-thinkerand as an adulterer in the press of his day,he supported unshakably the right of thepress to publish these views,

When asked the inevitable question con-cerning rights of privacy, Jefferson

remarked that he believed the ninth amend-ment has been neglected, and that it couldcertainly support protection in those areasnow referred to as "privacy" areas. Intuitingthat the question was really about abortion,Jefferson stated that this was not an issuethat was debated in his day. In the earlynineteenth century, abortion was allowed -but times were very different. Women thenwere pregnant an average of thirteen timesduring their lives, A full one-third of babiesborn alive died during the fÏrst ten years oftheir lives. As a result, the emotional con-nection emphasized in our day with thefetus simply did not occur in his time. Asa matter of self-protection, such connec-

tion was not emotionally made until a child

had lived through his or her first ten years,In response to a question about whether

the death penalty was cruel and unusualpunishment, Jefferson stated that it was notin the event of heinous murders and trea-son. Mr. Jefferson implied, however, thatunequal application of the death penalty intoday's world might alter his view.

Clay Jenkinson as Thomas Jeffersonspoke with eloquence and ease, He

reminded those in attendance on the fourthof July that there were and are goals andideals worth sacrificing for and that pre-eminent among these is equality - a goaland ideal not yet attained. If you are notsatisfied with your government, heexhorted on more than one occasion, youshould resort to revolution, which shouldbe as "peaceful as possible, but as bloodyas necessary."

-~'\I~W¡~,ze~..


Tribute to James Z. Davis

Jim Davis closed his final President'sMessage in the June/July Bar Journalby thanking the Bar membership for theopportunity for serving and remarking that"it was a very good year". He was quiteappropriately referring to the strides takenand the goals attained during his watchand the valuable services which the Barhas continued to provide through a time ofintrospection and self-evaluation, Jim gavecredit in his article to his predecessors inthe offce of Bar President for having laid

the foundation for the successes he

directed, and acknowledged the servicesof several important members of the Barstaff. Although I can't imagine that hisservices this last year have provided himany financial bonanza, I hope that he alsomeant that it had been a very good andrewarding year for him personally.

Now I've been given the chance to giveJim a small measure of well-deserved

praise and just a bit of over-due credit forthe energy he expended and the uncom-pensated hours he toiled during his tenureas our elected chief executive officer. I'dlike to honor Jim by briefly relating myobservations of three of the characteristicswhich I believe represent Jim's service tothe Bar.

First, you would not believe how muchtime Jim devoted to responsibly perform-ing his duties as Bar president. Most of ushave, from time to time, accepted similarassignments which ultimately turned outto be more taxing and consuming than wefigured they would be when we agreed toget involved. We initially may haveseemed to think that somehow we couldproperly allocate time to the new projectand reasonably carve off some of ourspare energy from the various otherresponsibilities we had and, when wedevoted the hours necessary to accomplishthe goals we were assigned, we somehowsoon became overwhelmed with the meet-ings, phone calls, thought, conflict or even

By John C. Baldwin

politics involved with the work. When fac-ing the onslaught of obligations, I'm suremany of us have been tempted to divert ourattentions back to more profitable enter-prises and to try to "just get by" until ourtime was up.

I marvel at the people I know who, whenfaced with daunting challenges and consum-ing obligations which require them tocommit their limited resources of time andenergy, seem to maintain consistent levelsof energy, enthusiasm and commitment tothe task at hand. I have marvelled at JimDavis, Jim never backed down from a crisis,diverted responsibility or avoided work forthe Bar because he couldn't find the time.He faced the uncertainties and challengeswith the energy and devotion necessary to

discover solutions. He simply made thetime to get the job done and to keep on topof issues as they developed.

Secondly, Jim Davis is a candid and"full-disclosure" kind of guy, which is oneof the highest compliments I can give.Before coming to the Bar, I was involved insecurities regulation and the enforcement oflaws requiring full and fair disclosure, Theunderlying philosophy of mandating disclo-sure in the offer and sale of securities is that

if average investors are exposed to accu-rate and complete information, they are ina position to understand their risks andknow where their hard-earned investmentdollars will be going,

Jim was always open about what theBar was doing and he was candid, honestand forthright in recognizing problems andreaching solutions in the light of day. Jimmade it clear during "his administration"that all members of the Bar - from thosein leadership to those whose only involve-ment was to annually pay dues - should

be informed of what was going on and thattheir opinions should be considered whendecisions were made on how their dueswere being spent.

Thirdly, Jim faced conflict and changewith a healthy attitude and sense of appro-priate humor. Just after I had joined theBar staff in the Fall of 1990, I was involvedin a meeting with then-Bar President, PamGreenwood, then-President-elect, JimDavis, and one of the several consultantsassigned to help create some internalaccounting controls. Feeling like we'dmade some headway and that we wereprogressing towards satisfying the auditorsand developing an improved system offinancial reporting, and after a long andinvolved meeting, I mentioned in passingto Pam and Jim that despite the fact thatthere was stil room for improvement, weseemed to finally be "getting somewhere."Judge Greenwood thought for a minuteand smiled, saying, "Yea, but where arewe getting?" Without missing a beat, Jimreplied, "Yea, and when we get there, wilwe like it?"

Well, we reached that particular "some-where" under the care and concern of JimDavis and while there wil undoubtedly bemore "somewheres" out there for the nextgenerations of Bar presidents to be "get-ting to," I can sincerely say that I like it,and it was a very good year.

30 Vat. 5 No.7

c:

Futures CommissionCreated to Identify

Utah's Bar &Legal Market in 2002

Members Needed ForTask Force OnSolo/Small LawFirm Practice

Ja!Ues B. Lee of the Salt Lake City firm ParsonsI' Behle & Latimer has been named chair of a Futures

Commission established by President Randy L. Dryer.The Commission wil include lay members as well aslawyers and is charged with compiling and analyzing

current demographic characteristics of the Utah Barand projecting the anticipated makeup for the year2002. In addition, the Commission wil attempt to pre-dictthe likely market for legal services in Utah in thecoming decade,

In creating the Commission, president Dryer notedthat "we do not currently have an accurate picture ofwho we are, nor what the bar wil look like in tenyears," The Commission wil examine such things as

the percentage of women, minority and rural attorneysin the state, the numbers of attorneys in governmentversus private practice, income levels, areas of prac-tice and other group characteristics. "The study shouldprovide invaluable information for planning purposesto not only the Bar Commission and The SupremeCourt, but also to law firms throughout the State",Dryer said.

Attorneys who are interested in serving on theCommission should contact James B. Lee at 532-1234,

President Randy L. Dryer has established a blue ribbonTask Force to study the unique needs of the solo/smallfirm practitioner and to make recommendations forprograms or services the Bar should provide to satisfy

I'these needs. The Task Force, chaired by Richard Bur-bidge of Burbidge & Mitchell, a four person Salt LakeCity firm, wil make its report to the Bar Commissionand the Utah Supreme Court in May, 1993.

"There is a perception ,the Bar,programs and ser-vices are geared primarily to those attorneys whopractice in the Wasatch Front and who are members ofmedium to large law firms" said President Dryer."Although this perception is not entirely accurate", hesaid,"there are unique needs of a solo practitioner

I' which could be better addressed by the organized Bar".

"The Task Force is charged with making specific rec-ommendations for Commission action", he said.

Persons interested in serving on the Task Force orwho have ideas for the Task Force to consider shouldcontact Richard Burbidge at 355-6677.

Judicial Branch of Understanding Mandatory Many Thanks to ourthe Navajo Nation Divorce Education Sponsors

Vacancy Announced This seminar is the first in a series to be 1992 Annual MeetingPOSITION: District Court Judge offered by the Needs of Children Commit- Parsons Behle and Latimer

SALARY: $40,000.00 per annum tee. The seminar wil provide an overview Ray, Quinney and Nebeker

CLOSING DATE: August 31, 1992 of the procedural and substantive aspects of Snow, Christensen and Martinequ

(5:00 p.m.)new legislation which mandates an Educa- Van Cott, Bagley, Cornwall and McCarthy

Contact Mr. Edward B. Marin to request tional Course on Children's Needs for Kipp and Christian

Divorcing Parents in the third and fourth Michie Companyan application packet and to ask questions

judicial districts. Sun Valley Companyregarding qualifications. He wil also receive Attorneys Title Guaranty Fund, Inc.applications on behalf of the Judiciary American Bar Retirement Association!Committee of the Navajo Nation Council: CLE Credit: 1 hour State Street Bank

Edward B. Martin, Director of Judicial Date: September 15, 1992 Utah Bar FoundationAdministration Place: Utah Law & Justice Center

Rollns Burdick Hunter of Utah

PO Drawer 520 Desks, Inc.

Window Rock, Arizona 86515 Fee: For lunch reservation, call Houlihan Valuation Advisors

(602) 871-6762531-9077, ask for Teri Men-ill Lynch

The Judicial Branch of the Navajo Time: 12:00 noon to 1:00 p,m. Salt Lake MRIFirst Security Bank of Utah

Nation requires proof of Navajo Tribal Charter Summit Hospitalmembership for consideration of employ- Charter Canyon Hospitalment for this position. Inquire about the Legal Assistants Association of Utahexcellent retirement benefits, Rocky Mountain Reporting


Judicial VacanciesAnnounced by

Chief Justice HallGordon R. Hall, Chief Justice of the

Utah Supreme Court, announced the open-ing of the application period for twojudicial vacancies. The first position servesthe Fourth and Eight Districts JuvenileCourts. This area encompasses Juab, Mil-lard, Utah, and Wasatch counties for theFourth District, and Daggett, Duschesne,and Uintah counties for the Eighth Dis-trict. This position results from theretirement of Judge Merrill L. Hermansen,

The second position serves the FourthDistrict Court, and results from the retire-ment of Judge Cullen Y. Christensen.Applications for both positions must bereceived by the Administrative Offce ofthe Courts no later than 5:00 p.m.,September 4, 1992.

Applicants must be 25 years of age orolder, U,S. citizens, Utah residents forthree years prior to selection and admittedto practice law in Utah, In addition, judgesmust be willing to reside within the geo-graphic jurisdiction of the court.

Article VIII of the Utah Constitutionand state law provides that the NominatingCommission shall submit to the Governorthree to five nominees within 45 days ofits first meeting. The Governor must makehis selection within 30 days of receipt ofthe names and the Senate must confirm orreject the Governor's selection within 30days. The judiciary has adopted procedu-ral guidelines for nominating commissions,copies of which may be obtained from theHuman Resources Division, by callng(801) 578-3800.

The Nominating Commission is chairedby Chief Justice Hall, or his designee fromthe Supreme Court, and is composed oftwo members appointed by the state barand four non-lawyers appointed by theGovernor. At the first meeting of eachnominating commission, a portion of theagenda is dedicated to a review of meetingprocedures, time schedules and a reviewof written public comments. This portionof the meeting is open to the public. Thoseindividuals wishing to provide writtenpublic comments on the challenges facingUtah's courts in general, or the Fourth andEighth District Courts in particular, mustsubmit written testimony no later than

September 11, 1992, to the AdministrativeOffice of the Courts, Attn: Judicial Nomi-nating Commission. No comments on presentor past sitting judges or current applicantsfor judicial positions wil be considered,

Those wishing to recommend possiblecandidates for judicial office or those wish-ing to be considered for such office should

promptly contact the Human ResourcesDivision in the Administrative Offce of theCourts, 230 South 500 East, Suite 300, SaltLake City, Utah 84102, (801) 578-3800.

Should LawyerDiscipline Matters

Be Heard in theDistrict Courts?

The Supreme Court's Advisory Commit-tee on the Rules of Professional Conducthas recommended that formal complaints ofattorney misconduct be fied and publiclydetermined in the state district court system.A publication containing the Committee'sspecific proposals wil be distributed to allin-state attorneys in late July. Written com-ments regarding the proposals may be filedwith General Counsel, Administrative

Office of the Courts, 230 South 500 East#300, Salt Lake City, Utah 84102, untilSeptember 11, 1992.

UNITED STATES OFAMERICAVERSUS

GREGORY LENN BROWNUNITED STATES DISTRICT COURTEASTERN DISTRICT OF LOUISIANACRIMINAL NUMBER 91-445 "F"

PLEASE TAKE NOTICE that GregoryLenn Brown, also known as G. LennBrown, doing business as Personal InjuryTrial Lawyers Association, U.S.A. Incorpo-rated; PITLA U.S.A., Inc.; PITLA;Promark, Inc.; Promark, Ltd.; PromarkCommunications, Inc.; Bankruptcy Attor-ney's Trust, Inc.; BAT; Patientlink;DUIIDWI Defense League, Inc,; Health-Link, Inc.; Association of Accounting andTax Professionals; AATP; and LawLink,Inc.; has pleaded guilty to various crimesarising out of a fraudulent investmentscheme. Mr. Brown has admitted that he

and his associates persuaded various indi-viduals and professional firms to invest inreferral services which suggested thatmembers of the public retain subscriberprofessionals through the use of commer-cial advertising and toll free telephonenumbers. Mr. Brown has agreed to forfeithis assets; these assets will be used torepay (in part) the losses of victims of hisschemes,

If you believe you are a victim of Mr.Brown's crimes and you want to knowhow to apply for partial repayment of yourlosses, you must furnish your name andfull mailing address to:

Ms. Mary Jane LattieVictim Witness Coordinator

United States Attorney's OfficeHale Boggs Federal Building501 Magazine Street, 2nd FloorNew Orleans, Louisiana 70130

Responses must be in writing andreceived by the United States Attorney'sOffice no later than August 31, 1992 inorder to be considered, If your response istimely, further information wil be mailedto you.

HARRY ROSENBERGUNITED STATES ATTORNEY

The AmericanImmigration Lawyers

AssociationThe American Immigration Lawyers

Association is a voluntary Bar Associationof over 3,000 members, lawyers and lawprofessors practicing and teaching in thefield of immigration and nationality law.The Utah Chapter of the American Immi-gration Lawyers Association has beenchartered since June, 1990. The Utahchapter meets on a monthly basis andmany of its monthly meetings are accred-ited by the Utah State Bar for continuinglegal education accreditation, If you areinterested in attending an AILA Utahchapter meeting or in obtaining additionalinformation concerning the AmedcanImmigration Lawyers Association, pleasecontact Lorna Rogers Burgess, PARSONSBEHLE & LATIMER, 201 South MainStreet, Suite 1800, Salt Lake City, Utah84111. Telephone: (801) 532-1234.

32 Vol. 5 NO.7

~

American ArbitrationAssociation Names

New RegionalVice President

Diane Abegglen has been named theRegional Vice President of the AmericanArbitration Association's (AAA) SaltLake Regional Office. The Utah offce ofthe AAA offers arbitration, mediation,education, training and election services

throughout the state of Utah. Ms. Abeg-glen assumed her duties with the AAA onJune 1, 1992, replacing Kimberly L. Curtisas Regional Vice President of the Utahregion.

Ms. Abegglen graduated from the Uni-versity of Utah College of Law in 1988.Prior to attending law school, she receiveda Master of Counseling degree from IdahoState University and worked as a profes-sional counselor in Idaho and the

mid-west. Ms. Abegglen clerked for theHonorable Christine M. Durham, Associ-ate Justice of the Utah Supreme Court,from 1988 to 1989. In 1989, Ms. Abeg-glen joined the Salt Lake City law firm ofJones, Waldo, Holbrook & McDonoughwhere she practiced primarily in the areaof litigation. Ms. Abegglen is an activemember of the Utah State Bar Associationand is a current member of the Salt LakeRape Crisis Center's Board of Directors.

Lawyers SupportUnited Way

During 1991, induvidual and corporatedonations through the United Way of theGreat Salt Lake Area raised more than $5.8milion to help deserving people living

along the Wastach Front. Utah's lawyersand law firms were an important part of thatcampaign by raising a tota of $89,000 in 1991.

Community leadership and charitablegiving through the United Way from attor-neys and law firms is critical towardshelping address the local health and humanneeds facing our community. The fundsraised in 1991 are now being used in theSalt Lake City Area to assist the poor orhomeless, at risk youth, the elderly, and var-ious worthwhile organizations provindingdesperately needed services in the Salt LakeCommunity.

The United Way would like to expressits thanks to all of the lawyers and law firmswhich participated in last year's campaignand particularly to the following membersof the 1992 "Golden Spike Leadership Cir-cle" which made generous individualcontributions of $1,000 or more during the1992 campaign:

Ballard Spahr Andrews & IngersollRichard T. BeardBlaine L. CarltonRichard S. Fox

Frederick H. Olsen

Kimball, Parr, Waddoups, Brown & GeeDavidE. Gee

Robert G. HoltMary S. Tucker

Cohne, Rappaport & SegalRichard A. Rappaport

Davis, Graham & StubbsJames R. Haisley

Jones, Waldo, Holbrook & McDonoughWiliam B. Bohling

Kirton, McConkie & Poelmanone anonymous contributor

Parsons Behle & LatimerJames B. Lee

Prince, Yeates & GeldzahlerRobert M. Yeates

Ray, Quinney & NebekerClark P. Giles

Richards Brandt Miller & NelsonRobert W, Brandt

Wilcox, Dewsnup & KingW. Brent Wilcox

United Way thanks these individualsand law firms for their contributions, andencourage others to express their commit-ment to the community throughparticipation in the United Way's GoldenSpike Leadership Circle. As the UnitedWay approaches the 1992 fund raisingcampaign, it would like to invite alllawyers and law firms to participate anddemonstrate their commitment to leader-ship in the community.

For more information about the 1992

United Way campaign and the GoldenSpike Leadership Circle, please callRebecca Dutson, United Way, at 328-0211.

Family Law SeminarsAnnounced by

American Academy ofMatrimonial Lawyers

On October 14, 1992 the Utah Chapterof the American Academy of MatrimonialLawyers wil conduct its first annual semi-nar on preparing for and defty handlingproblem areas in family law practice. Theseminar, which wil be held at the Lawand Justice Center, will feature Melvyn B.Frumkes, Esq" a Florida fellow of theAAML who is on the faculty of theNational Judicial Counsel speakng on dis-sipation of assets. Other topics coveredwil be asset valuation (Clark Sessions),

alimony (B. L. Dar), tax problems (SandyDolowitz), the importance of findings inappellate practice (Kent Kasting), ethics(Brian Florence), and custody issues (DonR. Petersen).


A. ShermanChristensen Award

Given toRalph L. DewsnupRalph L. Dewsnup of the Salt Lake

City law firm Wilcox, Dewsnup & Kingreceived the A. Sherman ChristensenAward in the United States Supreme Courtin Washington, D.C. on June 5, 1992, Thenational award is presented by the Ameri-can Inns of Court Foundation inrecognition of outstanding contributions tolegal professionalism. The American Innof Court program was established in theU.S, under the direction of former ChiefJustice Warren Burger. The goal of theorganization is to promote professional-ism, ethics, civility and legal skils. Pastrecipients have been the Honorable AldonJ. Anderson, the Honorable Wiliam B.Enright, Chief Justice Warren E. Burger,The Honorable A. Sherman Christensen,Professor Sherman L. Cohn and ProfessorPeter W, Murphy. Mr. Dewsnup was afounding member of the first AmericanInn of Court, is past President of theAldon J. Anderson American Inn of Court,was the Editor of "The Bencher," anAmerican Inn of Court publication, and iscurrently serving on the Board of Trusteesof the Foundation.

* For further information on the AmericanInns of Court Foundation, contact Wilcox,Dewsnup & King, 533-0400.

34

ROUNDTABLE DISCUSSIONwith

Attorney General Candidates

Scott Burns, Michael Coombs, Scott Daniels,Michael Deamer and Jan Graham

When:Where:Cost:

12:00 Noon, September 2,1992Marott Hotel

$15.00, payable to Salt Lake CountyBar Association

Moderator: Jack Ford, KSL - TVNews Courts Reporter

R.S.V.P. to Marie Evans at 532-3333, ext. 314 no later than August 31, 1992.

SPONSORED BY THE UTAH STATE BAR ANDTHE SALT LAKE COUNTY BAR ASSOCIATION

. .The Law Firm of

JANOVE & MILLERis pleased to announce that

LEWIS E. MILLERformerly with

O'Melveny & Myers

Newport Beach, Californiahas become associated with the firm

Mr. Miler wil concentrate his practice in real estate,failed financial institutions, commercial and corporate law.

The firm's practice wil continue to emphasize banking andthrift litigation, representation of management in employment

matters and representation in commercial litigation and transactions.

Jathan W. Janove Charlotte 1. MilerPhylls J. Walton Lewis E, Milert

tAdmilted in Utah and California

JANOVE & MILLER1350 Walker Center

175 South MainSalt Lake City, Utah 84111

Telephone (80l) 530-0404 Facsimile (801) 530-0428

June 1, 1992

. .Vol. 5 No. 7

Jii

The Young Lawyers Section:An Opportunity for Public Service

Our Rules of Professional Conductstate: "A lawyer should render publicinterest legal service." See Rule 6,1.

The Young Lawyers Section ("YLS")provides an easy way to do this. By join-ing a YLS committee, you can make ameaningful public service contributionwith a minimum of time. For the mostpart, the projects are already organized -you can step in and help quite easily.

Here are some examples of what youcan do:

. Spend a couple hours on a Tuesday

evening answerig legal questions for peopledropping in at the Law and Justice Center.

. Meet with a high school class to dis-cuss the Bil of Rights.

. Help produce a legal information video

to educate victims of domestic violence

about how the law will protect them.

. Spend two hours at a shopping mall

booth on Law Day handing out legal infor-mation pamphlets and answeringquestions.

By Keith A. KellyPresident, Young Lawyers Section

. Help make and distribute legal informa-tion videos to senior citizens centers.

· Draft pamphlets for teachers and healthcare workers about laws related to the pre-vention of child abuse.

. Assist in planning a conference and

preparing a pamphlet about legal issuesaffecting persons who are HIV positive.

· Represent an indigent person in a defaultdivorce case.

. Prepare a pamphlet informing victims of

rape about their rights in the legal system.

. Provide mock interviews to help law stu-dents prepare for their job searches.

. Preside as a judge over a trial in the high

school mock trial competition.

The YLS has over eleven committeesperforming law-related community service.Any of the officers of the YLS would behappy to help you find one with which youmight like to be involved, Feel free to callthis year's new 1991-1992 YLS offcers:

Keith A. Kelly, president532-1500;

Mark S, Webber, president-elect532-1234;

Leshia Lee Dixon, secretary532-5444;

Olinda Ware Langston, treasurer963-1456; and

Charlotte L. Miler, past-president530-0404,

Over five years ago as a new attorney, Iapproached then- YLS-president PaulDurham about being involved in law-related community service. Soon I wasediting and fund raising for a bookletinfOlming senior citizens about their legalrights. The community service activitiesthat have grown out of that involvementhave been one of the most rewardingfacets of practicing law.

I hope you wìl pursue opportunities forlaw-related community service.


SALTWe are pleased to announce the opening of our office in

CITYLAKEJune 1992

ALAN R. BLANPartner

Mr. Blank concentrates in the practice of general business,acquisitions, corporate finance, securities, real estate,

tax, and tax-exempt finance.

JAMS A. HOLTKAMPPartner

Mr. Holtkamp practices environmental law andpublic utilties law, with a special emphasis on air quality,

water quality, hazardous waste managementand electric utilty operations.

He has signficant experience serving as counsel torefinery operators, mining companies, and utilties

in several western states.

THOMAS A. ELLISONPartner

Mr. Ellson provides corporate and real estate services tothe banking, real estate, construction, health care

and technology industries, emphasizing acquisitions,financing, joint ventures and land use law.

JOHN S. KIRKAMPartner

Mr. Kirkham practices natural resource law, andhas particular expertise in coal and hard rock, oil and gas,

synthetic fuels, water and geothermal law.He has significant experience in the representation of

mining companies, public utilties, landownersand in all aspects of the coal industry.

GREGORY B. MONSONPartner

In addition to his public utiity and regulatory experience withelectric, natual gas and telecommunications clients, Mr, Monson

counsels clients in administrative law, real estate andgeneral business transactions, governmental relations, litigation,

particularly appeals, and debtor-creditor relations.

EDWARD A. HUNTER, JR.Of Counsel

Formerly with Utah Power, Mr. Hunter concentrates hispractice in the area of public utilty law, He has

signiicant experience in the representation of clientson a broad range of regulatory issues before

state reguatory commissions in several western states,

DA VlD A. WESTERBYOf Counsel

Formerly with Utah Power, Mr. Westerby concentrateshis practice in claims and business litigation,

insurance coverage, and intellectual property law,

JOHN M. ERIKSSONAssociate

Formerly with Utah Power, Mr. Eriksson concentrateshis practice in public utilty law, including general rate

proceedings and PUR A proceedings,

JAMES R. HAISLEYAssociate

Mr. Haisley has significant experience in natural resources law,environmental law, public lands law, and public utilty law.

--iCASE SUMMARIES .

MUNICIPALITY'SDUTY TO PUBLIC

Bountiful City had no common lawduty to erect a traffic control device or tolandscape private property upon whichbushes obstructed the motorists' view. TheUtah Court of Appeals affirmed the sum-

mary judgment that Bountiful City had nostatutory or common law duty to removeobstructing foliage or to maintain unob-structed visibility at an intersection.

Although Bountiful City had a narrowduty to order the removal of the hazard ifBountiful's investigation had determinedthat the traffic hazard had existed, it didnot have an affirmative duty to order itwithout the investigation.

The court also concluded that the plain-tiff's request to continue the summaryjudgment to allow further discovery wasproperly denied. In reviewing a claimunder Rule S6(f), Utah R. Civ. P" theappellate court will consider (1) whetherthe reason articulated for additional dis-covery is adequate or is merely a "fishingexpedition"; (2) has the plaintiff had suffi-cient time to conduct discovery; (3) has

the non-moving party been afforded anappropriate time for response to themotion for summary judgment? In apply-ing these factors the appellate court foundthat the trial court did not err in denyingthe motion for additional time for discovery.

Jones v, Bountiful City Corp., 187 UtahAdv. Rep. 183 (Ct. App., May 13, 1992).

BANKRUPTCY, STAYThe filing of a Chapter 11 bankruptcy

petition on behalf of a debtor does not staythe action as against a co-debtor or guar-

antor of the debtor. The bankruptcy codeautomatically stays an action against thebankruptcy debtor and against property ofthe bankruptcy estate, but does not insu-late and preclude an action to collect thedebt against other third persons,

The record also failed to support theappellant's guarantor's contention that hewas incapacitated at the time he signed hisguarantee agreement and promissory note.The guarantee agreement is separate fromthe principal obligation and creates a sepa-rate and independent obligation. An

By Clark R, Nielsen

unconditional guarantee is absolute and theguaranteed party need not fix its losses bypursuing its remedies against the debtor orthe security before proceeding against theguarantor. By agreeing to the guarantee

agreement, the guarantor waived alldefenses that the debtor had against collec-tion of the original debt.

Surety Life Co. v. Rupp, 187 Utah Adv.Rep, 20 (Ct. App, May 13, 1992) (JudgeBilings, with Judges Bench and Garff).

EMPLOYMENT AT WILL,TERMINATION, TORT v. CONTRACT

Upon certification from the U.S, DistrictCourt, the Utah Supreme Court held that anemployee's termination violated Utah pub-lic policy because the employee allegedlywas terminated because of his refusal to fal-sify tax documents. Justice Durham wrotethat the employee could assert a tortiousclaim against the employer. Public policydoes not allow the application of the at-willemployment doctrine when an employee isterminated for refusing to commit an ilegalact or for exercising a legal right or privi-lege. Declarations of public policy can befound in Utah statutes and constitutions.The court should narrowly construe publicpolicy which is argued as a basis for awrongful termination action. Because thereis no requirement of good cause to dis-charge an employee, the public policyexception to the at-wil doctrine requires

that the statutory language clearly expresspublic conscience and substantially affectthe interests of society. Identification of

clear and substantial public policies wilrequire a case by case development. Notevery violation of any federal or otherstate's law wil automatically provide thebasis for a wrongful termination actionbased upon the public policy exception.There must be a nexus between the law vio-lated or claimed to be applicable and thepublic policy in Utah's public policy. In thiscase, the falsification of tax and custom docu-ments provided such a nexus or connection.

Justice Zimmerman disagreed with Jus-tice Durham's explanation of what mayconstitute the public policy and also opinedthat a suit for wrongful discharge should bean action in contract, rather than a tort. Jus-

tice Zimmerman criticized the majorityopinion as adopting a "formless tort causeof action as a means to separate from thegeneral body of contractual relationsbetween employer and employee thoseareas where public policy wil not permit

contract law to operate. , . this tool iscapable of excising the offending part, butit poses a considerable risk of unpre-dictable collateral damage to thesurrounding healthy tissue and a conse-quent impairment of the entire organ," Themajority favors a tort because it invokes

the specter of punitive damages to deteremployers from discharging employees incontravention of public policy, JusticeZimmerman favors a contract cause ofaction as such damages would be suffi-cient to make the employee whole in anordinary case. A discharged employeecould seek traditional tort remedies only ifan independent tort was proved. This"two-layered" course of recovery wouldpreserve the deterrent effects of anemployer's tortious conduct, but still guar-antee contractual damages to employeeswho are discharged in violation of publicpolicy, regardless of the mental state oftheir employers. The dissent favors thetwo-layered remedy approach to contrac-tual breaches as adopted in the insurancecontext, Beck v. Farmers InsuranceExchange, 701 P.2d 795 (Utah 1985),From the dissent's view, the collateralnegative consequences of a tort remedyare far greater than that necessary toaccomplish the objective of making theemployee whole and deterring theemployer. Justice Hall concurred in thedissenting opinion of Justice Zimmerman.

Peterson v. Browning, 187 Utah Adv.Rep. 3 (May 13, 1992) (Justice Durham,with Justice Stewart concurring and con-curring opinion by Justice Howe; JusticeZimmerman and Hall in dissent),

BANKRUPTCY, DEFICIENCYJUDGMENT, STAY

The Supreme Court reversed the dis-missal of a complaint for a deficiencyjudgment, holding that the statute of limi-tations did not run during the pendency ofa bankruptcy proceeding. Plaintiff would

AI/giist/September 1992 37

normally be free to file a deficiency actionwithin three months of a trustee's sale byreason of the bankptcy and the resultingstay. The creditor was precluded from fil-ing for a deficiency prior to the

termination of the stay, The bankruptcywas filed prior to the time the deficiencyaction arose. Therefore, under 11 U.S.c. §108(c) the time for filing a deficiencyaction was extended for the full threemonth period after the termination of thestay. The ninety-day period was sus-pended during the bankuptcy stay.

Citicorp Mortgage, Inc. v, Hardy, 188Utah Adv. Rep. 5 (Utah June 2, 1992)

(Justice Hall).

GOVERNMENT IMMUNITYThe Court of Appeals affirmed the

summary judgment in favor of Salt LakeCounty and its chief building inspector,W. Noble, finding that the GovernmentalImmunity Act did not violate the opencourts provision of the state constitutionand the county did not violate the DeBrys'First, Fifth and Fourteenth Amendmentrights. After the DeBrys purchased a busi-ness building, the county discovered a

building permit had never been issued to thebuilder. When the county later inspected,they determined that a permanent certificateof occupancy could not be issued due topersisting building defects. When theDeBrys failed to make the necessaryimprovements, they were served a noticeand order to vacate the building, Plaintiffsappealed the notice and order to the SaltLake County Board of Appeal, which alsodenied DeBrys their right of occupancy.

The DeBrys subsequently filed thisaction, claiming that the county was guiltyof fraud, misrepresentation and gross negli-gence. DeBrys also alleged violation oftheir constitutional rights. The court heldthat the Governmental Immunity Act pro-tected the county and its officials.

DeBry v. Salt Lake County, 188 UtahAdv. Rep, 55 (CL App, June 9, 1992)

(Judge Russon, with Gaiff and Greenwood).

DIVORCE, TAXEXEMPTION A WARD

The Court of Appeals reversed the trialcourt's award of a tax exemption for theparties' minor child to the husband. Thehusband's cross appeal was also rejected

when the êourt affirmed the final propertydistribution. In awarding the husband thetax dependency exemption, the trial courtdid not consider the arguments regardingthe award nor make any finding support-ing the award. Rather, the award wasinserted in the decree by the husband'sattorney and the trial court refused toreconsider that portion of the decree. Thefederal presumption is that the custodialparent receive the exemption, In order todepar from that presumption, it is neces-sary that the trial court enter specific

findings stating the reasons the exemptionis given to the non-custodial parent, in

accordance with Motes v. Motes, Thecourt rejected the husband's appeal of theproperty division because the husband hadfailed to marshal the evidence, There wassubstantial evidence to support the find-ings dividing the property, The husband'smere reargument of the facts supportinghis position would not be sustained onappeaL.

Allred v. Allred, 188 Utah Adv. Rep. 47(Ct. App. June 5, 1992) (Judge Garff, withJudges Jackson and Orme).

The law Firm of

NIELSEN & SENIOR

Is Pleased To Announce That

Attorneys Formerly Of

The Salt lake Office of Wheatley & Ranquist

Have loined The Firm:

HAROLD A. RANQUISTas Shareholder and Director;

J. CRAIG SMITHas Shareholder;

and

DAVID B. HARTVIGSENas an Associate

Arthur H. Nielsen

Gary A. WestonEarl Jay Peck

Harold A. RanquistNeil R. Sabin

R. Dennis IckesMark H. Anderson

B. Kent LudlowRichard M. HymasJohn K. Mangum

They will continue working in theMunicipal and Government law area

Including Water, Environmental, Energy,

Natural Resource, and Indian litigation.

NIELSEN & SENIORATTORNEYS AT LAW

Suite 110060 East South Temple

Salt lake City, Utah 84111

801-532-1900

Richard K. HincksNoel S. Hyde

Robert P. FaustJ. Craig Smith

Jay R. MohlmanDavid B. Hartigsen

Marilynn P. FineshriberLarry L. Whyte

Steven F. AllredPatricia L. LaTulippe

Of Counsel:

Raymond T. SeniorMilton J. Morris

38 Vol. 5 No.7

ADMINISTRATIVEAGENCY, EDUCATION

The plaintiff appealed the determina-tion of the Division of Rehabilitation

Services that denied her reimbursementfor travel costs incurred in vocationalrehabilitation. The individual work reha-bilitation plan developed to assist theplaintiff included reimbursement for trans-portation costs, counseling sessions,vocational counseling, guidance and aclothing allowance, tuition and books.When the plaintiff also obtained a Pellgrant of $255 a month, the Division deter-mined that it was no longer responsible toreimburse her travel expenses because thePell grant was a comparable benefit andshould meet her transportation costs. Thecourt did not find this determination to beinherently unreasonable.

Holland v. State Office of Education,

Utah Court Appeals, Case No. 910409-CA,

(June 12, 1992) (Judge Garff, with Judges

Greenwood and Russon).

ATTORNEY FEES,42 U.S.C. § 1988, FINDINGS

The Utah Court of Appeals reversed thedenial of attorney's fees in a civil rightsaction against the Tooele Housing Author-ity for civil rights damages under § 1983.

Plaintiffs claimed the housing authorityviolated their constitutional rights andbreached a contract with them by a determi-nation that the plaintiffs were not eligiblefor subsidized housing. The circuit courtawarded summary judgment to the Princes,who then sought attorney's fees under 42U.S.C. 1988, The circuit court denied attor-ney's fees on the basis that the plaintiffs andLegal Services would receive a windfall and

an award would work a hardship againstthe housing authority and the indigent

people it represents.The Court of Appeals held that the cir-

cuit court abused its discretion by

applying the incorrect legal standard onwhether to award fees. The prevailingpary in a civil rights action is ordinarilyentitled to attorney's fees unless "specialcircumstances" render such an awardunjust. In implicitly finding that the hous-ing authority had violated a federal statute,the court of appeals held that plaintiffsprevailed for the purposes of an attorney'sfee award. In determining whether "spe-

cial circumstances" exist, the court mustfocus on the justice under the total rangeof circumstances of conferring the benefitand imposing the burden of the fee,Whether the attorney's fee might work ahardship on the housing authority or its

ANNOUNCING THE FORMATION OF

PARSONS, DAVIES. OWEN & KNUTA PROFESSIONAL CORPORATION

ON APRIL I, 1992

THE FIRM INCLUDES

JOHN PARSONS DAVID W. SCOFIELDFORMERLY OF CALLISTER, DUNCAN & NEBEKER

GLEN E. DAVIES LAGDON T. OWEN. JR.R.L. KNUTH KEN P. JONES

FORMERLY OF WATKISS & SAPERSTEIN

RONALD F. PRICEFORMERLY OF CALLISTER, DUNCAN & NEBEKER

HAS .JOINED THE FIRM AS AN ASSOCIATEMAY 18,1992

THE FIRM WILL EMPHASIZE PRACTICE IN THE FOLLOW-ING AREAS: ESTATE PLANNING; SECURITIES; TAXATION;BANKING LAW; BUSINESS TRANSACTIONS AND CORPO-RATIONS; BANKRUPTCY AND CREDITOR'S RIGHTS;ADMINISTRATIVE LAW; ERISA; ENVIRONMENTAL ANDNATURAL RESOURCES LAW; REAL PROPERTY, LANDUSE, WATER LAW; AND LITIGATION IN ALL STATE ANDFEDERAL COURTS.

310 SOUTH MAINSUITE 1100SALT LAKE CITY, UT 84101

TELEPHONE: 18011363-4300FACSIMILE: 18011363-4378

August/September 1992

æ:~ I!

~ ~~ Holme Robert & Owen ~~ ~~ Announce The Relocation Of Its ~~ ~~ Salt Lake City Offce To

~~ Suite 1100 ~~ ~~

ILL East Broadway~

~ Salt Lake City, Utah 8411 ~~ ~~

Phone: (801) 521-5800

~~ Fax: (801) 521-9639 ~~ ~~

July 6,1992~

~ ~~ Denver ~~

Salt Lake City

~Colorado Springs

~ Englewood ~~

Boulder

~London

~ ~~ ~I~ I~æ:~ I!

39

clients does not justify the denial of fees. priately granted to the agency's decision if According to the concurring opinion ofNeither does the fact that the award might discretion has been given by the legislature, Judge Bench, the proper standard ofprovide a windfall. either explicitly or implicitly. In that event, review recognizes the discretion of the

The denial of fees was reversed and the the agency's discretionary decision wil be agency only to apply the law to the facts,case remanded for determination of a rea- affirmed if "reasonable and rational." That discretion is not extended to thesonable fee, Applying that standard, Pizza Hut had a agency to interpret statutory terms, Dis-

Prince v. Tooele County Housing right to expect that Bhatia would refrain cussing Morton International v. State TaxAuthority, Utah Court Appeals, Case No. from conduct detrimental to the business or Comm'n, 814 P.2d 581, Judge Bench con-910249-CA, (June 23, 1992) (Judge Garff, that would affect the good wil of its cus- cluded that the majority's standard ofwith Judges Greenwood and Russon). tamers and employee discipline. review was too broad and urged counsel to

Instead of marshaling the evidence that be more careful in providing an analyticalUNEMPLOYMENT supported the decision and showing that framework for review of UAP A cases.

COMPENSATION - JUST evidence was insufficient, Bhatia insisted Bhatia v. Dept. of Empl. Sec., 188 UtahCAUSE TERMINATION on emphasizing his own evidence, leaving Adv. Rep. 40 (Ct. App. June 2, 1992)

Petitioner Bhatia was denied unem-the ,court to search for itself the evidence (Judge Bilings, with Judges Garff and

ployment compensation benefits because that supported the findings. Therefore, the Bench)he left his employment at Pizza Hut on a findings were deemed conclusive. Bhatiaparticularly busy evening, resulting in his knew that the restaurant was extremely busy DIVORCE - INSUFFICIENTdischarge. Bhatia claimed he was not ter- and that he was to assist in closing that FINDINGS, CUSTODY, ALIMONYminated for "just cause." Although the night. His vulgar response to the manager's The husband appealed a divorce decreeDepartment of Employment Security cautions could be heard by Pizza Hut cus- awarding custody of his minor children togranted Bhatia unemployment benefits, tamers. Furthermore, his unauthorized the mother, even though the court-orderedthe Administrative Law Judge reversed departure placed unexpected pressure on the evaluation strongly recommended that thetheir decision. restaurant staff. Whether or not this incident husband be awarded custody. In its award,

Whether an employee is terminated for was isolated, the record indicated that he the trial court entered cursory findings of"just cause" is a mixed question of law was sufficiently culpable to warrant denial fact with regard to the moral conduct ofand fact. Upon review, deference is appro- of employment benefits for his termination. the parties, the credibility of the husband

HERSCHEL BULLEN The law firm of

MCDONALD, WEST & BENSONFormerly a partner of McDonald & Bullen

is pleased to announcethe opening of his

private offices

is pleased to announceits opening

The members of the firm are:

Robert M. McDonald formerly a partnerin the firm of McDonald & Bullen

Suzanne West formerly a shareholder with the firmof Jones, Waldo, Holbrook & McDonough

Suzanne Benson formerly an associatewith the firm of McDonald & Bullen

at

THE REGENCY OFFICE BUILDINGSuite 210

2749 Parleys WaySalt Lake City, Utah 841 09

(801) 466-7851

The firm will focus its practice in the areas ofDomestic, Personal Injury

Business & Real Property LitigationCommercial Transactions, Real Property Transactions,

Development, Sales, Acquisitions & Financings,Creditor's Rights, Collections, Foreclosures and Bankruptcy

Practicing in the areas ofGeneral Civil & Criminal Litigation

Business & Real Estate Transactions & LitigationConstruction Claims & Litigation

MCDONALD, WEST & BENSON455 East 500 South, Suite 200

Salt Lake City, Utah 84111Phone: (801) 359-0999

Fax: (801) 359-1242

40 Vat. 5 No. 7

~ Iand the relative parenting skills, The Courtof Appeals remanded for more detailedfindings with regard to the specifics of thegeneral findings in order to determinewhether or not the court's award was, infact, supported by the evidence, The paneldiscusses in some detail its problematicconcerns with the general nature of thefindings. Even though the findings addressthe specific areas at issue, they do notindicate how the trial court resolved thefactual disputes and the weight given tothe various factors, such as credibility andmoral character. The award of alimonywas also reversed for more specific find-ings because the trial court failed to makespecific analysis of the parties' circum-stances in light of the Jones factors:financial condition, ability to pay, andabilty to produce income.

Judge Garff dissented from the court'sremand of the custody issue for moredetailed findings, arguing that the findingswere supported by sufficient evidence inthe record, It is apparent that the trialjudge had considered the necessary rele-vant factors, (i,e. moral character,

credibility, evidence of physical abuse,and ability to provide care for the chil-dren). Although the findings are not asdetailed as the court might prefer, JudgeGarff determined they were sufficientlydetailed to allow appellate review.

Roberts v. Roberts, 188 Utah Adv. Rep.26 (Ct. App. May 28, 1992) (Judge Jack-son, with Judge Orme; Judge Garffdissenting).

ADMINISTRATIVE REVIEW,TYPE OF HEARING, CAREER

SERVICE REVIEW BOARDThe Court of Appeals reviewed a deter-

mination by the Career Service ReviewBoard that petitioner's grievanceagainst his employer, the Industrial Com-mission, was not within the B oard s

jurisdiction. The burden of showing theinformality of an administrative proceed-ing is upon the party asserting that theproceeding was informal and that thejurisdiction lay in the distrct court.

The Career Service Review Boardhearing officer had conducted a hearing atwhich evidence and documents wereaccepted and a court reporter was present.There was no showing that the require-ments of § 8, UAPA were not met.Therefore, the appellate court concluded

that the hearing was formal and that ithad appellate jurisdiction.

The court next considered whether anappeal was timely filed and whether amotion for reconsideration had been deniedby a proper final order constituting the finalagency action, The hearing officer had writ-ten the petitioner a letter saying that his

motion for reconsideration has not per-suaded her to change her decision. Thecourt held this was not sufficient to consti-tute a formal agency order denying thepetition for reconsideration. Therefore, therequest for reconsideration was deemeddenied by the mere passage of time. Thecourt then reached the substantive merits ofthe petitioner's appeal and concluded thatthe Career Service Review Board was cor-rect in its ruling that it did not havejurisdiction over petitioner's grievancesagainst his employer.

Lopez v. Career Service Review Bd, 188Utah Adv. Rep, 19 (CL App., June 27,1992) (Judge Bench, with Judges Orme andRusson).

DEPT. OF EMP. SEC., REVIEW BYADMIN. LAW JUDGE

An appeal requesting review by anAdministrative Law Judge of an Employ-ment Security Department decision must befiled within ten calendar days after thedepartment's decision has been mailed, Thecourt affired the Board of Review's deci-

sion that the petitioner's appeal for reviewwas not timely filed because it was not fiedwithin ten days. The court also affirmed therefusal to excuse the late appeal for "goodcause" because the decision that petitionerdid not demonstrate good cause for her late-filed appeal was not unreasonable, A letterrequesting appeal needed only be a short,simple statement of the grounds for appeal

and the relief requested. There was noambiguity as to the time period in which thepetitioner was required to file that appeal tothe administrative law judge, and she couldnot have reasonably been misled as to herrights to review, the time period required, orher right to a fair hearing. The dismissal bythe Board of Review of petitioner's claimfor unemployment benefits was affirmed.

Armstrong v. Dept. of EmpL. Sec., 188Utah Adv. Rep. 10 (Ct. App. May 22, 1992)(Judge Bilings with Judges Orme andRusson).

BE A RED CROSS VOLUNTEER

AmericanRed Cross

êêA Lawyers

ProfessionalLiability program. . . sponsored by

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2180 South 1300 East, Suite 500Salt Lake City, Utah 84106/ (801) 488-2550


EDITOR'S NOTE: It is with pleasure that weintroduce a new feature (section) in the UtahBar Journal, to be titled inornately - "BookReview". The section wil be featured in everyor every other Bar Journal issue and wil beprimarily selected and written by Betsy LynnRoss, an Assistant Attorney General in theUtah Attorney General's Office, and recentrecipient of the Pro Bono Service A ward. Sheinvites suggestions for books to review andwould welcome guest reviews. It is her desireto provide Bar Journal readers with trenchant,evocative reviews of books dealing with a widevariety of subjects including occasionally law.

Your suggestions are welcome.

" -X Thy am I reviewing a book byV V Václav Havel in the Utah Bar

Journal? What does Havel have to do withlaw? Actually, I started out reviewingHitler and Stalin: Parallel Lives by AllanBullock. In fact, I spent a weekend in SanDiego just to get away and read aboutHitler and Stalin. But then, Havel was inthe news (and Hitler and Stalin were not),and it just seemed appropriate to reviewHavel's Summer Meditations. The clincherwas the following paragraph from the book:

The role of schools is not to cre-ate "idiot-specialists" . . . but todevelop the individual capabilities

By Betsy L. Ross

Summer MeditationsBy Václav Havel

Published by Alfred Knopf, 1992151 pages

of the students in a purposeful way,and to send out into life thoughtfulpeople capable of thinking about thewider social, historical, and philo-sophical implications of theirspecialties,It seemed to me, after all, that we

lawyers could benefit from a bit of broaden-ing. And that, I hope, is what these bookreviews wil be about - a chance to think

and the "wider social, historical, and philo-sophical implications" of our profession.

Havel's Summer Meditations reads like abook of "Confucianisms" - words fromthe wise that are catchy and quotable, somepithy, some definitely influenced by hisbackground as an intellectual, i.e., not-so-pithy. Consider the following, all quotesfrom Summer Meditations:

There is only one way to strive fordecency, reason, responsibility, sin-cerity, civility, and tolerance, and thatis decently, sincerely, civilly, andtolerantly.

They say a nation gets the politi-cians it deserves. In some senses thisis true: politicians are indeed a mirrorof their society, and a kind of embodi-ment of its potentiaL. At the same time- paradoxically - the opposite is

j

I'"

also true: society is a mirror of itspoliticians. It is largely up to thepoliticians which social forces theychoose to liberate and which theychoose to suppress, whether theyrely on the good in each citizen oron the bad.

(DJirectness can never be estab-lished by indirection, or truththrough lies, or the democratic spiritthrough authoritarian directives.

In the somewhat chaotic provi-sional activity around the technicalaspects of building the state, it wildo us no harm occasionally toremind ourselves of the meaning ofthe state, which is, and must remain,truly human - which means it mustbe intellectual, spiritual, and moraL.Havel's idealist spirit, as revealed in

these excerpts, often finds him accused of"naivete." It is an accusation he is veryaware of. "Some say I'm a naive dreamerwho is always trying to combine theincompatible: politics and morality. Iknow this song well; I've heard it sung allmy life." It is a life he has spent as dissi-dent intellectuaL.

Havel is a playwright, founding

spokesperson of Charter 77 and the author

42 /' Vol. 5 No.7 l

Ii

of essays on totalitarianism and dissent. In1979, he was sentenced to four and a halfyears in prison for his participation in theCzech human rights movement. InNovember 1989, he helped found theCivic Forum, the first legal oppositionmovement in Czechoslovakia in fortyyears. In December, Havel became presi-dent of Czechoslovakia. In June of thisyear, Václav Havel was not reelected. Hisbook, Summer Meditations presages thisoccurrence. Whether this book wil alsoserve as his legacy to his country and theworld is yet to be seen.

Summer Meditations is comprised offive essays, written in the summer of 1991during Havel's second term as president ofthe Republic. The essays are entitled,"Politics, Morality and Civilty," "In aTime of Transition," "What I Believe,""The Task of Independence," and"Beyond the Shock of Freedom," As thetitles suggest, they are the story of a coun-try struggling with its identity; they are as

well the story of an individual certain of his.It is in the intersection of the historical andpersonal that they are remarkable - reveal-ing an extraordinary individual acting

during an extraordinary time.

Havel's honesty is disarming, In hisessay "What I Believe," he explains hispolitical ideology:

Some of my opinions may seemleft-wing, no doubt, and some right-wing, and I can even imagine that asingle opinion may seem left-wing tosome and right-wing to others - andto tell you the trth, I couldn't care less,The essay "Beyond the Shock of Free-

dom" could be compared to Plato'sRepublic. It is Havel's idea of the idealpolitical system and society. Havel dis-cusses the political system, transportation,

agriculture, ecology, education, health care,and, as always, the human spirit.

The sense of morality that culminated inhis role as dissident in the previouslyCzechoslovak communist society is what

Havel attempts to express in these essaysand, it appears, to understand, as historyswirls around him,

A moral and intellectual statecannot be established through a con-stitution, or through law, or throughdirectives, but only through com-plex, long-term, and never-endingwork . . . It is a way of going aboutthings, and it demands the courageto breathe moral and spiritual moti-vation into everything, to seek the

human dimension in all things. Sci-ence, technology, expertise, and

so-called professionalism are notenough. Something more is neces-sary. For the sake of simplicity, itmight be called spirit. Or feeling. Orconscience . , ,Havel's spirit, feeling and conscience

are what make Summer Meditations inter-esting and even compellng reading. If it ishis legacy as a politician, it is a saluta one,

WE ARE PLEASED TO ANNOUNCElHE FORMATION OFlHE LAW FIRM OF

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Lawyer Services Division 272-5804Toll-free outside of Salt Lake 800-344-5948


UTAH BAR FOUNDATION

Utah Bar FoundationAwards 1992 GrantsUtah Bar Foundation funds have been

~granted to the following agencies to assistthem in their respective projects -

Legal Aid Society of Salt Lake - Toassist paying salaries for Legal Aidemployees ($50,000).

Utah Legal Services - To continue tosupport the Southeastern Utah paralegal inPrice, for publication of the Landlord Ten-ant Handbook, to assist with support of aparalegal office in Tooele and an attorneyto handle family law cases in Central andEastern Utah ($35,000),

Catholic Community Services/Immi-gration - To expand the outreach

position to full-time and cover expensesnecessary to properly serve the outlying

areas of the state. Funds wil also helpfinance law-school internships and defray

general operating expenses ($20,000).Law Center for People With Disabil-

ties - To supplement the salary of an

attorney and intake worker, to create appro-priate materials regarding ADA (Americansfor Disabilities Act) and for travel statewide($10,000),

Salt Lake County Bar Domestic Rela-tions Pro Bono Project - To provide

necessary professional liability insurancefor the project to function ($ i ,021).

Law Related Education - To supple-ment staff salaries and for general operatingexpenses of the program ($30,000).

Utah Children - To reprint the book-

let, Where Do I Stand? A Child's LegalGuide to Separation and Divorce ($1,950),

Inns of Court - To support necessary

expenses ($1,500).University of Utah College of Law -

To facilitate the entrance of lawyers intopublic service practice and the retention oflawyers by public interest agencies, fundswill be added to the Public Service LoanRepayment Assistance Program's endow-ment corpus to provide law graduates withassistance in repaying student loans

($25,000).Utah State BarN oung Lawyers Sec-

tion - To assist sexual assault victims by

providing clothing to wear home from thehospital when clothing worn during sexualassault is left with officials for investiga-

tion and evidence ($2,500).

Utah BarFoundation/istorical

Society PublishingProject

A future issue of the Historical SocietyQuarterly wil feature articles about UtahCourthouse activities. Several interestingsubmissions have been received and manymore are in planning stages.

Don't forget to send your stories oranecdotes and/or photographs of enlight-ening and entertaining courthouse events,characters, cases or claims, All submis-sions published wil receive an engraved

plaque and the three best submissions wilreceive cash prizes ($1,000, $500 and$250).

If you have somehow missed the infor-mation sent out to Bar members, call theFoundation offce (531-9077) to receive acopy of entry guidelines,

Even if material cannot be drafted inrough form by our first cutoff date (Octo-ber 15), let us know of your interest andintent to contribute.

First District Court in Provo in 1890's, Judge Orlando W. Powers on the bench

from Utah State Historical Society Collection

,Ii

IITHANK YOU!The Bar Foundation wants to express its thanks to the many lawyers and law firms who

contribute to the Foundation by donations and through participation in the IOLTA Prògram.Also, special thanks go to the donations and new IOL T A participants who signed up

with the IOL T A Program on the most recent Bar license forms and through recruitmentefforts this past month.

The Foundation presents an excellent opportunity for lawyers to aid in financing worth-while law-related public projects,

44 Vol. 5 No.7

~CLECALENDAR-ADVANCED COMMERCIAL

REAL ESTATESponsored by the State Bar of Nevada

and cosponsored by the Utah State Bar.CLE Credit: Approx. 18 hoursDate: August 12-14, 1992Place: Embassy Suites Resort,

Lake TahoeFee: callTime: 8:00 a,m. to 5:00 p.m.

15TH ANNUAL SECURITIESSECTION WORKSHOP

This is the annual presentation of thisworkshop. This year's locale wil be Jack-son Hole. Look for a lively program withmany discussions on current securities lawtopics. Come up and enjoy the scenery andupdate your securities practice skils.CLE Credit: 8 hours w/l in ethicsDate: August 28 & 29, 1992Place: Jackson Hole, WYFee: $130Time: 8:00 a.m. to 1 :00 p.rn each day

EDUCATION LAW SEMINARThis is the annual presentation of the

Education Law Section. Issues relevant tothis area of practice wil be examined,Once again this seminar wil be held inbeautiful Park City. This is an excellent

chance to enjoy the autumn aloft andupdate your practice skils in this area.Call for more information on the sub-stance of this program,CLE Credit: 4 hoursDate: September 12, 1992Place: Olympia Hotel, Park City

Fee: $30Time: 9:00 a,m. to 1:00 p,m,

ADVANCED BANKING LAWSponsored by the State Bar of Nevada

and cosponsored by the Utah State Bar.CLE Credit: Approx. 12 hoursDate: September 17-18, 1992

Place: Embassy Suites Resort,

Lake Tahoecall8:00 a.m. to 5:00 p.m.

Fee:Time:

UNDERSTANDING BUSINESSBANKRUPTCY: HOW TO HANDLE

EVERYDA Y PROBLEMSA live via satellite seminar.

CLE Credit: 4 hoursDate: September 17, 1992Place: Utah Law & Justice Center

Fee: $150 (plus $6 MCLE fee)Time: 10:00 a.m. to 2:00 p,m.

2ND ANNUAL ETHICS AND GOLFTOURNAMENT - PROFESSION-

ALISM MADE PRACTICALThis new annual program stresses pro-

fessional behavior in practical situations,The idea is to present ethics topics that havedirect practice implications. This yearbreakout sessions are planned to address

different practice areas even more directly,Also look forward to the golf tournamentthis year at beautiful Park Meadows. Takethis opportunity to get ethics training on auseful, practical level, while enjoying thesurroundings of Park City,CLE Credit: 3 hours in EthicsDate: September 19, 1992Place: Olympia Hotel, Park City

Fee: $50, $42 for GolfTime: 9:00 a.m, to 12:00 noon-

Seminar1 :00 p,m, - Golf Tournament

ULTIMATE TRIAL NOTEBOOKSponsored by the State Bar of Nevada

and cosponsored by the Utah State Bar.CLE Credit: Approx. 12 hoursDate: October 8-9, 1992Place: To be determined

Fee:Time:

call8:00 a.m, to 5:00 p.m.

ENVIRONMENTAL AUDITINGCLE Credit: 4 hoursDate: October 30, 1992Place: Utah Law & Justice Center

Fee: callTime: 8:00 a.m. to 12:00 p.m,

1992 FALL ESTATEPLANNING INSTITUTE

For more information and to register forthis, contact David Castleton at 521-9000,CLE Credit: Approx. 7 hoursDate: October 30, 1992Place: Litte America Hotel,

Salt Lake$100.00 (plus MCLE fee)8:00 a.m. to 5:00 p.m,

Fee:Time:

Mark Your Calendars!The annual seminar, "CLE for the GeneralPractitioner" sponsored by WestminsterCollege and the Utah State Bar, wil beheld November 20 & 21, 1992. This 12hour CLE program features topics directedtowards those in a general practice orthose practicing in small firm and solepractitioner situations. Watch for futuremailings on this.

r - - - - -- -- - - - - -- - - - - - -- - - - - -- - - - -- - -- - - - - - - - - -- - - - - -- - - - - -- - --- -- - -,

TITLE OF PROGRAM

CLE REGISTRATION FORMFEE

i.

Total DueMake all checks payable to the Utah State Bar/CLE

Phone

City, State, ZIP

American ExpresslMasterCard/VISA Exp. Date

Please send in your registration with payment to: Utah State Bar, CLE Dept., 645 S, 200 E., S.L.C., Utah 84111. TheBar and the Continuing Legal Education Department are working with Sections to provide a full complement of liveseminars. Please watch for brochure mailngs on these.

Registration and Cancellation Policies: Please register in advance as registrations are taken on a space available basis.Those who register at the door are welcome but cannot always be guaranteed entrance or materials on the seminar day. Ifyou cannot attend a seminar for which you have registered, please contact the Bar as far in advance as possible. Norefunds will be made for live programs unless notification of cancellation is received at lease 48 hours in advance.Returned checks will be charged a $15.00 service chargeNOTE: It is the responsibility of each attorney to maintain records of his or her attendance at seminars for purposes of the2 year CLE repOlting period required by the Utah Mandatory CLE Board.


2,

Name

Address

Bar Number

Signature

For rates or information regarding classified advertis-ing, please contact Leslee Ron at (801) 531-9077.CA VEA T - The deadline for classified advertise-ments is the first day of each month prior to themonth of publication. (Example: May 1 deadline forJune publication). If advertisements are received laterthan the first, they will be published in the next avail-able issue. In addition, payment which is not receivedwith the advertisement wil not be published. Noexceptions!-INFORMATION REQUESTEDSeeking my uncle's attorney. Maurice EugeneThompson passed away on May 15, 1992. Iknow he had a wil with you. Please contactDarla Kennedy at (818) 919-7221 or (818)334-9058; or write to 1012 East Vine, WestCovina, California 91790, Claims have beenmade that there was no will.-BOOKS FOR SALEUSED LAW BOOKS - Bought, sold andappraised. Save on all your law book andlibrary needs, Complete Law Library acquisi-tion and liquidation service. John e. Teskey,Law Books/Library Services. Portland (503)644-8481, Denver (303) 825-0826 or Seattle(206) 325-1331.

CCH Federal Tax, CCH Fed, Estate-Gift Tax,CCH Fed. Securities Rptr., RIA PensionCoord., BNA Tax Man, Portfolios, U.S. CodeAnnotated and U.S. Tax Cases (CCH). ContactKristen (80 I) 355-9333.

A complete set of 1991 Martindale-HubbellLaw Directories. Please contact Ashley at Flan-ders & Associates (801) 355-3839 for moreinformation.-OFFICE SHARING/SPACE AVAILABLENewly finished, deluxe, professional officespace for two attorneys and staff, Approxi-mately i ,300 sq. ft. 7821 South 700 East.Space includes two private offices, receptionarea, conference room, library, fie storage, andmuch more. Convenient parking immediatelyadjacent to building for both clients and staff,Call (801) 272-1013.

Deluxe office space for one attorney and secre-tary. 4212 Highland Drive. Office share withtwo other attorneys. Facilities include profes-sionally decorated reception area and commonareas, conference room, limited library. Entirespace finished in oak. Convenient parkingimmediately adjacent to building for bothclients and staff. Call (801) 272- io i 3.

Professional office suites available with sharedsecretarial, reception, telephone services.Roomy window offices, great for individualpractice, with view of A venues or Salt LakeValley. Prestigious South Temple location is

I~convenient to courts. All office equipment andservices in place. Free covered parking. ContactKaren or Francine at (801) 359-0052.

Attractive office space is available at primedowntown location, in McIntyre Building at 68South Main Street. Single offices complete withreception service, conference room, telephone,fax machine, copier, library and word processingavailable, For more information please call (801)531-8300.

Office sharing arrangements available, down-town Salt Lake City, Kennecott Building. Renton month-to-month basis, furnished or unfur-nished. Monthly rental would include phone andreceptionist service, Other office services avail-able as requested. Call Mike for further details at(801) 530-7436.

Small established law firm in Downtown Ogdenseeks lawyer to share space and equipment.

Close to District and Federal Courts. Call (801)62 i -4430 and request information from Steve orCarol.

Deluxe building with beautiful view, centrallylocated, in Brickyard Tower, 1245 East 3120South. Plenty of free parking. Close to freewayand 700 East, just ten minutes to Court. Sharecomplete facilities with four established attor-neys. Reception, library, telephone, fax, copier,file room, etc. Space for your secretary. CallGeniel (801) 484-21 i 1.

Attractive office space, great downtown locationat very reasonable rates. Shared secretarial, wordprocessing and reception services. Space avail-able for your own secretary. Space includes useof reception area, conference room, copier, fax,telephone and library. For more information, call(801) 363-3550.

ONE OR TWO offices available with establishedattorney in Sandy, Utah. Facilities include tele-phones, FAX services, photocopying, library,kitchen and parking. Reception and secretarialservices or space is available if desired. Subleasefor either a limited or long-term period, rentnegotiable, Some referral and rent offset avail-able. Call (801) 566-4000.

The Newhouse Building has space available forfull-service leasing, including 2,500 square feeton the sixth floor. The interior walls can be builtto tenant specifications. Also available is a suiteof four unique offices and a reception area (I 38 isquare feet total) offering ground-floor accesswith sixteen foot windows overlooking a brickplaza. Other suites are also available or can bebuilt to tenant specifications. Convenient accessto Federal Courts, state offices and freeway.Fully-secured reserved parking with 24-houraccess is available at the Exchange Place garage.Call (80 I) 322-930 i for information on avail-

ability and rates.

Deluxe downtown office available; prime loca-tion, close to courts. Receptionist, photocopier,conference room, telephone, fax. Reasonablypriced. For more information, please call (801)263-1200.

Choice office sharing space for rent in beauti-ful, historic building in Ogden, Utah. Severaloffices available. For information please con-tact (801) 621-1384.-POSITIONS AVAILABLEGrowing intellectual property law firm seekspatent attorney with at least one year of patentprosecution experience and a degree in chemi-calor biological discipline. Our practice is

diverse within all areas of intellectual propertylaw and related litigation; however, this posi-tion would initially emphasize chemical patentprosecution. Excellent partner potential andsignificant initial responsibility. Please reply inconfidence to Madson & Metcalf, 36 SouthState #1200, Salt Lake City, Utah 84111.-POSITIONS SOUGHTAttorney position wanted: Nine years litigationand trial experience mostly in Personal Injurylaw. Seek position in plaintiff or defense firm.Licensed in California and Utah, Call AlbertW. Gray at (801) 583-5852.

Seeking administrative position with law firm.Master of Professional Accountancy with 5-years business management and 3-yearsaccounting experience. Extensive computerbackground. Excellent interpersonal skils,Experience includes developing overhead rate;job costing; staff supervision; payroll (includ-

ing all tax filings); and financial statementpreparation. For interview and resume call(801) 272-9867.

Legal Assistant and Office Manager with 15years experience seeking employment in theSalt Lake or Logan areas. Extensive experiencein litigation, collections, estate planning,bankruptcy and domestic law. Will sendresume and references upon request. Please callJanet at (801) 265-1724 and leave message.-SERVICESNeed lawyer support-temporary help? Morethan 2000 experienced attorneys beginning at$25.00/hour. All legal specialties. CallI -800-835-3561.

RUSSIAN LEGAL RESEARCH. Former guestinstructor at Moscow State University hasresources in place to research evolving lawsand regulations in Russia, Please call David at(801) 487-7643.

46 Vot. 5 No.7