Rules Governing the Utah State Bar

NLTP Petition. Petition to establish a new lawyer training program with all exhibits including proposed rule amendments.
Affected Rules:
USB 14-0402. Definitions. Amend. Exhibit 13.
USB 14-0404. Active status lawyers: MCLE, NLTP and admission on motion requirements. Amend. Exhibit 10.
USB 14-0415. Failure to satisfy MCLE requirements; notice; appeal procedures; reinstatement; waivers and extensions; deferrals. Amend. Exhibit 11.
USB 14-0417. Miscellaneous fees and expenses. Amend. Exhibit 12.
USB 14-0705. Admission on motion. Amend. Exhibit 9.
USB 14-0801. Definitions. Amend. Exhibit 8.
USB 14-0808. New lawyer training program. Amend. Exhibit 7.

Utah Courts

View more posts from this author
4 thoughts on “Rules Governing the Utah State Bar
  1. Paul Wake

    When I saw the NLTP lists of things for new lawyers to learn about particular areas of the law, I thought for a moment I was looking at a new design for a law school curriculum that would actually teach law students something. But no. It’s a plan for fixing the damage afterward, when people are already supposed to be capable of practicing law.
    Page 73: “In a juvenile delinquency case…,” not “In a Juvenile criminal case….”

  2. Frank Carney

    A minor point: the “Mentor Volunteer Form” requires a (jurat) notarization. But Utah has recently changed its statute to remove the necessity for the use of a Notary Public in most litigation contexts through the use of unsworn declarations, and this simplification of the process might be followed here:
    78B-5-705. Unsworn declaration in lieu of affidavit (1) If the Utah Rules of Criminal Procedure, Civil Procedure, or Evidence require or permit a written declaration upon oath, an individual may, with like force and effect, provide an unsworn written declaration, subscribed and dated under penalty of this section, in substantially the following form: “I declare (or certify, verify, or state) under criminal penalty of the State of Utah that the foregoing is true and correct. Executed on (date). (Signature)” (2) A person who knowingly makes a false written statement as provided under Subsection (1) is guilty of a class B misdemeanor.
    I suggest that page three of the Mentor Volunteer Form be amended to require only the 78B-5-705 statement, eliminating the need to track down a notary in the office.
    Again, I recognize that it’s a minor point, but this would be a change that saves the prospective mentor a bit of hassle.
    More importantly, it comports with the general trend to eliminate the need for the formalism of notarizations, when unsworn declarations accomplish the same thing.
    Unsworn declarations under oath are something that should be used in lieu of notarizations in all bar applications and filings where an oath is required, and this new form would be a good place to start the simplification process.
    Francis J. Carney
    3 October 2008

  3. Rosemary N. Palmer

    Dear Supreme Court,
    When law schools and the bar exams inadequately prepare students (and/or demonstrate that preparedness), the solution is to fix the law school and the bar exams, not to impose additional obligations on new attorneys.
    Further, compelled participation in any learning experience is unnecessary for any willing participant and ineffective for unwilling ones. Neither the Utah Bar, nor any other bar association has ANY objective data that required mentoring programs improve either the practice of law generally, decrease bar complaints, or protect the public. (Indeed, the number and seriousness of bar complaints appears to increase year to year despite the CLE requirements and mentoring programs: doesn’t every state bar have more complaints now than before they required mandatory CLE, and a higher percentage as well?) And without that objective data, compelled participation is (or ought to be) and unconstitutional taking of private property (the attorney’s time and money) without just compensation.
    I reviewed the proposed mentoring program, and I think that it could be helpful to some. But anyone who thinks that firms/attorneys who want to pencil whip it will not do so, and those who take it seriously wouldn’t have assured their new hires the mentoring experience anyway, has to be naive. The requirement will not change anything for firm hires: while it will add considerable burden to sole proprietors, and the less well connected.
    I do not understand what having malpractice insurance has to do with whether or not one can be a good mentor: malpractice insurance won’t cover the mentor’s failure to provide appropriate support to the mentee. And since there is no obligation to carry malpractice insurance anyway (and no good reason to make an attorney carry it either: indeed some would argue that malpractice insurance coverage encourages clients to sue attorneys), making that a condition of being a mentor seems to be a placeholder for some other unnamed screening criteria, which would mean the proposal fails to give notice of the real criteria. What is the defensible basis for this requirement? Perhaps a better approach would be to require a discussion of the pros and cons of malpractice insurance (and other insurance, most notably disaster insurance and data recovery).
    I read that a Justice suggested the mentoring program (though not that it become mandatory, apparently), and I therefore realize that there is political impetus. But please consider making it voluntary rather than mandatory, until or unless the bar has actual data that this condition (mentoring in this particular, CLE generally) of licensing is not arbitrary and capricious.
    Rosemary N. Palmer

  4. John L. Fellows

    This response raises specific practical and philosophical concerns with the proposed New Lawyer Training Program. It urges the court to direct the New Lawyer Training Committee to modify the program to more directly address non-traditional law practices or to develop an alternative approach that addresses the philosophical concerns raised here and by other commenters. While the committee has analyzed the need for new-lawyer mentoring and created a program that unquestionably addresses that stated need, we are concerned about the program for two major reasons. First, we are concerned that alternative types of law practice are not adequately addressed and may face hurdles in getting training plans approved. Second, the suspension of a lawyer’s license for failure to complete the program is too severe a punishment for a program that, while perhaps desirable, has apparently not been judged to be vital to the initial admission of a lawyer.
    Although many lawyers choose to practice in large, full-service law firms, many also choose a more narrow, specialized practice. Government lawyers, corporate in-house counsel, and lawyers representing non-profits have law practices that require specialized knowledge and different skills than a more traditional legal practice. For example, the Office of Legislative Research and General Counsel consists of attorneys who act as in-house counsel for the Legislature. In performing that role, we do not regularly participate in litigation or transactional work. We research public policy issues, draft legislation, advise legislators and committees on constitutional and other legal issues raised by proposed legislation, and provide other types of general legal advice to the Legislature and its committees, members, and staff on a whole array of matters. Contracts, depositions, motion hearings, and the like are not part of our day-to-day work — in fact, we perform them only occasionally. While the proposed program appears to allow widely varied plans, we are concerned that a plan that would adequately prepare a lawyer to practice in our office might be denied. One specific concern is that the plan will be used to require training outside a lawyer’s practice area, thus necessitating our office (ultimately the taxpayers) to pay the bill for training lawyers in ways that are not likely to be needed in their practice in our office. Attorneys working in other non-traditional law practices will incur some of these same problems.
    A potential, unintended consequence of this program is that government offices and other non-traditional law practices would cease to hire new graduates because they are unwilling to devote the time and their limited fiscal resources to designing, supervising, and funding a mentoring program for a new attorney. Furthermore, having an outside mentor would be counter-productive: the informal norms and practice protocols of a specialized practice require that, to be effective, the new lawyer should be trained by someone experienced in that specialized practice. If an outside mentor were to be used, the non-traditional law practice would still need to train the new lawyer to prepare the lawyer for the his or her employment.
    A lawyer in a non-traditional law practice is no less a lawyer than one in a traditional practice, yet the program as outlined so far leaves us wondering whether the NLTP office would approve an Office of Legislative Research and General Counsel training program that is robust and geared toward giving a new lawyer the tools necessary to perform well in our practice. Even if a plan mirroring our current training system were approved, the time and expense of meeting the program’s administrative requirements adds time and expenses not currently incurred by our office. The New Lawyer Training Program appears ill-suited to non-traditional law practices and imposes unnecessary time and expense requirements. We urge the Court, if it approves the program, to direct the committee to modify the program to address these concerns.
    Looking at the proposed program more broadly and philosophically, we are also concerned with the program’s mandatory nature and the severe consequences for failure to satisfy the program. This new program essentially imposes a new third requirement in order to practice law in Utah. In addition to graduating from an accredited law school and passing the bar exam, new lawyers would also need to complete this proposed mentoring program. The Court and the Bar should consider seriously whether we should take this momentous step without more input and discussion among and between Utah lawyers. There are alternatives to this brand-new requirement. If our law schools are turning out students who, having passed the bar exam, are nevertheless not ready to practice law, the law schools should change their curriculum and the Bar should change its examination and admissions process. If, however, the newly-minted attorney is capable of practicing law, as determined by the law school’s grant of a diploma and the Bar’s admittance, then the failure to complete a mandatory mentoring program, no matter how desirable the program might otherwise be, ought not to be cause to take from the lawyer the license granted upon the lawyer’s having proved his or her capability through passage of the bar exam.
    The power wielded by the Bar to regulate the legal profession–through the Court’s delegation–is one not to be taken lightly. The practice of law is a regulated monopoly. The taking (or suspending) of a professional license once granted ought to be done only when necessary. A lawyer who doesn’t pay dues threatens to upset the profession’s regulation by starving it of administrative funding. A lawyer who is incompetent or unethical threatens the profession for obvious reasons. It has not been established, nor is it conventional wisdom, that a lawyer who is otherwise judged capable, but hasn’t been mentored, poses a threat to the profession. Thus, suspending a lawyer’s license for failure to complete the program seems disproportionate to the program’s aims and benefits.
    In the conclusion of the Bar’s petition to the court to establish this program, the Bar speaks of the benefits of the program by pointing to an “opportunity for training” and “an opportunity to enhance the enjoyment of practicing law . . . .” In the section of the Bar’s proposed manual for the program that discusses the program’s history, the major impetus for the program appears to be law firm retention. This may be a noble aim, and good for business–particularly for law firms. Assisting law firms in retaining new attorneys seems not to be an appropriate subject for the Court and the Bar to regulate, particularly by wielding a sword against lawyer’s licenses.
    If newly-minted lawyers are not ready to practice law, the court should say so and require some level of mentoring before admission. If they are ready to practice law only with supervision, the court should say so and require it. If, on the other hand, these new lawyers and the profession would merely be better off with better mentoring, an optional program without a recision of the lawyer’s privilege to practice law should be implemented. If that sort of program is not economical or suffers from other barriers, those barriers should be independently addressed, not addressed bluntly by an injudicious use of the Court’s power to regulate the practice of law.
    As noted above, we are concerned with the specific manner in which the New Lawyer Training Program might be applied to non-traditional law practices such as ours. We hope that if the court adopts this program, the court and its delegees will be flexible in their approval of plans for a law practice that does not fit the traditional practice models. We are also concerned with the mandatory nature of the program and with the severe consequences for failing to comply. We urge the court to disapprove the program and its accompanying rules in their current form and to consider whether such a program is appropriate at all. If the court wishes the Bar to implement some sort of mentoring program, it should direct the committee to consider ways to exempt or accommodate non-traditional law practices and should consider a voluntary program or one that is applied more narrowly to the traditional law firm practice.
    John L. Fellows
    Legislative General Counsel
    on behalf of the Office of Legislative Research and General Counsel