Menzies v. State

2006 UT 81
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Ralph Leroy Menzies, 	No. 20040289
Plaintiff and Appellant,
v.
Hank Galetka, Utah State 	F I L E D
Prison Warden,
Defendant and Appellee. 	December 15, 2006
---
Third District, West Valley
The Honorable Pat B. Brian
No. 030106629
Attorneys: 	Elizabeth Hunt, Salt Lake City, for plaintiff
Mark L. Shurtleff, Att’y Gen., Thomas Brunker,
Erin Riley, Asst. Att’ys Gen., Salt Lake City
for defendant
---
DURHAM, Chief Justice:
¶1 	In this case, Ralph Leroy Menzies, a death row inmate,
appeals from the district court’s dismissal of his petition for
post-conviction relief. 	Menzies filed a claim for post-
conviction relief in 1995, after having previously exhausted his
grounds for direct appeal. 	On March 3, 1998, attorney Edward K.
Brass was appointed by the district court to represent Menzies.
From that date until his withdrawal on September 9, 2003, Brass
willfully disregarded nearly every aspect of Menzies’ case. 	As a
result, the court imposed discovery sanctions, granted summary
judgment in favor of the State, and ultimately dismissed Menzies’
petition for post-conviction relief.
¶2 	Following the dismissal of Menzies’ case, Brass
withdrew and new counsel was appointed. 	Menzies then moved to
set aside the district court’s dismissal of his petition for
post-conviction relief pursuant to rule 60(b) of the Utah Rules
of Civil Procedure. 	Menzies’ 60(b) motion was primarily based on
claims that Brass’ actions were grossly negligent and amounted to
ineffective assistance of counsel. 	The district court denied
Menzies’ motion (the 60(b) ruling). 	Menzies now requests that we
reverse the district court’s 60(b) ruling. 	Menzies also

No. 20040289 	2
challenges a discovery order that the district court entered
pursuant to an evidentiary hearing held on Menzies’ 60(b) motion,
arguing that the district court improperly compelled Menzies to
disclose privileged work product. 	We hold that the district
court erred in denying Menzies relief under rule 60(b)(6) of the
Utah Rules of Civil Procedure and that the discovery order
entered by the district court did not comply with the standard
for the discovery of attorney work product set forth in Salt Lake
Legal Defender Ass’n v. Uno, 932 P.2d 589 (Utah 1997).
BACKGROUND
¶3 	Before reciting the facts in this case, it is necessary
to discuss our review of the district court’s factual findings.
We have reviewed the factual findings contained in the district
court’s 60(b) ruling for clear error, as is our practice when
reviewing issues of fact. 	Chen v. Stewart, 2005 UT 68, ¶ 1 n.1,
123 P.3d 416. 	However, our review of the record in this case
indicates that the district court clearly erred in numerous
factual findings that were crucial to its decision. 	We therefore
decline to recite the facts in a manner consistent with the
district court’s ruling and instead recite them in accordance
with our review of the record. 	Id.
¶4 	The facts pertinent to this appeal arise from Menzies’
lengthy post-conviction litigation, particularly the
representation he received from attorney Edward K. Brass between
February 1998 and September 2003. 	We begin our synopsis with
some background information on the initial criminal proceedings.
On March 8, 1988, Menzies was found guilty of first degree murder
and aggravated kidnapping. 	Menzies waived his right to a jury
for the penalty phase of his trial and was subsequently sentenced
to death by the district court. 	Following his sentencing,
Menzies filed a motion for a new trial, which was denied.
Menzies appealed to this court, which affirmed the district
court’s denial of the motion and directed Menzies to proceed with
his direct appeal on the merits. 	State v. Menzies, 845 P.2d 220,
242 (Utah 1992). 	Menzies did so, arguing that numerous
prejudicial errors had occurred at trial. 	We ultimately denied
all of Menzies’ claims, affirming the jury’s guilty verdict as
well as the district court’s imposition of the death penalty.
State v. Menzies, 889 P.2d 393, 406-07 (Utah 1994), cert. denied,
513 U.S. 1115 (1995).

1 Attorney Mary C. Corporon was Menzies’ counsel of record
when post-conviction proceedings were initiated on April 20,
1995. 	Ms. Corporon was joined by co-counsel Alan L. Sullivan,
Matthew M. Durham, and Todd M. Shaughnessy on May 2, 1995.
Together, these four attorneys represented Menzies pro bono in
all post-conviction proceedings until Brass was appointed on
February 13, 1998.
3 	No. 20040289
I. 	THE INITIAL POST-CONVICTION PROCEEDINGS
¶5 	On April 20, 1995, Menzies filed a petition for post-
conviction relief; he amended his petition on May 2, 1995. 1 	In
his amended petition, Menzies asserted seventy-three separate
claims for relief, including claims that his trial counsel had
provided ineffective assistance. 	On November 13, 1995, the State
moved to dismiss the first seventy-one claims, arguing that the
Utah Supreme Court had previously rejected them. 	However, the
State’s motion did not address Menzies’ ineffective assistance
claims.
¶6 	On December 13, 1995, the State moved the district
court for permission to conduct discovery by serving
interrogatories on Menzies and deposing him, his original trial
counsel, and other witnesses. 	Menzies opposed the motion,
asserting that any discovery should be tailored to avoid
breaching attorney-client and constitutional privileges. 	On
February 7, 1996, Menzies moved the district court to direct the
State to provide attorney fees as well as funds for both expert
witnesses and an investigation of his claims of innocence,
including a potential alibi that was allegedly not investigated
by trial counsel in Menzies’ underlying criminal case. 	Menzies
indicated that the motion would be supported by the affidavit of
a private investigator to be filed with the court.
¶7 	On April 3, 1996, the district court entered an order
deferring ruling on the State’s motion to dismiss until after an
evidentiary hearing could be held on the ineffective assistance
of counsel claims. 	The court also set a timetable for the State
and Menzies to file responsive memoranda to their respective
motions. 	The court held another hearing regarding the State’s
motion for discovery and Menzies’ motion for attorney fees and
investigatory funds on May 6, 1996. 	On June 12, 1996, the
district court ordered that the State be allowed to conduct
limited discovery and that Menzies be awarded $2,000 to pay for
an alibi investigation. 	In this order, the district court found
that Menzies had partially waived his attorney-client privilege
as to the records of his defense counsel, the Salt Lake Legal
Defender Association (LDA), by claiming ineffective assistance of

No. 20040289 	4
trial counsel in his post-conviction petition. 	The court also
found that in order to prevent Menzies’ right of habeas corpus
from being unlawfully suspended, it was necessary to provide
Menzies with funds to investigate his claims, specifically his
claims regarding an uninvestigated alibi defense. 	The court
deferred ruling on Menzies’ request for attorney fees until an
evidentiary hearing could be held. 	The State filed an
interlocutory appeal from this order.
¶8 	On May 17, 1996, the State served its first set of
interrogatories on Menzies. 	On June 7, 1996, the State also
served the LDA attorneys who had represented Menzies during his
criminal trial with subpoenas duces tecum to have their
depositions taken and requests to produce all documents relating
to their representation of Menzies. 	On June 19, 1996, LDA
intervened and filed a motion for redetermination and
clarification of the district court’s order granting discovery.
LDA argued that Menzies had not waived the attorney-client
privilege and that even if he had, the waiver was limited by the
subject matter of Menzies’ claims and the right against self
incrimination. 	LDA also moved the district court for a
protective order preventing the discovery of privileged attorney-
client information from current or former LDA attorneys.
Finally, LDA requested that the district court stay the
depositions and discovery procedures pending the resolution of
its motions.
¶9 	On July 8, 1996, the State filed a motion requesting
that the district court compel Menzies to respond to the
interrogatories that the State had served him on May 17. 	On July
9, 1996, LDA filed a motion requesting that the court either
quash the subpoenas duces tecum the State had served on its
attorneys or issue a protective order limiting the production of
privileged LDA documents relating to Menzies’ criminal trial. 	On
July 10, 1996, Menzies also moved for a protective order, asking
that the LDA attorneys not be deposed and that he be relieved
from having to respond to the State’s interrogatories. 	Menzies
argued that there was inadequate time to review the documents
requested by the State to determine privilege issues. 	Menzies
also noted that the State had not yet paid the $2,000 in
investigative funds ordered by the district court and that he
could not fully answer the State’s interrogatories until the
alibi investigation was completed. 	In addition, Menzies moved to
stay the proceedings pending the State’s appeal from the district
court’s interlocutory order regarding investigative funds to the
Utah Supreme Court.

5 	No. 20040289
¶10 	The district court conducted a hearing regarding LDA’s
July 8 motion on July 16, 1996. 	At the hearing, the court
stayed all motions pending the State’s interlocutory appeal and
gave the State until July 19, 1996, to respond to Menzies’
motions. 	The court also stayed the depositions of the LDA
attorneys, which had been scheduled for July 18, 1996, and stated
that they were to be rescheduled pending a hearing on the various
motions on August 6, 1996. During the interim, the court ordered
LDA to produce the non-privileged information that the State had
requested and to prepare a privilege log as to the rest.
Finally, the court ordered the State to pay Menzies the $2,000 in
investigative funds as required by its prior order. 	The State
did indeed provide Menzies with a check for $2,000 on July 19,
1996, reserving the right to challenge the district court’s order
requiring payment and to seek repayment from Menzies if the order
was vacated.
¶11 	Prior to the July 16 hearing, the State had prepared a
proposed order regarding the discovery of LDA documents; the
State amended its proposed order in light of the July 16 hearing
and provided it to Menzies and LDA on July 22, 1996. 	On July 29,
1996, Menzies moved to extend the time for responding to the
State’s proposed order and to strike the August 6 hearing because
he had not received a copy of the transcript from the July 16
hearing and thus could not properly object to the State’s
proposed order. 	The district court granted Menzies’ motion on
both counts. 	On August 6, 1996, LDA filed a memorandum, joined
by Menzies, objecting to the State’s proposed order.
¶12 	On August 23, 1996, the State moved the district court
for leave to take Menzies’ deposition. 	On September 3, 1996,
Menzies filed motions for a protective order and to stay all
discovery. 	Menzies argued that the State had impermissibly made
its payment of the $2,000 in investigative funds conditional on
its right to seek repayment if the district court’s order was
overturned. 	Menzies asserted that this condition made it
impossible for him to spend the funds because he was indigent and
did not have the means to repay the funds in the event the State
later sought to recover them. 	According to Menzies, he could not
proceed with discovery--through answering interrogatories and
being deposed--unless the investigative funds were made available
and an investigation was completed.
¶13 	On September 9, 1996, the State filed memoranda
responding to Menzies’ motions and LDA’s objection to the State’s
proposed discovery order. 	The district court held a hearing
regarding both issues. 	It ruled that the proposed order was
sufficient as written and that any objections to the discoverable

No. 20040289 	6
materials in LDA’s possession could be handled through in-camera
reviews by the court. 	Accordingly, the court executed the
State’s proposed discovery order. 	With regard to Menzies’
motions, the court denied both of them but ordered that the
$2,000 in investigative funds be paid to Menzies with no
restrictions. 	Finally, the court granted the State’s motion to
depose Menzies and to compel him to answer its interrogatories
before October 9, 1996. 	On October 15, 1996, LDA filed its
privilege log with the district court. 	On October 22, 1996, the
State moved for sanctions, asking that the district court strike
Menzies’ ineffective assistance of counsel claims because Menzies
had failed to answer the State’s interrogatories by October 9, as
directed by the court.
¶14 	On November 1, 1996, Menzies petitioned this court to
allow him to appeal from the district court’s June 12 order
regarding the provision of investigative funds and also filed a
motion to stay the post-conviction proceedings in the district
court pending our decision. 	We denied the motion to stay without
prejudice on November 18, 1996. 	After the State filed a motion
to dismiss and a memorandum in opposition, Menzies withdrew his
petition. 	Menzies then petitioned this court for a writ of
extraordinary relief, again requesting that this court review the
district court’s June 12 order to determine the adequacy of the
investigative funds. 	According to Menzies, the amount of
investigative funds awarded by the district court was not
sufficient to conduct an adequate investigation; Menzies’ private
investigator suggested in his affidavit that a reasonable
estimate would be at least $8,250. 	He stated that he had
identified twenty-six areas of investigation, “each extensive and
critical to a determination of guilt,” that had not been
adequately investigated during the guilt phase of Menzies’ trial.
¶15 	On January 2, 1997, we consolidated this petition with
several other cases involving similar issues under the caption
Menzies v. Galetka. 	On January 23, 1997, this court denied
Menzies’ petition for extraordinary relief, concluding that the
preliminary conditions necessary for the grant of a writ under
rule 65B of the Utah Rules of Civil Procedure did not exist.
However, we also stated that if Menzies challenged the adequacy
of the investigative funds in the district court and the court
denied him the relief requested, he could then petition this
court for interlocutory relief, in which case we would address
the adequacy issue in connection with the disposition of the
other consolidated cases.
¶16 	On January 31, 1997, this court issued its decision in
the related case of Salt Lake Legal Defender Ass’n v. Uno, 932

2 The pertinent legislation is contained in Utah Code
section 78-35a-202 (2002). 	Under this section, counsel appointed
to represent an indigent petitioner must be “qualified to
represent defendants in death penalty cases as required by Rule 8
of the Utah Rules of Criminal Procedure.” 	Id. § 78-35a-
202(2)(a). 	In addition, this section specifies that compensation
for counsel and litigation expenses are to be paid from state
funds by the Division of Finance pursuant to administrative rules
adopted under the Utah Administrative Rulemaking Act. 	Id. § 78-
35a-202(2)(c); see also Utah Admin. Code r. 25-14 (2001) (setting
(continued...)
7 	No. 20040289
P.2d 589 (Utah 1997), wherein LDA had petitioned this court for
extraordinary relief from the district court’s September 16
order. 	Id. at 589. 	In that case, we clarified the procedures
courts should follow when applying the work product doctrine to
privileged documents sought in discovery. 	Id. at 590-91. 	We
granted LDA’s petition, vacated the district court’s September 16
order regarding the production of LDA documents, and ordered the
district court to supervise discovery in accordance with the
standards set forth in our opinion. 	Id. at 591.
¶17 	On January 10, 1997, Menzies filed his answers to the
State’s first set of interrogatories. 	The State subsequently
withdrew its motion for sanctions. 	On February 3, 1997, Menzies
filed with the district court a motion to increase the funds
available for investigation fees to at least $8,250, based on the
private investigator’s affidavit. 	The State opposed the motion.
The district court heard the issue on February 24, 1997, and it
denied Menzies’ request for additional funds, ordered Menzies to
use an in-state investigator, and again reserved ruling on
Menzies’ request for attorney fees until after an evidentiary
hearing.
II. 	POST-CONVICTION LEGISLATION AND MR. BRASS’ APPOINTMENT
¶18 	Meanwhile, in proceedings before this court involving
the district court’s order awarding Menzies’ investigative fees,
the State had filed a motion suggesting that the issue may be
moot given the recent passage of House Bill 60, enacting Part 2
of the Post-Conviction Remedies Act, Capital Sentence Cases,
which governs the appointment and payment of counsel in post-
conviction death penalty proceedings. 	Utah Code Ann. §§ 78-35a-
201 to -202 (2002). 	We granted the State’s motion on April 28,
1997, noting that the parties had agreed to voluntarily stay
proceedings in the district court until after July 1, 1997, the
date on which the new legislation and associated rules went into
effect. 2 	After the new legislation became effective, both

2 (...continued)
forth current payment scheme for attorney fees and litigation
expenses in post-conviction death penalty cases).
No. 20040289 	8
parties sought to have the district court appoint new counsel
qualified under rule 8 of the Utah Rules of Criminal Procedure,
as required by the newly enacted Utah Code section 78-35a-
202(2)(a). 	On October 1, 1997, the State notified Menzies’
counsel that the Utah Division of Finance had implemented rules
that might allow Menzies to receive payment from the state for
attorney fees and litigation expenses. 	In a letter to the State
dated October 13, 1997, Menzies’ counsel stated that she did not
feel comfortable applying for compensation under the provisions
adopted by the Utah Division of Finance because Menzies’ pro bono
team had not been appointed by the court and did not meet the
requirements of rule 8, as required by section 78-35a-202(2)(a).
Menzies’ counsel further represented her belief that the case
could not proceed until an attorney meeting the rule 8
requirements, who was willing to represent Menzies, could be
located.
¶19 	On October 27, 1997, the State requested that the
district court appoint new counsel qualified under rule 8 to
represent Menzies. 	Menzies’ counsel also filed a motion arguing
that his pro bono team collectively did not meet the rule 8
requirements and asking the court to appoint new counsel. 	The
district court held a hearing on the State’s motion on November
3, 1997, and determined that “[n]ew counsel must be appointed.”
The court ordered Menzies’ counsel to prepare and submit a list
of attorneys qualified under the new rule 8 who would be willing
to accept the appointment, along with affidavits regarding the
attorneys’ backgrounds and qualifications. 	Pursuant to this
order, Menzies’ counsel submitted a report to the district court
on November 12, 1997, identifying thirteen attorneys whom she
believed were qualified to represent Menzies. 	Of these thirteen,
five were unable to take the case because of undisclosed
conflicts. 	Menzies’ counsel sent a letter to the remaining eight
attorneys inviting them to represent Menzies, but had received no
responses as of November 12. 	No affidavits were included with
the November 12 report.
¶20 	Kenneth R. Brown, one of the attorneys identified in
the November 12 report and contacted by Menzies’ counsel, filed
an affidavit with the district court on December 3, 1997. 	In his
affidavit, Brown stated that he was unwilling to represent
Menzies for a host of reasons. 	At the time, the Utah State
Department of Finance Regulations placed a $25,000 cap on
compensation for attorneys representing plaintiffs in post-

3 The current regulations contain a tiered system for the
payment of attorney fees, which compensates counsel according to
the procedural stage of the post-conviction proceedings reached.
See Utah Admin. Code r. 25-14-4. 	Under this system, the maximum
amount of compensation an attorney may receive for representing a
petitioner in a post-conviction death penalty case is $37,500.
Id. 	Under these rules, the Division of Finance will also “pay
reasonable litigation expenses not to exceed a total of $20,000
in any one case for court-approved investigators, expert
witnesses, and consultants.” 	Utah Admin. Code r. 25-14-5. 	While
these regulations provide more funding for post-conviction death
penalty proceedings than their predecessors, we note the
potential disability that the statutory cap may impose. 	If Mr.
Brown’s affidavit is correct regarding the funds needed to secure
Menzies a proper post-conviction proceeding, it may be the case
that this statutory scheme imposes a crippling burden on Menzies.
However, at this stage in the litigation, the record is
incomplete, and the issue is not before the court. 	On remand,
Menzies’ current counsel must determine what investigation is
needed and present any challenge to the statutory cap to the
district court to rule on as a factual matter, subject to
adversary testing.
9 	No. 20040289
conviction death penalty cases which included investigation and
expert witness fees. 	According to Brown, Menzies had
uninvestigated claims of actual innocence that Brown estimated
would cost $25,000 to properly investigate. 	In addition, Brown
stated that no mitigation investigation had been conducted in the
underlying trial and one would be necessary in order to properly
litigate Menzies’ post-conviction claims. 	Such an investigation
“would cost well in excess of $25,000.” 	Under these
circumstances, Brown believed that the funds available to any
attorney undertaking Menzies’ representation would be “grossly
inadequate” because the necessary investigation alone would cost
nearly three times the total amount authorized by the state.
Therefore, Brown felt that any attorney representing Menzies
would be placed “in an immediate ethical conflict” because he or
she “would be forced to choose between receiving compensation
. . . and conducting no reasonable investigation whatsoever, or
alternatively, throwing all of [the funds] into a still-
inadequate investigation, and going without any compensation.” 3
Accordingly, Brown declined to represent Menzies.
¶21 	On December 16, 1997, the State filed a second motion
requesting that the district court appoint rule 8 qualified
counsel for Menzies. 	In its motion, the State indicated that
the only attorney contacted by Menzies’ counsel who had responded
was Brown and he had declined to represent Menzies. 	The State

No. 20040289 	10
argued that “[i]n order to proceed with this action a Rule 8
qualified attorney must be appointed by the Court to represent
the petitioner’s interests.” 	The State also stated that
“[f]urther delay in making the appointment of counsel is not in
the best interest of the petitioner who has alleged, among other
claims, his ‘actual innocence.’” 	On December 23, 1997, Menzies’
counsel filed a supplemental report to update the district court
regarding her search for rule 8 qualified counsel. 	In the
report, Menzies’ counsel indicated that she had received replies
to her letter soliciting a rule 8 qualified attorney for Menzies
from four of the eight recipients. 	Each of these attorneys had
declined to represent Menzies, most for the same reasons as
Brown. 	Menzies’ counsel further stated that the attorneys she
had contacted constituted all of the potentially qualifying
attorneys of whom she was aware.
¶22 	On January 29, 1998, the district court held a second
hearing regarding the appointment of rule 8 qualified counsel.
The court ordered Menzies’ counsel to continue trying to contact
attorneys to represent Menzies and gave her until February 5 to
do so. 	On February 4, 1998, pursuant to a request from the
district court judge’s clerk, Menzies’ counsel submitted a letter
to the district court indicating the eight attorneys who had been
contacted and their responses. 	The letter indicated that four of
the attorneys had responded in the negative and the other four
had still not responded.
¶23 	On February 3, 1998, attorney Edward K. Brass sent a
letter to Menzies’ counsel stating that he would be interested in
representing Menzies if they were still seeking counsel. 	On
February 13, 1998, at yet another hearing regarding the
appointment of rule 8 qualified counsel, Menzies’ counsel told
the court about Brass’ letter. 	The court contacted Brass, he
appeared and agreed to represent Menzies, and the district court
approved the appointment. 	It does not appear that the district
court ever actually conducted an inquiry into whether Brass was
qualified to represent Menzies under rule 8. 	On March 3, 1998,
the court entered an order appointing Brass to represent Menzies
in all proceedings before the court. 	Menzies’ pro bono team
subsequently withdrew their representation but remained available
to consult with Brass. 	In the 60(b) ruling, the district court
stated that “Mr. Brass believed he was appointed for the sole
purpose of representing Petitioner at the evidentiary hearing.”
While Brass’ affidavit does contain a statement to this effect,
nothing else in the record indicates that his representation was
limited in such a manner. 	The letter Brass sent to Menzies’
counsel simply stated that Brass was willing to take the case.
At the hearing at which Brass was appointed, the district court

11 	No. 20040289
did not set any limit on his representation. 	Also, the district
court’s order appointing 	Brass, which he signed, actually states
that “Edward K. Brass is appointed to represent Mr. Menzies in
all proceedings before this court” (emphasis added). 	Most
telling, at an evidentiary hearing held on January 16, 2004,
Brass himself stated that his representation of Menzies was not
limited in any way. 	Nor would a limitation on Brass’
representation have been appropriate given that the district
court and counsel for both parties had just conducted a four-
month search for rule 8 qualified counsel and 	Brass was the only
attorney willing to take the case. 	Any 	limitation would also
have run counter to the post-conviction regulatory framework.
Under the Utah Administrative Code,
[a]ll appointed counsel, by accepting the
court appointment to represent an indigent
client sentenced to death and by presenting a
Request for Payment to the Division of
Finance, agree to provide all reasonable and
necessary post-conviction legal services for
the client, including timely filing an action
under the provisions of Title 78, Chapter
35a, Post-Conviction Remedies Act and
representing the client in all legal
proceedings conducted thereafter including,
if requested by the client, an appeal to the
Utah Supreme Court.
Utah Admin. Code r. 25-14-3 (emphasis added). 	The record
indicates that Brass requested and received from the Division of
Finance an initial appointment fee of $5,000 pursuant to rule 25-
14-4(1) of the Utah Administrative Code.
III. 	BRASS’ REPRESENTATION
¶24 	Brass served as Menzies’ counsel from February 13,
1998, when the district court appointed him, until he withdrew on
September 9, 2003. 	To say that Brass did little to represent
Menzies during this five-and-a-half-year period would be an
understatement. 	In fact, Brass’ representation in this case was
deplorable. 	Our review of the record indicates that Brass not
only failed to provide Menzies with any meaningful
representation, but in fact willfully disregarded nearly every
aspect of this case. 	In effect, Brass defaulted Menzies’ entire
post-conviction proceeding, resulting in the dismissal of
Menzies’ case.

4 Menzies’ telephone access is limited by the prison, and he
has been denied telephone access at various times during this
litigation. 	Moreover, the prison phone system requires Menzies
to call his attorneys collect.
No. 20040289 	12
¶25 	To begin with, Brass communicated with Menzies only
sparingly throughout his representation. 	He discussed the issues
in the case at length with Menzies only once--for one to two
hours during an initial meeting--and thereafter rarely spoke with
his client, appearing to deliberately avoid any communication.
Menzies consistently attempted to contact Brass by telephone to
discuss various aspects of the case. 	Brass’ office rarely
answered Menzies’ calls, frequently refused to accept collect
calls from the prison, 4 and even hung up when they realized it
was Menzies calling. 	This practice was conducted pursuant to
Brass’ instructions. 	Even when the staff accepted Menzies’ phone
calls and took messages, Brass seldom returned them. 	Telephone
records indicate that Menzies attempted to call Brass’ office
literally hundreds of times but actually spoke with Brass or a
member of his staff only on a handful of occasions.
¶26 	Menzies also tried to communicate with Brass through
letters and cards. 	In these letters, Menzies repeatedly pleaded
with Brass to contact and update him on the status of his case.
Brass did not keep Menzies informed about the procedural posture
or progress of the case, nor did he send Menzies copies of any of
the documents filed by the State, even though Menzies requested
that he do so multiple times. 	In his communications with Brass,
Menzies consistently maintained his innocence and frequently
asked Brass and his staff to make sure that the case was
progressing. 	In particular, Menzies wanted Brass to conduct
alibi and mitigation investigations, repeatedly expressing
concern that delaying the investigation of these matters would be
harmful to his case. 	In its 60(b) ruling, the district court
made much of the fact that Menzies told Brass in several letters
that he had full confidence in him and to take whatever time was
needed. 	According to the district court, Menzies “was aware of
circumstances that called into question the quality of Mr. Brass’
representation and the progress of his case,” and “despite his
concerns with Mr. Brass’ representation and the lack of progress
in his case, [Menzies] intentionally acquiesced in the delay of
his case by keeping Mr. Brass as his attorney.” 	However, a
careful reading of the record shows that Brass--when Menzies was
able to communicate with him--and several other attorneys and
staff members who were affiliated with Brass, repeatedly told
Menzies to have faith in Brass’ representation and that Brass
would do a good job. 	Moreover, 	Brass himself has indicated that
Menzies asked him to resolve the case without delay. 	Thus, a

5 When the State learned that Brass had never obtained these
funds, it moved to have the money refunded; the district court
granted the State’s motion on March 31, 2004.
13 	No. 20040289
more accurate reading of the record is that Menzies kept Brass as
his attorney because he was not fully aware of the status of his
case, and he was continually reassured that Brass was taking care
of things.
¶27 	Brass never conducted or hired anyone to conduct an
investigation, notwithstanding Menzies’ requests and the fact
that the record indicates that extensive investigation on these
subjects was needed in order to properly litigate Menzies’
claims. 	After he was appointed, Brass received a letter from
Menzies’ prior counsel informing him that she had the $2,000 in
investigative funds previously awarded by the court in her
possession. 	However, Brass never sought or obtained these funds
from her; 5 the record also indicates that Brass did not consult
Menzies’ pro bono team about the case. 	Nor did Brass ever
challenge the adequacy of the funds or request any additional
funds from the Division of Finance. 	In fact, the only funding
Brass ever requested or received in connection with his
representation of Menzies was his initial $5,000 appointment fee.
¶28 	Brass’ representation of Menzies before the district
court was equally deficient. 	Shortly after Brass was appointed,
the district court held a scheduling conference to establish
cutoff dates for Menzies to file a second amended petition for
post-conviction relief, for discovery, and for the parties to
file dispositive motions. 	A scheduling order was then entered
giving Menzies until April 16, 1998, to file his second amended
petition. 	However, Brass failed to file a petition by that date.
On July 15, 1998, the district court modified the prior
scheduling order and gave Menzies until August 17, 1998, to file
his petition. 	On July 22, 1998, the court held another
scheduling conference wherein it modified several other cutoff
dates and also ordered LDA to produce all relevant documents by
November 9, 1998. 	Brass again failed to file Menzies’ second
amended petition by the modified deadline. 	On August 31, 1998,
Brass finally filed a two-page second amended petition, which did
little more than re-state the arguments that had been made in the
first amended petition filed by Menzies’ pro bono counsel on May
2, 1995.
¶29 	On September 25, 1998, the State filed both its answer
to and a motion to dismiss Menzies’ second amended petition. 	As
in its original motion to dismiss, the State argued that all of
Menzies’ claims except those relating to ineffective assistance

No. 20040289 	14
of trial counsel should be dismissed because they had either been
raised on direct appeal or could have been raised on direct
appeal. 	Brass did not file a brief opposing the State’s motion.
On October 8, 1998, the State moved the court to extend the
discovery deadline from October 15 to December 15, citing a need
to review an index of all LDA documents relating to the
underlying criminal trial in order to complete discovery. 	The
court granted this motion on October 29.
¶30 	On November 24, 1998, the State provided notice that it
intended to depose Menzies on December 10. 	However, on December
9, Brass cancelled the deposition. 	On December 22, the district
court held a hearing on the State’s motion to dismiss. 	The court
granted the State’s unopposed motion and ordered that the first
seventy-one claims for post-conviction relief asserted in
Menzies’ amended petition be dismissed. 	On that same day, the
State filed a motion to compel Menzies’ deposition; the court
ordered Menzies to respond by January 4, 1999. 	Brass never filed
a response.
¶31 	On February 2, 1999, Menzies, the State, and LDA moved
the court to vacate, amend, and clarify the discovery order of
September 16, 1996, to conform to this court’s decision in Salt
Lake Legal Defender Ass’n v. Uno, 932 P.2d 589 (Utah 1997). 	The
court did so on February 4, issuing an order addressing all of
the previous discovery-based motions filed by the parties. 	The
court ordered LDA to produce all documents not protected by the
work product doctrine and to prepare an index of all remaining
documents. 	LDA filed its privilege log with the court on April
9, 1999.
¶32 	On June 11, the district court entered an order
granting the State’s motion to compel Menzies’ deposition, noting
that the motion was unopposed. 	On July 19, the district court
extended the discovery cutoff date, ordering that the parties
complete discovery by December 31, 1999. 	On September 2, 1999,
the State filed a motion for permission to schedule Menzies’
deposition. 	The court granted the motion, and following several
cancellations due to conflicts in the parties’ schedules,
Menzies’ deposition was scheduled for November 5, 1999. 	On
November 4, Brass again called counsel for the State and told
them that it would be inappropriate for Menzies to be deposed
before an alibi investigation could be conducted. 	Brass
apparently made this assertion notwithstanding the fact that he
had made no effort to conduct such an investigation. 	Menzies’
deposition, however, proceeded as scheduled. 	Brass did not
attend but instead sent Julie George, an attorney who was neither
rule 8 qualified nor familiar with the case in any way. 	When

15 	No. 20040289
George arrived at the prison, Menzies did not know who she was
and was not even aware that the deposition was scheduled.
Nonetheless, Menzies participated in the deposition, answering
certain questions and refusing to answer others on George’s
advice. 	The deposition was finally terminated when Menzies,
acting on George’s advice, asserted his right under the Fifth
Amendment to refuse to answer questions about his communications
with the attorneys who represented him in his criminal trial.
¶33 	On December 3, 1999, the State filed a second motion to
compel Menzies’ deposition. 	In its motion, the State requested
that the court instruct Menzies on the extent of the Fifth
Amendment privilege, order Menzies to answer all questions not
protected by the privilege, and impose sanctions precluding
Menzies from introducing evidence in the event Menzies refused to
answer. 	On December 23, 1999, the State moved to strike the
discovery deadline due to the delays. 	Brass failed to file a
response to either of the State’s motions, and the court
subsequently granted both of them. 	The State rescheduled
Menzies’ deposition for June 1, 2000, and completed deposing
Menzies on that date. 	Brass represented Menzies at the
deposition, again asserting a blanket objection to the
deposition.
¶34 	On October 9, 2000, the State filed a motion seeking
permission to serve Menzies with additional interrogatories.
Once again, Brass did not file any response to the State’s
motion. 	On December 4, 2000, the court granted the State’s
motion, and an order to this effect was entered on December 20,
2000. 	On December 18, 2000, the State served Menzies with a
document production request and a second set of interrogatories.
When Menzies did not timely respond, the State notified Brass on
January 24 via hand-delivered letter that it would move for an
order compelling discovery if it did not receive the outstanding
discovery by February 9, 2001. 	Brass did not respond to the
letter and did not provide the State with any of the requested
discovery. 	Consequently, on February 15, 2001, the State moved
the court to compel Menzies’ discovery responses. 	Brass again
filed no response to the State’s motion to compel. 	On March 28,
2001, the district court granted the State’s motion to compel and
ordered Menzies to immediately provide the requested discovery.
In its order, the court stated, “The extensive period since
discovery began has provided [Menzies] with ample opportunity to
investigate his claims; consequently, [Menzies] should have the
information to answer the outstanding discovery readily
available.”

No. 20040289 	16
¶35 	Despite the court’s order, Brass did not provide the
State with any of the requested discovery. 	Brass likewise did
not inform Menzies of his failures to comply with discovery and
did not send Menzies copies of any of the State’s discovery
requests. 	Indeed, at an evidentiary hearing held before the
district court, Brass acknowledged that Menzies did not have
personal knowledge of any of the discovery issues at a time that
he could have done anything about them. 	In fact, Menzies did not
even know that Brass had defaulted on the various discovery
motions until August 12, 2003. 	Brass has since stated that he
did not respond to any of the State’s discovery requests because
he had not done any investigation and therefore had no
information to provide. 	Brass has also acknowledged that he
could have informed the district court that he did not comply
with discovery because of his failure to investigate and could
have requested more time in order to do so. 	He did neither of
these things.
¶36 	On April 19, 2001, the State moved for sanctions
pursuant to rule 37 of the Utah Rules of Civil Procedure,
requesting that the court prohibit Menzies from introducing any
evidence to support his claims beyond what was already in the
record. 	In its motion, the State argued that sanctions were
warranted because Menzies had willfully refused to respond to
discovery requests and had purposely delayed the proceedings.
Once again, Brass failed to respond. 	Brass did not inform
Menzies that the State had moved for sanctions and did not
provide Menzies with a copy of the State’s motion. 	Nor did he
communicate with the district court regarding the reasons for his
discovery failures. 	On June 27, 2001, the district court granted
the State’s motion, thereby prohibiting Menzies from introducing
any further evidence to support his claims. 	Brass did not tell
Menzies about the court order or explain to Menzies that he could
no longer investigate his claims.
¶37 	On October 29, 2001, the State moved for summary
judgment. 	The State sought to dismiss Menzies’ entire post-
conviction petition, arguing that because Menzies could not
introduce any further evidence to support his claims, the State
was entitled to a judgment as a matter of law on the existing
record. 	Brass made no effort to defeat the State’s motion; he
has subsequently stated that he did not even review the record to
attempt to find disputed material facts. 	Brass has also
testified that he was not in a position to know whether the facts
were in dispute because he had not investigated Menzies’ claims.
Again, Brass failed to respond to the State’s summary judgment
motion. 	He likewise did not contact the court to ask for more
time or to inform the court as to why the facts were not in

17 	No. 20040289
dispute. 	Nor did Brass inform Menzies about the State’s motion
or send Menzies a copy of it. 	On December 7, 2001, the district
court granted the State’s summary judgment motion. 	An order to
this effect was entered on January 11, 2002, dismissing Menzies’
petition in its entirety with prejudice.
¶38 	On January 23, 2002, Brass spoke with Menzies on the
telephone. Menzies asserts that Brass told him the State was
trying to get a summary judgment, but not to worry about it
because there was a discovery stay in place for the State. 	If
Brass said this, it was an outright lie; the record reflects that
no discovery stay was ever imposed, and the State’s summary
judgment motion had already been granted due to Brass’ failures
to comply with discovery. 	In any event, Brass did not
communicate with Menzies for nearly a year following this
conversation, even though Menzies repeatedly tried to contact him
both by telephone and through letters. 	At no point did Brass
inform Menzies that his case had actually been dismissed.
¶39 	On February 11, 2002, Brass filed a notice of appeal
with the district court indicating that he was appealing the
summary judgment to the Utah Supreme Court. 	However, Brass did
not file a docketing statement within the time required by rule 9
of the Utah Rules of Appellate Procedure, and this court
dismissed the appeal. 	We then allowed Menzies to avoid the
dismissal by filing a transcript request; Brass indicated that no
transcript was required. 	We set a briefing schedule, but Brass
never filed an appellate brief even though we twice granted him
additional time to do so. 	The State filed a motion to dismiss
the appeal, and Brass failed to respond. 	We dismissed Menzies’
appeal on November 21, 2002, but indicated that if a brief were
filed within ten days we would reinstate the appeal. 	Brass never
filed a brief, so we entered a notice of decision dismissing
Menzies’ appeal on December 19, 2002. 	Brass did not inform
Menzies of any of these developments.
¶40 	While the faulty appeal was proceeding in this court,
Brass filed with the district court a motion to set aside the
summary judgment pursuant to rule 60(b) of the Utah Rules of
Civil Procedure on April 11, 2002. 	This motion was not
accompanied by a memorandum but stated that “[t]he specific
grounds for this motion shall be set forth in a subsequent
memorandum.” 	Brass never filed a supporting memorandum.
¶41 	On December 30, 2002, nearly a year after the case had
been dismissed, Brass finally sent a letter to Menzies informing
him about the summary judgment. 	In the letter, Brass stated,
“The Attorney General’s office has managed to obtain a summary

No. 20040289 	18
judgment in your writ based upon our alleged failures to comply
with certain discovery requests on their part. 	This is my
responsibility and not yours. 	I am doing what is necessary to
have this set aside.” 	Menzies received this letter on January 2,
2003. 	Menzies wrote a reply letter to Brass that same day. 	He
expressed that he did not know what discovery requests Brass was
referring to and asked Brass to contact him as soon as possible
to explain why the summary judgment had been entered. 	Following
Menzies’ letter, 	Brass made no contact with Menzies for nearly
two months. 	On January 10, 2003, the State requested permission
from the district court to file a late response to Menzies’
unsupported motion to set aside. 	Again, Brass filed no
responsive memoranda, and the State filed a notice to submit the
matter for decision on January 29, 2003. 	Before the district
court could rule on the matter, however, Judge Lewis was assigned
to the case. 	Brass promptly notified the State of a potential
conflict; Judge Lewis had performed Brass’ wedding. 	On March 6,
2003, Judge Lewis recused herself from the case, and the case was
subsequently reassigned to Judge Brian.
¶42 	Brass finally visited with Menzies at the prison on
March 5, 2003. 	At the meeting, Brass informed Menzies that he
was going to need a new lawyer, although he did not tell Menzies
that he was going to withdraw or give Menzies any impression that
he was going to stop representing him. 	Brass also told Menzies
once again that he was doing what was necessary to set aside the
summary judgment. 	Brass did not discuss the procedural history
of the case with Menzies, explain his various defaults that led
to summary judgment, or tell Menzies that he had defaulted the
appeal and failed to file a memorandum supporting the motion to
set aside.
¶43 	In June of 2003, Menzies’ current counsel, attorney
Elizabeth Hunt, attended a capital litigation seminar. 	While
attending the seminar, Hunt was asked to check on Utah’s death
row cases to ensure that nothing “was falling through the
cracks.” 	On July 21, 2003, Hunt contacted Thomas Brunker, the
State’s counsel of record in this case. 	Brunker informed Hunt
about Menzies’ case, and Hunt promptly contacted Menzies and
began researching and preparing to represent him. 	On August 12,
2003, Hunt showed Menzies the case dockets and explained the
procedural posture of the case. 	This was the first time that
Menzies had knowledge that Brass had defaulted during the
discovery process, that the summary judgment had been imposed due
to these defaults, and that Brass had defaulted in the appeal.
On that same day, Hunt filed an appearance as Menzies’ counsel, a
motion to appoint rule 8 qualified counsel, and a memorandum
supporting the 60(b) motion to set aside the summary judgment

19 	No. 20040289
that Brass had filed over a year earlier. 	In the memorandum
supporting the 60(b) motion, the bulk of Menzies’ argument
focused on the errors made by Brass that led to summary judgment.
¶44 	On August 29, 2003, the State filed a memorandum
opposing the 60(b) motion. 	On September 9, 2003, Brass withdrew
as counsel. 	He has subsequently admitted that while he may
technically meet the requirements of rule 8, he “do[es] not
understand the complex procedural rules governing capital cases
in state and federal post-conviction” proceedings, and that he
“cannot adequately represent a capital defendant in post-
conviction cases.” 	The 60(b) motion was argued before the
district court on September 22, 2003, and the matter was taken
under advisement. 	On November 6, 2003, Hunt was formally
appointed to represent Menzies. 	On November 7, the district
court scheduled an evidentiary hearing for December 15, 2003, in
order to obtain evidence relating to communications between Brass
and Menzies during the period of Brass’ representation. The State
moved for permission to conduct discovery in preparation for the
evidentiary hearing, and Menzies opposed the motion. 	On December
4, 2003, the district court entered an order allowing both
parties to conduct discovery in preparation for the evidentiary
hearing and continued the hearing until January 15, 2004. 	The
State subsequently requested that Menzies produce all documents
relating to communications with his prior post-conviction
counsel--both Brass and the pro bono team that had first
represented him. 	The State’s theory appears to have been that
the evidence pertaining to the pro bono team was relevant to
Brass’ diligence, for if their investigation had been damaging or
unfruitful, it would explain Brass’ failure to investigate.
¶45 	Menzies objected to the State’s request, arguing that
the material the State sought was protected work product. 	The
disputed materials appear to have been documents created by the
private investigator for Menzies’ prior pro bono counsel based on
his preliminary investigation. 	He filed an index of withheld
documents that he requested the judge to review in-camera, and
moved for a protective order and for permission to file the
protected documents under seal. 	In his motions, Menzies asked
the district court to follow the standard for the discovery of
attorney work product set forth in Salt Lake Legal Defender Ass’n
v. Uno, 932 P.2d 589 (Utah 1997). 	At a hearing held on January
7, 2003, the district court denied Menzies’ motions, ordered
Menzies to produce all the documents that had previously been
withheld, and allowed the State to make working copies of the
disputed documents but ordered them not to disseminate the
information to any third parties. 	The evidentiary hearing
proceeded as planned on January 15. 	Menzies again objected when

No. 20040289 	20
the State began referring to the disputed documents. 	The court
took the matter under advisement and reviewed Uno as well as the
disputed documents over the evening recess. 	When the court
reconvened the next day, it ruled that the disputed documents
were inadmissible. 	It also ordered the State not to make any
copies of the documents and to destroy the copies it already
possessed at the conclusion of the hearing. 	The court indicated
that if the State wished to question witnesses based on the
materials, it should discuss the matter at side bar along with
Menzies’ counsel, “and then the questioning will proceed on a
question-and-an-opportunity-to-object basis for each question.”
Following the evidentiary hearing, Menzies filed a proposed order
relating to the destruction of the documents the district court
had ruled inadmissible at the evidentiary hearing. 	The State
objected to Menzies’ proposed order, arguing that it went beyond
the scope of the court’s instructions, and filed its own proposed
order.
¶46 	On February 26, 2003, the court issued its 60(b)
ruling. 	The court analyzed Menzies’ claims under four separate
subsections of rule 60(b): 	60(b)(1) and 60(b)(4) through (6).
The court found that Brass’ representation clearly constituted
ineffective assistance of counsel, stating that Brass’ actions
“were inexplicable failures to follow rudimentary procedural
requirements and comply with court-ordered deadlines.” According
to the court, Brass’ “inaction appears to have been willful and
deliberate rather than the result of ignorance or carelessness.”
While the court held that Menzies should not be held accountable
for Brass’ failures, it held that Menzies could be held
accountable for his own failures. 	According to the district
court, Menzies “must still exercise that level of diligence that
a reasonably prudent person in his circumstances would exercise.”
The court found that “a reasonably prudent person in [Menzies’]
circumstances would have, at a minimum, contacted the court about
his concerns” and “would have dismissed Brass as counsel of
record.” 	The court thus held that Menzies had acted unreasonably
under the circumstances and denied his motion for 60(b) relief.
¶47 	On April 5, 2004, the district court issued its order
regarding the destruction of the documents that had been held
inadmissible at the January 15 evidentiary hearing. 	The court
ordered the State to destroy all the documents that had been on
Menzies’ index of withheld documents unless any of the documents
had already been in its possession or were provided to the State
from another source. 	In addition, the court ordered the State
not to disseminate the information contained in the documents or
investigate matters learned of from its review of the documents.

21 	No. 20040289
¶48 	On April 22, 2004, Menzies filed a notice of appeal
with the district court indicating that he would seek review of
the court’s denial of 60(b) relief as well as the order regarding
the destruction of the inadmissible documents. 	Menzies’ appeal
is now before this court. 	We have jurisdiction pursuant to Utah
Code Ann. § 78-2-2(3)(i) (2002).
POST-APPEAL MATTERS
¶49 	Before addressing the merits of Menzies’ appeal, we
must first dispose of two additional procedural matters that
arose after Menzies’ appeal was filed with this court. 	Each
party has filed with this court a motion regarding issues that
are extraneous to the substantive issues on appeal. 	We first
address the motion filed by the State and then the motion filed
by Menzies.
¶50 	Following Menzies’ record designation, the State moved
to strike certain transcripts that it contended were not part of
the record considered by the district court in ruling on the rule
60(b) motion. 	We conditionally granted the State’s motion,
requiring Menzies’ counsel to file an affidavit indicating
whether the transcripts were referenced during the rule 60(b)
proceedings and explaining the transcripts’ relevance to those
proceedings. 	After both the affidavit and the briefing in this
matter were filed, the State renewed its motion, requesting that
we strike from the record transcripts that were not before the
district court as well as Menzies’ arguments relying on the
challenged transcripts.
¶51 	We have reviewed Menzies’ citations to the challenged
transcripts and conclude that the State’s arguments are without
merit and irrelevant. 	Contrary to the State’s assertions,
several of the transcripts challenged by the State are not even
referenced in Menzies’ briefing. 	Moreover, some of the
transcripts actually were before the district court during the
rule 60(b) proceedings. 	Most importantly, every factual
proposition for which Menzies cites the challenged transcripts is
supported by citations to other portions of the record that were
before the district court during the rule 60(b) proceedings. 	We
therefore deny the State’s motion to strike the portions of
Menzies’ argument that rely on the challenged transcripts. 	We
note that we have not relied on those transcripts that were not
before the district court for any portion of this opinion, as we
generally do not consider new evidence on appeal.
¶52 	After oral argument, Menzies’ counsel filed a letter
styled as supplemental authority--the third she has filed since

6 We note that the information Menzies attempts to provide
is not supplemental authority as considered by rule 24(j) of the
Utah Rules of Appellate Procedure but is extra-record evidence,
which we typically do not consider on appeal. 	Low v. Bonacci,
788 P.2d 512, 513 (Utah 1990).
No. 20040289 	22
we took this matter under advisement--as well as a motion
requesting that we take judicial notice of letters and oral
statements made by counsel for the State in two other
proceedings. 6 	Menzies’ counsel also made a vague request that we
require the State’s counsel to provide “all relevant information”
related to the other proceedings. 	According to Menzies, the
State has taken a position in these other proceedings that is
counter to the State’s argument in this case. 	Namely, the State
argued that criminal defendants should not engage in ex parte
communications with the court but then claimed that Menzies is
negligent for not contacting the district court to notify it of
Brass’ errors. 	Because this information is irrelevant to our
decision, we deny Menzies’ motion.
¶53 	Before addressing the merits of this case, we pause to
comment on the litigation the parties have engaged in regarding
the two matters discussed above. 	The voluminous record in this
case covers twenty years of litigation, both during the trial
stage and post-conviction phase. 	The briefing in this case is
also extensive and includes a multitude of legal arguments as
well as references to portions of the record relating to the
entire twenty-year history of the case. 	Resolving a case such as
this is a time-intensive task. 	Yet the parties chose to add to
that task by filing the two motions discussed above, each of
which also involved extensive briefing. 	In fact, the briefing on
these two motions alone far exceeds the quantity of briefing we
frequently receive on entire cases. 	We do not consider such
voluminous briefing on extraneous issues to be a particularly
good use of judicial resources. 	We therefore admonish both the
parties in this case and parties appearing before us in the
future to constrain their litigiousness to issues both relevant
and material to the matters before this court.
STANDARD OF REVIEW
¶54 	The majority of Menzies’ arguments on appeal deal with
the district court’s 60(b) ruling. 	A district court has broad
discretion to rule on a motion to set aside a default judgment
under rule 60(b) of the Utah Rules of Civil Procedure. 	See Lund
v. Brown, 2000 UT 75, ¶ 9, 11 P.3d 277; Russell v. Martell, 681
P.2d 1193, 1194 (Utah 1984); State Dep’t of Soc. Servs. v.
Musselman, 667 P.2d 1053, 1055 (Utah 1983). 	Thus, we review a

23 	No. 20040289
district court’s denial of a 60(b) motion under an abuse of
discretion standard of review. 	Russell, 681 P.2d at 1194.
However, we have emphasized that “the [district] court’s
discretion is not unlimited.” 	Lund, 2000 UT 75, ¶ 9. 	It is well
established that 60(b) motions should be liberally granted
because of the equitable nature of the rule. 	Id. ¶ 10.
Therefore, a district court should exercise its discretion in
favor of granting relief so that controversies can be decided on
the merits rather than on technicalities. 	See id.; Musselman,
667 P.2d at 1055-56. 	Accordingly, it is an abuse of discretion
for a district court to deny a 60(b) motion to set aside a
default judgment if there is a reasonable justification for the
moving party’s failure and the party requested 60(b) relief in a
timely fashion. 	Lund, 2000 UT 75, ¶ 11.
¶55 	In addition, a district court’s ruling on a motion to
set aside a default judgment “must be based on adequate findings
of fact and on the law.” 	Id. ¶ 9 (citation and internal
quotation marks omitted). 	We review a district court’s findings
of fact under a clear error standard of review. 	Chen v. Stewart,
2005 UT 68, ¶ 1 n.1, 123 P.3d 416. 	We review a district court’s
conclusions of law for correctness, affording the trial court no
deference. 	Richins v. Delbert Chipman & Sons Co., 817 P.2d 382,
385 (Utah Ct. App. 1991) (reviewing district court’s conclusions
of law in context of a 60(b) motion for correctness). 	If a
district court’s ruling on a 60(b) motion is based on clearly
erroneous factual findings or flawed legal conclusions, the
district court has likely abused its discretion. 	See Lund, 2000
UT 75, ¶ 9.
¶56 	Here, the substantive issue underlying the district
court’s 60(b) ruling was Menzies’ claim that Brass provided
ineffective assistance of counsel. 	A claim of ineffective
assistance of counsel presents a mixed question of law and fact.
Strickland v. Washington, 466 U.S. 668, 698 (1984).
Traditionally, this court has reviewed a lower court’s factual
findings for clear error, but has reviewed the application of the
ineffective assistance standard to the facts for
correctness--even when the claim is initially heard by the
district court, see Wickham v. Galetka, 2002 UT 72, ¶¶ 7, 19, 61
P.3d 978 (analyzing ineffective assistance of counsel issue as
question of law even where trial court had already rejected the
claim), or is remanded to the district court for an evidentiary
hearing, see State v. Lovell, 1999 UT 40, ¶ 22, 984 P.2d 382
(“Having remanded this case for an evidentiary hearing on the
conflict [of interest] issue under Rule 23B of the Utah Rules of
Appellate Procedure, we defer to the trial court’s findings of
fact but treat the conflict issue as a question of law.”).

No. 20040289 	24
¶57 	However, this court has not yet evaluated the
appropriate standard of review for ineffective assistance of
counsel claims under the test we set forth in State v. Pena, 869
P.2d 932, 938-39 (Utah 1994), and modified in State v. Levin,
2006 UT 50, ¶ 25, __ P.3d __. 	Accordingly, we take this
opportunity to reevaluate whether correctness is the proper
standard of review.
¶58 	Under Levin, we consider three factors to determine
whether we should give some deference to a district court’s
application of a specific legal doctrine to the facts:
(1) the degree of variety and complexity in
the facts to which the legal rule is to be
applied; (2) the degree to which a trial
court’s application of the legal rule relies
on “facts” observed by the trial judge, “such
as a witness’s appearance and demeanor,
relevant to the application of the law that
cannot be adequately reflected in the record
available to appellate courts;” and (3) other
“policy reasons that weigh for or against
granting discretion to trial courts.”
Id. (citation omitted). 	While the first factor, the variability
of the facts, would favor granting deference to the district
court, the second and third factors weigh heavily against it.
Ineffective assistance of counsel claims are a unique species of
claim that are frequently raised for the first time on appeal and
are regularly decided based on the record. 	Even when we remand
for an evidentiary hearing under rule 23B of the Utah Rules of
Appellate Procedure, we rely on the facts found and placed in the
record and do not defer to the district court’s ultimate legal
decision. 	Lovell, 1999 UT 40, ¶ 22. 	Therefore, the trial
court’s direct observations do not generally play a role in
determining whether a defendant received effective assistance of
counsel and it is unnecessary to grant deference to the district
court in the minority of cases where an ineffective assistance of
counsel claim is first raised before that court. 	Accordingly, we
review for correctness the trial court’s application of the law
to the facts, but we will overturn the district court’s findings
of fact only if they are clearly erroneous.
¶59 	Finally, Menzies’ appeal of the district court’s order
regarding the destruction of the documents ruled inadmissible at
the evidentiary hearing held on January 16, 2004, deals with an
issue of discovery. 	We review a district court’s ruling on a

7 Because our ruling under rule 60(b)(6) is dispositive of
Menzies’ 60(b) arguments, we do not address the arguments raised
under any other portion of that rule. 	Because our holding under
60(b)(6) grants Menzies his requested relief, we likewise do not
address his argument that a post-conviction petitioner cannot
waive the right to post-conviction review through misconduct. 	We
do note, however, that a court must conduct a waiver analysis
before allowing an indigent death row petitioner to waive his or
her right to counsel in post-conviction proceedings. 	See Utah
Code Ann. § 78-35a-202(2)(a) (2002).
25 	No. 20040289
discovery issue for abuse of discretion. 	Green v. Louder, 2001
UT 62, ¶ 37, 29 P.3d 638.
ANALYSIS
¶60 	On appeal, Menzies raises the following arguments:
(1) the district court erred in denying him relief under rule
60(b) of the Utah Rules of Civil Procedure; (2) the district
court’s ruling that Menzies was negligent for failing to either
dismiss Brass or notify the court of Brass’ failures is premised
on clearly erroneous findings of fact; (3) by holding Menzies
liable for failing to either dismiss Brass or notify the court of
Brass’ failures, the district court allowed an inadvertent waiver
of Menzies’ fundamental rights; (4) the district court’s order
regarding the destruction of privileged documents ruled
inadmissible at the evidentiary hearing held on January 16, 2004,
did not cure the court’s violation of the standard set forth in
Salt Lake Legal Defender Ass’n v. Uno, 932 P.2d 589 (Utah 1997);
and (5) this court should invoke its equitable and supervisory
power over habeas corpus cases to ensure that justice is done.
¶61 	We hold that the district court’s 60(b) ruling
constituted an abuse of discretion because Menzies is entitled to
relief under rule 60(b)(6) due to Brass’ ineffective assistance
of counsel and gross negligence. 7 	We have already noted our
disagreement with the district court’s factual findings, so we do
not address Menzies’ second argument at length. 	However, we
agree with Menzies that the district court abused its discretion
by finding that it would be inequitable to grant Menzies relief
because he was negligent for not contacting the court and for
keeping Brass as his attorney. 	Because the district court relied
on these findings to dispose of several of Menzies’ 60(b)
arguments, we address this issue in our 60(b) discussion.
Finally, we hold that the district court erred in its application
of Uno and that its order regarding the destruction of privileged
documents in the State’s possession must be supplemented.

8 For an analysis of the framework underlying post-
conviction habeas corpus petitions, see Hurst v. Cook, 777 P.2d
1029, 1032-36 (Utah 1989).
No. 20040289 	26
¶62 	While the issues before us deal only with Menzies’
60(b) motion, we must not lose sight of the fact that the case
before us is a post-conviction petition seeking habeas corpus
relief from a death penalty sentence. 	A post-conviction
proceeding is a proceeding of constitutional importance, over
which the judiciary has supervisory responsibilities due to our
constitutional role. 	In discharging this role, we must recognize
the stakes involved in post-conviction proceedings, take
appropriate steps to satisfy ourselves of the reliability of
convictions and death sentences, and ensure that a petitioner’s
fundamental rights are adequately protected. 8 	As this court has
previously noted, “[T]he law should not be so blind and
unreasoning that where an injustice has resulted the [plaintiff]
should be without remedy.” 	Martinez v. Smith, 602 P.2d 700, 702
(Utah 1979). 	With this framework in mind, we address the merits
of Menzies’ claims.
I. 	THE DISTRICT COURT ABUSED ITS DISCRETION BY DENYING
MENZIES’ 60(b) MOTION
¶63 	On appeal, Menzies argues that the district court
abused its discretion by denying his motion to set aside Brass’
defaults under multiple provisions of rule 60(b) of the Utah
Rules of Civil Procedure. 	Specifically, Menzies claims that he
is entitled to relief under rule 60(b)(1) and 60(b)(4) through
(6). 	The pertinent portions of rule 60(b) state as follows:
On motion and upon such terms as are just,
the court may in the furtherance of justice
relieve a party or his legal representative
from a final judgment, order, or proceeding
for the following reasons: 	(1) mistake,
inadvertence, surprise, or excusable neglect;
. . . (4) the judgment is void; (5) the
judgment has been satisfied, released, or
discharged, or a prior judgment upon which it
is based has been reversed or otherwise
vacated, or it is no longer equitable that
the judgment should have prospective
application; or (6) any other reason
justifying relief from the operation of the
judgment. 	The motion shall be made within a
reasonable time and for reason[] (1), . . .
not more than 3 months after the judgment,

27 	No. 20040289
order, or proceeding was entered or
taken. . . . 	The procedure for obtaining any
relief from a judgment shall be by motion as
prescribed in these rules or by an
independent action.
Rule 60(b) is an equitable rule designed to balance the competing
interests of finality and fairness. 	See Lund v. Brown, 2000 UT
75, ¶ 10, 11 P.3d 277; Laub v. S. Cent. Utah Tel. Ass’n, 657 P.2d
1304, 1306 (Utah 1982). 	In balancing these competing interests,
the district court must consider all of the attendant
circumstances. 	See Katz v. Pierce, 732 P.2d 92, 93 n.2 (Utah
1986); Heath v. Mower, 597 P.2d 855, 858 (Utah 1979); Olsen v.
Cummings, 565 P.2d 1123, 1124 (Utah 1977). 	Because of the
equitable nature of the rule, a district court has broad
discretion to rule on a 60(b) motion. 	Lund, 2000 UT 75, ¶¶ 9-10.
However, this discretion is tempered by the fact that the rule is
designed to be remedial and must be liberally applied. 	Id.
¶ 10; see also Cmty. Dental Servs. v. Tani, 282 F.3d 1164, 1169-
70 (9th Cir. 2002) (discussing rule 60(b)(6) of the Federal Rules
of Civil Procedure). 	“[J]udgment by default is an extreme
measure and a case should, whenever possible, be decided on the
merits.” 	Tani, 282 F.3d at 1170 (citation and internal quotation
marks omitted); see also State Dept. of Soc. Servs. v. Musselman,
667 P.2d 1053, 1055 (Utah 1983) (same). 	Accordingly, a district
court “should be generally indulgent toward” vacating default
judgments, Katz, 732 P.2d at 93, and must “incline towards
granting relief in a doubtful case to the end that the party may
have a hearing.” 	Lund, 2000 UT 75, ¶ 10 (citations and internal
quotation marks omitted). 	Thus, “it is quite uniformly regarded
as an abuse of discretion to refuse to vacate a default judgment
where there is a reasonable justification or excuse for the . . .
failure . . . and timely application is made to set it aside.”
Id. ¶ 11 (citations and internal quotation marks omitted).
¶64 	In general, a movant is entitled to have a default
judgment set aside under 60(b) if (1) the motion is timely;
(2) there is a basis for granting relief under one of the
subsections of 60(b); and (3) the movant has alleged a
meritorious defense. 	See Erickson v. Schenkers Int’l Forwarders,
Inc., 882 P.2d 1147, 1149 (Utah 1994); Musselman, 667 P.2d at
1055-56. 	These considerations should be addressed in a serial
manner. 	See Erickson, 882 P.2d at 1149. 	In other words, there
is no need to consider whether there is a basis for setting aside
a default judgment if the motion was not made in a timely manner,
and no need to consider whether there is a meritorious defense if
there are not grounds for relief. 	See id.; see also Musselman,
667 P.2d at 1056 (“[I]t is unnecessary, and moreover

No. 20040289 	28
inappropriate, to even consider the issue of meritorious defenses
unless the court is satisfied that a sufficient excuse has been
shown.”). 	Accordingly, in determining whether the district court
abused its discretion in denying Menzies’ 60(b) motion, we
consider these elements in turn.
A. 	Menzies’ 60(b) Motion Was Timely
¶65 	The first question we must consider is whether Menzies’
60(b) motion was timely. 	A motion under 60(b) must “be made
within a reasonable time and for reason[] (1) . . . not more than
3 months after the judgment . . . was entered.” 	Utah R. Civ. P.
60(b). 	In cases where subsection (b)(1) applies, a movant may
not attempt to circumvent the three-month filing period by
relying on another subsection. 	Russell v. Martell, 681 P.2d
1193, 1195 (Utah 1984); Laub v. S. Cent. Utah Tel. Ass’n, 657
P.2d 1304, 1308 (Utah 1982); Richins v. Delbert Chipman & Sons
Co., 817 P.2d 382, 387 (Utah Ct. App. 1991). 	Under rule 60(b), a
reasonable time “depends upon the facts of each case, considering
such factors as the interest in finality, the reason for the
delay, the practical ability of the litigant to learn earlier of
the grounds relied upon, and prejudice to other parties.”
Gillmor v. Wright, 850 P.2d 431, 435 (Utah 1993) (citations and
internal quotation marks omitted). 	In general, the moving party
satisfies the reasonable time requirement if she shows “that she
acted diligently once the basis for relief became available, and
that the delay in seeking relief did not cause undue hardship to
the opposing party.” 	Workman v. Nagle Constr., Inc., 802 P.2d
749, 752 (Utah Ct. App. 1990) (citation and internal quotation
marks omitted).
¶66 	In the case before us, the district court’s judgment
dismissing Menzies’ case was entered on January 11, 2002. Brass
filed Menzies’ 60(b) motion exactly three months later, on April
11, 2002. 	This motion was not accompanied by a supporting
memorandum, but instead stated that “[t]he specific grounds for
this motion shall be set forth in a subsequent memorandum.”
However, Brass never filed a subsequent memorandum, and the 60(b)
motion was not supported until Hunt entered her appearance and
filed a supporting memorandum on August 12, 2003. 	Thus, sixteen
months elapsed between the time Brass filed the 60(b) motion and
the time that motion was properly briefed. 	Our task is to
determine whether Menzies’ 60(b) motion was timely filed under
these circumstances.
¶67 	The State argues that Menzies’ 60(b) motion was
insufficient under the Utah rules governing motion practice and
was therefore untimely. 	The State argues that the motion did not

29 	No. 20040289
meet rule 7(b)(1) of the Utah Rules of Civil Procedure, which
states that “[a] motion shall be in writing and state succinctly
and with particularity the relief sought and the grounds for the
relief sought.” 	The State also argues that Menzies’ motion was
required to “be accompanied by a memorandum of points and
authorities . . . relied on in support of the motion.” 	Utah Code
J.D. Admin. 4-501(1)(A) (repealed 2003). 	As the State correctly
notes, Menzies’ 60(b) motion filed on April 11, 2002, did not
meet either of these requirements. 	The State asserts that
Menzies therefore did not file a proper motion until nineteen
months after the district court entered judgment, when Hunt filed
the supporting memorandum. 	According to the State, this renders
Menzies’ 60(b) motion untimely.
¶68 	The problem with the State’s argument is that the State
fails to distinguish between a motion that is properly supported
for purposes of the particularity requirement and a motion that
is timely filed for purposes of avoiding the limitations
provisions of 60(b). 	Both rule 7 and rule 4-501 are designed to
“promote the policies of (1) mitigating prejudice to opposing
parties by allowing that party to respond to the motion . . . and
(2) assuring that a court can be apprised of the basis of a
motion and rule upon it with a proper understanding.” 	See Holmes
Dev., LLC v. Cook, 2002 UT 38, ¶ 58, 48 P.3d 895 (discussing
requirements for motions to amend). 	If a party fails to “comply
with Utah’s formal motion practice rules,” a district court may,
within its discretion, deny the motion on the grounds that it is
insufficient. 	Id. ¶ 59. 	However, sufficiency is not a logically
necessary component of timeliness. 	A party can timely move the
court for relief despite the fact that its motion may be
insufficient because, for example, it lacks particularity. 	In
such a situation, the court has the discretion, consistent with
the policy concerns noted above, either to deny the motion as
being insufficient or to allow the party to supplement the
originally insufficient motion. 	In the case before us, the
district court chose the latter option, holding that Menzies’
60(b) motion was timely filed and that Menzies should be allowed
to supplement the motion under the circumstances. 	The district
court was entirely within its discretion to do so.
¶69 	We hold that Menzies’ 60(b) motion was timely filed.
Menzies not only complied with the three-month limitation
contained in rule 60(b), but also moved the district court to set
aside the default judgment within a reasonable time under the
circumstances. 	Although the motion was not supported until
sixteen months later, this delay was due to Brass’ deficient
representation and the fact that he was misleading Menzies about
the status of the case. 	Menzies was not fully aware of the

No. 20040289 	30
grounds for relief until August 2003, when Hunt finally informed
him of Brass’ failures. 	At that point, Hunt promptly filed a
supporting memorandum on Menzies’ behalf, and the State had
adequate opportunity to oppose Menzies’ motion. 	Moreover, the
State acquiesced in the delay during the entire sixteen months.
The State never challenged Menzies’ motion on the basis of
particularity but instead waited nine months and then requested
permission to file a late response. 	The district court never
ruled on the State’s request, and the State did not raise the
issue again. 	Under these circumstances, the factors militate in
favor of Menzies. 	See Gillmor, 850 P.2d at 435 (In assessing
whether a movant requested 60(b) relief within a reasonable time,
the court considers “such factors as the interest in finality,
the reason for delay, the practical ability of the litigant to
learn earlier of the grounds relied upon, and prejudice to other
parties.” (citations and internal quotation marks omitted)).
Accordingly, we hold that Menzies’ 60(b) motion was timely filed
and proceed to address the asserted grounds for relief.
B. 	Menzies Is Entitled to Relief Under Rule 60(b)(6)
¶70 	The second issue we address in our 60(b) analysis is
whether Menzies is entitled to relief under any of the
subsections of rule 60(b). 	As noted above, Menzies argues that
he is entitled to relief under multiple subsections of rule
60(b). 	However, the asserted grounds for Menzies’ requests for
relief are the same in each instance, namely, Brass’ deficient
representation. 	Therefore, our initial task is to determine
which subsection of rule 60(b) applies to Menzies’ arguments.
See Richins v. Delbert Chipman & Sons Co., 817 P.2d 383, 385
(Utah Ct. App. 1991); Russell v. Martell, 681 P.2d 1193, 1195
(Utah 1984). 	We hold that rule 60(b)(6) applies to Menzies’
arguments and therefore do not address Menzies’ arguments under
the other asserted subsections of rule 60(b).
¶71 	Rule 60(b)(6) is the “catch-all” provision of rule
60(b). 	It provides that a party may be relieved from a judgment
for “any other reason justifying relief from the operation of the
judgment.” 	Utah R. Civ. P. 60(b)(6) (emphasis added). 	Because
rule 60(b)(6) is meant to operate as a residuary clause, it may
not be relied upon if the asserted grounds for relief fall within
any other subsection of rule 60(b). 	See Cmty. Dental Servs. v.
Tani, 282 F.3d 1164, 1168 (9th Cir. 2002); Russell, 681 P.2d at
1195; Laub v. S. Cent. Utah Tel. Ass’n, 657 P.2d 1304, 1306-07
(Utah 1982). 	In other words, the grounds for relief under
60(b)(6) are exclusive of the grounds for relief allowed under
other subsections. 	See Russell, 681 P.2d at 1195; Tani, 282 F.3d
at 1168 & n.8. 	Furthermore, relief under rule 60(b)(6) is meant

31 	No. 20040289
to be the exception rather than the rule; we have previously held
that it should be “sparingly invoked” and used “only in unusual
and exceptional circumstances.” 	Laub, 657 P.2d at 1307-08
(internal quotation marks omitted); see also Pioneer Inv. Servs.
Co. v. Brunswick Assocs., 507 U.S. 380, 393 (1993) (remarking
that under rule 60(b)(6) of the Federal Rules of Civil Procedure,
a party must show “extraordinary circumstances”); Tani, 282 F.3d
at 1168 (same).
¶72 	Menzies argues that there are exceptional circumstances
warranting relief under rule 60(b)(6) because Brass rendered
ineffective assistance of counsel and was grossly negligent.
While we have not yet had occasion to consider whether conduct
such as Brass’ warrants relief under 60(b)(6), we have previously
examined attorney conduct in the context of rule 60(b)(1). 	Under
rule 60(b)(1), a party may obtain relief from a judgment if he or
she can demonstrate “mistake, inadvertence, surprise, or
excusable neglect.” 	Utah R. Civ. P. 60(b)(1). 	A judgment
entered due to attorney misconduct may be set aside under this
subsection only if the conduct is excusable. 	See Mini Spas v.
Indus. Comm’n, 733 P.2d 130, 132 (Utah 1987). 	In other words, if
the attorney exercised “due diligence,” defined as conduct that
is consistent with the manner in which a reasonably prudent
attorney under similar circumstances would have acted, a judgment
may be set aside under 60(b)(1). 	Id. 	Thus, in Lund we held that
a default judgment should be set aside because it had been
entered due to a “good faith, legitimate” legal interpretation
that turned out to be erroneous. 	2000 UT 75, ¶¶ 16-19.
¶73 	However, the conduct alleged by Menzies here--
ineffective assistance of counsel and gross negligence--is a far
cry from the “excusable neglect” that warrants relief under
60(b)(1). 	Menzies does not allege that Brass exercised due
diligence or that his failures were due to a good faith
interpretation of the law. 	Rather, Menzies argues that Brass’
performance was exceptionally deficient in that he willfully
failed to comply with his most basic obligations and consistently
misled Menzies about the status of his case. 	As the district
court noted, Brass’ “inaction appears to have been willful and
deliberate rather than the result of ignorance or carelessness.”
In other words, Menzies argues that Brass’ conduct was
inexcusable, a proposition with which the district court agreed
and which the State concedes on appeal. 	Menzies’ allegations
amount to “an extraordinary situation which cannot fairly or
logically be classified as mere ‘neglect.’” 	Pioneer Inv. Servs.
Co., 507 U.S. at 394 (quoting Klapprott v. United States, 335
U.S. 601, 613 (1949)). 	Accordingly, Menzies’ asserted grounds
for relief cannot be addressed by rule 60(b)(1).

No. 20040289 	32
¶74 	While the district court found that the conduct alleged
by Menzies did not fit the criteria of rule 60(b)(1), it also
found that it could not grant Menzies relief under 60(b)(6)
because it had already considered the conduct under 60(b)(1).
This is a misapplication of the law. 	The rule is that 60(b)(6)
cannot be relied upon if the grounds for relief fall within
another subsection, not that 60(b)(6) does not apply if the court
has already considered another ground. 	See Laub v. S. Cent. Utah
Tel. Ass’n, 657 P.2d at 1306-08. 	Having concluded that Brass’
conduct was too egregious and exceptional to be encompassed by
rule 60(b)(1), the district court should have proceeded to
consider Menzies’ arguments under rule 60(b)(6) instead of
concluding that 60(b)(6) could apply only if “extraordinary
circumstances [we]re also present” (emphasis added).
¶75 	We therefore draw a distinction between willful or
grossly negligent attorney conduct and conduct that amounts to
mere negligence or inadvertence. 	While the latter types of
conduct are addressed by rule 60(b)(1), conduct such as that
alleged by Menzies is clearly beyond the scope of that subsection
and is more properly addressed under 60(b)(6). 	As the Utah Court
of Appeals has noted, “Rule 60(b)(6) is ‘sufficiently broad’ to
permit a court to set aside a judgment for ineffective assistance
of counsel.” 	In re A.G., 2001 UT App 87, ¶ 9 n.3, 27 P.3d 562
(quoting Stewart v. Sullivan, 506 P.2d 74, 76 (Utah 1973)). 	Our
decision is also consistent with the decisions of the majority of
federal courts of appeal that have considered this issue. 	See,
e.g., Tani, 282 F.3d at 1169 (“[W]here the client has
demonstrated gross negligence on the part of his counsel, a
default judgment against the client may be set aside pursuant to
Rule 60(b)(6).”); Virginia Info. Sys. Corp. v. Wang Labs, Inc.,
932 F.2d 338, 342 (4th Cir. 1991) (“[A]ttorney malfeasance which
actively misleads a client or is comparably culpable might
successfully ground a Rule 60(b) motion.”); Carter v. Albert
Einstein Med. Ctr., 804 F.2d 805, 806, 808 (3d Cir. 1986)
(reversing denial of a rule 60(b)(6) motion based on attorney’s
“blatant disregard for explicit [court] orders”); L.P. Steuart,
Inc. v. Matthews, 329 F.2d 234, 235 (D.C. Cir. 1964) (stating
that rule 60(b)(6) “is broad enough to permit relief when . . .
personal problems of counsel cause him grossly to neglect a
diligent client’s case and mislead the client”).
¶76 	Before addressing the merits of Menzies’ arguments
under rule 60(b)(6), we pause to address an argument raised by
the State that is relevant to the distinction we have drawn
above. 	The State argues that Menzies must be held accountable
for Brass’ failures through principles of agency and therefore

9 This is not to say that a client seeking 60(b)(6) relief
cannot be held responsible for his or her own actions. 	Rule
60(b)(6) “is intended to encompass errors or actions beyond the
petitioner’s control.” 	Tani, 282 F.3d at 1170 n.11. 	To the
extent that a party seeking relief under rule 60(b)(6) is at
fault for the default judgment, the district court may, within
its discretion, determine that it would be inequitable to grant
relief based on all of the surrounding circumstances.
33 	No. 20040289
Menzies cannot obtain relief under 60(b). 	The State’s position
is certainly true as a general proposition: 	an attorney’s
negligence is ordinarily attributable to the client because an
attorney acts as an agent for her client. 	Tani, 282 F.3d at
1168; see also Russell, 681 P.2d at 1195 (holding that
attorney’s neglect was “attributable to [the client] through
principles of agency”). 	Under the American representative system
of litigation, a party voluntarily chooses her attorney and
therefore is generally bound by the acts or omissions of his or
her attorney. 	See Pioneer Inv. Servs. Co., 507 U.S. at 396-97.
Under this rule, a court considering whether to set aside a
default judgment under rule 60(b)(1) must generally determine
whether the actions of both a party and his or her counsel are
excusable in assessing whether all the surrounding circumstances
warrant equitable relief. 	Id. at 397.
¶77 	The situation is vastly different, however, when an
attorney willfully disregards a client’s interests, acts in a
grossly negligent fashion, or renders ineffective assistance of
counsel. 	When relief is sought on these grounds under rule
60(b)(6), the client is seeking relief on the basis that his or
her attorney “display[ed] neglect so gross that it is
inexcusable.” 	Tani, 282 F.3d at 1168 (internal quotation marks
omitted). 	In such circumstances, the attorney is not acting on
behalf of the client but is blatantly disregarding his or her
representative capacity and subverting the client’s interests.
Therefore, “an unknowing client should not be held liable on the
basis of a default judgment resulting from an attorney’s grossly
negligent conduct, and . . . sanctions should be imposed on the
lawyer, rather than the faultless client.” 9 	Id. at 1169. 	To
hold otherwise would be to ignore the remedial and equitable
nature of rule 60(b). 	Id. at 1169-70. 	Rule 60(b)(6) is designed
to remedy a judgment when exceptional circumstances are present,
and it would defeat the purpose of the rule if a client could not
obtain relief under that subsection because he or she was held
responsible for egregious lawyer misconduct. 	“When an attorney
is grossly negligent . . . the judicial system loses credibility
as well as the appearance of fairness, if the result is that an
innocent party is forced to suffer drastic consequences.” 	Id. at

10 We also note that Menzies is statutorily entitled to
appointed counsel under Utah Code section 78-35a-202(2)(a)
(2002). 	Where a litigant is statutorily entitled to counsel,
the litigant cannot be held liable for the negligence of his or
her attorney. 	T.S. v. State, 2003 UT 54, ¶ 11, 82 P.3d 1104.
Holding otherwise would “impermissibly undermine[] her right to
counsel.” 	Id.
No. 20040289 	34
1170. 	Furthermore, the justification for imputing the acts and
omissions of counsel to his or her client are not present here;
Brass was appointed by the district court pursuant to Utah Code
section 78-35a-202(2)(a) (2002), which does not entitle Menzies
to make a voluntary choice with regard to his counsel. 10 	See,
e.g., Tani, 282 F.3d at 1168 (noting that a lawyer’s negligence
is ordinarily attributable to the client because the client is
“presumed to have voluntarily chosen the lawyer as his
representative and agent”). 	Nor does it appear that Menzies had
a choice, for the record indicates that Brass was appointed by
the court after a fruitless four-month search yielded no other
attorney willing and able to represent Menzies. 	Accordingly,
Menzies’ request for rule 60(b) relief cannot be defeated on the
basis that he is accountable for Brass’ conduct. 	With this
distinction clarified, we now address Menzies’ request for rule
60(b)(6) relief, beginning with his arguments that Brass rendered
ineffective assistance of counsel.
1. 	Menzies is entitled to relief under rule 60(b)(6) because
Brass rendered ineffective assistance of counsel
¶78 	As discussed above, egregious lawyer misconduct
constitutes an exceptional circumstance that may allow a litigant
relief from a default judgment under rule 60(b)(6). 	Menzies
argues that Brass’ actions in this case amount to ineffective
assistance of counsel and thus he is entitled to relief under
rule 60(b)(6). 	Before addressing whether Brass’ actions qualify
as ineffective assistance of counsel, however, we must determine
whether Menzies has a right to the effective assistance of
counsel. 	Menzies advances three arguments on this point: 	(1) he
has a statutory right to the effective assistance of counsel
pursuant to Utah Code section 78-35a-202 (2002); (2) he has a
right to the effective assistance of counsel under the Utah
Constitution; and (3) he has a right to the effective assistance
of counsel under the United States Constitution.
¶79 	Several sections of the Utah Code are relevant to
Menzies’ first argument. 	Section 78-35a-202(1) provides that
“[a] person who has been sentenced to death and whose conviction
and sentence has been affirmed on appeal shall be advised in open

35 	No. 20040289
court, on the record . . . of the provisions of this chapter
allowing challenges to the conviction and death sentence and the
appointment of counsel for indigent defendants.” 	In addition,
section 78-35a-202(2)(a) states as follows:
If a defendant requests the court to appoint
counsel, the court shall determine whether
the defendant is indigent . . . . 	If the
court finds that the defendant is indigent,
it shall promptly appoint counsel who is
qualified to represent defendants in death
penalty cases as required by Rule 8 of the
Utah Rules of Criminal Procedure.
Finally, section 78-35a-202(2)(b) provides that “[a] defendant
who wishes to reject the offer of counsel shall be advised on the
record by the court of the consequences of the rejection before
the court may accept the rejection.”
¶80 	In T.S. v. State, 2003 UT 54, 82 P.3d 1104, we
considered an argument very similar to that made by Menzies,
albeit in the context of a proceeding to terminate parental
rights. 	In that case, the petitioner’s parental rights had been
terminated, and her appointed counsel had failed to file an
appeal within thirty days, as required by rule 4(a) of the Utah
Rules of Appellate Procedure. 	Id. ¶¶ 1-3. 	The petitioner moved
to file an overdue notice of appeal, arguing that the failure
should be excused due to “excusable neglect or good cause” under
rule 4(e) of the Utah Rules of Appellate Procedure. 	Id. ¶ 1.
The district court denied the motion, and the Utah Court of
Appeals affirmed, relying on the principle that a party is
accountable for her attorney’s neglectful conduct. 	Id. ¶¶ 4-5.
¶81 	On certiorari review, we reversed the court of appeals,
holding that “rule 4(e)’s ‘good cause’ exception . . . includes
within its reach the unusual circumstance where a person who is
entitled to appointed counsel under [the Utah Code] does not
receive effective counsel.” 	Id. ¶ 9. 	Citing Utah Code section
78-3a–913(1)(a) (1999)--which contains language that is
strikingly similar to section 78-35a-202(1)(a)--we stated that
“[t]he legislature has expressly codified a parent’s right to be
represented by counsel at every stage of a termination
proceeding.” 	Id. ¶ 7. 	We noted that “the statute would be
meaningless or illusory if it guaranteed only ineffective
assistance of counsel. 	The legislature’s omission of ‘effective’
should not be read to suggest an intent to provide only
ineffective assistance of counsel.” 	Id. (internal quotation
marks omitted).

11 This case illustrates an ironic deficiency in the
operation of rule 8. 	Brass, who apparently met all of the rule’s
technical requirements, was nonetheless unqualified to serve as
counsel in this capital case, as reflected by his performance and
by his admissions that he did “not understand the complex
procedural rules governing capital cases in state and federal
post-conviction” proceedings and that he “cannot adequately
represent a capital defendant in post-conviction cases.” 	Thus,
rule 8 obviously creates a minimum standard, but does not ensure
qualification.
No. 20040289 	36
¶82 	Our analysis in T.S. is equally applicable to the case
before us. 	“[B]y extending the right to appointed counsel to
[death penalty defendants in post-conviction cases], our
legislature has expressly recognized that [these] proceedings are
unlike the traditional civil case.” 	Id. ¶ 6. 	This intent is
consistent with our habeas corpus jurisprudence and with the
underlying nature and policy of post-conviction death penalty
proceedings. 	Given the high stakes inherent in such
proceedings--life and liberty--providing a petitioner the
procedural safeguard of appointed counsel is an important step in
assuring that the underlying criminal conviction was accurate.
We refuse merely to pay lip service to this legislatively created
protection by holding that a petitioner in a post-conviction
death penalty proceeding is only entitled to ineffective
assistance of appointed counsel. 	Therefore, we hold that Menzies
has a statutory right to effective assistance of counsel under
Utah Code section 78-35a-202.
¶83 	The State makes two arguments regarding section 78-35a-
202. 	The State first asserts that we should not establish a
statutory right to the effective assistance of counsel because,
by providing that appointed counsel must meet the qualifications
of rule 8, the legislature has presumptively established the
boundaries of counsel’s obligations in post-conviction cases.
This argument drastically oversimplifies the intent and import of
rule 8. 	Consistent with section 78-35a-202(2)(a), rule 8
requires a court to appoint counsel to represent indigent
petitioners in post-conviction proceedings challenging a death
sentence. 	Utah R. Crim. P. 8(e). 	The subsections of rule 8(e)
contain qualifications that an appointed attorney in such cases
must meet. 11 	See Utah R. Crim. P. 8(e)(1)-(5). 	However, these
subsections contain no provisions regarding appointed counsel’s
obligations in post-conviction death penalty proceedings. 	In
fact, rule 8(f) expressly states that “[m]ere noncompliance with
this rule . . . shall not of itself be grounds for establishing
that appointed counsel ineffectively represented the defendant.”

37 	No. 20040289
Therefore, the rule clearly contemplates that the standards for
ineffective assistance of counsel in post-conviction death
penalty cases are found elsewhere. 	Nor could such gaps in the
statutes and rules applicable to post-conviction death penalty
proceedings presumptively limit this court’s constitutional
authority over such cases. 	As the United States Supreme Court
has stated, “When faced with such gaps in the habeas statute, we
have looked first to the considerations underlying our habeas
jurisprudence, and then determined whether the proposed rule
would advance or inhibit these considerations by weighing the
marginal costs and benefits of its application on collateral
review.” 	O’Neal v. McAninch, 513 U.S. 432, 445 (1995) (citation
and internal quotation marks omitted).
¶84 	The State also argues that “writing an effective
assistance requirement into section [78-35a-202] would make
capital post-conviction litigation interminable and end the
finality of death sentences.” 	It is true that there is a general
judicial policy favoring the finality of judgments. 	See Hurst v.
Cook, 777 P.2d 1029, 1035 (Utah 1989). 	However, “[a]s important
as finality is, it does not have a higher value than
constitutional guarantees of liberty.” 	Id. 	We would be remiss
in our constitutional role if we were to allow finality to trump
the interests at stake in post-conviction death penalty
proceedings. 	See id. at 1033 (discussing the judiciary’s
constitutional supervisory power over extraordinary writs).
Moreover, Utah’s post-conviction legislation and associated rules
contain appropriate limitations to assist courts in streamlining
post-conviction review in death penalty cases. 	See, e.g., Utah
Code Ann. § 78-35a-106 (2002) (discussing various grounds under
which relief may be precluded); Utah R. Civ. P. 65C (containing
procedural provisions governing the progression of post-
conviction litigation). 	We are confident that the judiciary,
relying on this framework as well as the common law, can properly
advance post-conviction death penalty litigation while ensuring
that petitioners receive the protections to which they are
legally entitled. 	Because we conclude that Menzies has a
statutory right to the effective assistance of counsel under
section 78-35a-202(2)(a), we do not address his federal and state
constitutional claims. 	We do, however, note that the United
States Supreme Court has previously declined to recognize a
federal constitutional right to the effective assistance of
counsel in state post-conviction proceedings. 	Coleman v.
Thompson, 501 U.S. 722, 755-57 (1991). 	While we have not yet
considered whether such a right exists under the Utah
Constitution, there is no need to do so in this case because of
the statutory right provided by section 78-35a-202. 	We do not
foreclose the possibility that an indigent death row inmate may

No. 20040289 	38
have a right to the effective assistance of counsel under the
Utah Constitution, but that question must wait for another day.
¶85 	Having established that Menzies has a statutory right
to the effective assistance of counsel, we now address whether he
has demonstrated that Brass’ performance was ineffective. 	The
analytical framework for assessing ineffective assistance of
counsel was originally developed by the United States Supreme
Court in Strickland v. Washington, 466 U.S. 668, 687 (1984). 	In
the federal context, the right to the effective assistance of
counsel is premised on a defendant’s right to counsel under the
Sixth Amendment to the United States Constitution. 	Id. at 687.
As the Supreme Court has noted, this right is designed to ensure
that criminal defendants receive a fair and reliable proceeding
before life or liberty are taken. 	Id. at 686; see also Roe v.
Flores-Ortega, 528 U.S. 470, 482 (2000) (noting that “the right
to the effective assistance of counsel is recognized not for its
own sake, but because of the effect it has on the ability of the
accused to receive a fair [proceeding]” (citation and internal
quotation marks omitted)). 	This fairness is “derive[d] from the
adversarial nature of our justice system, which is premised on
the ‘well-tested principle that truth--as well as fairness--is
best discovered by powerful statements on both sides of the
question.’” 	United States v. Collins, 430 F.3d 1260, 1264 (10th
Cir. 2005) (quoting Penson v. Ohio, 488 U.S. 75, 84 (1988)); see
also Strickland, 466 U.S. at 688 (recognizing “the law’s
presumption that counsel will fulfill the role in the adversary
process that the [Sixth] Amendment envisions”). 	The right to the
effective assistance of counsel therefore ensures the fairness
and reliability of proceedings by requiring counsel to adequately
discharge his or her role in the adversary process. 	See, e.g.,
Flores-Ortega, 528 U.S. at 482 (discussing how the Strickland
test requires a litigant to “show[] how specific errors of
counsel undermined the reliability of the [proceedings]”
(citation and internal quotation marks omitted)); Strickland, 466
U.S. at 691-92 (“The purpose of the Sixth Amendment guarantee of
counsel is to ensure that a defendant has the assistance
necessary to justify reliance on the outcome of the
proceeding.”). 	Thus, “[t]he benchmark for judging any claim of
ineffectiveness must be whether counsel’s conduct so undermined
the proper functioning of the adversarial process that the
[proceeding] cannot be relied on as having produced a just
result.” 	Strickland, 466 U.S. at 686.
¶86 	The State argues that we should not rely on the Supreme
Court’s Sixth Amendment jurisprudence in assessing Menzies’
statutory right to effective assistance of counsel. 	However,
this court has long relied upon the Strickland test to assess

39 	No. 20040289
ineffective assistance of counsel claims. 	See Bundy v. DeLand,
763 P.2d 803, 805 (Utah 1988). 	We can discern no reason why a
statutory right to effective assistance of counsel should be
premised on something different from that of the constitutional
right: 	ensuring that the proceeding is reliable and fair by
requiring a properly functioning adversarial process.
Strickland, 466 U.S. at 686. 	Menzies is no less entitled to a
proceeding that meets these standards when counsel is required by
statute than he would be if counsel were required by the
Constitution. 	The underlying concern is the same in each
instance: 	when an indigent litigant has a legal right to
counsel, counsel must render effective assistance in order to
give effect to the litigant’s right. 	See T.S., 2003 UT 54, ¶ 11.
We therefore use Strickland to evaluate Menzies’ claim.
¶87 	The Strickland test for assessing whether an attorney’s
performance amounted to the ineffective assistance of counsel is
two-part: 	(1) whether counsel’s performance was deficient in
that it “fell below an objective standard of reasonableness”; and
(2) whether counsel’s performance was prejudicial in that “there
is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” 	Id. at 688-89, 694. 	If a litigant meets both
parts of this test, then the proceeding is inherently unreliable
and the result cannot stand. 	See Bell v. Cone, 535 U.S. 685, 695
(2002). 	We examine each part of the Strickland test in turn.
a. 	Brass’ performance falls below an objective standard of
reasonableness
¶88 	Our first inquiry under the Strickland test is whether
Brass’ performance was unreasonably deficient. 	This issue is not
disputed. 	Though the district court did not engage in a thorough
Strickland analysis, it stated in its 60(b) ruling that Brass’
actions “were inexplicable failures to follow rudimentary
procedural guidelines and comply with court-ordered deadlines”
and that “the ineffective assistance of counsel exceeds any
neglectful conduct that could be deemed ‘excusable.’” 	The State
does not contest this finding on appeal, but instead concedes
that Brass’ performance was deficient. 	We nevertheless discuss
the first part of the Strickland analysis in order to clarify
Utah’s standards for the performance of counsel in post-
conviction death penalty proceedings.
¶89 	Under Strickland, an attorney’s performance must be
objectively reasonable, with reasonableness measured by
“prevailing professional norms.” 	466 U.S. at 688. 	However,
“judicial scrutiny of counsel’s performance must be highly

No. 20040289 	40
deferential” because “it is all too easy for a court, examining
counsel’s [performance] after it has proved unsuccessful, to
conclude that a particular act or omission of counsel was
unreasonable.” 	Id. at 689. 	Therefore, the court must “eliminate
the distorting effects of hindsight . . . and . . . evaluate the
conduct from counsel’s perspective at the time.” 	Id. 	This
requires that the court “indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance.” 	Id. 	In order to overcome this
presumption, the litigant must demonstrate that the challenged
actions cannot be considered sound strategy under the
circumstances. 	Id.
¶90 	Menzies requests that we consult the American Bar
Association Guidelines for the Appointment and Performance of
Defense Counsel in Death Penalty Cases (ABA Death Penalty
Guidelines) in addressing whether Brass’ representation was
reasonable under the circumstances. 	Courts frequently rely on
the professional standards established by the ABA when
determining the relevant professional norms under the first prong
of the Strickland analysis. 	See, e.g., Rompilla v. Beard, 545
U.S. 374, 375 (2005) (citing the ABA Death Penalty Guidelines and
stating that “[w]e long have referred [to these ABA Standards] as
guides to determining what is reasonable” (second alteration in
original) (citations and internal quotation marks omitted));
Florida v. Nixon, 543 U.S. 175, 191 (2004) (citing ABA Death
Penalty Guidelines in addressing ineffective assistance under
Strickland); Canaan v. McBride, 395 F.3d 376, 384 (7th Cir. 2005)
(“We follow the [Supreme] Court’s lead . . . by looking first to
the [ABA Death Penalty Guidelines].”). 	Indeed, the Supreme Court
referred to the ABA Death Penalty Guidelines in Strickland
itself, noting that the guidelines reflect “[p]revailing norms of
practice.” 	466 U.S. at 688. 	While the ABA standards are not
determinative of whether counsel’s performance was ineffective
and courts should examine counsel’s conduct in light of all the
contemporary circumstances, id. at 688-89, they do represent
“well-defined norms” that provide guidance to courts, Wiggins v.
Smith, 539 U.S. 510, 524 (2003). 	Because Utah’s post-conviction
rules do not currently contain any provisions regarding counsel’s
performance in post-conviction death penalty proceedings, and
because it is traditionally the duty of the courts to supervise

12 While Utah’s current post-conviction legislation and
rules do not contain any standards for the performance of post-
conviction counsel, rule 25-14-6 of the Utah Administrative Code
clearly contemplates that the court may order the withdrawal of
counsel due to “counsel’s improper conduct.” 	Utah Admin. Code r.
25-14-6(2) (2001).
41 	No. 20040289
the performance of counsel, 12 we rely on the ABA Death Penalty
Guidelines to the extent they are relevant to our decision.
¶91 	ABA Death Penalty Guideline 10.15.1 specifically
details the duties of post-conviction counsel. 	This Guideline
imposes on post-conviction counsel the duty to “fully discharge
the ongoing obligations imposed by these Guidelines.” 	ABA Death
Penalty Guideline 10.15.1(E) (2003). 	One of these obligations is
the duty to “maintain close contact with the client regarding
litigation developments.” 	Guideline 10.15.1(E)(1). 	This duty is
discussed in depth in Guideline 10.5, which states that counsel
“should maintain close contact with the client,” Guideline
10.5(A) (2003), including discussing with the client “the
progress of and prospects for the factual investigation, and what
assistance the client might provide,” Guideline 10.5(C)(1).
Counsel should also keep the client informed of “litigation
developments,” Guideline 10.15.1(E)(1), including “litigation
deadlines and the projected schedule of case-related events,”
Guideline 10.5(C)(6). 	The commentary to Guideline 10.5 makes
clear that counsel is obligated “at every stage of the case to
keep the client informed of developments and progress in the
case” and that “the failure to maintain such a relationship is
professionally irresponsible.” 	Guideline 10.5 cmt.
¶92 	In addition to the duty to communicate, Guideline
10.15.1 also imposes on counsel the duty “to continue an
aggressive investigation of all aspects of the case.” 	Guideline
10.15.1(E)(4). 	Likewise, Guideline 10.7 provides that “[c]ounsel
at every stage have an obligation to conduct thorough and
independent investigations relating to the issues of both guilt
and penalty.” 	Guideline 10.7(A). 	As the commentary to Guideline
10.7 notes, counsel has a “duty to take seriously the possibility
of the client’s innocence, to scrutinize carefully the quality of
the state’s case, and to investigate and re-investigate all
possible defenses.” 	Guideline 10.7 cmt. 	The duty to investigate
extends to the penalty phase, and counsel has a “duty to
investigate and present mitigating evidence.” 	Guideline 10.7
cmt.; see also Williams v. Taylor, 529 U.S. 362, 395-96 (2000)
(holding that counsel was ineffective for failing to uncover and
present mitigating evidence). 	These “parallel tracks” of
investigation also apply in post-conviction proceedings, where

13 We do not read this guideline to require or encourage the
litigation of issues that are clearly procedurally barred,
although we recognize that whether an issue is so precluded must
often be explored and raised by counsel.
No. 20040289 	42
post-conviction counsel has a duty to investigate “the facts
underlying the conviction and sentence, as well as such items as
trial counsel’s performance.” 	ABA Death Penalty Guideline
10.15.1 cmt. 	Counsel also has a duty to investigate the client
in order “to discover mitigation that was not presented
previously [and] also to identify mental health claims.”
Guideline 10.15.1 cmt.
¶93 	Finally, Guideline 10.15.1 provides that “[p]ost-
conviction counsel should seek to litigate all issues, whether or
not previously presented, that are arguably meritorious under the
standards applicable to high quality capital defense
representation.” 	In addition, Guideline 10.8 provides that
“[c]ounsel at every stage of the case, exercising professional
judgment,” must “consider all legal claims potentially available”
and “thoroughly investigate the basis for each potential claim
before reaching a conclusion as to whether it should be
asserted.” 	Guideline 10.8(A)(1)-(2) (2003). 13
¶94 	In the case before us, Brass’ ineffective
representation went far beyond a failure to comply with the ABA
Death Penalty Guidelines. 	During the five and a half years that
Brass represented Menzies, Brass provided Menzies with virtually
no representation and willfully disregarded nearly every aspect
of Menzies’ case. 	Brass did not communicate with Menzies about
the status or progress of his case, repeatedly refusing Menzies’
telephone calls and failing to respond to Menzies’ written
correspondence. 	These actions kept Menzies in the dark about the
procedural posture of his case. 	Indeed, Brass did not inform
Menzies that his case had been dismissed until nearly a year
after summary judgment was entered, and Menzies was not aware of
Brass’ repeated discovery defaults and the resulting sanctions
until Hunt began representing him. 	Moreover, Brass purposely
misled Menzies to believe that the summary judgment was not a
problem, informing Menzies that he was doing what was necessary
to have it set aside, despite the fact that he never filed a
memorandum supporting the rule 60(b) motion and defaulted in
Menzies’ appeal from the summary judgment several times.
¶95 	In addition, Brass never conducted any investigation,
despite the availability of investigative funds, a voluminous
record indicating that investigation was necessary in order to
develop Menzies’ claims, and his own awareness of that necessity.

43 	No. 20040289
During the course of Brass’ representation, Menzies repeatedly
asked Brass to investigate issues pertaining to both actual
innocence and ineffective assistance of trial counsel. 	Brass
disregarded Menzies’ requests and then sat by as the State served
discovery on Menzies because Brass had developed no factual bases
for Menzies claims. 	Brass never informed the court that he could
not respond to the State’s discovery requests because he had not
developed the case and never objected when sanctions were imposed
that effectively precluded Menzies from pursuing his claims. 	Nor
did Brass litigate the issues that were present in the case when
he undertook Menzies’ representation. 	The second amended
petition Brass filed on Menzies’ behalf was little more than a
repetition of the claims that had been asserted in the first
amended petition filed three years earlier, and Brass did not
oppose the State’s motion to dismiss most of Menzies’ asserted
claims. 	In short, Brass gradually defaulted Menzies’ post-
conviction case away and never informed Menzies that he was doing
so.
¶96 	There is no question that Brass’ actions under these
circumstances constitute ineffective assistance of counsel.
While counsel’s actions are normally entitled to a presumption of
reasonableness, Brass’ willful disregard for Menzies’ case cannot
possibly be construed as sound strategy. 	See Strickland, 466
U.S. at 689; see also Flores-Ortega, 528 U.S. at 477 (holding
that “a lawyer who disregards specific instructions from the
defendant to file a notice of appeal acts in a manner that is
professionally unreasonable” because such a failure “cannot be
considered a strategic decision; filing . . . is a purely
ministerial task, and the failure to file reflects inattention to
the defendant’s wishes”). 	Brass’ representation falls far “below
an objective standard of reasonableness,” Strickland, 466 U.S. at
688, and therefore Menzies has satisfied the first prong of the
Strickland test.
b. 	Brass’ conduct rendered the post-conviction proceedings
unreliable, thereby prejudicing Menzies’ case
¶97 	Our second inquiry under the Strickland test is whether
Brass’ actions prejudiced Menzies’ case. 	Under this portion of
the analysis, a litigant is required to “show that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
466 U.S. at 694. 	“A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” 	Id.
Judicial proceedings are normally entitled to “a strong
presumption of reliability,” and therefore a litigant must
overcome this presumption by demonstrating that counsel’s errors

No. 20040289 	44
rendered the proceeding unreliable. 	Flores-Ortega, 528 U.S. at
482 (citations and internal quotation marks omitted).
¶98 	However, if a litigant is constructively denied the
assistance of counsel in a proceeding in which he or she is
entitled to counsel, the adversary process itself is rendered
inherently unreliable, and prejudice is legally presumed. 	See
id. at 483; Strickland, 466 U.S. at 692. 	A litigant can be
constructively denied counsel in several ways. 	For example, a
constructive denial of counsel occurs if counsel completely fails
to subject the opposition’s case to meaningful adversarial
testing. 	See Bell v. Cone, 535 U.S. 685, 696 (2002); Collins,
430 F.3d at 1265; Turrentine v. Mullin, 390 F.3d 1181, 1208 (10th
Cir. 2004). 	In Turrentine, the Tenth Circuit stated this occurs
“where the evidence overwhelmingly establishe[s] that [the]
attorney abandoned the required duty of loyalty to his client,
and where counsel acted with reckless disregard for his client’s
best interests and, at times, apparently with the intention to
weaken his client’s case.” 	390 F.3d at 1208 (second alteration
in original) (citation and internal quotation marks omitted). 	In
Collins, the Tenth Circuit expanded upon this reasoning and held
that an attorney failed to subject the opposition’s case to
meaningful adversarial testing--despite not recklessly
disregarding his client’s interests--because he did not argue his
client’s position at a competency hearing due to a pending motion
to withdraw. 	430 F.3d at 1265. 	The court noted that the
proceeding was inherently unreliable because counsel had “not
engage[d] his legal skills in advocating [his client’s]
position.” 	Id. at 1266.
¶99 	Constructive denials of counsel have also been found
where, due to counsel’s deficient performance, a proceeding
itself is forfeited. 	See Flores-Ortega, 528 U.S. at 483-84. 	A
“denial of the entire judicial proceeding itself, which a
[litigant] wanted at the time and to which he had a right, . . .
demands a presumption of prejudice” because the litigant has been
entirely denied the adversary process. 	Id. at 483. 	Because no
presumption of reliability can be accorded “to judicial
proceedings that never took place,” a forfeiture due to counsel’s
deficient representation renders the proceedings inherently
unreliable. 	Id.
¶100 Whether a litigant is required to show actual prejudice
or whether prejudice is instead presumed “turns on the magnitude
of the deprivation of the right to effective assistance of
counsel.” 	Id. at 482. 	In this case, Brass’ abdication of his
duties was of sufficient magnitude to presume prejudice and meets
both of the exceptions discussed above. 	First, Brass completely

45 	No. 20040289
failed to provide meaningful adversarial testing because he took
no actions to develop Menzies’ case and did not respond to any of
the State’s various motions. 	Brass not only acted with reckless
disregard for Menzies’ case, but he willfully disregarded nearly
every aspect of it. 	Second, Brass’ actions effectively forfeited
the entire post-conviction proceeding itself. 	Brass never
responded to the State’s repeated discovery requests and never
informed Menzies or the court of his failures or the reasons for
them. 	The result is that discovery sanctions were imposed
preventing Menzies from doing anything to establish his grounds
for relief. 	After the discovery sanctions were imposed, there
were no disputed issues of material fact because no facts had
been introduced to support Menzies’ claims, and the district
court granted summary judgment in favor of the State. 	In
summary, Brass’ performance not only failed to subject the
State’s case to the crucible of meaningful adversary testing but
also resulted in the denial of the post-conviction proceeding
itself. 	Under these circumstances, Brass’ actions were clearly
prejudicial. 	Accordingly, Menzies is entitled to relief under
rule 60(b)(6).
2. 	Menzies is entitled to relief under rule 60(b)(6) because
Brass’ actions were grossly negligent
¶101 In addition to arguing that he is entitled to relief
under rule 60(b)(6) due to Brass’ ineffective assistance of
counsel, Menzies also argues that he is entitled to relief on the
independent ground that Brass’ actions were grossly negligent and
therefore constitute exceptional circumstances under 60(b)(6).
As discussed above, both grounds constitute exceptional
circumstances that warrant relief under 60(b)(6). 	While a
litigant must have a right to the effective assistance of counsel
in order to seek relief on that ground, relief under 60(b)(6) may
also be sought where a lawyer’s performance is grossly negligent
and therefore not excusable under rule 60(b)(1). 	See Cmty.
Dental Servs. v. Tani, 282 F.3d 1164, 1170 n.11 (9th Cir. 2002).
¶102 While it dealt with this issue in a purely civil
context, Tani is remarkably similar to the case at bar. 	There,
the defendant was sued on grounds of trademark infringement and
retained counsel to represent him. 	Id. at 1166. 	The parties
agreed to extend the time for filing the defendant’s answer, but
the defendant’s counsel failed to sign the stipulation and also
failed to file a timely answer. 	Id. 	The plaintiff filed for
default, only to learn that an answer had been filed one day
before, two weeks late. 	Id. 	Having not received a copy, the
plaintiff telephoned the defendant’s counsel, who assured the
plaintiff that he would send a copy. 	Id. 	However, the

No. 20040289 	46
defendant’s counsel failed to do so. 	Id. 	At a subsequent
hearing, the magistrate judge ordered the defendant’s counsel to
serve the answer and to participate in a settlement conference
call. 	Id. at 1167. 	When the defendant’s counsel failed to do
either of these things, the plaintiff moved to strike the answer
and again asked for a default judgment. 	Id. 	The defendant’s
counsel failed to file a memorandum in opposition and, at a
hearing on the plaintiff’s motion, still did not provide the
plaintiff with a copy of the answer. 	Id. 	Therefore, the
magistrate judge granted the plaintiff’s motions. 	Id.
¶103 During this entire course of events, the defendant’s
counsel represented to the defendant that the case was proceeding
smoothly. 	Id. 	It was not until the order of default judgment
was mistakenly mailed to the defendant’s office that he became
aware of his counsel’s failures. 	Id. 	The defendant promptly
retained new counsel and filed a motion to set aside the default
judgment pursuant to rule 60(b) of the Federal Rules of Civil
Procedure. 	Id. 	The district court denied the motion, finding
that although counsel’s actions were not “excusable” under rule
60(b)(1), those actions were still chargeable to the defendant.
Id. at 1167 & n.6. 	The court also found that relief was not
warranted due to the defendant’s “own ‘culpable conduct.’” 	Id.
at 1167.
¶104 On appeal, the Ninth Circuit reversed the district
court. 	Id. at 1166. 	The court held that while an attorney’s
negligent acts are ordinarily chargeable to the client, a client
should not be held liable for the attorney’s actions where those
actions are grossly negligent. 	Id. at 1168-69. 	It also held
that grossly negligent conduct constitutes exceptional
circumstances that entitle a litigant to relief under rule
60(b)(6). 	Id. 	The court then noted that the defendant’s counsel
had performed in a grossly negligent fashion because his failures
were “inexcusable and inexplicable” and that he had “virtually
abandoned his client.” 	Id. at 1170. 	The court also noted that
the attorney had deliberately misled his client by repeatedly
assuring the client that he “was performing his
responsibilities,” thereby “depriving him of the opportunity to
take action to preserve his rights.” 	Id. at 1171. 	While the
court did note that a litigant’s own culpable conduct could serve
as grounds for a court to deny a rule 60(b)(6) motion, the
court’s review of the record did not demonstrate culpable conduct
on the part of the defendant. 	Id. at 1172. 	Therefore, the court
held that the district court had abused its discretion by denying
the defendant’s rule 60(b)(6) motion. 	Id.

47 	No. 20040289
¶105 In this case, the district court abused its discretion
by denying Menzies’ rule 60(b)(6) motion because Brass’ conduct
was grossly negligent. 	As in Tani, Brass repeatedly failed to
comply with straightforward procedural requirements and court-
ordered deadlines. 	He took no action to build Menzies’ case and
allowed the State to obtain a default judgment by failing to
respond to discovery. 	Thus, Brass “virtually abandoned his
client.” 	See id. at 1170. 	He also misled Menzies about the
procedural posture of his case, the result being that Menzies was
not fully aware of Brass’ failures until years after they
occurred. 	This conduct clearly constitutes gross negligence,
entitling Menzies to relief under rule 60(b)(6).
¶106 Before addressing whether Menzies has met the
meritorious defense requirement, it is necessary first to address
one additional portion of the district court’s 60(b) ruling. 	The
district court found that Menzies was not entitled to 60(b)
relief because he “intentionally acquiesced in the delay of his
case.” 	In coming to this conclusion, the court relied on our
holding in T.S. v. State, 2003 UT 54, 82 P.3d 1104. 	In that
case, we held that “good cause” for extending the time to file an
overdue notice of appeal under rule 4(e) of the Utah Rules of
Appellate Procedure encompasses the situation where a litigant’s
failure to file a timely notice of appeal is due to the violation
of a statutory right to the effective assistance of counsel.
T.S., 2003 UT 54, ¶ 9. 	However, we also noted that “a party’s
own negligent or intentional acts might render rule 4(e) relief
inequitable, notwithstanding a showing of ineffective assistance
of counsel.” 	Id. ¶ 12. 	Based on this language, the district
court found that Menzies was required to “exercise that level of
diligence that a reasonably prudent person in his circumstances
would exercise.” 	The district court found that Menzies was not
reasonably prudent because he retained Brass as his attorney and
failed to inform the court about Brass’ failures. 	Thus, the
district court denied Menzies 60(b) relief on this basis.
¶107 It is true that in considering a rule 60(b) motion, the
district court must take into consideration all of the attendant
circumstances in order to determine whether rule 60(b) relief is
equitable. 	See Katz v. Pierce, 732 P.2d 92, 93 n.2 (Utah 1986);
Olsen v. Cummings, 565 P.2d 1123, 1124 (Utah 1977). 	To the
extent that a litigant has acted negligently or intentionally, a
court may consider these acts in striking an equitable balance
between finality and allowing the litigant a fair hearing,
notwithstanding the gross negligence or ineffective assistance of
counsel. 	See Tani, 282 F.3d at 1172; T.S., 2003 UT 54, ¶ 12.
However, a rule 60(b) ruling must be based on adequate findings
of fact. 	Lund v. Brown, 2000 UT 75, ¶ 9, 11 P.3d 277. 	In this

No. 20040289 	48
case, our review of the record leads us to the conclusion that
the district court clearly erred on the record facts in finding
that Menzies was negligent. 	The record indicates that Menzies
was unaware of the status of his case during most of the time
Brass was representing him. 	Indeed, he was not aware that a
default judgment had been entered until a year after the district
court granted summary judgment in favor of the State. 	When
Brass informed Menzies of the default, he also assured Menzies
that he was taking steps to have it set aside, and Menzies relied
on his representation. 	Moreover, Menzies was not informed of the
reasons for the default judgment and of Brass’ multiple discovery
failures until Hunt began representing him; prompt steps to set
aside the default judgment were then taken. 	Finally, the record
indicates that Menzies kept Brass as his attorney despite his
concerns about the progress of his case because Brass and other
attorneys repeatedly told Menzies that Brass would provide
effective representation. 	Therefore, we hold that the district
court’s findings that Menzies was negligent for keeping Brass as
his attorney and for failing to contact the court regarding
Brass’ failures were clearly erroneous; and we also hold that the
district court abused its discretion by denying Menzies rule
60(b) relief on this ground.
C. 	Menzies Meets the Meritorious Defense Requirement
¶108 The final inquiry in our rule 60(b) analysis is whether
Menzies has alleged a meritorious defense. 	The purpose of the
meritorious defense requirement “is to prevent the necessity of
judicial review of questions which, on the face of the pleadings,
are frivolous.” 	Lund v. Brown, 2000 UT 75, ¶ 28, 11 P.3d 277
(citation and internal quotation marks omitted). 	Thus, a
litigant seeking rule 60(b) relief “must proffer some defense of
at least sufficient ostensible merit as would justify a trial on
the issue thus raised.” 	Downey State Bank v. Major-Blakeney
Corp., 545 P.2d 507, 510 (Utah 1976). 	This requirement does not
set an overly burdensome threshold: 	“A defense is sufficiently
meritorious to have a default judgment set aside if it is
entitled to be tried.” 	Erickson v. Schenkers Int’l Forwarders,
Inc., 882 P.2d 1147, 1149 (Utah 1994). 	Thus, “where a party
presents a clear and specific proffer of a defense that, if
proven, would [warrant relief] by the claimant . . . it has
adequately shown a nonfrivolous and meritorious defense.” 	Lund,
2000 UT 75, ¶ 29. 	Even “general denials” that would allow a
litigant to prevail if proven are sufficient. 	Erickson, 882 P.2d
at 1149.
¶109 Menzies easily meets the meritorious defense
requirement. 	In his amended petition, Menzies alleged multiple

49 	No. 20040289
trial errors that, if proven, would allow Menzies to prevail in
his post-conviction proceeding. 	While the record is far from
fully developed with regard to Menzies’ claims as a direct result
of the ineffective assistance of his counsel, Menzies is not
required to prove any of his claims or meet an evidentiary
threshold in order to demonstrate that his claims have merit.
Lund, 2000 UT 75, ¶¶ 29, 32. 	Because this final requirement of
our 60(b) analysis is met, Menzies is entitled to relief under
rule 60(b)(6).
¶110 Having concluded that Menzies is entitled to rule 60(b)
relief, it is necessary also to consider what relief is
warranted. 	Merely setting aside the default judgment would be
insufficient, for the sanctions that were imposed by the district
court would still preclude Menzies from investigating his claims.
Moreover, Brass’ ineffective representation extended well beyond
the entry of the discovery sanctions because Brass was willfully
neglecting Menzies’ case long before the sanctions were imposed.
Brass’ actions pervade the entire course of his representation,
for he took no actions to develop Menzies’ case even when he was
first appointed. 	Even the second amended petition filed by
Brass, the first pleading he filed, did little more than repeat
the allegations of the amended petition that had been filed three
years previously. 	In addition, Brass took no action to oppose
the State’s motion to dismiss, which disposed of many of Menzies’
claims. 	Thus, in order to fully correct the harm of Brass’
ineffective assistance, it is necessary to set aside the entire
course of his representation and give Menzies an opportunity to
properly develop his case. 	We do not undertake this decision
lightly. 	The post-conviction proceedings in this case have now
extended for eleven years, with no resolution apparent in the
immediate future. 	However, as we have noted repeatedly, while
finality in judicial proceedings is an important policy, the
constitutional guarantees of life and liberty must prevail in
this instance. 	See Hurst v. Cook, 777 P.2d 1029, 1035 (Utah
1989). 	We simply cannot allow Menzies’ sentence to be carried
out without allowing him to exercise his right to post-conviction
review. 	In order to ensure that this right is adequately
protected, it is necessary that Menzies have the opportunity to
investigate his claims and present them to the district court for
proper adjudication.
¶111 Accordingly, we remand this case to the district court
with instructions to set aside the proceedings that took place
during the time that Brass was representing Menzies. 	Menzies
should be allowed to investigate his claims in accordance with
the pertinent Utah rules and should be given the opportunity to
amend his post-conviction petition in the event that it is

No. 20040289 	50
warranted. 	We now address Menzies’ final claim, relating to the
district court’s evidentiary rulings during the rule 60(b)
proceedings.
II. 	THE DISTRICT COURT’S ORDER REGARDING THE DESTRUCTION OF
PRIVILEGED DOCUMENTS WAS INSUFFICIENT
¶112 Menzies also argues that the district court’s order
regarding the destruction of documents that were ruled
inadmissible at the evidentiary hearing held on January 16, 2004,
is insufficient and must be augmented. 	According to Menzies, the
district court erred by ordering that the disputed documents be
produced to the State in the first place because the procedure
for applying the work product doctrine set forth in Salt Lake
Legal Defender Ass’n v. Uno, 932 P.2d 589 (Utah 1997), requires
the district court to conduct an in-camera review to ensure that
the party seeking production meets the Uno standard before such
documents are produced. 	While Menzies acknowledges that the
district court attempted to cure the Uno violation by ordering
the State to destroy the inadmissible documents, Menzies asserts
that the order is insufficient because it does not require the
State to identify which documents it had already obtained from
independent sources and does not contain any deadline for the
documents to be destroyed. 	We agree with each of Menzies’
arguments and therefore order the district court to supplement
its order of April 5, 2004, regarding the destruction of the
inadmissible documents.
¶113 In Uno, we considered some of the discovery issues that
have pervaded this case since Menzies’ post-conviction petition
was filed. 	In that case, LDA had petitioned this court for an
extraordinary writ asking that we reverse the district court’s
denial of its motion for a protective order. 	Id. at 589. 	The
State had served LDA with subpoenas duces tecum and requests for
the production of all documents relating to LDA’s representation
of Menzies in the underlying criminal trial in order to challenge
Menzies’ claims that LDA had rendered ineffective assistance.
Id. 	LDA asked the district court for a protective order
preventing the disclosure of these documents, asserting the work
product immunity doctrine, but the district court denied its
request and ordered that the documents be produced. 	Id. 	We
vacated the district court’s order, concluding that the order
violated the work product immunity doctrine. 	Id. at 591.
¶114 In Uno, we first recited the rule, contained in rule
26(b)(3) of the Utah Rules of Civil Procedure, that attorney work
product--defined as “‘documents and tangible things . . .
prepared in anticipation of litigation’” but not including

51 	No. 20040289
“‘mental impressions, conclusions, opinions, or legal theories of
an attorney’”--is not discoverable unless “‘the party seeking
discovery has substantial need’” and cannot obtain the materials
elsewhere “‘without undue hardship.’” 	Id. at 589-90 (quoting
Utah R. Civ. P. 26(b)(3)) (alteration in original). 	We then
noted that while an attorney’s mental impressions are generally
not discoverable, there is an exception if those mental
impressions are “directly at issue.” 	Id. at 590 (citation and
internal quotation marks omitted). 	As we stated in Uno, “There
is a sense in which the mental impressions, conclusions, and
opinions constitute ‘the facts’ of the case and therefore may be
discoverable.” 	Id. 	However, this exception must be applied very
carefully in ineffective assistance of counsel cases because a
discovery policy whereby counsel’s files can be freely accessed
in subsequent proceedings has the potential to significantly
impair the trial preparation process. 	Id. 	In order to prevent
such a result, we set forth in Uno a three-step test that the
State must meet when seeking the production of attorney work
product in an ineffective assistance case before such documents
may be disclosed. 	Id. at 591. 	For each document sought, the
State must demonstrate that (1) “it has ‘substantial need’ and
that it cannot, without ‘undue hardship,’ obtain the substantial
equivalent of the information by other means,” as required by
rule 26(b)(3); (2) the “at issue” exception applies to the
document; and (3) “the document [has been] edited to prevent the
disclosure of information not related to the ineffectiveness
claims.” 	Id. 	In Uno, we suggested that LDA prepare an index of
the documents in its file in order to help the State meet its
burden and also instructed the district court to conduct an in-
camera review of each document for which the State met the first
two requirements in order “to ensure that it does not contain
extraneous information that should not be revealed to the State.”
Id.
¶115 Applying Uno to the issue before us, it is clear that
the district court failed to comply with Uno by ordering Menzies
to produce the disputed documents prior to the January 15
hearing. 	The materials that the State sought to discover were
attorney work product, prepared by Menzies’ pro bono counsel in
anticipation of litigation, and the State was seeking their
production in order to oppose Menzies’ claims that Brass had
provided ineffective assistance of counsel. 	Accordingly, the
State was required to meet the three-part Uno test in order to
obtain the documents. 	Under Uno, the State was required to meet
this test before the documents were produced, not afterward. 	Id.
Thus, upon receiving Menzies’ index of withheld documents, the
district court should have required the State to meet the Uno
test before ordering the documents’ production. 	The district

14 We note that our holding does not preclude the State from
seeking discovery of materials that may be relevant to future
litigation in this case, so long as the appropriate tests are
met.
15 This order should not be confined to the documents
themselves, but should include, for example, copies of the
documents, notes taken from the documents, and any other
materials made from the documents by the State.
No. 20040289 	52
court’s order requiring Menzies to produce the documents was
therefore a violation of Uno.
¶116 To the district court’s credit, it appears that the
court recognized its error after reviewing Uno and attempted to
rectify it by ruling the documents the State sought to discover
inadmissible and ordering the State to destroy them. 	However,
the court’s order did not go far enough. 	It is clearly a
violation of Uno and rule 26(b)(3) for the State to have in its
possession at this time any documents prepared in anticipation of
litigation by Menzies’ pro bono counsel or their agents. 14 	If
there are documents that were included in Menzies’ index of
withheld documents that are properly discoverable by the State or
that were already in the State’s possession due to prior
legitimate discovery, then the State need not destroy them.
However, the State must identify any such documents and destroy
all others post haste. 	Accordingly, on remand, the district
court must require the State to demonstrate which documents it is
entitled to keep, order the State to immediately destroy all of
the remaining documents, 15 and take all other necessary steps to
ensure that the Uno violation goes no further.
CONCLUSION
¶117 Although concluding that errors at the district court
level require reversal, we note that the trial court functioned
with great diligence and effort under extraordinary difficulties
in this case. 	The procedural and substantive defaults of Brass,
the extremely adversarial posture and voluminous pleadings of the
parties, the extensive and confusing state of the record, and the
multiple contested questions of law all posed a great challenge,
and the court was thorough in its attention to the case. 	We take
this occasion, however, to emphasize the role that district
courts must play in protecting and preserving the integrity of
every aspect of capital proceedings.
¶118 We hold that the district court abused its discretion
by denying Menzies relief under rule 60(b)(6) of the Utah Rules

53 	No. 20040289
of Civil Procedure. 	Menzies is entitled to rule 60(b)(6) relief
due to the extraordinary circumstances of Brass’ ineffective
assistance of counsel and grossly negligent representation. 	In
addition the district court erred in its application of Salt Lake
Legal Defender Ass’n v. Uno, 932 P.2d 589 (Utah 1997), and its
discovery ruling must be supplemented. 	We reverse and remand for
proceedings consistent with this opinion.
---
¶119 Justice Durrant, Justice Parrish, and Justice Nehring
concur in Chief Justice Durham’s opinion.
---
WILKINS, Associate Chief Justice, concurring in the result:
¶120 I concur in the result reached by my colleagues. 	Given
the facts presented, it is simply impossible to understand, much
less justify, Mr. Brass’ conduct in this case. 	Calling his
behavior here “ineffective” rather understates the case. 	That
alone is enough to require the district court to give Menzies the
benefit of the doubt on seeking to set aside the summary judgment
granted primarily as a result of Mr. Brass’ failure to represent
his client’s interests in any meaningful way. 	A total failure to
represent one’s clients’ interests is always ineffective.
¶121 Mr. Brass, a classmate of mine from law school, has, in
the past, been a fine lawyer doing an excellent job. 	His passion
about the rights of the accused has resulted in his willingness
to be assigned the defense of some truly awful individuals
charged with hideous acts. 	He has been an express believer in
the right of all citizens to a vigorous defense against charges
of criminal behavior brought by the State. 	He has, on many
occasions, reminded judges and juries of Utah that our joint
agreement, embodied in both state and federal constitutions,
provides the benefit of the doubt to the accused. 	Periodically,
some of the guilty go free as a result of the high burden we have
all imposed upon the State to prove our guilt. 	This allows us to
be more certain that only the guilty are punished.
¶122 In cases where the death penalty is possible, we have
become increasingly more thorough in our appellate review. 	The
motivation for this increased care comes in part from the ever-
changing federal constitutional interpretations of the Supreme
Court of the United States. 	One is left with the impression that
in time the death penalty, no matter how painlessly or
righteously imposed, will be found violative of the United States

No. 20040289 	54
Constitution by the high Court. 	Such a decision, if and when it
comes, will no doubt be hotly debated on grounds of “original
intent” versus the “living constitution” by those deeply
concerned with the topic. 	Although I harbor an opinion on the
question, it does not come into play here whatsoever.
¶123 I do not subscribe to the general “framework”
discussion offered by my colleagues. 	In this and other death
penalty cases, we universally express concern that society is
extracting the ultimate penalty from the defendant convicted of a
capital crime. 	I am troubled by the usual absence of any attempt
to demonstrate consideration for the truly innocent victims and
their loved ones who are selected by death row inmates as targets
for their crimes in the first instance. 	Moreover, I am deeply
troubled by the exacting and seemingly endless requirements to
review, re-review, analyze, and re-analyze any possible defect in
the proceedings by which those found guilty of crimes so hideous
that the death penalty is imposed. 	The death penalty acts as a
deterrent to those put to death, for sure. 	It does not seem to
have any realistic application to anyone else. 	Based on our
experience, a sentence of life without parole may not only be as
good a deterrent, but also less expensive to the state, more
miserable for the guilty, and more certain for the victims and
society.
¶124 I am not certain that those convicted of death-eligible
offenses against the rest of us deserve the extreme level of
attention we extend to them in the name of being absolutely
certain of their guilt and that their crime warrants death. 	I
think it might be better to abandon the effort and simply impose
a life-long removal from society. 	I suppose an alternative might
be to expend the effort and resources instead in training and
educating our children to prevent capital crime in the first
place.
¶125 Nonetheless, this court has once again extended greater
protections to those convicted of capital crimes than recognized
by the United States Supreme Court, finding a statutory right to
effective assistance of counsel in state post-conviction
proceedings. 	In addition, my colleagues rely in part on ABA
Death Penalty Guideline 10.15.1, which provides in part that
post-conviction counsel “should seek to litigate all issues,
whether or not previously presented, that are arguably
meritorious” and, further, assume that Menzies’ claim of
innocence clearly cries out for factual investigation. 	I agree
with none of these propositions.

55 	No. 20040289
¶126 It is enough that Mr. Brass utterly failed to represent
Menzies’ interests in the matter. 	A total failure of counsel,
when counsel is provided by law, is sufficient to get another
chance at post-conviction relief. 	No more is needed in this
case.
---