July 30, 2014

Tenth Circuit: Opinion Amended to Omit References to the Panel’s Improper Discussion of the Dismissal of the Cross-Appeal

The Tenth Circuit Court of Appeals amended its opinion in James River Ins. Co. v. Rapid Funding, LLC on Monday, August 29, 2011.

The Tenth Circuit reviewed a Petition For Limited Rehearing filed on behalf of James River Insurance Company, as well as a Petition For Rehearing En Banc filed on behalf of Rapid Funding, LLC. The Petition For Limited Rehearing was reviewed by the panel members and was denied. The panel also reviewed the Petition For Rehearing En Banc, which was granted in part and denied in part. The Court granted limited rehearing about the portion of the petition that noted that the panel addressed the dismissed cross-appeal in error. The Court amended its original decision to omit those references. The amended version was attached to the new order and the remainder of the petition was denied in full. The en banc request was also denied.

Tenth Circuit: Unpublished Opinions, 8/29/11

On Monday, August 29, 2011, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.

Unpublished

United States v. Rincon-Torres

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

American Bar Association Issues Formal Ethics Opinions Regarding Email Confidentiality

On August 4, 2011, the ABA released two ethics opinions. The first, Formal Opinion 11-459, discusses the Duty to Protect the Confidentiality of E-mail Communications with One’s Client:

A lawyer sending or receiving substantive communications with a client via e-mail or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access. In the context of representing an employee, this obligation arises, at the very least, when the lawyer knows or reasonably should know that the client is likely to send or receive substantive client-lawyer communications via e-mail or other electronic means, using a business device or system under circumstances where there is a significant risk that the communications will be read by the employer or another third party.

Whenever a lawyer communicates with a client by e-mail, the lawyer must first consider whether, given the client’s situation, there is a significant risk that third parties will have access to the communications. If so, the lawyer must take reasonable care to protect the confidentiality of the communications by giving appropriately tailored advice to the client.

Click here to read the full opinion.

In conjunction with that opinion, the ABA also released Formal Opinion 11-460, entitled Duty when Lawyer Receives Copies of a Third Party’s E-mail Communications with Counsel:

When an employer’s lawyer receives copies of an employee’s private communications with counsel, which the employer located in the employee’s business e-mail file or on the employee’s workplace computer or other device, neither Rule 4.4(b) nor any other Rule requires the employer’s lawyer to notify opposing counsel of the receipt of the communications. However, court decisions, civil procedure rules, or other law may impose such a notification duty, which a lawyer may then be subject to discipline for violating. If the law governing potential disclosure is unclear, Rule 1.6(b)(6) allows the employer’s lawyer to disclose that the employer has retrieved the employee’s attorney-client e-mail communications to the extent the lawyer reasonably believes it is necessary to do so to comply with the relevant law. If no law can reasonably be read as establishing a notification obligation, however, then the decision whether to give notice must be made by the employer-client, and the employer’s lawyer must explain the implications of disclosure, and the available alternatives, as necessary to enable the employer to make an informed decision.

Click here to read the full opinion.

Tenth Circuit Proposes Changes to Local Rules for 2012 and Seeks Comment

On January 1, 2012, new local rules for the United States Court of Appeals for the Tenth Circuit will take effect. From August 26 through October 23, the court invites comment and feedback from all interested parties on this year’s proposed changes. Please take a moment to review the changes below.

Comments may be emailed to the Court. In addition, interested parties are invited to call the office of the Clerk at (303) 844-3157 with any questions they may have. A final version of the rules will be posted on the court’s website on or around November 21, 2011.

Additionally, changes to Federal Rules of Appellate Procedure 4(a)(1) and 40(a)(1) will take effect on December 1, 2011. These changes are also outlined below.

Federal Rules of Appellate Procedure (changes will take effect December 1, 2011)

1)  Federal Rule of Appellate Procedure 4(a)(1)

This rule was changed to clarify language regarding the entry of judgment, and to define more precisely which entities are included for purposes of defining “United States” under Rule 4(a)(1)(B).

2)  Federal Rule of Appellate Procedure 40(a)(1)

This rule change is similar to the change made to Rule 4. Specifically, the change clarifies language and also defines more precisely which entities are included for purposes of defining “United States.”

Tenth Circuit Proposed Local Rules Changes for 2012

1)  10th Cir. R. 5.1 (filing reply briefs in Fed. R. App. P. 5 cases)

Federal Rule of Appellate Procedure 5 outlines the process for filing petitions for permission to appeal. The proposed addition to the local rule addresses reply briefs, which were not addressed previously. Proposed local rule 5.1 allows parties to file a reply in these cases upon motion to the court.

2)  10th Cir. R. 22.1 and 22.2 (certificates of appealability and procedures in death penalty cases)

(These proposals include changes to Rule 22.1(A), Rules 22.2(B) and (C) plus the elimination of Rules 22.2(D) and (E)).

The proposed changes to these rules are in the nature of language updates, but are extensive. The proposed changes are necessary to conform the local rules to the current practices of the court.

3)  10th Cir. R. 28.2(C)(6) (proposed new rule re: glossary of terms)

This proposed rule requires parties to include a glossary of terms in briefs which are acronym-intensive. The proposed rule speaks specifically to agency proceedings.

4)  10th Cir. R. 29.1 (proposed addition re: page limits for amicus briefs on rehearing)

This proposed local rule would make, with respect to page limits, amicus briefs on rehearing consistent with principal amicus briefs filed per Fed. R. App. P. 29.

5)  10th Cir. R. 46.3(A) (prerequisites for filing a motion to withdraw in a criminal case)

The court’s current local rule requires counsel to perfect the appeal in a criminal case prior to filing a motion to withdraw. Perfecting the appeal includes filing a designation of record and transcript order form (or notice that no transcript is necessary), along with the entry of appearance and docketing statement. The proposed change will allow counsel to file a motion to withdraw following submission of an entry of appearance and docketing statement (only). There will no longer be a requirement to perfect the appeal before filing the motion.

Click here to review a memorandum from the Tenth Circuit regarding the changes.

Click here to read a complete draft of the rules.

Click here to read a complete draft of the rules including red line edits.

Ignite Presentations: Call for Presenters on the Topic of Pro Bono

Do you have a passion for pro bono work and its impact on society?

We are looking for speakers to talk for five minutes about their thoughts on pro bono. Ignite presentations are 5-minute presentations that feature 20 slides displayed for 15 seconds each. This is a fast-paced, fun, and thought-provoking way to get your point across. The Denver Bar Association held a similar event in June, which was a great success. Videos and more information about the previous presentations can be found here.

This round of presentations will be show-cased at the DBA Access to Justice Committee’s Pro Bono Week Kick-off event Monday, October 24, 2011 from 5:30 to 8 :00 pm at the law offices of Kutak Rock.

Interested in giving a presentation at this event? (You know you want to). Contact Heather Clark. This complimentary event will also feature guest speakers, light appetizers, and drinks.

Governor Hickenlooper Makes Several Board and Commission Appointments

On Friday, August 26, 2011, Governor John Hickenlooper announced his appointments to several Boards and Commissions. The appointments were made to the Colorado Council on the Arts, the State Emergency Medical and Trauma Services Advisory Council, the Colorado Tourism Office Board of Directors, and the State Board of Human Services.

The Colorado Council on the Arts works to stimulate and encourage the development of the arts and humanities throughout the state. The members appointed:

  • Commissioner Robert K. Hammond of Erie; term to expire July 1, 2012.
  • Kimberly Harrell of Aurora; reappointed, term to expire July 1, 2014.
  • Allison Cowan Sarmo of Grand Junction; term to expire July 1, 2014.
  • David Anthony Boger of Denver; term to expire July 1, 2014.
  • Claire Oberon Garcia of Colorado Springs; term to expire July 1, 2014.
  • Kyle Zeppelin of Denver; term to expire July 1, 2014.
  • Robert B. Clasen of Denver; appointed to serve as chair.

The State Emergency Medical and Trauma Services Advisory Council advises the Department of Public Health and Environment on emergency medical and trauma services programs. The members appointed, with terms to expire July 1, 2014, are:

  • Daniel J. Noonan of Durango, a fire chief of a service that provides pre-hospital care in a rural area and a Republican, reappointed.
  • Dr. Eugene M. Eby of Greenwood Village, an emergency board-certified physician and a Democrat, reappointed.
  • Randal Dean Lesher of Loveland, representing a government provider of pre-hospital care and a Republican, reappointed.
  • Linda L. Joseph of Moffat, a county commissioner from a rural county and a Democrat, reappointed.
  • Dr. Walter L. Biffl of Denver, a board-certified surgeon providing trauma care at a Level 1 trauma center and a Democrat, reappointed.
  • Fred L. Morrison of Gypsum, an officer or employee of a public provider of pre-hospital care and Unaffiliated, appointed.
  • Dr. David Alexander Dreitlein of Montrose, an officer or employee of a private provider of pre-hospital care and a Republican.
  • Travis C. Polk of LaSalle, a trauma nurse coordinator and Unaffiliated.
  • Robert Carl Hudgens of Pueblo, a member of the general public from an urban area and Unaffiliated.

The Colorado Tourism Office Board of Directors sets and administers policies regarding expenditures for promoting travel and tourism in the state. The appointments must be confirmed by the Colorado Senate. The members appointed are:

  • Troy Allan Rarick of Fruita, to fill the vacancy occasioned by the resignation of James E. Durr, and to serve as a representative of tourism-related retail industry, small community, and small business; term to expire June 1, 2012.
  • Timothy H. Wolfe of Littleton, a representative of the hotel, motel, and lodging industry; reappointed, term to expire June 1, 2015.
  • Edwin A. Garcia of Aurora, a representative of tourism-related transportation industries; term to expire June 1, 2015.
  • Lawrence R. DiPasquale of Greenwood Village, a representative of the food, beverage, and restaurant industry; term to expire June 1, 2015.

The State Board of Human Services adopts policies, rules, and regulations for the administration of the Department of Human Services. The members appointed are:

  • Stephen W. Johnson of Fort Collins, to serve as a county commissioner; term to expire March 1, 2015.
  • David A. Ervin of Colorado Springs, to serve as a public member; term to expire March 1, 2015.
  • Youlon D. Savage of Denver, to serve as a public member; reappointed, term to expire March 1, 2015.
  • Dave Long of New Raymer, to serve as a county commissioner; reappointed, term to expire March 1, 2015.
  • Samuel Pace of Crestone, to serve as a county commissioner; reappointed, term to expire March 1, 2015.
  • Catherine Anne Silburn of Lakewood, to serve as a public member and occasioned by the resignation of Karen M. Studen; term to expire March 1, 2013.

The full press release from the Governor’s Office concerning these board and commission appointments can be found here.

Denver County Court Closed Friday; All State Courts Closed Labor Day

The Denver County Court will be closed on Friday, September 2, 2011 for a budget-mandated furlough day.

All state courts will be closed on Monday, September 5 in observance of the Labor Day Holiday.

Colorado Supreme Court: Week of August 28, 2011 (No Opinions)

The Colorado Supreme Court issued no opinions for the week of August 28, 2011.

Jordan Furlong: The Best Pricing Advice Ever

So it was the summer of 1983 and I had reached that particular stage of adolescence when your parents have finally managed, after a long succession of hints, to get across the idea that this would be a good time to secure gainful summer employment.

Off I went to the local employment office to check out the job board. It turned out that when you’re 15 years old,  there’s not a whole lot you’re qualified to do (which always comes as a mild surprise to the burgeoning teenage ego). However, for people of my age and utter lack of qualifications, there was the “Odd Job Squad,” which allowed you to paint fences or rake leaves or do some other task where you couldn’t break anything that couldn’t be inexpensively replaced. In my case, that turned out to be mowing lawns.

So I signed up and was sent out to my first client: an aging couple living in a tidy bungalow that was probably once at the edge of town, but was now thoroughly suburban.

The couple had one of those push mowers that ran solely on the user’s effort. After a solid 45 minutes of serious labor (during which I mistakenly ripped out and threw away what I later realized was a series of tulip bulbs), I knocked on the door to receive payment.

The older gentleman at the door asked me, “How much is that?” and I realized with a sudden shock of apprehension that I had no idea. No one at the employment office had suggested rates or fees, and what did I know about the market for mowing lawns?

So I replied, “I don’t know … how much do you think it should be?”

He fixed me with a look that can only be delivered down a two-generation staircase and said, “I can’t be buyer and seller both.”

I don’t think I’ve ever received better advice about pricing than that. The seller’s job is to know how much his or her services are worth, and the buyer’s job is to decide, after as much or as little negotiation as desired, whether that price matches the value of the service to the buyer.

I’ve used that approach during job interviews, when the interviewer asks the inevitable cap-the-compensation question, “What kind of salary range are you looking for?” I’ve replied, “I’m looking to earn as much the job is worth, and only you know how much that is,” which is a nicer way of saying, “You’re the seller and I’m the buyer, and I’m not about to set your price for you.”

I’ve used that approach when setting professional fees, too, where I’m the seller and the potential client is the buyer, when they ask, “What do you charge for a speaking engagement?” I say that price is what I set after finding out every last detail of what the engagement would require, and if that price is too high, then we can negotiate some of the details. But I know what my work is worth. So what I don’t do is quote a price and then say, “Is that Okay?” because then I’m letting the buyer help determine the price, and that’s not going to end well for me.

Know what your time and effort and experience and ingenuity are worth before you think about setting price. If you want to negotiate that price up or down depending on the conversation with the buyer, that’s fine, because price is ultimately a conversation about value and opportunity between buyer and seller and it rarely ends up at the same destination twice.

But remember that you enter that conversation with a responsibility to know what you’re worth. If you let the buyer decide that, you will always end up underselling your services. Or almost always.

“Five dollars?” I hazarded, and he opened his wallet, pulled out a five and thanked me for my work. If I could go back and find him now, I’d thank him for giving me far more that day than I returned in kind. Not just for the advice, but also because I really wasn’t very good at mowing lawns, and five bucks was generous.

As a partner with Edge International, Jordan Furlong delivers dynamic and thought-provoking presentations to law firms and legal organizations throughout North America. He also helps law firms that want a stronger online presence through blogs and social media with content, messaging and strategy as a Senior Consultant with Stem Legal. He writes the award-winning blog Law21: Dispatches from a Legal Profession on the Brink and can be reached at jordan@law21.ca. Jordan also contributes to the Attorney at Work blog, where this post originally appeared on August 22, 2011.

Help Wheels of Justice Fundraising End on a High Note

The first day of the Courage Classic ends on a high note. And by high, I mean that you bike to the top of Vail Pass. It was one of the only times on the ride that I thought, What kind of crazy people do this? It’s a question easily answered: the kind of crazy people who want to raise money for kids who are fighting for their health, maybe even so that someday they’ll have shot at Vail Pass, too.

The Courage Classic raises money for Children’s Hospital Colorado (CHC) and you participate by joining a cycling team. I joined Wheels of Justice, a team of lawyers (and friends of lawyers), which supports the CHC’s Center for Cancer and Blood Disorders. They have a strong track record and strong leadership from Heather Purcell and others. Last year alone, they raised $250,156, making them the top fundraising team of the 2010 Courage Classic.

This year, the team has exceeded its 2010 fundraising by pulling in $265,056. This is an incredible accomplishment, but it’s not quite enough. We have friendly rivals in Gears of Courage, a team of doctors, patients, donors, nurses, and volunteers, which has blown away its previous fundraising efforts by pulling in $264,484.

It’s so close that we know we can still pull ahead with one final push. You can support Wheels of Justice riders and Children’s Hospital Colorado before August 31, 2011, by clicking here and donating to a rider.

Even better, you can plan to ride next year, July 21-23, 2012. I’ll see you at the top of Vail Pass.

Tenth Circuit: Juvenile Drug-Trafficking Convictions Are Applicable Under the Armed Career Criminal Act

The Tenth Circuit Court of Appeals issued its opinion in United States v. Coleman on Friday, August 26, 2011.

The Tenth Circuit affirmed the district court’s sentence. Petitioner was convicted of selling crack cocaine and marijuana on three separate occasions in 2002, in violation of Oklahoma’s Trafficking in Illegal Drugs Act; because he was between the ages of 16 and 17 when he committed these crimes, the state court adjudicated Petitioner under Oklahoma’s Youthful Offender Act. In 2009, Petitioner pleaded guilty to being a felon in possession of a firearm and ammunition. Petitioner’s presentence report determined that his drug-trafficking convictions qualified as “serious drug offenses” under the Armed Career Criminal Act (ACCA) and recommended the application of the armed career offender guideline. Under the ACCA, Petitioner’s minimum term of imprisonment is fifteen years. The district court sentenced Petitioner to twenty years’ imprisonment, and he now appeals the sentence.

Petitioner contends that the drug-trafficking crimes he committed as a juvenile cannot constitute serious drug offenses under the ACCA. He alleges that the maximum sentence a youthful offender can receive is ten years’ imprisonment and if that juvenile conviction is converted to a criminal conviction, then the maximum sentence of the adult conviction is ten years minus the time served in juvenile custody. And because the resulting adult conviction will always be less than ten years, it follows the conviction cannot be for a serious drug offense.

The Court disagreed. Oklahoma law permits a youthful offender to receive a ten-year sentence, and even if it did not, Petitioner’s crimes would still constitute serious drug offenses because the ACCA does not exclude drug-trafficking convictions simply because they are committed by a juvenile. Instead, the Court must look to the relevant criminal statute, not an external limit on a court’s sentencing authority, to determine whether a violation of state law constitutes a serious drug offense under the ACCA. Because the relevant criminal statute in this case, Oklahoma’s Trafficking in Illegal Drugs Act, carries a maximum sentence of life imprisonment, the district court did not err in determining Petitioner’s drug-trafficking convictions are serious drug offenses.

Tenth Circuit: All Unbundled Network Element Loops Count Toward Number of Business Lines in Wire Center

The Tenth Circuit Court of Appeals issued its opinion in Qwest Corp. v. Colorado Public Utilities Comm’n on Friday, August 26, 2011.

The Tenth Circuit affirmed in part and reversed in part the district court’s decision. “In order to facilitate competition in the local telephone service market, federal law requires incumbent local exchange carriers (ILECs), such as Qwest, to lease certain parts of their telecommunications networks to competitive local exchange carriers (CLECs), such as Cbeyond. ILECs are relieved of this obligation if, among other circumstances, the number of ‘business lines’ in a local exchange reaches a certain threshold because, in the FCC’s view, a sufficient number of business lines shows that it would be economic for CLECs to invest in their own infrastructure. The term ‘business line’ and the method of counting business lines are defined in 47 C.F.R. § 51.5. The parties disagree as to which types of a particular network element—UNE loops—are included in the business line count. The district court held that UNE loops serving non-business customers are included in the business line count and that non-switched UNE loops are not included in the business line count.” The parties cross-appealed the decision.

The Court affirmed the district court and held that 47 C.F.R. § 51.5 plainly states that all UNE loops count towards the number of business lines in a wire center, regardless of whether it is used to serve a business or non-business customer. However, the Court also found that “the FCC’s interpretation of § 51.5 is consistent with existing reporting requirements, whereas the defendants’ interpretation would require state utility commissions to obtain data relating to CLECs’ use of UNEs in order to determine whether a UNE was connected to a switch or not.” The district court was reversed in part because “the FCC’s interpretation is not plainly erroneous or inconsistent with the language of the regulation, [and the Court had to] defer to the FCC’s position and hold that the business line count includes UNE loops that are not connected to switches.”