Utah Digs Deep and Finds “Design Defect” Includes Pre-Construction Geotechnical Reports

Kyle Rice | White and Williams

The Supreme Court of Utah recently found that an incorrect pre-construction geotechnical engineering report is a “defective design.” Thus, actions arising from an incorrect geotechnical report are appropriately governed by Utah’s Economic Loss Statute (Statute), Utah Code Ann. § 78B-4-513(1).

Hayes v. Intermountain GeoEnvironmental Servs. No. 20190764, 2021 UT 62, 2021 Utah Lexis 144, arose out of a suit filed by homeowners Kim and Nancy Hayes (the Hayeses). The Hayeses’ home was part of the Quail Hollow subdivision in Layton, Utah, which was developed by K.C. Halls Construction, Inc. (K.C. Halls). Prior to construction, K.C. Halls contracted with Intermountain GeoEnvironmental Services, Inc. (IGES) for a geotechnical report of the planned development to comply with the requirements of Layton City. The report found that “the subject site is suitable for the proposed construction” and made recommendations to ensure foundational integrity for future construction. The Hayeses ultimately purchased a lot from an agent for K.C. Halls and hired Bob Stevenson (Stevenson) to construct the home. About 14 months after the completion of construction, the Hayeses noticed cracking in their foundation walls.

After discovering the cracking in the foundation, the Hayeses filed suit against K.C. Halls, Stevenson and IGES for damages. The counts against IGES included negligence, negligent misrepresentation and negligent infliction of emotional distress, focusing on the allegation in each count that IGES’s report incorrectly stated the property was “safe and suitable” for residential construction.

IGES moved to dismiss the complaint, alleging that the Hayeses’ negligence claims were barred by both the common law economic loss rule and Utah’s Economic Loss Statute because the Hayeses were seeking compensation for purely economic losses and the case was an action related to “defective design.” The district court granted the motion and its ruling was subsequently affirmed by the court of appeals. The Hayeses petitioned for certiorari, which was granted to address whether the court of appeals erred in its interpretation and application of the Statute by holding the Hayeses’ tort claims “amounted to an ‘action for defective design and construction as that term is used in the [S]tatute.’”

The court began with an analysis of the economic loss rule. The economic loss rule places limits on tort claims for purely economic losses by creating a “fundamental boundary between contract law, which protects expectancy interests created through agreement between the parties, and tort law, which protects individuals and their property from physical harm by imposing a duty of reasonable care.” The common law economic loss rule was first adopted in Utah in American Towers Owners Ass’n, Inc. v. CCI Mechanical, Inc., 930 P. 2d 1182 (Utah 1996).

The court noted the exception to the common law economic loss rule regarding an independent duty of care. If a duty of care exists independent of any contractual obligations, the economic loss rule is excepted, and a tort claim may be brought. The court further noted that after the court’s adoption of the common law rule in 1996, in 2008 the Utah legislature codified the economic loss rule with respect to actions “for defective design or construction.” The Statute does not contain the same exception as the common law rule regarding an independent duty of care.

Given the statute, the threshold question was whether to apply the statutory or common law economic loss rule to the Hayeses’ claim—that is, whether IGES’s geotechnical report was a “defective design.” If the report qualified as “defective design or construction,” the Statute applied. If the report was not “defective design or construction,” the Statute did not apply. If the Statute did not apply, the Hayeses argued the claim was subject to the common law exception to the economic loss rule involving the violation of an independent duty of care.

To determine whether this action was subject to the Statute, the court analyzed what constitutes a “defective design.” The court noted while the Statute governs defective design and construction claims, it never actually defines the word “design.” The Hayeses argued the appropriate definition would be based on those found in the dictionary, such as “to make or draw plans for something” or “a drawing or set of drawings.”

The court found that while the ordinary meaning of a word is “powerful evidence,” it must consider the meaning intended in the context of the statute. If words are used in a “technical sense,” they must be construed within that technical context. As such, the court stated that the term “design” must be interpreted within the realm of construction or engineering.

Analyzing the legislature’s use of the term “design professional” in other statutes and after considering the definition for an “engineering design” utilized by The Accreditation Board of Engineering & Technology, the court defined the term broadly and agreed with the finding of the Court of Appeals that “[a] geotechnical engineer is often an essential participant on the design team.” The court further noted the geotechnical report was “an integral part of the structural design of the building’s foundation.” Although the court acknowledged that IGES failed to identify the structural instability in the soil in their geotechnical report, which resulted in the structural instability of the home, given that the building would not have been constructed in the manner it was but for IGES’s report, the court found the IGES report was foundational to the design of the building. As a result, IGES’s work was structural, which was a defective design, and the action was appropriately governed by Utah’s Economic Loss Statute.

Because the loss was encompassed within the Statute, the common law exception for an independent duty of care did not apply. The court noted that the only possible exception to the Statute involves a claimant in privity of contract “based on an intentional or willful breach of a duty existing in law.” However, since the Hayeses were not in privity with IGES, the exception did not apply.

The Hayes case demonstrates that subrogation professionals must always be mindful of economic loss issues when evaluating claims and determining recoverable damages. It is particularly important to analyze any relevant statutes in the state of loss to ascertain whether an economic loss issue may arise, even where it is not facially apparent that it will affect the claim.

In Utah, Asbestos Take-Home Exposure Equates to Damages Exposure For Premises Operators and Contractors

Mark Morris and Tyson Prisbrey | Snell & Wilmer

In its decision Larry Boynton v. Kennecott Utah Copper, LLC, 2021 UT 40, the Utah Supreme Court found that premises operators owed a duty of care to prevent take-home exposure to asbestos dust not only its employees, but also to independent contractors on the premises. The Court found also that by directing a contractor on how to handle asbestos, a premises operator retained control over the contractor’s handling of the asbestos and thus retained the liability.

During the 1960s and 1970s, Larry Boynton was exposed on several job sites to asbestos while working as a laborer/electrician: as an employee of Kennecott Utah Copper, LLC (“Kennecott”) and later as an independent contractor working at Kennecott’s smelter; as an employee of L.E. Myers, an independent contractor at Phillips 66/ ConocoPhillips’s (“Conoco”) oil refinery; and as an employee of Jelco-Jacobsen, general contractor for PacifiCorp to build its Huntington Canyon Power Plant. While working at Kennecott’s and Conoco’s facilities, and while apparently not directly exposed to asbestos, he worked closely with Kennecott and Conoco employees who were working with asbestos-laden material, which allegedly created asbestos dust. While working at the PacifiCorp plant, PacifiCorp did not use its own employees to handle asbestos material, but instead contracted with Jelco-Jacobsen to build the plant and use asbestos-containing material. Larry alleged that during these years, he brought home asbestos dust in his clothes and car, exposing his wife Barbara to asbestos. Barbara was diagnosed with malignant mesothelioma in February of 2016 and died a few weeks thereafter.

Larry filed suit against Kennecott, Conoco, and PacifiCorp for strict premises liability and negligence. The trial court granted summary judgment in favor of two of the operators, finding no duty to protect against “take home” exposure. The Court analyzed the duties owed by Kennecott and Conoco to Barbara based on the take-home exposure of asbestos generated by Kennecott and Conoco employees. The Court then analyzed the duties owed by PacifiCorp to Barbara based on PacifiCorp’s retained control over Jelco-Jacobsen’s work with asbestos.

First, the Supreme Court found that premises operators like Kennecott and Conoco have a duty to exercise reasonable care to prevent take-home expose to asbestos. The Court analyzed the factors to establish a duty of care, concluding that: 1) Kennecott and Conoco caused its employees to handle asbestos, thereby causing asbestos dust to be released, which was an affirmative act; 2) the risk of take-home exposure to asbestos was unambiguously foreseeable at the time; and 3) premises operators are better suited to prevent injury from take-home exposure due to their greater control and knowledge.

Second, the Supreme Court analyzed whether PacifiCorp’s retained control over Jelco-Jacobsen’s work with asbestos would open PacifiCorp to liability for take-home exposure of asbestos. The traditional rule is that the party contracting with an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or its servants because the party who hires the independent contractor does not participate in the way in which the contractor’s work is performed, and therefore owes no duty of care concerning the safety of the independent contractor’s employees. But the Court found that the “retained control” doctrine is a common exception: for example, if the employers of a general contractor retains control over the operative details of doing the work of the subcontractors, the general contractor retains the liability.

The Court found that PacifiCorp’s contract with Jelco-Jacobsen demonstrated that PacifiCorp retained at least some control over Jelco-Jacobsen. The contract explicitly required Jelco-Jacobsen to use asbestos materials, and even required approval from PacifiCorp for any substitution of materials. The contract also provided PacifiCorp the general right to inspect the job and stop work if the job was deemed unsafe. The contract required certain means and methods of the work; PacifiCorp specified how to cut and install insulation, the thickness of the insulation, how to mix the asbestos cement, and how to lay the cement. Finally, the contract provided that PacifiCorp would direct Jelco-Jacobsen in dust control safety measures. These four contractual provisions demonstrated that PacifiCorp retained at least some control over Jelco-Jacobsen such that the Court reversed and remanded for the district court to define the injury-causing activity to determine whether PacifiCorp retained control over any injury-causing activities.

Some take-aways for owners and contractors: First, premises operators dealing with asbestos cleanup have a duty to exercise reasonable care to prevent take-home exposure of asbestos. Second, the duty is owed not only to their own employees, but to contractors present on the premises. Finally, to minimize exposure to liability, premises operators should not direct how contractors deal with asbestos cleanup.

Utah Expands Premise-Owner Liability To Take-Home Asbestos Plaintiffs

Jackson Otto | Husch Blackwell

Utah’s Supreme Court recently issued an opinion which dramatically expands premise owners’ liability for asbestos-related injuries. On August 5, 2021, the Court reversed Utah’s Court of Appeals and held that a lawsuit could proceed against two premises owners on the theory that asbestos dust from their facilities was brought home on the clothing of a non-employee contractor, causing his spouse to develop mesothelioma. For the first time, premises owners or operators may be liable for injuries alleged by anyone living under the same roof as one of their former contractors.

Background

In Boynton v. Kennecott Utah Copper, et al., Larry Boynton alleged that he was exposed to asbestos while working as a laborer and electrician at several job sites in the 1960s and 1970s. He claimed that he brought some of this asbestos home on his clothing and that his wife, Barbara Boynton, was exposed when she did his laundry. Mrs. Boynton subsequently contracted mesothelioma and passed away from her disease.

Among the job sites that he worked were facilities controlled by defendants ConocoPhillips, Kennecott Utah Copper LLC, and PacifiCorp. All three defendants moved for summary judgment. ConocoPhillips and Kennecott argued that they had no duty to Mrs. Boynton – who never worked for either company and was never present on either work site – and that they had taken no action toward Mrs. Boynton that would give rise to such a duty. In contrast, PacifiCorp argued that it did not control the work of Jelco-Jacobson (Mr. Boynton’s direct employer on the job) and that under Utah law it therefore had no liability for the actions of the contractor.

The trial court denied Kennecott’s motion due to certain factual disputes regarding actions taken by the company, but granted the other two motions and held that neither ConocoPhillips nor PacifiCorp could be held liable for Mrs. Boynton’s medical condition. The Utah Supreme Court reversed the trial court’s rulings as to ConocoPhillips and PacifiCorp and affirmed the ruling against Kennecott, allowing the case to proceed against all three companies.

Premises Owners Have Duty to Take-Home Plaintiffs

The Court first addressed the motions of Kennecott and ConocoPhillips and held for the first time that premises owners have a duty to exercise reasonable care to prevent take-home exposures to asbestos. In its analysis, the Court broadly opined that risks associated with asbestos were foreseeable as early as 1961, and that premises operators “launched the instrument of harm” by choosing to use asbestos-containing materials and causing workers to come into contact with them. The Court stated that premises operators “will have engaged in misfeasance” against its workers when they:

1) Instruct workers to handle asbestos;

2) Have nearby workers handle asbestos (i.e., in the injured party’s vicinity);

3) Place asbestos on the premises;

4) Send employees to a workspace containing asbestos; or

5) Purchase a workspace containing asbestos and invite workers onto it.

The Court stated that it was “common sense” that take-home asbestos injuries were foreseeable by the early 1960s. The scope of this holding is surprising in that this exposure occurred more than a decade prior to the first OSHA regulation regarding asbestos in the workplace, and apparently disregards the state of scientific literature at the time. The Court suggested that premises owners should have taken affirmative actions to prevent take-home exposures. It specified that companies should have provided laundry services to clean workers’ clothes before they returned home. Because ConocoPhillips and Kennecott failed to do so, the Court held that they may be held liable for Mrs. Boynton’s injuries and denied summary judgment.

Premises Owners Are Liable for Subcontractors’ Conduct Where the Contract Grants Them Control

The Court next turned to PacifiCorp’s motion. It held that PacifiCorp retained sufficient control over contractor Jelco-Jacobson to be liable in its place for injuries to Mr. Boynton’s wife. Utah law traditionally held that a company employing an independent contractor is not liable for injuries caused to another due to the acts or omissions of that contractor (for a recent application of this rule, see our article discussing North Carolina’s independent contractor exception). However, in this case the Court found that PacifiCorp “retained control” over Jelco-Jacobson due to certain contractual provisions that specified materials to be used on the job, specified the methods by which certain work was to be performed, and gave PacifiCorp the right to test, inspect, and stop the work if it deemed necessary. The contract also explicitly reserved PacifiCorp the responsibility for directing certain safety and dust control measures.

Regardless of the actions ultimately taken by PacifiCorp under the contract, the Court found that the existence of these contractual provisions was per se sufficient to create a question of fact as to whether the company retained control over the contractor such that it could be said to have “actively participated” in directing Mr. Boynton’s work and subsequent exposure to asbestos. The Court remanded the case to the trial court to determine whether PacifiCorp retained control over the specific activities which caused the alleged harm to Mrs. Boynton.

The case is Boynton v. Kennecott Utah Copper LLC, et al., 2021 UT 40, Case No. 20190259. A copy of the opinion can be found here.

Utah Owners Cannot Simply Rely on Construction Lien Registry Search Results to Find Valid Preliminary Notices

Mark Morris and Tyson Prisbrey | Snell & Wilmer

In December 2020, the Utah Court of Appeals found that, because a contractor’s preliminary notice contained the statutorily required information, although in unconventional order, the notice was valid.

In Zion Village Resort, Pro Landscape U.S.A. performed work on a condominium development and filed preliminary notices with the Utah State Construction Registry pursuant to the state construction lien laws. Pursuant to Utah Code Ann. § 38-1a-501(1)(h)(i), a preliminary notice must include certain information, including the “name, address, telephone number, and email address of the person providing the construction work.” In Pro Landscape’s preliminary notices under the line “Person Furnishing Labor, Service, Equipment, or Material,” the Pro Landscape listed “Chad Hansen,” and provided an address, email address and telephone number. Under the line provided for “comments,” the notices stated that the “services [were] provided by Pro Curb USA LLC DBA Pro Landscape USA.” Pro Landscape later filed construction liens on various parts of the development.

Zion Village filed a petition to nullify the construction liens, arguing that the they were invalid because Pro Landscape failed to file valid preliminary notices as required by statute. The trial court concluded that the notices were filed by Chad Hansen, not Pro Landscape, and therefore the notices “neglected to include such basic information as the identity of the actual lien claimant.”

On appeal, Pro Landscape argued that the preliminary notices contained all the statutorily required information, including the name, address, telephone number and email address of the person providing the construction work. Zion Village argued that because Chad Hansen rather than Pro Landscape is listed on the line asking for identification of the “Person Furnishing Labor, Service, Equipment or Material,” the notices were deficient.

The court found that Pro Landscape, by identifying itself in the comments section of the preliminary notice, had substantially complied with the statute. “While Pro Landscape may have set forth the required information in an unconventional sequence, the preliminary notices it filed contained all statutorily required information.”

Zion Village argued that the court’s holding frustrated the practical functioning and purpose of the registry, which serves as a database that allows interested persons to search for preliminary notices on a property. When Zion Village searched the registry’s database for preliminary notices filed by Pro Landscape, none turned up in the result because “Chad Hansen” and not Pro Landscape was listed on its notices as the “Person Furnishing Labor, Service, Equipment or Material.” Zion Village asserted that interested persons should be able to rely on the search results without having to searching through all preliminary notices individually. The court was not persuaded, noting that the construction lien statute mandates the application of a “substantial compliance” standard, rather than a strict compliance standard.

The court’s holding in Zion Village stands as a warning to property owners that one cannot rely on the search results to determine whether a party has a preliminary notice on file. Given the “substantial compliance” standard, as long as a preliminary notice has the statutorily required information in the notices somewhere, it is valid.

How Utah’s Judicial and State Bar Officials Worked Together for Regulatory Reform

Lyle Moran | ABA Journal

When Gillian Hadfield was asked whether she would speak to a spring 2018 gathering of state court leaders about how changing the way the legal profession is regulated could strengthen access to justice, she was initially hesitant.

For years, the economist and law professor, who was then based at the University of Southern California, had unsuccessfully urged bar associations to support ethics rules revisions that would allow alternative business models in the legal industry.

“I’ve been singing this song for a very long time, and nobody is joining in,” Hadfield recalls telling Thomas Clarke, the then-vice president of research and technology at the National Center for State Courts, who invited her to speak.

However, Clarke assured her that this particular group of state supreme court justices and court administrators from the western United States scheduled to gather in May 2018 was “a different group” that was “ready to do something.”

Clarke’s words prompted Hadfield to agree to present at the conference in Vancouver, Washington, but she decided to deviate from her typical ethics rules-focused message in hopes of generating a better response.

Hadfield instead urged supreme courts to form a regulatory body that would license and oversee nontraditional legal services providers, such as those with nonlawyer owners or investors. This approach would not only usher in new business structures that could bring down the high cost of legal assistance, she argued, but also ensure consumer protection.

Hadfield’s presentation resonated strongly with the Utah officials in attendance, according to John Lund, the Utah State Bar’s then-president. He recalls that it caused members of the Utah delegation “to sit around and say: ‘What do we do to deal with this?’”

Utah Supreme Court Justice Constandinos “Deno” Himonas was among those present who joined Lund in voicing support for exploring Hadfield’s recommendations, and Lund says the ensuing conversation “launched the idea of looking at regulatory reform in Utah.”

In the months that followed, the Utah Supreme Court created a working group that produced proposals to overhaul Utah’s regulation of the legal industry, and the court later formed a task force to advise it on implementing those measures.

The work of those two panels culminated in the state’s high court unanimously approving a comprehensive set of regulatory reforms in August that allowed for a significant opening of the legal market to nonlawyers during a two-year pilot period.

Additionally, the court’s actions cemented Utah’s somewhat surprising status as one of the two leaders, along with Arizona, of a growing number of states adopting or considering changes to how they regulate the legal profession.

Those involved say Utah has made such rapid regulatory reform progress due to its supreme court closely collaborating with state bar leadership, bringing in a variety of outside experts to provide guidance and offering consistent support for bold action even in the face of some opposition.

Teaming up

Given its relatively small population and reputation for being politically conservative, Utah wasn’t an obvious choice to blaze a trail for the rest of the country on access to justice.

“I don’t think anyone had Utah on their radar as the state likely to be leading the charge on regulatory reform in the legal space,” says Joanna Mendoza, who served on California’s Task Force on Access Through Innovation of Legal Services, which was formed to study regulatory changes in 2018.

Others, including Clarke from the National Center for State Courts, were less surprised. He points to Utah’s history of embracing access-to-justice innovations, including online dispute resolution for small claims cases and permitting licensed paralegal practitioners to handle some legal tasks.

“There is a culture there of trying new things that was already established long before the regulatory-reform project,” Clarke says.

Plus, there was a clear need for reform. A primary reason Hadfield’s Vancouver talk struck such a chord with Utah officials was that they were already quite concerned about the growing struggle of many members of the public in their state and nationwide to afford legal services.

In 2015, the Utah State Bar’s Futures Commission reported that defendants were self-represented in 98% of the debt collection cases and 97% of the eviction cases filed in Utah in the prior year. Meanwhile, on the national level, the Legal Services Corporation reported in 2017 that low-income Americans receive inadequate or no professional legal help for 86% of the civil legal problems they face annually.

But even though state bars and supreme courts across the nation have been well aware of the increasing justice gap, they frequently have resisted calls to permit nonlawyer ownership or investment in law firms as a way to address the problem. This reluctance has come amid attorneys’ concerns that profit motives would take precedence over the best interests of legal consumers and result in substandard service.

With that history in mind, Lund told Utah Supreme Court leaders at the Vancouver gathering that for lawyers to consider permitting new economic structures in the law, “they need to know that the court is supportive of their willingness to do that.”

In turn, Himonas told Lund that such an initiative would require state bar leadership being on board.

“It seemed important that it be a joint effort to make it work,” says Himonas, noting the two entities had successfully partnered on prior access-to-justice projects.

Both Lund and Himonas pledged support to the cause, prompting Lund’s work to ensure the bar would play a proactive role in the reform efforts being contemplated even after his term as president expired.

This led to H. Dickson Burton, Lund’s replacement as state bar president, requesting in an August 2018 letter that the Utah Supreme Court establish a panel to study regulatory reform.

In response, the court created a 12-member Work Group on Regulatory Reform in the latter stages of 2018 that was co-chaired by Himonas and Lund. The group’s members included Burton, Utah State Bar General Counsel Elizabeth Wright and Heather White, past co-chair of the state bar’s Innovation in Law Practice Committee.Justice Himonas
Justice Deno Himonas.

Outside the box

The panel also featured regulatory reform proponents and access-to-justice experts from across North America.

Hadfield, who transitioned in 2018 to her current role as a professor of law and strategic management at the University of Toronto, was a member of the group, as was Clarke of the NCSC. Other academics included were Margaret Hagan, director of the Legal Design Lab at Stanford University; and Lucy Ricca, a fellow and former executive director of the Stanford Center on the Legal Profession.

“The issue for the task force was not—as it has been with almost every other bar/court task force— ‘Should we do this?’” Hadfield recalls. “It was: ‘How do we do this?’”

One way the group worked to answer that question was through participation in a design lab led by Hagan in which the panel tried to devise ethics rules changes that would allow the legal industry to harness the power of capital and technology while still protecting clients.

The work group also closely studied the regulatory reforms in the United Kingdom brought about by the Legal Services Act of 2007, which paved the way for alternative business structures. As part of that examination, leaders of the Utah group frequently sought the counsel of Crispin Passmore, the former executive director of the Solicitors Regulation Authority in the U.K.

“You want different perspectives at all times,” Himonas says.

After months of intensive efforts, the Utah work group unveiled its recommendations in an August 2019 report, titled Narrowing the Access-to-Justice Gap by Reimagining Regulation.

A primary component of the group’s proposals was the creation of a regulatory sandbox that would allow nontraditional legal services providers, including those with nonlawyer investors or owners, to test new ways of serving legal consumers without the fear of being accused of the unauthorized practice of law. Opening the legal market in this fashion would encourage capital investment in new technologies and service models that might not otherwise be funded, the work group argued.

Overall, the sandbox would provide an environment that “permits innovation to happen in designated areas while addressing risk and generating data to inform the regulatory process,” the report said.

Later in August 2019, the Utah Supreme Court issued a press release saying it had unanimously voted to pursue the work group’s recommended reforms and would create an implementation task force to help do so.

Arizona State University professor Rebecca Sandefur, who has extensively researched access-to-justice issues, joined the implementation group. She says Utah bringing in voices beyond just lawyers and judges played a key role in its regulatory reform progress.

“It is very difficult to do something new or innovative if all you have accessible to you are the perspectives that created the status quo,” says Sandefur, an American Bar Foundation faculty fellow.

Another benefit of utilizing outside advisers was their ability to dedicate extensive time to the reform efforts and secure the funding to do so, according to Utah officials.

Sticking together

Meanwhile, Lund and Himonas also endeavored to keep the state bar engaged with the reform implementation efforts.

Lund says he recommended the bar’s leadership form their own committee to independently assess the reform proposals, a suggestion the bar took.

In July, the bar’s Committee on Regulatory Reform published its findings and recommendations on the measures the supreme court formally released for public comment in April.

The report said bar members supported the court’s goal of increasing access to justice, but there was “a clear majority view that the methods and means proposed by the supreme court to meet this aspiration potentially might miss the mark.”

For example, the committee said there were concerns that the court’s proposals emphasized lowering the cost of legal services and products “without significant regard to the quality of such services and products.”

The committee recommended the court make several changes, such as requiring sandbox applicants to address an access-to-justice need for the poor and demonstrate they will deliver high-quality legal services and products.

In the press release the supreme court issued in August announcing its approval of a sandbox pilot program, the court said it “made a number of important changes” to the initial reform proposals in response to feedback from the bar and others.

These revisions included requiring greater transparency about the sandbox application and approval process, as well as more clearly spelling out the access-to-justice goals of the reforms.

“To their credit, I think they did listen and I think they did appreciate some of our recommendations,” says Erik Christiansen, a Parsons Behle & Latimer shareholder who co-chaired the bar’s regulatory reform committee.

Christiansen is also among those who say Utah’s regulatory reform push has benefited from having a smaller population of lawyers than many other jurisdictions, which has limited the impact of lawyer opposition to such changes.

As of late September, the Utah State Bar had just shy of 10,500 members, according to a bar spokesman.

“Small states are great incubators for innovation,” Christiansen says.

Court leadership

But even with the state bar’s close involvement and significant assistance from outside experts, it was still ultimately up to the five-justice Utah Supreme Court to determine whether any regulatory reforms would be implemented.

Chief Justice Matthew B. Durrant says the court had vigorous debate about the regulatory overhaul proposals, but unanimously determined the concerns raised by some members of the legal community did not outweigh the potential benefits of reform.

“We care very much what lawyers think about it, but we also have an obligation to the public,” Durrant says. “And so many needs are just not being met.”

The chief justice credits Himonas for his yeoman’s work as the court’s point person on regulatory reform, saying his “tirelessness and enthusiasm made him the perfect person to lead the charge.”

Himonas says his interest in the issue was driven by the legal system’s failures to ensure broad access to justice and his belief that “hammering away at the problem with the same tools is Einstein’s very definition of insanity.”

In August, Utah’s court-approved sandbox pilot that permits attorney fee sharing with nonlawyers launched. The supreme court shortly thereafter approved five applicants to begin operating as part of the trial run, and additional entities have been approved for entry in the weeks since.

At the conclusion of the two-year pilot period, the supreme court plans to determine whether the major reforms it adopted should continue based on its review of data collected from entities participating in the sandbox.

“My sincere hope is that we see that a number of these applicants really are advancing the access-to-justice cause,” Himonas says.

As for Hadfield, she is among the regulatory reform proponents who have called what Utah has accomplished to date “historic” and praised the supreme court for its courage to move forward.

“It’s shown the leadership that so many of us kept thinking was going to appear and did not for a very long time,” she says.