A lot of clients want a bulldog for an attorney.  They want someone to do the dirty work for them.

Attorney Charles Schultz, a Brigham City Attorney, took it too far.

Here are some very aggressive tactics he recently used:

• Called an opposing attorney a “lying piece of trash.”
• Called judges “revenue collectors in black dresses.”
• He consistently used a lower case j when naming judges in pleadings.
• Refused to use the word judge when referring to judges.

The Utah State Supreme Court said enough is enough.  Mr. Schultz was publicly reprimanded for that behavior.

Gloria Allred has been in the news.  She “represents” a woman who claims to have been sexually harassed and assaulted by Herman Cain.

I put represents in quotation marks because the form of representation is different than the normal representation attorneys do for their clients.

Attorneys are taught in law school that when the represent a client, they owe a duty to that client to pursue the best interests of the client within the ethical rules.  The attorney must zealously represent the interests of the client but cannot allow the client to lie or commit fraud.

That’s what I don’t get.  What interest is Gloria Allred pursuing for this woman?  I can’t see any.  Further, how does going on the Today show, and other national news broadcasts help the client?  I can’t imagine.

You may remember when Gloria Allred “represented” a Hispanic woman who illegally worked for Meg Whitman.  Gloria Allred held a major news conference in which the woman told her story.  Many believe that Meg Whitman lost the California gubernatorial election over the issue.  I’ve scratched my head wondering how that Hispanic woman was benefited by those news conferences.  Common sense tells you that illegal immigrants do their best to fly under the radar.  Illegal immigrants do not hold press conferences proclaiming their legal status.

I hate to say it but I see only one person who benefits from the publicity.  That person is Gloria Allred. She gets free advertising and presumably picks up clients as a result.

I’m embarrassed to be in the same profession as Gloria Allred.  She puts her own need for publicity ahead of her clients.  She does not uphold the noble tradition to which attorneys should aspire.

The Browns, famous as the polygamous family on the TLC television show “Sister Wives” has filed a lawsuit in federal court to legalize polygamy.  The lawsuit has been filed in Federal Court in Salt Lake City and names Governor Herbert, Attorney General Shurtleff and County Attorney Buhman as defendants.

Here is the Brown’s argument:

1.  The State of Utah does not prosecute adulterers or homosexuals;

2.  We did not obtain multiple marriage licenses;

3.  We hold ourselves out to be married but as far as the State of Utah is concerned, we are not legally married;

4.  We are being singled out for potential criminal prosecution.

They point to a 2003 U.S. Supreme Court case, Lawrence v. Texas.  In that case, Texas prosecuted a homosexual couple for engaging in homosexual conduct.  The U.S. Supreme Court held the Texas statute unconstitutional.

The Browns are careful to point out that they are not trying to end the ability of Utah to refuse to officially recognize polygamous marriage.  Instead, they want to stop Utah from prosecuting those who claim to be living in a polygamous marriage but have never obtained multiple marriage licenses.

It will be interest to see how this turns out.  It looks to me like Utah has a tough case.

Late last week, the Court of Appeals threw out an appeal because the notice of appeal had not been filed in a timely manner.  Here is what happened.

A judge signed a final judgment and dated it.  Because the case was in juvenile court, the losing party had 15 days to file the notice of appeal.  The notice of appeal is merely a piece of paper, usually one page, that is filed with the court.  It simply says that the party is going to appeal the case.  Unfortunately, the losing party did not file the paper on time, the appeal was untimely, so the Court of Appeals threw it out.  The poor guy gets no appeal.

Several attorneys have expressed concern to me recently about inefficiency in the court system depriving litigants of their right to file an appeal.  Here is one recent story from an attorney in Salt Lake County.

The Judge signed the judgment on February 25, 2011.  The judgment is a piece of paper.  The Judge put the piece of paper on his clerk’s desk.  She was supposed to make an entry into the court computer system and then mail a copy of the judgment to all of the attorneys involved.  Unfortunately, the clerk didn’t do that.  The paper sat on the clerk’s desk until April 1 when the clerk entered it into the computer system.  The clerk never mailed a copy.

The attorney was worried about a judgment being entered and checked the court computer system every couple of days during the entire month of March.  The computer system showed no judgment until April 1.  Now the attorney wants to file an appeal but faces a very real possibility that the appeal will be thrown out because it was not filed timely.

I’ve talked to other attorneys who say this is happening in Salt Lake County, Utah County and Washington County on a regular basis.

I can only speculate to what is happening.  (1) the courts have been operating short staffed under tight budgets for the last few years and the clerks may simply be overworked.  (2) the court has been upgrading to a scanned document system and it may take extra work to enter documents into the court computer system.

I haven’t personally experienced a problem of judgments sitting on the clerk’s desk for a long period of time.  If true, it is a huge problem.  The courts need to get their act together.

The Court of Appeals has reversed a decision made by a juvenile court trial judge finding that a school teacher emotionally neglected a student.

Judge Kathleen Nelson sided with the Division of Child and Family Services when she found that a teacher, identified only as K.Y. had emotionally neglected a student.  The finding was based on a single incident that occurred in 2007.

On the second day of school, the third grade student was fidgeting and kept taking things out of her desk while K.Y. was speaking.  K.Y. admonished her several times but the student wouldn’t stop.  Finally, K.Y. placed a single piece of scotch tape over the student’s wrists and attached it to each side of the desk.  The student could have removed her hands but didn’t because she didn’t want the teacher to be mad at her.  The teacher left the tape on for two minutes.

DCFS investigated the incident and offered counseling services to the student.  The parents of the student denied counseling.  DCFS then found that K.Y. had emotionally abused the student.  This was important because as a public school teacher, this type of finding could ruin the teacher’s career.  The teacher appealed and an administrative law judge agreed with DCFS.  The teacher again appealed.  This time, Judge Kathleen Nelson disagreed with DCFS, finding that no physical or emotional abuse occurred because the student felt no pain and could have moved her hands if she chose to.  Judge Nelson did find that K.Y. had emotionally neglected the student.

The Court of Appeal disagreed.  The court of appeals found that DCFS and Judge Nelson did not follow the law as enacted by the legislature.  Instead, they followed the law as contained in the DCFS policy manual.  Because the legislature passes laws, not DCFS employees, K.Y. was not guilty of abuse or neglect.

In my opinion, DCFS and the Juvenile Court’s need to change.  This case should have never been pursued by DCFS.  Unfortunately, there are many cases similar to this that are pursued by DCFS on a regular basis.  The existing culture within DCFS is out of touch with Utah standards and ideals.  Almost every case worker at DCFS has a bachelor’s degree in social work and is one of two years out of college.  Very rarely have any caseworkers had any experience raising children of their own.  DCFS employees know that they are out of touch with the people of Utah and view their work as an us versus them battle.  I once had a DCFS psychologist tell me that students who get bad grades have bad parents and students that get good grades do so despite their parents.  That type of attitude is rampant in DCFS.  That attitude is shared by those who work in the guardian ad litem’s office. In the hundreds of cases I’ve handled in Juvenile Court, I can count on one finger the number of times that the Guardian ad Litem’s office disagreed with DCFS.

The Juvenile Courts need to change as well.  Almost all of the Juvenile Court Judge’s in our State are pulled from the ranks of DCFS or the Gurdian ad Litem’s office.  They share the culture and beliefs of DCFS.  In my experience, representing hundreds of parents in Juvenile Courts, the Juvenile Court Judges rarely disagree with DCFS.

The Utah State Bar is a quasi-governmental organization responsible for licensing attorneys in the State of Utah.  One of its duties is to administer the bar exam twice per year.  Ryan McBride, a Provo attorney and 2009 BYU law school graduate, took the bar exam in July 2009.  Only problem was that he forgot to electronically submit his essay on time.  He was disqualified from the bar exam.  He retook and passed the bar exam in February 2010 and is now licensed to practice law.

Nevertheless, he sued the Utah State Bar for violating his due process and equal protection rights.  He lost.  The Supreme Court said the bar acted reasonably.  That decision was published today.

Another function of the Utah State Bar is to discipline attorneys who act unethically.  Each month the State Bar releases the results of those discipinary hearings.  For some reason, the bar does not store them on its web site in an easy to access format.

I thought it might be of interest to my readers so I’m condensing that information here.  I’ll limit it to attorneys with some connection to Utah County just to keep the list shorter.

Barnes, Timothy — Public Reprimand — reported in the Utah Bar Journal January 2010.

Culas, Roberto G. — Public Reprimand — reported in the Utah Bar Jounral May 2010.

Culbertson, Richard J. — Disbarred — reported in the Utah Bar Journal December 2009.

Hamilton, Jerome R. — Disbarred — reported in the Utah Bar Journal September 2010.

Heugly, Dusten L. — Public Reprimand — reported in the Utah Bar Journal September 2010.

Johnson, S. Austin (two matters)– Public Reprimand — reported in the Utah Bar Journal May 2010.

Johnson, S. Austin (four matters) — Public Reprimand — reported in the Utah Bar Journal November 2010.

Larry, Long N. — Public Reprimand — reporated in the Utah Bar Journal January 2010.

MacNeill, Martin J. — Resignation with Discipline pending — reported in the Utah Bar Journal September 2010.

Nelson, Bruce L. — Public Reprimand — reported in the Utah Bar Journal May 2010.

Nemelka, Richard — Suspended from the practice of law — reported in the Utah Bar Journal September 2009.

Turcotte, David G. — Public Reprimand — reported in the Utah Bar Journal December 2009.

On Friday, the Utah Court of Appeals threw out a case filed by a Utah County couple against the Division of Child and Family Services, a division of the Utah State Government.  The case arose when Ryan and Lene Morford adopted a boy.  The boy had been in foster care with DCFS and the parental rights of his natural parents had been terminated.  Shortly after the adoption, the boy sexually abused the Morford’s daughter.

The Morford’s claimed that DCFS was negligent and had breached several contractual provisions contained in the adoption contract.

Attorney Ron Wilkinson represented the parents.  The Court of Appeals threw the case out, finding that the brief did not comply with the law.  Some of the problems that the Court of Appeals found with the brief were that the table of authorities was incorrect, it did not contain citations to the trial court record and the brief did not contain the full text of the statutes supporting the Morford’s arguments.  The court stated, “most significantly, the argument section of the Morfords’ brief does not contain any meaningful legal analysis supported by relevant authorities that would enable this court to consider the Morfords’ arguments.”

Because of those deficiencies in the brief, the Court of Appeals refused to hear the case on its merits.

The Court of Appeals issued a decision today in which it gave $500,000 in life insurance proceeds to Rebeka Andrus.  Rebeka was married to Jared Andrus.  Together, they bought a life insurance policy for $500,000 on Jared’s life.  Five years later, Jared got cancer.  The cancer progressed rapidly.  When Jared became very ill, his father, Walter Andrus was appointed as his legal guardian.

Dad called the life insurance company and got a change of beneficiary form.  He filled it out but never got Son to sign it.  When Son died, Dad sent the form to the Life Insurance Company and claimed the $500,000 in life insurance proceeds.

Dad claimed that being his son’s legal guardian gave him the legal right to change the beneficiary.  The court disagreed.

The court held that being some one’s legal guardian is not enough to change the beneficiary on their life insurance policy.  If Dad wanted to do that, he needed to go the court and get a specific order allowing him to do that.  Since he didn’t do that, the change was ineffective.  Daughter-in-law gets all of the insurance money.

Members of the Utah Legislature are throwing around various ideas on immigration reform.  It looks like a bill will be introduced in the next legislative session in February 2011.  We don’t know what that bill will look like.

The speculation is that it will look somewhat like the Arizona bill.  I hope not.

If Utah wants to pass immigration reform, Utah could easily do so while avoiding the pitfalls of the Arizona law.  Here is what Utah (and the Federal government, for that matter) should do.

As an economics major in college, we studied supply and demand.  If immigration is looked at from a supply and demand perspective, the follies of the current system become obvious.  Arizona attempts to cut off the supply by deporting illegal immigrants.  At the same time, Arizona increases the demand.  The Arizona law specifically makes it more difficult to prosecute a U.S. based business for hiring illegal immigrants.  When you cut the supply and raise the demand for any product, the price goes up.  If the wages of illegal immigrants go up, more illegal immigrants will cross the border and seek employment in the U.S.  The problem will only get worse.

To solve illegal immigration, the demand must be reduced.  That means that U.S. employers must not be givn immunity for hiring illegal immigrants.  Instead, U.S. employers must take responsibility.

Currently, many U.S. employers complain that they are punished for obeying the law.  A U.S. employer who refuses to hire illegal immigrants has a higher cost of labor and cannot effectively compete in the market place with companies who hire illegal immigrants.  Effective immigration reform should take away that incentive.

Federal law already requires employers to verify the legal status of all employees through the I-9 process.  When employers fail to verify employment status, employers face no consequences.  No one follows up.

Utah law now requires all employers with 15 or more employees to e-verify employment eligibility.  If an employer fails to do so, the employer faces no adverse consequences.

I propose punishing employers who hire illegal immigrants.  The gut reaction is to charge employers with a crime.  Doing so is a serious threat but in reality, few prosecutions will occur.  The standard of proof required is too high.

Instead, employers should be punished by losing the right to count that employees wages as a business expense for tax purposes.  If employers cannot “deduct” the wages of illegal immigrants, employers will not demand illegal labor as highly.  The result will be lower wages for illegal immigrants and accordingly, fewer will cross the border looking for work.

Elena Kagan should not be on the Supreme Court.  Her track record shows she does not value individual freedom.  Any Supreme Court justice must hold freedom dear.  That shortcoming disqualifies her for the court.

When I was a law student at Brigham Young University, we had a career services office.  The career services office welcomed all employers.  We had oil companies, environmental groups, prosecutors, criminal defenders, insurance defense firms and trial attorneys.  The school did not act paternalistically by banning some employers and allowing others.  Instead, the school treated the law students like adults and let us decide who we wanted to work for.

While at Harvard, Kagan banned the U.S. military from recruiting on campus.  President Obama has defended the action by claiming that she only banned the military from recruiting at the law school.  I say, so what.  It doesn’t matter whether you agree with the Iraq war or the Bush war on terror.   In my mind, she showed contempt to the law students at Harvard by taking away their choice to join the military.  Her actions show a dangerous elitist trait in which she believes that she has the right to impose her beliefs on other adults.

Her actions at Harvard are not the only troubling  about her.  She also wrote a law review article in which she urged the Supreme Court to change current law to allow the government to ban hate speech.  Some governments have already done that.  For example, in Germany it is illegal to display a swastika.  The U.S. Supreme Court has refused to ban hate speech.  It still holds that all political speech is protected.

The trouble with changing the law and allowing the government to ban hate speech is where do you draw the line.  Some people with political leanings similar to Kagan view a lot of speech as hate speech.  You don’t have to stretch very far to find a situation where Kagan might believe that speaking against gay marriage is hate speech.  What about the tea party movement.  Some have characterized that movement as hate speech.

A Supreme Court justice is given a life time appointment with free reign to shape U.S. law.  We should not be appointing justices who do not value freedom over pushing a certain ideology.  Kagan’s history shows she lacks this essential attribute.