Bistline, Et Al, Response To Motion To Dismiss

Case 2:16-cv-00788-TS Document 26 Filed 08/25/16 Page 1 of 54
Brett Godfrey
Karen Porter
GODFREY | JOHNSON, P.C.
9557 S. Kingston Court
Englewood, CO 80112
Phone: (303) 228-0700
godfrey@gojolaw.com
porter@gojolaw.com
Matthew Grimmer
Jacob R. Davis
GRIMMER & ASSOCIATES, P.C.
2975 W. Executive Parkway, Ste. 1982
Lehi, UT 84043
Phone: (801) 341-2075
mgrimmer@grimmerandassociates.com
jdavis@grimmerandassociates.com
Attorneys for Plaintiffs
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
ALYSSA BISTLINE; RUBY JESSOP;
SUSAN BROADBENT; GINA ROHBOCK;
NOLAN BARLOW; JASON BLACK; MAY
MUSSER; HOLLY BISTLINE, T.B.; M.B.;
P.B.; A.B.; A.B.; DERREL BARLOW;
ALICIA ROHBOCK, R.R.; R.R.; B.J.R.;
WALLACE JEFFS; LAWRENCE BARLOW;
STEVEN DOCKSTADER; MARVIN
COOKE; HELEN BARLOW; VERGEL
BARLOW; CAROLE JESSOP; BRIELL
LIBERTAE DECKER, fka LYNETTE
WARNER; AMY NIELSON; SARAH
ALLRED; THOMAS JEFFS; and JANETTA
JESSOP,
Plaintiffs,
v.
WARREN STEED JEFFS; RODNEY R.
PARKER; SNOW CHRISTENSEN &
MARTINEAU, P.C.; and John Does I through
X,
Defendants.
i
Case 2:16-cv-00788-TS
PLAINTIFFS RESPONSE IN OPPOSITION

TO SC&M AND RODNEY PARKERS
MOTION TO DISMISS
TABLE OF CONTENTS
I.
INTRODUCTION i
A.
Response to Defendants Statement of Facts i
II. DISCUSSION OF LAW 1

A.
Legal Standard 1
B.
SC&M Deliberately and Repeatedly Assumed the Duties of Legal Counsel 2

1.
Existence of attorney-client relationship 2
2.
An attorney-client relationship may arise from a clients

reasonable belief 5
3.
Breach of duty of loyalty 7
C.
Civil Liability Under the TVPRA 8
D.
Civil RICO 14
1.
SC&M applies the wrong standard to its inaccurate

description of the complaint. 14
2.
RICO liability can attach to lawyers based upon participation

in a clients pattern of racketeering activity 14
3.
Jeffs, operating the UEP Trust through SC&Ms restatement

and enforcement efforts, was an enterprise for purposes of RICO 16
4.
Repeated instances of SC&Ms participation in operation of

Jeffs racketeering enterprise 16
E.
Free Exercise Clause Cannot Shield Wrongdoers from Civil Liability 17
F.
Statute of Limitations 21
1.
Other jurisdictions: unknown tortious conduct by joint tortfeasors 22
III. CONCLUSION 23
TABLE OF AUTHORITIES
CASES
Armed Forces Ins. Exch. v. Harrison, 70 P.3d 35, 40 (Utah 2003) ............................................... xi
Atlas Pile Driving Co. v. DiCon Fin. Co., 886 F.2d 986 (8th Cir. 1989) ..................................... 16
Bear Valley Church of Christ v. DeBose, 928 P.2d 1315 (Colo. 1996)....................................... 18
Bernson v. Browning-Ferris Industries of California, Inc.,
7 Cal.4th 926, 873 P.2d 613 (1994) .......................................................................................... 21
Bivin v. Wright, 656 N.E.2d 1121 (Ill. 1995)............................................................................... 18
Breuer-Harrison, Inc. v. Combe, 799 P.2d 716 (Utah Ct. App. 1990) ....................................... 2, 7
C.J.C. v. Corporation of the Catholic Bishop of Yakima, 985 P.2d 262 (1999) ........................... 18
Cantwell v. Connecticut, 310 U.S. 296 (1940) ............................................................................. 17
Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) ................................ 20
Ditullio v. Boehm, 662 F.3d 1091 (9th Cir. 2011) ........................................................................ 10
Doe v. Hartz, 970 F. Supp. 1375 (N.D. Iowa 1997) ..................................................................... 18
Employment Division v. Smith, 494 U.S. 872 (1990) ............................................................. 18, 19
Ericsson v. Christenson, 781 P.2d 383 (Or. App. 1989) .............................................................. 18
Gunther v. Dinger, 547 F. Supp. 25 (D.C.N.Y. 1982).................................................................. 16
Haik v. Salt Lake City Corp., No. 2:12-CV-997 TS, 2013 WL 968141
(D. Utah Mar. 12, 2013), aff'd, 567 F. App'x 621 (10th Cir. 2014) ............................................ 4
Handeen v. Lemaire, 112 F.3d 1339 (8th Cir. 1997) ....................................................... xxi, 14, 15
Harline v. Barker, 912 P.2d 433 (Utah 1996)............................................................................... vii
Hart v. Salois, 605 Fed. Appx. 694 (10th Cir. 2015).................................................................... 23
In re Discipline of Reneer, 325 P.3d 104 (2014) ............................................................................ 5
In the Matter of Fuhrer, 100 Misc. 2d 315 (N.Y. App. Div. 1979) .............................................. 17
Isely v. Capuchin Province, 880 F. Supp. 1138 (E.D. Mich. 1995) ............................................. 19
Kilpatrick v. Wiley, Rein & Fielding, 37 P.3d 1130 (Utah 2001) ............................................... 4, 7
Kiwanuka v. Bakilana, 844 F. Supp. 2d 107 (D.D.C. 2012)......................................................... 12
Konkle v. Henson, 672 N.E.2d 450 (Ind. Ct. App. 1996) ............................................................. 18
Lama v. Malik, No. CV 13-2846, 2016 WL 3538366 (E.D.N.Y. June 21, 2016) ........................ 11
M.J. v. Wisan, 371 P.3d 21 (Utah 2016) ................................................................................. v, x, 3
Malicki v. Doe, 814 So.2d 347 (Fla. 2002) ................................................................................... 18
Margulies By & Through Margulies v. Upchurch, 696 P.2d 1195 (Utah 1985) ........................ 5, 6
Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409 (2d Cir.1999)............. 18
Minersville Sch. Dist. Bd. of Educ. v. Gobitis, 310 U.S. 586 (1940) ............................................ 20
Mitchell v. Smith, No. 1:08-CV-103 TS, 2010 WL 5172906, at *8
(D. Utah Dec. 14, 2010 (Stewart, J) ......................................................................................... xiv
Mosier v. Callister, Nebeker & McCullough, No. 2:06-CV-677 TS,
2007 WL 1097913 (D. Utah Apr. 11, 2007) ............................................................................ xvi
Mrozka v. Archdiocese of St. Paul and Minneapolis, 482 N.W.2d 806 (Minn. Ct. App. 1992) . 18
Norman v. Arnold, 57 P.3d 997 (Utah 2002) ............................................................................ vii, 5
Nutt v. Norwich Roman Catholic Diocese, 921 F. Supp. 66 (D. Conn. 1995 ............................... 18
Pavelko v. Margaritas Management Group, Inc., NNHCV116021592S,
2012 WL 1624023 1, 2 (Conn. Super. Ct. Apr. 17, 2012)........................................................ 22
People v. Morley, 725 P.2d 510 (Colo. 1986) ................................................................................ 2
Personnel Administrator of Mass. v. Feeney, 442 U.S. 256 (1979) ............................................. 21
Peterson v. Delta Air Lines, Inc., 42 P.3d 1253 (Utah App. 2002) ............................................. xvi
Price-Oren Inv. Co. v. Rollins, Brown & Gunnel, Inc. 713 P.2d 55 (Utah 1986) ....................... xiv
Reeves v. Ernst & Young, 507 U.S. 170 (1993) ........................................................................... 14

Reynolds v. United States, 98 U.S. 145 (1878) ............................................................................. 20
Robinson v. Morrow, 99 P.3d 341 (Utah 2004) ...................................................................... 21, 22
Rodericks v. Ricks, 54 P.3d 1119 (Utah 2002) ............................................................................... 7
Roman Catholic Diocese of Jackson. v. Morrison, 905 So.2d 1213 (Miss. 2005) ....................... 19
Sanders v. Casa View Baptist Church, 898 F. Supp. 1169 (N.D. Tex. 1995) .............................. 18
Shaw Res. Ltd., LLC v. Pruitt, Gushee & Bachtell, P.C., 142 P.3d 560 (Utah. App. 2006) .......... x
Smith v. Frandsen, 94 P.3d 919 (Utah 2004)............................................................................... xiv
Smith v. OConnell, 986 F. Supp. 73, 80 (D.R.I.1997) ................................................................. 18
Smith v. Privette, 495 S.E.2d 395 (N.C. App. 1998) .................................................................... 18
Snow, Christensen & Martineau v. Lindberg, 299 P.3d 1058, 1061 (Utah 2013)............ v, 3, 8, 16
Spitler v. Dean, 148 Wis.2d 630, 436 N.W.2d 308 (1989) ........................................................... 21
Steinbach v. Meyer, 412 N.W.2d 917 (Iowa Ct. App. 1987) .......................................................... 2
U.S. v. Kozminski, 487 U.S. 931 (1988) ......................................................................................... 9
United States v. Emigration Improvement Dist., No. 2:14-CV-701-JNP,
2016 WL 4148251 (D. Utah Aug. 4, 2016) ................................................................................ 8
United States v. Kragness, 830 F.2d 842 (8th Cir. 1987) ............................................................. 16
United States v. Lee, 455 U.S. 252 (1982) ................................................................................... 19
United States v. Turkette, 452 U.S. 576 (1981) ............................................................................ 16
Williams v. Sibbett, No. 2:07-CV-261 TS, 2011 WL 1134263
(D. Utah Mar. 25, 2011, aff'd, 442 F. App'x 385 (10th Cir. 2011) ............................................. 1
STATUTES
18 U.S.C. 1589 .............................................................................................................. xviii, 8, 13
18 U.S.C. 1590 ........................................................................................................................... 13
18 U.S.C. 1591 ........................................................................................................................... 13

18 U.S.C. 1593 ........................................................................................................................... 13
18 U.S.C. 1595 ..................................................................................................................... 10, 13
18 U.S.C. 2 ................................................................................................................................. xx
18 U.S.C. 1589-1594 (2000) ...................................................................................................... 9
18 U.S.C. 18 .................................................................................................................................. 8
18 U.S.C.A. 1595 ....................................................................................................................... 13
18 U.S.C. 1962(c) ........................................................................................................................ xxi
22 U.S.C 7101 .............................................................................................................................. 9
494 U.S. 872 (1990) ...................................................................................................................... 19
OTHER AUTHORITIES
Bharathi A. Venkatraman, Human Trafficking A Guide to Detecting, Investigating, and
Punishing Modern-Day Slavery, THE POLICE CHIEF, Dec. 2003, available at
http://policechiefmagazine.org/magazine/ index.cfm ............................................................... 10
Civil Litigation on Behalf of Victims of Human Trafficking (Fourth Edition Draft),
Southern Poverty Law Center, p. 76 ......................................................................................... 13
H.R. Rep. No. 106-939 (2000)...................................................................................................... 10
H.R.Rep. No. 108264(I) (2003), 2004 U.S.C.C.A.N. 2408 ................................................. 10, 11
Terry Coonan, The Trafficking Victims Protection Act: A Work in Progress,
Intercultural Human Rights Law Review, IHRLR 15 Coonan 6-4-06 ........................... 9, 10, 11
Trafficking Victims Protection Act .............................................................................................. 11
Trafficking Victims Protection Reauthorization Acts. Pub. L. 109-164 (2006);
Pub. L. 110-457 (2008) ............................................................................................................. 12
Utah State Bar Ethics Advisory Opinion No. 05-04 (Sept. 8, 2005) .............................................. 5
RULES
Fed.R.Civ.P. 12(b) .................................................................................................................. vii, 14
Fed.R.Civ.P. 12(b)(6)................................................................................................................. vi, 1
Plaintiffs respectfully submit the following brief in opposition to the motion filed
pursuant to Fed.R.Civ.P. 12(b)(6) by Defendants Snow, Christensen & Martineau and Rodney R.
Parker, Esq. (collectively referred to herein as SC&M) to dismiss Plaintiffs claims against
them, showing the Court as follows:
I. INTRODUCTION
This case is not about freedom of religion, for freedom of religion can be protected only
so long as religion itself does not become an instrumentality of crime. This case is not about the
right to legal representation, for an attorney is not immunized from liability merely by
representing a client if that attorney participates in the commission of wrongful acts with his
client. This case is about accountability and the sanctity of the legal system, which must be selfpolicing and self-correcting, for no other power than the court will perform this function. Only
courts and lawyers can remedy the wrongs that are wrought by the egregious misuse of legal
machinery that frustrates the purposes of justice for financial gain. This is a case about a law firm
that worked for decades to build, maintain and execute an illegal strategy, designed specifically
and deliberately, with malice aforethought, to empower Warren Jeffs and his cronies to rape or
severely abuse innumerable children and destroy hundreds of families. Without the active,
advance planning of specific torts and crimes and the ongoing support of Rod Parker and SC&M,
Warren Jeffs could not have perpetrated those heinous acts for which he is now infamous
throughout the world. This case is not about prison for Warren Jeffs, for another court has
already dispensed that justice. This case is about financial compensation for the victims
irreparably harmed by SC&Ms active participation with Warren Jeffs and his cronies in torts,
crimes and civil wrongs against its own clients.
i
SC&M unabashedly mischaracterizes the averments of the complaint, ignoring and

misstating the detailed factual particularity of Plaintiffs averments, referring to specifically
detailed events as suggestions and conclusory arguments. The instant action is not based, as
SC&M asserts, on lawyer liability premised upon the mere representation of criminals. Rather,
this suit is based upon SC&Ms continuous and active planning with and support of Warren Jeffs
before and during the crimes and torts listed in the complaint to facilitate their commission
and upon SC&Ms abandonment of the very duties, which it openly and publicly undertook, on
behalf of the individual members of the FLDS, as opposed to merely representing an association.
The connection SC&M alleges to be absent from the complaint linking SC&Ms
unlawful conduct to the harms suffered by Plaintiffs occurred over a period of years and
consists of dozens, if not hundreds, of specific actions (and concomitant omissions) detailed in
the complaint and based on known judicial records, witness recollections and other documentary
support. Each of these detailed, specific actions, for the purposes of the instant motion, must be
taken as true. While actively devising and advising Warren Jeffs in his quest to tighten his grip
on the lives, bodies and assets of the individual FLDS members, SC&M expressly professed in
open court on a number of occasions to directly represent the individual members in connection
with their civil rights, their rights with respect to the United Effort Plan Trust and their related
physical, familial and pecuniary interests. The nature of that conduct gives rise to liability to
these plaintiffs as clients of SC&M as well as liability that arises independently of any attorneyclient relationship. Specific instances of SC&Ms malpractice, as detailed in the complaint,
which SC&M either directly deny or unabashedly mischaracterize in its Motion, are as follows:
First, SC&Ms assertion that it did not represent the individual FLDS members is
astonishingly inaccurate. SC&M repeatedly held itself out as representing the individual
ii
members in connection with their civil rights and other personal matters. For example, the
complaint makes reference to a letter written by Rod Parker to the Texas Department of Family
and Protective Services in which he stated:
This firm represents all residents of the Yearning for Zion Ranch
in Eldorado, Texas in connection with any civil claims arising
from your agency's participation in the searches and seizures that
occurred at the ranch from April 4 to April 7, 2008. Specifically,
we are concerned that the United States Constitutional rights of our
clients have been violated by your agency's activities. The purpose
of this letter is to remind you of your duty under Texas and federal
law to preserve evidence related to any potential civil claims
against your agency, its agents, officers, and investigators.
Complaint, 117.
On an entirely separate occasion from the Texas raid of the YFZ Ranch, SC&M actually
submitted a petition to a Utah District Court signed by thousands of FLDS members to
emphasize the firms contention that it directly represented each of the members in an individual
capacity. As detailed in the complaint (at 119), Parker and SC&M represented all FLDS
members in the matter of The Fundamentalist Church of Jesus Christ of Latter Day Saints, an
Association of Individuals, v. Wisan, et al, (Case. No. 2:08-CV-772-DB). Parker and SC&M
brought that action in the name of an Association to enforce the individual constitutional rights
of the members. In connection with a motion attacking the standing of the Association to bring
claims that are personal to the individual and non-assignable as a matter of law, Parker and
SC&M were ordered by that court to provide a list of the specific individuals whom they
purported to represent as clients. On February 17, 2011, in belated compliance with that courts
orders, Parker and SC&M filed a document captioned Notice of Filing of List of Association
Members, representing to the court in a public filing that they were representing those persons,
thousands of whom (but not all) were identified in an attached petition, in order to protect their
iii
individual and collective rights and freedoms. In that filing, Parker and SC&M also asserted
that, as described in the attached list, the individuals who affixed their signatures to the list
authorized the pursuit of claims of the nature that underlie the constitutional claims in this
action.
In that case, District Court Judge Dee Benson clearly understood that SC&M was
representing some 5,000 FLDS plaintiffs:
Looking at this situation through the eyes of the plaintiffs it is not
difficult to see what happened and its obvious and enormous
impact on the religious lives of the members of the FLDS
church. Before the courts reformation of the 1998 UEP Trust,
before the appointment of the Special Fiduciary, the plaintiffs,
5,000 or so in number, resided in homes belonging to the Trust,
worked in fields and factories and dairies belonging to the Trust;
and all decisions about these matters were made by their FLDS
church leaders.
This language was recently quoted at pages 18-9 in Defendant Lyle Jeffs Motion to Dismiss
Indictment, filed on June 12, 2016 in United States of America v. Jeffs, et al., Case No. 2:16-cr0082, which is before this District Court and of which this Court can take judicial notice.
Similarly, this Court can take judicial notice of the Order on Motion for Award of Attorney Fees,
filed on April 2, 2012, in Richard Holm v. Warren Jeffs, et al., Case No. 113902191, Third
Judicial District Court in and for the State of Utah, in which the court held that SC&M
represented all of the defendants and sanctioned Parker for appearing on behalf of all the
defendants and then later claiming that he did not represent them.
SC&Ms liability under all of the claims asserted in the complaint is premised upon the
direct actions taken by Defendant Parker to participate in the restructuring, administration and
ongoing enforcement of the UEP Trust, in a fashion that the Utah Supreme Court found
sufficiently egregious to warrant declaring the UEP Trust as redesigned by SC&M to be void ab
iv
initio as it was formed for an illegal purpose. Many of the facts upon which Plaintiffs claims are
premised are averred in the complaint in the form of quotations from the decision of the Utah
Supreme Court in a case entitled Snow, Christensen & Martineau v. Lindberg, 299 P.3d 1058,
1061 (Utah 2013).1 Complaint, 44-58.
In another judicially recognized example, which is detailed in the Complaint, describing
the criminal enterprise designed and maintained by SC&M, its restated version of the UEP Trust
was used as a tool to force and coerce parents to obey inhuman and criminal abuses under the
guise of religious freedom, including using the threat of eviction made by SC&M against a
mother to force her to sacrifice her underage daughter to Jeffs ceremonial rape process. That
matter was noted by an Arizona court, as quoted in detail in 86-87 of the complaint.
The Utah Supreme Courts holding the Lindberg case that SC&M had not attorneyclient relationship with the reformed trust and that SC&M was not required to disgorge
privileged information to the reformed trust was recently repudiated by the Utah Supreme in M.J.
v. Wisan, 371 P.3d 21, 27, n. 5 (Utah 2016) (Neither party has asked us to overrule our opinion
in Snow, Christensen. And we stop short of so doing in the absence of any such request. But we
do repudiate the analysis in the court's opinion in that case. And we limit Snow, Christensen to
its factsto SC&M's representation of members of the trust, and the Trust's request for
privileged document at that time and in the context of that case. In so doing, we reserve for
another day the question whether the Trust may be entitled to privileged material of potential
relevance to M.J.'s claims against it. The Trust raised this concern in its briefing and argument in
this case. It questioned the wisdom and propriety of a legal regime under which the Trust stands
in its predecessor's shoes for liability purposes but is deemed a different entity for purposes of
the attorney-client privilege. We see the Trust's point. It would seem an unfair whipsaw to
subject the Trust to liability for its predecessor's torts without also arming the Trust with material
necessary to its defense. So if there is privileged material in possession of the Trust's former
counsel of relevance to this litigation, the Trust may well be entitled to itnotwithstanding our
decision in Snow, Christensen. We leave that question for future litigation, however. If and when
the Trust seeks privileged material in the hands of its former counsel of relevance to this
litigation, the courts may then consider the question whether to grant the Trust access to it.)
1
With no evidence of when the statute of limitations began to run based upon Plaintiffs
discovery of their causes of action against SC&M, Defendants seek dismissal on the basis of
various statutes of limitation. The complaint avers (and this Court must accept as true for
purposes of this motion) that Plaintiffs did not know, and in fact were affirmatively prevented
from knowing, of the wrongful acts and omissions of SC&M until shortly before this action was
filed, even though some of them knew much earlier of the allegations others were making against
Warren Jeffs.
Sidestepping its own role in the wrongs detailed in the complaint, SC&M alleges that
Plaintiffs actions were voluntarily undertaken based upon their own religious beliefs; this
argument is not based upon the averments in the complaint and is nothing more than a jury
argument which, at present, has no evidentiary support whatsoever and must be disregarded
when made by a non-moving party in a motion made under Rule 12(b). SC&M contends that the
complaint fails to allege sufficient facts to establish a plausible theory of liability and seeks
dismissal under Fed.R.Civ.P. 12(b)(6), while at the same time complains (in four separate places
within its motion) that because the highly detailed complaint is lengthy, this Court should
dismiss it without reading it.
A. Response To Defendants Statement Of Facts
Introductory note: The complaint is written to provide a plentitude of factual detail, and
is arranged in a chronologically logical fashion, from which the reader who undertakes to review
the instrument as a whole, from beginning to end, can ascertain the complex factual interactions
that clearly support the conclusory legal allegations, some of which are elements of prima facie
claims in addition to the required factual averments. The table below is not intended as a
substitute for the 120-page complaint, but as a shorter roadmap to examples of some of the more
vi
crucial factual averments contained therein, to assist the Court in ascertaining that all of the
requisite elements of each claim for relief are adequately pled. Just as many of the claims have
overlapping or common elements, so too are many of the factual averments repeated below, as
they serve more than one purpose in connection with the sufficiency of the complaint for
purposes of Fed.R.Civ.P. 12(b)(6). This is why each claim for relief incorporates by reference
the other averments of the complaint for purposes of establishing the legal sufficiency of the
averments. For this reason, any lack of repetition in the table below, despite some repetitiveness,
should not be construed as a limitation of what is factually alleged in the complaint, for this table
is only an aid to the Court rather than an all-inclusive statement of plaintiffs factual averments.
Elements of prima facie claim
Paragraphs asserting facts in support
FIRST CLAIM FOR RELIEF: LEGAL MALPRACTICE

Source: Harline v. Barker, 912 P.2d 433, 439 (Utah 1996); Norman v. Arnold, 57 P.3d 997
(Utah 2002)
1. Existence of attorney-client relationship
2, 3, 5, 8, (identifying SC&M actors &

agents); 9, 117-120 (SC&M held itself out to
courts and state agencies as individually
representing individual FLDS members
and/or these plaintiffs in pending cases with
respect to individual and civil rights); 61-64
(SC&M holding itself out, through its agent,
as representing FLDS members and acting
for their legal benefit); 155 (Parker
knowingly allowed plaintiffs to pay his fees
through their individual donations, while
working against their interests and keeping
them ignorant of his true goals and
operations); 145 (use of illegal Trust and
trust-based relationship to pressure and
coerce plaintiffs and other parishioners to
personally fund SC&Ms fees); 160 (Parker
and SC&M were kept regularly apprised of
fundraising progress to keep their fees paid
by the individual parishioners, including
vii

plaintiffs); 163-167 (Jeffs and SC&M wanted
plaintiffs to falsely believe that they were
represented by SC&M so they would
continue to personally fund SC&M, which
they did); 170 (plaintiffs believed and
adhered to doctrine and repeated
representations made by Jeffs with SC&Ms
knowledge that their sole legal representation
must be through SC&M); 204 (Alicia
Rohbock was aware, as Jeffss personal
assistant and transcriptionist, and wife of
FLDS accountant, through seeing the checks
and cash donated by individuals to fund
SC&M, that SC&M was receiving substantial
funds paid by individuals such as herself to
cover its fees and therefore believed that
SC&M represented individual donators);
237-246 (Gina Rohbocks husbands business
paid nearly $1M in legal fees to SC&M, often
from his paychecks being withheld per
directive of FLDS leadership); 295 (Wallace
Jeffs contributed personally to SC&Ms legal
fees as directed by Church to all
parishioners); 326 (weekly demands for
individual parishioners, including plaintiffs,
to pay up to $1,000 per week to fund SC&M
as their attorneys); 343 (plaintiffs pressured
to pay tax refunds to SC&M as fees); 367368 (purpose of SC&Ms restatement of UEP
Trust was to create mechanism to cause
individual plaintiffs to pay SC&Ms fees
under threat of losing Trust property); 444
(weekly donations from parishioners directly
exceeded $250,000, set aside specifically for
SC&M).
2. Duty arising out of relationship
10 (Utah Rules of Prof. Conduct); 11 (nondelegability of duties); 38 (duty of

disclosure); 131 (duty to inform clients and
Trust beneficiaries); 134 (duty to recommend
separate counsel).
viii
3. Breach of lawyers duty
12-31 (common scheme and plan to facilitate

other crimes through restatement of UEP
Trust for illegal purpose to impermissibly
control FLDS members through unlawful
threats of loss of property or liberty); 39
(conflict of interest, failure to disclose
conflict and acts of firm adverse to clients
interests); 78-84 (specific references in
Priesthood record to working with SC&M to
continue to facilitate and enforce underage
marriages); 95 (Priesthood Records reveals in
Sep. 2004 that Parker is worried about being
sued by parishioners occupying UEP Trust
land (nearly all members) in connection with
administration of UEP Trust).
4. Causal nexus between breach and damages
139-142 (causal nexus between wrongful

conduct and damages alleged);
5. Damages
137, 138 (general identification of damages);

see also, individualized averments of
damages.
ix
SECOND CLAIM FOR RELIEF: BREACH OF FIDUCIARY DUTY

Source: Shaw Res. Ltd., LLC v. Pruitt, Gushee & Bachtell, P.C., 142 P.3d 560, 565 (Utah. App.
2006)(in context of attorney-client relationship)
1. Relationship of an inherently fiduciary
nature or of trust and confidence
9, 117-119 (SC&M held itself out as

individually representing entire FLDS
membership and/or these plaintiffs in pending
cases); 95 (Priesthood Records reveals in
Sep. 2004 that Parker is worried about being
administration of UEP Trust); 123 (Steed
Affidavit confirming representation of FLDS
members as well as church and leadership as
of 2011); 131 (duty to inform clients and
Trust beneficiaries); 134 (duty to recommend
separate counsel); 145-147 (formation of
fiduciary relationship incidental to Trust
operation and legal representation).
2. Breach of fiduciary duty to act in best

interests of plaintiff or disclose material facts other crimes through restatement of UEP
to plaintiff
interests); SC&M disqualified as counsel for
FLDS Church in In re UEP Trust action in
2008 (reversed later, but see M.J., supra.));
148 (breach of fiduciary duty through scheme
for ongoing exploitation).
3. Causal nexus between breach and damages
139-142 (causal nexus between wrongful

conduct and damages alleged); 149 (plaintiffs
would have benefitted if duty had been met
by SC&M).
4. Damages

damages.
THIRD CLAIM FOR RELIEF: FRAUD

(INTENTIONAL MISREPRESENTATION AND NON-DISCLOSURE)
Source: Armed Forces Ins. Exch. v. Harrison, 70 P.3d 35, 40 (Utah 2003)
1. Representation was made

cases); 204 (Alicia Rohbock was aware, as
Jeffss personal assistant and transcriptionist,
and wife of FLDS accountant, through seeing
the checks and cash donated by individuals to
fund SC&M that SC&M was receiving
substantial funds paid by individuals such as
herself to cover its fees and therefore
believed that SC&M represented individual
donators).
2. Concerning presently existing material fact
61-64 (SC&M holding itself out, through its

agent, as representing FLDS members and
acting for their legal benefit); 170 (plaintiffs
believed and adhered to doctrine and repeated
representations made by Jeffs with SC&Ms
knowledge that their sole legal representation
must be through SC&M).
3. Which was false
60 (falsity of representations made by SC&M

related to the UEP Trust and its
administration); 68-70 (misrepresentations
concerning the UEP Trust in which plaintiffs
had pecuniary interest); 73
(misrepresentations about Trust false in light
of other court findings); 78-84 (specific
references in Priesthood record to working
with SC&M to continue to facilitate and
enforce underage marriages).
xi
4. Which the representer either (a) knew to be

false or (b) was made recklessly
40-43 (SC&Ms knowledge of criminal

nature of enterprise they had devised and
operated through retaliatory evictions); 74
(SC&M knew underage marriages were
illegal based upon judicial rulings); 97
(Priesthood Record in possession of SC&M
documents fraudulent transfer of assets from
UEP Trust in which all members had
interest); 154, 155 (knowledge of falsity
through court filings and Priesthood Record);
158 (knowledge of falsity and likelihood of
detrimental reliance on part of plaintiffs);
159-161 (knowledge of falsity based upon
true goals being served by SC&M in
derogation of its duties and representations).
5. For the purpose of inducing the other party

to act upon it
62-66 (seeking parishioners ongoing

financial support of SC&M based upon
induced belief firm acting for their
wellbeing); 154-157 (Parker sought to keep
plaintiffs who were paying his fees ignorant
of his collusion with Jeffss ongoing
violations of their rights in order that they
would keep paying him, and they did so);
159-163 (Parker and Jeffs colluded to keep
parishioners ignorant in order that they would
continue to personally subsidize SC&Ms
fees); 162 (financial gain as purpose of
misleading plaintiffs to trust in SC&M and
pay its fees).
6. The other party, acting reasonably and in

ignorance of its falsity
67 (SC&M worked to keep plaintiffs ignorant

of true status of its legal actions and goals);
75, 76 (power conferred by SC&M wielded
to prevent discovery of truth by FLDS
members through isolation from
information); 164 (reasonableness of
reliance).
xii
7. Did in fact rely upon it and was thereby

induced to act
165-168 (reasonable reliance affirmatively

manifest through obedience of unlawful
directives and surrender of paychecks to pay
SC&M); 156, 157 (SC&Ms
misrepresentations and non-disclosure of
material facts were intended to create belief
on part of plaintiffs that SC&M was acting in
their best interests based upon individual
attorney-client relationships claimed by
SC&M); 166 (plaintiffs relied upon SC&Ms
representations by continually paying legal
fees); 170 (plaintiffs believed and adhered to
doctrine and repeated representations made
by Jeffs with SC&Ms knowledge that their
sole legal representation must be through
SC&M).
8. To that partys injury and damage

damages.
xiii
FOURTH CLAIM FOR RELIEF: NEGLIGENT MISREPRESENTATION

Source: Mitchell v. Smith, No. 1:08-CV-103 TS, 2010 WL 5172906, at *8 (D. Utah Dec. 14,
2010 (Stewart, J), citing Price-Oren Inv. Co. v. Rollins, Brown & Gunnel, Inc. 713 P.2d 55, 59
(Utah 1986); Smith v. Frandsen, 94 P.3d 919, 923 (Utah 2004)
1. Plaintiffs reasonably relied upon defendants
misrepresentation
165-168 (reliance affirmatively manifest

through obedience to unlawful directives and
surrender of paychecks to pay SC&M).
2. The representation constitutes a careless or

negligent misrepresentation or nondisclosure of a material fact
61-64 (SC&M holding itself out, through its

agent, as representing FLDS members and
acting for their legal benefit); 172 (negligent
at a minimum not to disclose true facts and to
allow fundraising to occur whereby plaintiffs
paid fees of SC&M while the firm actively
worked against their interests).
3. Defendant had a pecuniary interest in the

transaction
95 (Priesthood Records reveals in Sep. 2004

that Parker is threating to withdraw if not
paid, while claiming a potential interest in
UEP Trust through attorneys lien); 96
(Parker claims interest in UEP Trust funds
because payments are late); 135
(impermissible acceptance of fees).
4. Defendant was in a superior position to

know material facts
86-90 (Parker was aware of Jeffs practices

and goals and the illegal nature of the same);
93 (in 2003, SC&M receives service for
FLDS and Trust of suit alleging sexual abuse
by Jeffs under guise of religion); 94 (in 2004,
SC&M receives service for Jeffs of state
RICO claim under PUAA based upon
averments of misconduct similar to those
present here, and therefore knew how
unlawful practices were being implemented
through SC&Ms conferral of legal threat
power and actual power upon Jeffs through
operation of UEP Trust); 97 (Priesthood
Record in possession of SC&M documents
fraudulent transfer of assets from UEP Trust
in which all members had interest); 172, 173
(SC&Ms knowledge of representations made
to plaintiffs that SC&M was their attorneys in
order to garner their individual payment of
xiv
legal fees).
5. Defendant should have reasonably foreseen
that the injured party was likely to rely upon
the misrepresentation
96 (2004 that Parker is worried about being

administration of UEP Trust); 174 (SC&M
had superior knowledge of the laws being
violated by it and Jeffs and of how SC&M
was breaching its duties and maintaining an
impermissible conflict of interest).
xv
FIFTH CLAIM FOR RELIEF: CIVIL CONSPIRACY

Source: Mosier v. Callister, Nebeker & McCullough, No. 2:06-CV-677 TS, 2007 WL 1097913,
at *2 (D. Utah Apr. 11, 2007) (Stewart, J), citing Peterson v. Delta Air Lines, Inc., 42 P.3d 1253,
1257 (Utah App. 2002)
1. Combination of two or more persons
2-5 (SC&M and its agents operating in

concert with Jeffs).
2. An object to be accomplished

interests); 86-90 (Parker was aware of Jeffs
practices and goals and the illegal nature of
the same); 97 (Priesthood Record in
possession of SC&M documents fraudulent
transfer of assets from UEP Trust in which all
members had interest); 145 (use of illegal
Trust and trust-based relationship to coerce
plaintiffs and other parishioners to personally
fund SC&Ms fees).
3. A meeting of the minds on the object or

course of action
Id (from above); 78-84 (specific references in

Priesthood Record that SC&M had access to
and which documented many instances of its
collusion to use legal machinations and legal
threats to continue to facilitate and enforce
underage marriages).
4. One or more unlawful, overt acts, and

cases); 44-60 (formation and operation of an
illegal trust); 106-113, 115 (convictions for
rape and kidnapping); 114 (law enforcement
raid on YFZ Ranch resulting in rescue of
more than 450 kidnapped and brainwashed
children); 117 (SC&M represented to Texas
state agency in writing that it represented all
YFZ residents re: individual and civil rights
in effort to demand return of children to
xvi
compound in which they were being held); 96

(Parker claims interest in UEP Trust funds
because payments are late); 135
(impermissible acceptance of fees); 60
(falsity of representations made by SC&M
related to the UEP Trust and its
administration); 68-70 (misrepresentations
concerning the UEP Trust in which plaintiffs
had pecuniary interest); 73
(misrepresentations about Trust false in light
of other court findings); 78-84 (specific
references in Priesthood record to working
with SC&M to continue to facilitate and
enforce underage marriages).
5. Damages as a result

damages.
xvii
SIXTH CLAIM FOR RELIEF: VIOLATION OF THE TVPRA

(FORCED LABOR, SEX TRAFFICKING, AND ENTICEMENT TO SLAVERY)
Source: 18 U.S.C. 1589(a) or (b)
1. Whoever knowingly provides or obtains the
labor or services of a person by any one of,
or by any combination of, the following
means, or
77 (construction of YFZ Ranch compound);

78, 79 (SC&M conferred with Jeffs regarding
stated goal of facilitating and enforcing
underage marriages through legal
machinations); 100-102 (references in
Priesthood Record to use of Trust Lands
including YFZ Ranch compound to hold
children who were kidnapped); 102-104
(YFZ Ranch raided in 2008, children taken
into custody).
2. By means of force, threats of force, physical

restraint, or threats of physical restraint to
that person or another person, or
71, 72 (duress enforced under color of law

using legal machinations executed by
SC&M); 91-93 (expulsion of members
resulting in separation of them from their
families and property, shelter and
belongings).
3. By means of serious harm or threats of

serious harm to that person or another
person, or
25, 33-36, 92, 182-185, 187, 201-212, 226,

258, 330 (physical torture, duress,
banishment, etc.); 72 (physical and sexual
abuse); 84 (Parker defends Officer Holm
from rape charges).
4. By means of the abuse or threatened abuse of 12-31 (common scheme and plan to facilitate
law or legal process or
interests); 32-36 (examples of how illegal
powers created by legal structure designed by
SC&M used illegally to cause duress and
force obedience to unlawful dictates); 37
(SC&Ms awareness of unlawful application
of legal powers it created for Jeffs).
xviii
5. Knowingly benefits, financially or by

receiving anything of value, from
participation in a venture which has engaged
in the providing or obtaining of labor or
services by any of the means described in
subsection (a), knowing or in reckless
disregard of the fact that the venture has
engaged in the providing or obtaining of
labor or services by any of such means
21 (SC&Ms fees were subsidized by

uncompensated, forced labor); 26 (Trust
powers reconfigured by SC&M to permit
Jeffs to force plaintiffs to pay SC&Ms fees);
86 (judicial recognition of SC&Ms
knowledge of illegal use of legal powers the
firm established for Jeffs to force underage
sexual servitude under guise of celestial
marriage); 87-90 (SC&M had Priesthood
Record, which details forcing underage
sexual servitude under guise of marriage, as
well as Parkers actual knowledge of this and
his awareness of goal to further these
transgressions through SC&Ms work); 95
(Priesthood Records reveals in Sep. 2004 that
Parker is threatening to withdraw if not paid,
while claiming a potential interest in UEP
Trust through attorneys lien); 145 (use of
illegal Trust and trust-based relationship to
coerce plaintiffs and other parishioners to
personally fund SC&Ms fees); 159-163
(Parker and Jeffs colluded to keep
parishioners ignorant in order that they would
continue to personally subsidize SC&Ms
fees); 172, 173 (SC&Ms knowledge of
representations made to plaintiffs that SC&M
was their attorneys in order to garner their
individual payment of legal fees); 182
(SC&M benefitted by receiving millions of
dollars in legal fees over a course of years
from the illegal scheme, paid by plaintiffs
and other parishioners). See also, all other
references to SC&Ms receipt of payments
from parishioners including plaintiffs
enumerated in connection with the First
Claim For Relief (Legal Malpractice),
element No. 1.
xix
SEVENTH CLAIM FOR RELIEF: AIDING AND ABETTING COMMISSION OF FELONIES

Source: 18 U.S.C. 2
Note: Plaintiffs have alleged that Defendants are jointly and severally liable under Utah law (see,
e.g. 2-5 and other related claims, including those arising under the 5th Claim for Relief, as well
as Section XIII Prayer For Relief) based upon the facts and circumstances of the claims and
their conscious and deliberate pursuit of an ongoing scheme and plan to commit a series of
tortious acts through the instrumentalities of the FLDS Church and the UEP Trust under the
guise of religion and legal representation. Nevertheless, counsel for plaintiffs has come to
recognize that the specific averment that liability also attaches as a result of this joint
commission under 18 U.S.C. 2 is misplaced; plaintiffs therefore concede that the Seventh Claim
For Relief should be dismissed; plaintiffs offer to stipulate to the dismissal of that claim.
xx
EIGHTH CLAIM FOR RELIEF: CIVIL RICO

Source: 18 U.S.C. 1962(c); Tal v. Hogan, 453 F.3d 1244, 1269-70 (10th Cir. 2006); Handeen v.
Lemaire, 112 F.3d 1339 (8th Cir. 1997)
1. Defendants participated in the conduct
2, 12-31 (common scheme and plan to

facilitate other crimes through restatement of
UEP Trust for illegal purpose to
impermissibly control FLDS members
through unlawful threats of loss of property
or liberty); 40-41 (examples of how legal
structure was used to evict in retaliation for
non-surrender of minor child for sexual
slavery); 157 (Parker sought to keep plaintiffs
who were paying his fees ignorant of his
collusion with Jeffss ongoing violations of
their rights in order that they would keep
paying him).
2. Of an enterprise

threats of loss of property or liberty); 44-60
(SC&Ms 1998 restatement of UEP Trust
was for judicially recognized illegal purpose);
98 (SC&Ms active consultation in support of
criminal scheme continued to at least 2005);
3. Through a pattern
32-36 (examples of how illegal powers

created by legal structure designed by SC&M
used illegally to cause duress and force
obedience to unlawful dictates); 37 (SC&Ms
awareness of unlawful application of legal
powers it created for Jeffs); 99 (ongoing
illegal use of UEP Trust as restated by
SC&M through 2005);
xxi
4. Of racketeering activity
44-60 (formation and operation of an illegal

trust); 106-113, 115 (convictions for rape and
kidnapping); 114 (law enforcement raid on
YFZ Ranch resulting in rescue of more than
450 kidnapped and brainwashed children);
117 (SC&M represented to Texas state
agency in writing that it represented all YFZ
residents re: individual and civil rights in
effort to demand return of children to
compound in which they were being held).
xxii
II. DISCUSSION OF LAW

A. Legal Standard
SC&M argues that in order to survive its motion, the complaint must set forth facts
sufficient to convince the Court of the fundamental plausibility of the claims, and in the shadow
of that assertion offers its own unsupported facts and legal arguments that rely upon an overt
mischaracterization of the actual content of the complaint, while suggesting four separate times
that the Court should dismiss the complaint rather than read it. Under well-settled legal authority
governing the determination of motions under Fed.R.Civ.P. 12(b)(6), defense platitudes simply
cannot override the factual specificity contained in a complaint, particularly one that details two
decades of misconduct with specific references to dates, persons, places and events in a fashion
that specifically satisfies the prima facie elements of each of the claims for relief.
As this Court held in Williams v. Sibbett, No. 2:07-CV-261 TS, 2011 WL 1134263, at *1
(D. Utah Mar. 25, 2011, aff'd, 442 F. App'x 385 (10th Cir. 2011):
When deciding a motion to dismiss the court must accept all wellplead facts as true and draw reasonable inferences from those facts
in favor of the non-moving party. Ridge at Red Hawk, L.L.C., 493
F.3d at 1177. However, legal conclusions, deductions, and
opinions couched as facts are not presumed to be true, and the
court must disregard conclusory allegations without supporting
factual averments. See, e.g., Erikson v. Pawnee County Bd. of
County Comm., 263 F.3d 1151, 115455 (10th Cir. 2001). When a
civil rights complaint contains only bare assertions involving
nothing more than a formulaic recitation of the elements' of a
constitutional ... claim, the court considers those assertions
conclusory and does not afford them the presumption of truth.
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1951 (2009) (quoting Twombly,
550 U.S. at 55455).
B. SC&M Deliberately And Repeatedly Assumed The Duties Of Legal Counsel

SC&M argues that the complaint is devoid of averments establishing that it was retained
under circumstances requiring the firm to disclose to the plaintiffs the manner in which it was
violating their civil rights through its own acts and omissions. Though many of the claims are not
predicated upon the existence of an attorney-client relationship, the duties of legal counsel will
be addressed first.
1.
Existence of attorney-client relationship.
The threshold question in a legal malpractice claim is whether an attorney-client

relationship was established. Breuer-Harrison, Inc. v. Combe, 799 P.2d 716, 727 (Utah Ct. App.
1990). A contract between an attorney and his or her client may be express or implied from the
conduct of the parties. Id. (citing Margulies, supra at 1200 (Utah 1985)). The relationship is
proved by showing that the party seeks and receives the advice of the lawyer in matters pertinent
to the lawyers profession. Id. (citing People v. Morley, 725 P.2d 510, 517 (Colo. 1986);
Steinbach v. Meyer, 412 N.W.2d 917, 918 (Iowa Ct. App. 1987)). This is a subjective
determination that turns on whether the client thought an attorney-client relationship existed,
although the mere fact of this belief is not enough. Id. (citations omitted). Payment of legal fees
is onebut only onepossible indicator that an attorney-client relationship has been
established. Id. at 728. In Breuer-Harrison, the court found that there was a genuine issue of
material fact as to whether an attorney-client relationship existed in a legal malpractice case
because (i) the plaintiff thought the attorney was representing his interests, (ii) the attorney
prepared legal documents that implicated him, and (iii) the attorney was paid out of proceeds of a
sale that would have otherwise accrued to the plaintiff.
The complaint alleges that in open court and public filings, SC&M has held itself out as
representing FLDS members, en masse as well as on an individualized basis, in connection with
their individual civil rights and their individual rights under the freedom of religion clause of the
United States Constitution. (See, e.g., complaint, 117-119.) Though SC&M asserts otherwise,
the complaint cites several references from the Utah Rules of Professional Conduct (see subparts
of 10 of the complaint) establishing applicable standards and many specific factual averments
detailing how those standards were breached by the active concealment and negligent
nondisclosure of SC&M's knowledge of the fact that it was actively participating in the
promulgation of ongoing wholesale violations of the very civil rights SC&M purported to have
been retained to protect on behalf of each of the individual members for their express personal
benefit and protection. As referenced above, the complaint avers at 117-119 that SC&M
affirmatively represented to the Utah District Courts, a Texas governmental agency and the
public at large that it had formed individual attorney client relationships with each of the
members of the FLDS for the purpose of representing their individual civil rights, which were
the very rights it was violating itself by reforming the trust into which the plaintiffs conveyed
virtually all of their assets. SC&Ms restated version of the UEP Trust was subsequently
invalidated by the Utah Supreme Court because it was formed for the illegal purposes detailed
throughout the complaint. Importantly, the Trust was invalidated in a case in which SC&M was
actually a named party, Snow, Christensen & Martineau v. Lindberg, 299 P.3d 1058, 1061 (Utah
2013).2 In addition to taking those specific factual averments in the Lindberg case, which are
See also, M.J., supra at 23 (Utah 2016) (From 1998 to 2006 the Trust was operated for
the express purpose of furthering the doctrines of the FLDS Church, including the practice of
2
quoted from the Utah Supreme Court, as true, this Court also may determine the sufficiency of a
cause of action by resort to judicial notice of matters outside the pleadings, as it recognized in
Haik v. Salt Lake City Corp., No. 2:12-CV-997 TS, 2013 WL 968141, at *1 (D. Utah Mar. 12,
2013), aff'd, 567 F. App'x 621 (10th Cir. 2014) (When considering the adequacy of a plaintiff's
allegations in a complaint subject to a motion to dismiss, a district court not only considers the
complaint, but also documents incorporated into the complaint by reference, and matters of
which a court may take judicial notice.)
Courts have recognized that an attorney's duty of candid disclosure to a client
encompasses matters of import to the client's interests of which the attorney has actual
knowledge, even if the subject matter of that knowledge is technically outside the purpose of the
attorney's engagement. For example, the Utah Supreme Court, in Kilpatrick v. Wiley, Rein &
Fielding, 37 P.3d 1130 (Utah 2001), recognized in the context of a law firms failure to disclose
conflicts of interest that it is a fundamental principle that attorneys must be completely loyal to
their clients and must never use their position of trust to take advantage of client confidences for
plural marriage involving underage girls. Throughout this period there was no clear delineation
between the FLDS Church and the Trust. Funds were comingled between the two entities, and
the President of the FLDS Church had extraordinary powers in administering the Trust,
including the power to appoint or remove trustees at will. . . . In reforming the Trust the district
court sought to preserve the Trust's charitable intent of protecting the interests of Trust
beneficiaries. Yet it also concluded that it could reform the Trust by excising the purpose of
advancing the religious doctrines and goals of the FLDS Church to the degree that any of these
were illegal, including polygamy, bigamy, [and] sexual activity between adults and
minors. Thus, the reformation of the Trust effectively strip[ped] the FLDS Church president of
several powers under the Trust and remove[d] any requirement that the president of the FLDS
Church approve any Board action on behalf of the Trust. [internal citations omitted])
4
themselves or for other parties. Kilpatrick, supra, at 1290, citing Margulies By & Through
Margulies v. Upchurch, 696 P.2d 1195, 1204 (Utah 1985).
Although an attorneys duty to a client is not buffered by the fact that his legal fees are
paid by a third party, In re Discipline of Reneer, 325 P.3d 104, 108 (2014), the complaint avers
that the fees received by SC&M in connection with its FLDS-related work over relevant period
were paid by these Plaintiffs and other FLDS members through ongoing fundraising ordered by
Defendant Jeffs for the purpose of paying SC&Ms fees. Most of the Plaintiffs in this action paid
substantial funds of their own into the SC&M coffers, as required by Warren Jeffs. (See, e.g.,
complaint at 145, 154, 155.) These payments constitute a manifestation of the members
intentespecially when coupled with the fact that Jeffs and FLDS leaders acting as agents for
SC&M, such as Sam Barlow, requested these funds specifically to pay the attorneys who were
allegedly representing them. Complaint 439. Furthermore, Parkers express statements to
various courts that he represented the individual FLDS members are a manifestation that he also
consented to such individual representation. See also Utah State Bar Ethics Advisory Opinion
No. 05-04 (Sept. 8, 2005).
2.
An attorney-client relationship may arise from a clients reasonable belief.
The Supreme Court of Utah in Norman v. Arnold, 57 P.3d 997 (Utah 2002), held that the
proper determination of whether an implied attorney-client relationship exists hinges on whether
the party had a reasonable belief that it was represented.3 Determining whether an implied
attorney-client relationship exists is resolved by looking at the totality of the circumstances
surrounding the legal representation. Id. The Norman court set forth the test for determining the
The Norman court quoted Kilpatrick, supra, in support of this rule.

5
existence of an implied attorney-client relationship, stating that the test is whether, under the
totality of the circumstances, the Normans reasonably believed that Arnold, the lawyer for the
group, represented their interests as individuals as distinguished from their common interests
with the other limited partners. Id. The court remanded the case for determination of this fact
issue.
Because this question is properly answered by a factfinder, it was
error for the district court to determine, as a matter of law, that
Arnold did not owe the Normans any fiduciary duties. We
therefore reverse the district court on this issue and we remand for
a factual determination whether, under the totality of the
circumstances, the Normans reasonably believed that Arnold
represented their interests, and for further proceedings consistent
with this opinion.
Id. at 1002.
The Supreme Court of Utah in Margulies, supra at 1200, upheld a determination that an
attorney client relationship existed between Jones, Waldo and the appellants who were
individual members of a limited partnership that was represented by Jones, Waldo. In Margulies,
the Supreme Court of Utah identified factors that supported the trial courts holding that an
implied attorney-client relationship existed. Id. Those factors include:
Jones, Waldos successful representation of the limited
partnership in Diversified [another lawsuit] would have protected
the appellants [individual members of limited partnership] from
substantial liability. Therefore, it was not at all unreasonable for
the limited partners to believe that Jones, Waldo was acting for
their individual interests as well as the interests of the partnership
in that litigation.
All three of the appellants [individual members of limited
partnership] attested that this [Jones, Waldo represented them
individually] was their impression and belief.
Id.
6
An important factor is whether the attorney has induced such a reasonable belief
through representations or conduct. Breuer-Harrison, Inc. v. Combe, 799 P.2d 716, 727 (Utah
Ct. App. 1990).4 The Supreme Court further expounded on this test in Rodericks v. Ricks, where
it set forth two questions related to reasonable belief: (i) whether the person subjectively
believe[s] the attorney represents him or her and (ii) whether this belief is reasonable under the
circumstances. Rodericks v. Ricks, 54 P.3d 1119, 1127 (Utah 2002), citing Kilpatrick, 37 P.3d
at 1139 (emphasis added).
This Court must now only look to the complaint for the totality of the circumstances,
which are extensively detailed therein, to establish that an actual, or at least an implied attorneyclient relationship could be found by the jury to have existed between Plaintiffs and SC&M.
Utahs model jury instructions incorporate this law and make clear that the clients
reasonable belief is the critical factor as to whether an attorney-client relationship exists, not the
attorneys beliefs:
CV404 Attorney-client relationship.
An attorney-client relationship can be established by an express
contract between the parties, or by an implied contract based upon
[the lawyer]s statements or conduct. An implied attorney-client
relationship exists when [the plaintiff] reasonably believes that [the
lawyer] represents [his or her] legal interests. The reasonableness
of that belief must be weighed in light of all of the facts.
3.
Breach of duty of loyalty.
It is axiomatic that a lawyer cannot operate directly against the interests of a client. See
also, United States v. Emigration Improvement Dist., No. 2:14-CV-701-JNP, 2016 WL
In Kilpatrick, the Utah Supreme Court remanded the case to the trial court for a review
of whether an attorney-client relationship existed.
4
4148251, at *3 (D. Utah Aug. 4, 2016)(No attorney can reasonably believe his or her duty of
loyalty to the client is fulfilled when he or she affirmatively argues against the interests of that
client.) The complaint alleges that SC&M, while purporting to represent individually each
member of the FLDSeven filing with the Utah District Court thousands of petitioners
signatures to prove that pointrestated the UEP Trust to make the members vulnerable to the
extortionate threats of deprivation of property, eviction, exile, starvation, poverty and alienation,
which threats were sufficiently viable to force parents to sacrifice their children to menial
slavery, sexual abuse and false imprisonment. The complaint further alleges that SC&M actively
concealed from plaintiffs that it was working against their interests while purporting to represent
them, ignoring conflicts of interest and deceiving the firms client-members. The factual
averments, taken as true as they must be, fall so far below even the most relaxed standards of
professional conduct, based upon judicially noticeable facts, such that they support summary
judgment for Plaintiffs on these claims. See, e.g., Lindberg, supra.
C. Civil Liability Under The TVPRA
Plaintiffs allege in the complaint (see, e.g., 180-192) that SC&M is subject to civil
liability for damages, including disgorgement of fees, for violations of the Trafficking Victims
Protection Reauthorization Act of 2003, 18 U.S.C. 18 U.S.C.A. Pt. I, Ch. 77, and that SC&M,
in actively facilitating and participating in a scheme to obtain labor or services in violation of 18
U.S.C. 1589, through, inter alia, facilitating the use of an ongoing venture and scheme to use
coercive and threatening tactics, including force, the threat of force, intimidation, deprivation of
property, food, medical care and living essentials, as well as extreme psychological duress,
deceit and misrepresentation, to secure such labor or services, and that SC&M derived financial
gain from the same.
SC&M incorrectly relies upon U.S. v. Kozminski, 487 U.S. 931 (1988) in support of the
assertion that the TVPRA claim must be dismissed because plaintiffs have failed to allege the
use of threat of physical restraint or personal injury, or the use or threat of coercion through
law or the legal process, which SC&M asserts must be present to state a claim for trafficking.
While the facts supporting those specific requirements are extensively detailed throughout the
complaint, Kosminski is no longer prevailing law. In 2000, by enacting the TVPA,5 a predecessor
statute to the TVPRA, Congress found that the Supreme Courts holding in Kozminski was too
narrow. See Terry Coonan, The Trafficking Victims Protection Act: A Work in Progress,
Intercultural Human Rights Law Review, IHRLR 15 Coonan 6-4-06, p. 102-103. Since the
enactment of the TVPRA in 2003, a plaintiff has been able to recover damages in a civil action
for psychological coercion as well as physical restraint or personal injury. Id. at 99, n. 2.
The TVPAs Purpose and Findings specifically states that crimes of involuntary servitude
include those perpetrated through psychological abuse and nonviolent coercion: Involuntary
servitude statutes are intended to reach cases in which persons are held in a condition of
servitude through nonviolent coercion. 22 U.S.C 7101(b)(13). Thus, the TVPA supersedes the
restrictive definition set forth in Kozminski. The TVPAs legislative conference report
emphasized the Acts intent to provide federal prosecutors with the tools to combat severe
In 2000, Congress passed the Victims of Trafficking and Violence Protection Act of
2000 (VTVPA). Division A of the VTVPA is further known as the Trafficking Victims
Protection Act of 2000 (TVPA), which incorporates 18 U.S.C. 1589-1594 (2000).
9
forms of worker exploitation that do not rise to the level of involuntary servitude as defined in
Kozminski. H.R. Rep. No. 106-939, at 101 (2000).
Prior to the enactment of the TVPA, federal prosecutors were unable to hold human
traffickers accountable for the more nuanced forms of coercion often used by modern
traffickers to force victims into service, such as brainwashing, psychological coercion, or
emotionally blackmailing victims to believe that their family members back home would suffer
some unspecified harm. See Bharathi A. Venkatraman, Human Trafficking A Guide to
Detecting, Investigating, and Punishing Modern-Day Slavery, THE POLICE CHIEF, Dec. 2003,
available at http://policechiefmagazine.org/magazine/ index.cfm. This new statute is critical to
combating human trafficking, as it encompasses the more subtle forms of psychological coercion
commonly employed by modern traffickers against their victims. See IHRLR 15 Coonan, p.
104.
Forms of coercion that could be prosecuted now under 1589
include the physical restraining of victims (in ways that
nonetheless fall short of violence), threats against victims families
in their homelands, threats that victims will be shunned by their
families on account of work the victims have been forced to do
(especially sex work), or threats that victims will be turned over to
U.S. immigration authorities to be deported.
IHRLR 15 Coonan, p. 104.
Subsequently, the TVPRA was enacted in 2003 in order to enhance provisions on
prevention of trafficking, protection of victims of trafficking, and prosecution of traffickers.
H.R.Rep. No. 108264(I), at 8 (2003), 2004 U.S.C.C.A.N. 2408, 2408.
In particular, Congress created a private right of civil action for victims of trafficking. 18
U.S.C. 1595. Ditullio v. Boehm, 662 F.3d 1091, 1094 (9th Cir. 2011). On December 23, 2008,
10
Congress amended the statute and created a ten-year statute of limitation, effective June 20,
2009. Lama v. Malik, No. CV 13-2846, 2016 WL 3538366, at *5 (E.D.N.Y. June 21, 2016).
The TVPRA both strengthened and amended the TVPA. Included
among its provisions were measures to combat international sex
tourism, strengthen border interdiction programs, allow state and
local law enforcement officers to verify that victims of trafficking
have cooperated in trafficking investigations and prosecutions,
allow trafficking victims to sue their traffickers in federal courts,
and make human trafficking crimes predicate offenses for RICO
charges.
Terry Coonan, The Trafficking Victims Protection Act: A Work in Progress, Intercultural Human
Rights Law Review, IHRLR 15 Coonan 6-4-06, p. 99, n. 2 (emphasis added). A significant
addition to the TVPRA is that it gives victims the additional right to sue their traffickers for
damages in U.S. district courts. IHRLR 15 Coonan, pp. 109-110; see also Trafficking Victims
Protection Reauthorization Act of 2003, Pub. L. No. 108-193, 117 Stat. 2875, 4(a)(4) (creating
new Private Right of Action in 18 U.S.C. 1595).
The 2008 reauthorization of the TVPRA codified the fact that the harm threatened by the
defendants need not be physical. The 2000 TVPAs House Report also took this approach. As
stated above, the Purpose and Findings proclaimed that trafficking crimes included those
perpetrated through psychological abuse and nonviolent coercion: [i]nvoluntary servitude
statutes are intended to reach cases in which persons are held in a condition of servitude through
nonviolent coercion. Trafficking Victims Protection Act of 2000, Pub. L. 106-386 102(b)(13)
(2000). This Court will note that most of the averments of physical and emotional threats and
coercive conduct to secure labor or services in violation of 1589 relate to events that occurred
after the passage of the TVPRA in 2003.
11
In Kiwanuka v. Bakilana, 844 F. Supp. 2d 107, 114 (D.D.C. 2012), the court held that the
defendants arguments that continued to rely on Kozminski were without merit, because
Kozminski is not controlling, as Congress has specifically addressed the Kozminski decision and
rejected it as too narrow. Kiwanuka, 844 F. Supp. 2d at 11415. Thus, the district court rejected
the defendants argument and found it to be without merit because Kozminski is not
controlling. The court noted that by enacting the TVPRA in 2000, Congress specifically
rejected Kominskis restrictions.
Rejecting Kozminskis restrictions, Congress determined that
[i]nvoluntary servitude statutes are intended to reach cases in
which persons are held in a condition of servitude through
nonviolent coercion. Id. [Pub.L. No. 106-386, 114 Stat. 1464]
102(b)(13). Congress therefore added 18 U.S.C. 1589 and 1590
to address the increasingly subtle methods of traffickers who
place their victims in modern-day slavery, such as where
traffickersrestrain their victims without physical violence or
injury, or threaten dire consequences by means other than overt
violence, and to combat severe forms of worker exploitation that
do not rise to the level of involuntary servitude as defined in
Kozminski. H.R.Rep. No. 106939, at 101 (2000) (Conf. Rep.).
Kiwanuka, 844 F.Supp.2d at 115.
Congress further expanded and strengthened the provisions of the 2003 TVPRA in the
2005 and 2008 William Wilberforce Trafficking Victims Protection Reauthorization Acts. Pub.
L. 109-164 (2006); Pub. L. 110-457 (2008).
The 2008 TVPRA enhanced the law in two critical ways: first, by
significantly expanding the civil cause of action, and, second, by
extending liability to those who financially benefit[] from
Chapter 77 crimes. The civil provision of the TVPRA, as amended
in 2008, allows individuals to bring suit for any violation of
Chapter 77 [of Title 18 of the United States Code], and against
anyone who benefits financially from the violation.
12
Civil Litigation on Behalf of Victims of Human Trafficking (Fourth Edition Draft), Southern
Poverty Law Center, p. 76; see also 18 U.S.C. 1593 A.
Until 2008, victims could only bring civil causes of action for forced labor (18 U.S.C.
1589), trafficking into servitude (18 U.S.C. 1590), and sex trafficking (18 U.S.C. 1591). See
18 U.S.C. 1595. Thus, the William Wilberforce Trafficking Victims Protection Reauthorization
Act of 2008 expanded the scope of possible civil claims to include all provisions in Chapter 77.
In addition to forced labor, trafficking into servitude, and sex trafficking, civilly actionable
violations now include involuntary servitude, obstructing enforcement, enticement, and
benefitting financially from human trafficking.
To be civilly liable under the TVPRA, a defendant must either be the perpetrator of the
trafficking offense or be one who knowingly benefits, financially or by receiving anything of
value from participation in a venture which that person knew or should have known has engaged
in an act of prohibitive trafficking. See 18 U.S.C.A. 1595(a) (emphasis added).
Accordingly, despite SC&Ms argument that it did not directly kidnap or carry away any
of the Plaintiffs, its violation of Section 1589 remains actionable because it participated in a
venture that it knew, or should have known, engaged in prohibitive trafficking and profited
financially from doing so. The duress and coercive effect of the manner in which SC&M
illegally restated the UEP Trust and thereafter wielded its power over the years to enforce the
unlawful and extortionate practices as directed by Jeffs constitutes active participation in that
venture reaching far beyond mere run-of-the-mill legal advice.
13
D. Civil RICO
1.
SC&M applies the wrong standard to its inaccurate description of the complaint.
SC&M asserts that plaintiffs have not and cannot establish that SC&M participated in
the conduct of an enterprise through a pattern of racketeering activity; SC&M also alleges that it
did not do so, but both of these assertions are immaterial for purposes of a motion brought
pursuant to Fed.R.Civ.P. 12(b)(6).
2.
RICO liability can attach to lawyers based upon participation in a clients pattern
of racketeering activity.
SC&M cites Handeen v. Lemaire, 112 F.3d 1339 (8th Cir. 1997), and Reeves v. Ernst &
Young, 507 U.S. 170, 185-86 (1993) to support the notion that mere provision of ordinary
professional legal services to a RICO perpetrator is insufficient to satisfy the participation
required for civil RICO to attach. The Handeen court recited that general rule and the decision is
of no support to SC&Ms position, for in that case, the court found that the attorneys could be
civilly liable under RICO based upon the averments of the complaint.
Appreciation for the unremarkable notion that the operation or
management test does not reach persons who perform routine
services for an enterprise should not, however, be mistaken for an
absolute edict that an attorney who associates with an enterprise
can never be liable under RICO. An attorney's license is not an
invitation to engage in racketeering, and a lawyer no less than
anyone else is bound by generally applicable legislative
enactments. Neither Reves nor RICO itself exempts professionals,
as a class, from the law's proscriptions, and the fact that a
defendant has the good fortune to possess the title attorney at
law is, standing alone, completely irrelevant to the analysis
dictated by the Supreme Court. It is a good thing, we are sure, that
we find it extremely difficult to fathom any scenario in which an
attorney might expose himself to RICO liability by offering
conventional advice to a client or performing ordinary legal tasks
(that is, by acting like an attorney). This result, however, is not
compelled by the fact that the person happens to be a lawyer, but
14
for the reason that these actions do not entail the operation or
management of an enterprise. Behavior prohibited by 1962(c)
will violate RICO regardless of the person to whom it may be
attributed, and we will not shrink from finding an attorney liable
when he crosses the line between traditional rendition of legal
services and active participation in directing the enterprise. The
polestar is the activity in question, not the defendant's status. Cf. In
re American Honda Motor Co. Dealerships Relations Litig., 941
F.Supp. 528, 560 (D.Md.1996)(Th[e] cases reveal an underlying
distinction between acting in an advisory professional capacity
(even if in a knowingly fraudulent way) and acting as a direct
participant in [an enterprise's] affairs.).
Handeen, supra, at 1349.
The Handeen court went on to hold that averments that a law firm had facilitated an
ongoing bankruptcy fraud in connection with a single bankruptcy estate was sufficient to state a
RICO claim under the circumstances of that case. The reasoning and authority upon which the
Handeen court relied are lengthy, detailed and utterly applicable to the averments of the
complaint in the instant action. The Handeen law firms direct participation in submitting the
fraudulent elements of a Chapter 13 plan and in perpetuating the plan over a period of three and
one-half years is in fact less continuous and less egregious than SC&Ms deliberate and knowing
restructuring of the UEP Trust and enforcement thereafter of the provisions engrafted into it for
the specific purpose of empowering Jeffs and his favored cohorts to commit rape, abuse,
kidnapping, forced labor, extortion, unlawful taking of property and other torts and crimes
detailed in the complaint over nearly a 20 year period.
Jeffs and his operation of the UEP Trust through SC&Ms restatement and enforcement
actions satisfies the essential characteristics of an enterprise under RICO: (1) a common or
shared purpose; (2) some continuity of structure and personnel; and (3) an ascertainable structure
distinct from that inherent in a pattern of racketeering. Atlas Pile Driving Co. v. DiCon Fin. Co.,
15
886 F.2d 986, 995 (8th Cir. 1989), citing United States v. Kragness, 830 F.2d 842, 855 (8th Cir.
1987). Cf. Gunther v. Dinger, 547 F. Supp. 25 (D.C.N.Y. 1982) (estate of decedent was
enterprise within for RICO purposes).
3.
Jeffs, operating the UEP Trust through SC&Ms restatement and enforcement
efforts, was an enterprise for purposes of RICO.
The Supreme Court interpreted the statutory requirement of an enterprise in United

States v. Turkette, 452 U.S. 576, 583 (1981): [The existence of an enterprise] is proved by
evidence of an ongoing organization, formal or informal, and by evidence that the various
associates function as a continuing unit ... The enterprise is not the pattern of racketeering
activity; it is an entity separate and apart from the pattern of activity in which it engages. The
bankruptcy estate satisfies the essential characteristics of an enterprise under RICO: (1) a
common or shared purpose; (2) some continuity of structure and personnel; and (3) an
ascertainable structure distinct from that inherent in a pattern of racketeering. Atlas Pile
Driving, supra, at 995, citing Kragness, supra, at 855; Gunther, supra (estate of decedent was
enterprise within for RICO purposes).
4.
Repeated instances of SC&Ms participation in operation of Jeffs racketeering

enterprise.
After reciting several of the judicially noticeable facts found in the decision in Snow,
Christensen & Martineau v. Lindberg, 299 P.3d 1058, 1061 (Utah 2013), the complaint avers on
the basis of those facts (at 59) that Parker and SC&M thus formed the 1998 Restatement as a
legal entity, controlled by Jeffs as an association and instrumentality in furtherance of a RICO
enterprise that was engaged in a pattern and practice of racketeering activity as otherwise
detailed herein. The complaint then details a number of predicate offenses that were conducted
16
by the enterprise through the active participation (rather than mere after-the-fact representation)
of SC&M. At paragraph 94, the complaint explains how, through its involvement in another
action, SC&M clearly had actual knowledge of the averments of sexual exploitation of children,
forced child labor and other offenses that constitute RICO predicate offenses.
Tabulated under the Statement of Facts, above, the complaint details many of the known
facts that support the conclusory averment of paragraph 198 that:
Parker and SC&M provided ongoing advice and actively
participated in the use of legalities and artifices incidental to their
role as lawyers in crafting, designing, executing and implementing
the instrumentality which they designed, in an ongoing and
continuous enterprise (the FLDS Church and the UEP Trust),
which have been judicially recognized as having been formed for
an illegal purpose in connection with the ongoing rape,
kidnapping, extortion and other racketeering activities described
herein, while profiting from the same and demonstrating, directly
and indirectly, actual knowledge of the illegality of the ongoing
operation and their material role in the same.
E. Free Exercise Clause Cannot Shield Wrongdoers From Civil Liability
The U.S. Constitutions Free Exercise Clause embraces two conceptsfreedom to
believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be.
Conduct remains subject to regulation for the protection of society. Cantwell v. Connecticut,
310 U.S. 296, 303304 (1940); see also In the Matter of Fuhrer, 100 Misc. 2d 315 (N.Y. App.
Div. 1979). Thus, in Cantwell, the U.S. Supreme Court held that Connecticut did not infringe
upon plaintiffs free exercise of religion by arresting them for soliciting contributions to their
church in violation of a statute that prohibited solicitations of money by organizations that had
not received approval from the secretary of the public welfare council. Id. at 301302. In short,
17
the Supreme Court has made clear that religious convictions do not exempt conduct from
government regulation. See Employment Division v. Smith, 494 U.S. 872 (1990).
The majority of state and federal jurisdictions have held that the First Amendment cannot
shield a religious institution from liability in a case of sexual misconduct against a child. See,
e.g., Bear Valley Church of Christ v. DeBose, 928 P.2d 1315, 1323 (Colo. 1996) (concerning
inappropriate touching); Malicki v. Doe, 814 So.2d 347, 351 (Fla. 2002) (concerning sexual
assault and battery); Bivin v. Wright, 656 N.E.2d 1121, 1124-1125 (Ill. 1995) (concerning sexual
misconduct relating to adult parishioner); Konkle v. Henson, 672 N.E.2d 450, 456 (Ind. Ct. App.
1996) (concerning sexual molestation of a child); Mrozka v. Archdiocese of St. Paul and
Minneapolis, 482 N.W.2d 806, 812 (Minn. Ct. App. 1992) (concerning sexual abuse of a child);
F.G. v. MacDonell, 696 A.2d 702-703 (N.J. 1997) (concerning sexual misconduct relating to
adult parishioner); Smith v. Privette, 495 S.E.2d 395, 398 (N.C. App. 1998) (concerning
inappropriate, unwelcome, offensive and nonconsensual acts of a sexual nature); Ericsson v.
Christenson, 781 P.2d 383, 386 (Or. App. 1989) (concerning sexual relations with minor); C.J.C.
v. Corporation of the Catholic Bishop of Yakima, 985 P.2d 262, 277 (1999) (concerning sexual
abuse of a minor); Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409 (2d
Cir.1999) (concerning child sexual abuse); Smith v. OConnell, 986 F. Supp. 73, 80 (D.R.I.1997)
(concerning sexual molestation of minor); Doe v. Hartz, 970 F. Supp. 1375, 14311432 (N.D.
Iowa 1997) (concerning improper sexual contact), revd on other grounds, 134 F.3d 1339 (8th
Cir. 1998); Sanders v. Casa View Baptist Church, 898 F. Supp. 1169, 1175 (N.D. Tex. 1995)
(concerning professional negligence and breach of fiduciary duty), affd, 134 F.3d 331 (5th Cir.
1998); Nutt v. Norwich Roman Catholic Diocese, 921 F. Supp. 66 (D. Conn. 1995) (concerning
18
sexual abuse of altar boys); Isely v. Capuchin Province, 880 F. Supp. 1138, 1151 (E.D. Mich.
1995) (concerning sexual abuse).
In Roman Catholic Diocese of Jackson. v. Morrison, 905 So.2d 1213, 1238 (Miss. 2005),
the court held:
We are satisfied that the cloak of religions, which does not shield
religious institutions from civil responsibility for fraud or breach of
contract, surely cannot serve to shield such institutions for civil
responsibility for more abhorrent conduct such as sexual
molestation of a child. Nor should it shield those who fail in their
duty to protect children from it.
This language expresses the important sentiment that religion not only cannot act as a
shield to those directly engaging in wrongdoing, but also cannot be a shield to those who fail to
protect victims from such wrongdoing.
It is also well settled that a neutral law of general applicability does not place an undue
burden on free exercise of religion. Employment Division v. Smith sets forth the U.S. Supreme
Courts standard in this regard. See 494 U.S. 872 (1990). Respondents in that case were two
employees of a private drug rehabilitation program in Oregon. They were fired after they
ingested peyote as part of a Native American church ceremony, and then attempted to obtain
state unemployment compensation. Their claims were denied because Oregon state law
disqualified employees fired because of misconduct. The Court noted that the use of sacramental
peyote violated Oregons controlled substance law. We have never held that an individuals
religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct
that the State is free to regulate. On the contrary, the record of more than a century of our free
exercise jurisprudence contradicts that proposition. Id. 878879; see also United States v. Lee,
455 U.S. 252, 263 n.3 (1982) (rejecting claim of Amish adherents that they should be exempt
19
from paying Social Security taxes on the basis of their beliefs and practice of caring for the
elderly); Reynolds v. United States, 98 U.S. 145 (1878). As the Reynolds court explained,
Laws are made for the government of actions, and while they
cannot interfere with mere religious belief and opinions, they may
with practices. . . . Can a man excuse his practices to the contrary
because of his religious belief? To permit this would be to make
the professed doctrines of religious belief superior to the law of the
land, and in effect permit every citizen to become a law unto
himself.
Id. 166167 (1879); see also Minersville Sch. Dist. Bd. of Educ. v. Gobitis, 310 U.S. 586, 594
595 (1940) (Conscientious scruples have not, in the course of the long struggle for religious
toleration, relieved the individual from obedience to a general law not aimed at the promotion or
restriction of religious beliefs. The mere possession of religious convictions which contradict the
relevant concerns of a political society does not relieve the citizen from the discharge of political
responsibilities.).
[A] law that is neutral and of general applicability need not be justified by a compelling
governmental interest even if the law has the incidental effect of burdening a particular religious
practice. Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993).6 However,
a law is not neutral if its intent is to infringe upon or restrict practices because of their religious
motivation. Id. at 533 (emphasis added). In such a case, the law must be justified by a
compelling interest and [be] narrowly tailored to advance that interest. Id. Thus, the Supreme
Court held that a city infringed upon free exercise of religion when the evidence showed that
suppression of the central element of the Santeria worship service [animal sacrifice] was the
object of [a city] ordinance. Id. at 534. The ordinances were enacted because of, not merely
Superseded by statute as stated in Miller v. Davis, 123 F.Supp.3d 924 (E.D. Ky. 2015).
20
in spite of, their suppression of Santeria religious practice. Id at 540, quoting Personnel
Administrator of Mass. v. Feeney, 442 U.S. 256, 279 (1979).
F. Statute of Limitations
It is axiomatic that a period of limitations cannot begin to run until a plaintiff knows or
should have known, in the exercise of reasonable diligence, of his or her claims against the
tortfeasor. As discussed below, where the actions of an unknown co-tortfeasor and the injuries
caused by that co-tortfeasor remain unknown to plaintiffs, the statutory period is tolled. This is
particularly true where the plaintiffs are actively prevented by concealment of material fact on
the part of a lawyer from learning of the lawyers involvement in the tortious conduct.
The Utah Court of Appeals has held that the discovery rule tolls the statute of limitations
where the plaintiff did not know the identity of the tortfeasor. In Robinson v. Morrow, 99 P.3d
341 (Utah 2004), the court addressed this issue for the first time, looking to cases from other
jurisdictions for guidance. See Spitler v. Dean, 148 Wis.2d 630, 436 N.W.2d 308 (1989);
Bernson v. Browning-Ferris Industries of California, Inc., 7 Cal.4th 926, 873 P.2d 613 (1994).
The court explained that it was already well-settled law in Utah that a statute of limitations tolls
for a plaintiff who is initially unaware of an injury, and that this principle should be extended to
protect a plaintiff who is initially unaware of the identity of a tortfeasor. Robinson, supra at 345.
Further, in the case of intentional concealment, the case for extending the statute of limitations is
even more compelling. Id. Overall, the Court held that a plaintiff who is legitimately ignorant of
the tortfeasors identity lacks the ability to effectively prosecute a civil suit and should therefore
be entitled to a delayed statute of limitations. Id. The Court in Robinson emphasized that because
the question before them was one of first impression in Utah, they found it appropriate to look to
21
cases from other jurisdictions for guidance.

Plaintiffs are not legally sophisticated, and do not have the ability to divine the impact of
unknown machinations on the part of a law firm as sophisticated as SC&M, particularly when
being told by SC&M, its agent Sam Barlow, and Jeffs, that their rights were being protected but
not what those rights were, while at the same time being told that their only legal resource was
Rod Parker of SC&M. (See, Complaint 167, 170)
1.
Other jurisdictions: unknown tortious conduct by joint tortfeasors.
The Superior Court of Connecticut, in Pavelko v. Margaritas Management Group, Inc.,

NNHCV116021592S, 2012 WL 1624023 1, 2 (Conn. Super. Ct. Apr. 17, 2012), held that a
plaintiff who has incurred actionable injury and knows the identity of one or more of the
tortfeasors, but has no reason to suspect the existence of additional responsible parties, clearly
cannot bring an action against the unknown parties until he discovers their existence. The court
determined that in such cases the statute of limitations cannot begin to run until a plaintiff
knows, or reasonably should have known, the identity of the tortfeasor. Id. The court
emphasized that this blameless failure to discover unknown tortfeasors is essential to the case
because it prevents the plaintiff from discovering the causal connection between the tortfeasors
breach of duty and the injury, and this blameless failure should clearly toll the statute of
limitations. Id.
The Utah Court of Appeals in Robinson similarly emphasized that when the plaintiffs
ability to effectively prosecute a suit is hindered because of the previously unknown identity of a
tortfeasor or a previously unknown injury, the statute of limitations should be tolled. Robinson,
supra, at 343-44. The court identifies the question at issue as whether the identity of the
22
tortfeasor should be considered an underlying fact that giv[es] rise to a cause of action. Id. at
344.
As avered in the complaint, Plaintiffs were unaware of the involvement of SC&M in the
tortious and criminal wrongs wrought against them until shortly before this action was filed,
which unawareness hindered the Plaintiffs ability to effectively understand and prosecute the
underlying facts giving rise to the cause of action. Therefore, the statute of limitations should
be tolled in this case, both to previously known tortfeasors such as Jeffs and unknown (until
recently) such as SC&M.
III. CONCLUSION
The theme present throughout SC&MS Rule 12(b)(6) motion is that the complaint is too
long and therefore the Court should not bother to read it7, but should simply accept on faith
SC&Ms erroneous characterization of Plaintiffs averments as a basis of dismissal. Were it that
easy to terminate a civil action particularly one based upon complex claims and extensive facts
supporting Rule 9(b) averments of patterns of illegal activity, no case would ever reach a jury.
Courts disfavor dismissal on Rule 12(b) grounds.
Plaintiffs here knew that the complaint would be attacked at the outset on Rule 12(b)
grounds, and for that reason, put forth the product of extensive research of court files and
interviews of many witnesses in order to establish with great factual particularity the course of
conduct of SC&M in its advance planning and support of civil wrongs, torts, and crimes on the
SC&M cited Arena Land & Investment Co., 69 F.3d 547 four separate times for this proposition, and Hart
v. Salois, 605 Fed. Appx. 694, 701 (10th Cir. 2015) once for the proposition that the Court should dismiss the
complaint without reading it to determine whether it contains well-pled facts sufficient to satisfy the elements of
liability of plaintiffs claims.
23
part of Warren Jeffs, without which active participation these heinous wrongs could not have
been perpetrated, at least to the shocking extent revealed by the histories contained in many of
the published decisions cited in the complaint.
SC&M is not immune from that degree of culpable participation merely because it is a
law firm. To find otherwise would be an extreme disservice to the integrity of the legal
profession. At the very least, a jury should be permitted to receive admissible evidence in
support of the averments, but for now they are to be taken as true.
The motion must be denied.
Respectfully submitted this 25th day of August, 2016.
/s/ Brett Godfrey
Brett M. Godfrey
Englewood, CO 80112
Phone: (303) 228-0700
godfrey@gojolaw.com
/s/ Matthew Grimmer

Matthew Grimmer
Grimmer & Associates
2975 W. Executive Parkway, Suite 1982
Lehi, UT 84043
Phone: (801) 341-2075
24
CERTIFICATE OF SERVICE
I hereby certify that on this 25th day of August, 2016, I electronically filed the foregoing
with the Clerk of Court using the CM/ECF system, which will send notification of such filing to
the following:
Brent O. Hatch, Esq.
Mark F. James, Esq.
Mitchell A. Stephens Esq.
HATCH, JAMES & DODGE, P.C.
10 West Broadway, Suite 400
Salt Lake City, UT 84101
/s/ Brett Godfrey

Brett M. Godfrey
Englewood, CO 80112
Phone: (303) 228-0700
godfrey@gojolaw.com
/s/ Matthew Grimmer

Matthew Grimmer
Grimmer & Associates
2975 W. Executive Parkway, Suite 1982
Lehi, UT 84043
Phone: (801) 341-2075
25

Bistline, Et Al, Response To Motion To Dismiss

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Case 2:16-cv-00788-TS Document 26 Filed 08/25/16 Page 1 of 54

PLAINTIFFS RESPONSE IN OPPOSITION

Case 2:16-cv-00788-TS Document 26 Filed 08/25/16 Page 2 of 54

Response to Defendants Statement of Facts i

II. DISCUSSION OF LAW 1

SC&M Deliberately and Repeatedly Assumed the Duties of Legal Counsel 2

Existence of attorney-client relationship 2

An attorney-client relationship may arise from a clients

Breach of duty of loyalty 7

Civil Liability Under the TVPRA 8

SC&M applies the wrong standard to its inaccurate

RICO liability can attach to lawyers based upon participation

Jeffs, operating the UEP Trust through SC&Ms restatement

Repeated instances of SC&Ms participation in operation of

Free Exercise Clause Cannot Shield Wrongdoers from Civil Liability 17

Other jurisdictions: unknown tortious conduct by joint tortfeasors 22

Case 2:16-cv-00788-TS Document 26 Filed 08/25/16 Page 3 of 54

Case 2:16-cv-00788-TS Document 26 Filed 08/25/16 Page 4 of 54

Case 2:16-cv-00788-TS Document 26 Filed 08/25/16 Page 5 of 54

Reeves v. Ernst & Young, 507 U.S. 170 (1993) ........................................................................... 14

Case 2:16-cv-00788-TS Document 26 Filed 08/25/16 Page 6 of 54

18 U.S.C. 1591 ........................................................................................................................... 13

Case 2:16-cv-00788-TS Document 26 Filed 08/25/16 Page 7 of 54

Case 2:16-cv-00788-TS Document 26 Filed 08/25/16 Page 8 of 54

Case 2:16-cv-00788-TS Document 26 Filed 08/25/16 Page 9 of 54

SC&M unabashedly mischaracterizes the averments of the complaint, ignoring and

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Paragraphs asserting facts in support

FIRST CLAIM FOR RELIEF: LEGAL MALPRACTICE

2, 3, 5, 8, (identifying SC&M actors &

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Elements of prima facie claim

Paragraphs asserting facts in support

2. Duty arising out of relationship

10 (Utah Rules of Prof. Conduct); 11 (nondelegability of duties); 38 (duty of

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Elements of prima facie claim

Paragraphs asserting facts in support

3. Breach of lawyers duty

12-31 (common scheme and plan to facilitate

4. Causal nexus between breach and damages

139-142 (causal nexus between wrongful

137, 138 (general identification of damages);

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SECOND CLAIM FOR RELIEF: BREACH OF FIDUCIARY DUTY

9, 117-119 (SC&M held itself out as

2. Breach of fiduciary duty to act in best

139-142 (causal nexus between wrongful

137, 138 (general identification of damages);

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THIRD CLAIM FOR RELIEF: FRAUD

9, 117-119 (SC&M held itself out as

2. Concerning presently existing material fact

61-64 (SC&M holding itself out, through its

3. Which was false

60 (falsity of representations made by SC&M

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4. Which the representer either (a) knew to be

40-43 (SC&Ms knowledge of criminal