November 23, 2017

Archives for December 16, 2011

Candid Microphone: Surreptitious Recording and Legal Ethics

We’ve all seen TV shows and movies where a secretly recorded conversation exposed some villainy—a love affair, confessions to embezzlement, perhaps an admission that testimony was fraudulent. On some of these shows, it might have been an attorney secretly recording the conversation. If the conversation was recorded by an attorney in Colorado, that attorney could face sanctions for surreptitious recording.

The Colorado Bar Association Ethics Committee adopted Formal Opinion 112 on July 19, 2003. The opinion asserts that it is generally improper for an attorney to secretly record a conversation, even if the recording is allowable under state law, because the conduct necessarily involves an element of deceit or trickery. In addition to Opinion 112, there are Rules of Professional Conduct that apply to surreptitious recording. Colo. RPC 8.4(c) bans conduct involving dishonesty, fraud, deceit, or misrepresentation. Is it possible to secretly record a conversation without violating Rule 8.4(c)?

Opinion 112 states two exceptions to the general prohibition on surreptitious recording. First, it makes an exception for criminal law, where “surreptitious recordings . . . have long been commonplace.” Next, and most controversially, an exception is provided for conduct that occurs strictly in the lawyer’s personal life.

Perhaps an attorney suspects spousal infidelity, and wishes to record a conversation that may implicate that spouse in an extramarital tryst. Perhaps that secretly recorded conversation will be used in the attorney’s divorce proceeding. Perhaps that attorney is self-represented. Would the recording then become fodder for a disciplinary proceeding, since the recording was used in the practice of law?

These questions are difficult to answer with certainty, but case law points to a conclusion on the permissibility of surreptitious recording in a lawyer’s personal life. That case law will be discussed by Jack Tanner and Jerry Pratt on December 20, 2011, in their one-hour lunch time CLE program, “Candid Microphone: Surreptitious Recording and Legal Ethics.” Registration information below.

CLE Program: You’re On Candid Microphone! Surreptitious Recording and Legal Ethics

This CLE presentation will take place on Tuesday, December 20. Participants may attend live in our classroom or watch the live webcast.

If you can’t make the live program or webcast, the program will also be available as a homestudy in two formats: video on-demand and mp3 download.

Colorado Court of Appeals: Week of December 11, 2011 (No Published Opinions)

The Colorado Court of Appeals issued no published opinions and fifty-four unpublished opinions for the week of December 11, 2011.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. Case announcements are available here.

Colorado’s Justice Crisis

It’s a perfect storm.  Although overused, that metaphor so accurately captures what is happening with respect to Colorado’s legal aid delivery system that it is difficult to avoid.  Just as in a perfect storm, a rare combination of circumstances has resulted in a crisis of unprecedented magnitude.

Colorado Legal Services (CLS) is the only program in the state that provides free legal assistance (advice, brief service, and full representation) in civil matters to low-income individuals and families in every Colorado county.  With 14 offices around the state, it operates like a legal emergency room, serving low income Coloradans at greatest risk and in greatest need.  In 2010 alone, CLS provided assistance to over 11,000 indigent clients facing serious legal problems that directly implicated their health, safety, stability and sufficiency.  With few exceptions, CLS clients live at or below 125% of the federal poverty guideline (which translates to an annual income of $13,613 for an individual and $27,938 for a family of four).  They include senior citizens, victims of domestic violence, veterans, persons with mental and physical disabilities, and other particularly vulnerable Coloradans.

Even before the recession, the need for legal aid among the poor outstripped available resources.  A study in 2005 found that for every client served by CLS, at least one person seeking help was turned away because of insufficient resources.  The Great Recession and its aftermath have made the situation dramatically worse, as more and more low-income Coloradans experience the significant legal problems that accompany acute economic distress and prolonged unemployment.  With the deterioration of the labor and housing markets, rising fuel and food costs, and depleted savings, more Coloradans are facing eviction, foreclosure, delinquent child support, hunger, financial distress, bankruptcy, and domestic violence.  In addition, prolonged un- or under-employment means that the number of people eligible for legal aid continues to rise.  The most recent Census Bureau survey found that there are now over 750,000 Coloradans who are income-eligible for services.

Amidst this rising tide of need, CLS is experiencing devastating funding losses that threaten to compromise its ability to meet even the most serious legal needs of the poor.  Federal funding, with strong bipartisan support, has long been a financial foundation for legal aid.  Yet, notwithstanding the increased need for legal services and the value of those services in stabilizing families in crisis, just before Thanksgiving, Congress approved a budget bill for 2012 that includes a 14.85% cut in funding for legal aid programs such as CLS.  This translates into a loss for Colorado of over $605,000.

This latest reduction in federal funding comes on top of other funding losses suffered over the last two years totaling nearly $1 million.  Most notable among these is the drop in funding from COLTAF, the Colorado Lawyer Trust Account Foundation.  The extended period of very low interest rates that we are experiencing (now expected to continue until at least mid-2013) has decimated COLTAF’s revenue, which is comprised solely of the interest earned on lawyers’ trust accounts, and although COLTAF has a reserve, built in better times for just such times as these, it is rapidly being depleted.  Even with the reserve, COLTAF funding for CLS has dropped by $630,000 over the course of the last two years, and COLTAF is projecting another cut to CLS of at least $520,000 in 2012.

Also important is a loss of $165,000 in state funding for legal services for victims of domestic violence.  Whether the state will be in a position to restore that funding for fiscal year 2013 remains to be seen, but an actual increase in the state appropriation, and certainly one anywhere near the magnitude necessary to cover for other losses, is not in the cards, given the state’s current budget constraints.  All told, by the end of 2012, CLS will likely be down over $2 million, or more than 20% of its funding just two years ago.

All of these funding losses mean that CLS, already woefully understaffed, will shrink further, which will necessarily reduce the legal assistance available to low-income Coloradans, regardless of their legal need.  Already, where there were six CLS lawyers doing family law cases in the Denver metro area, which has an indigent population of nearly 300,000, now there will be only five;  where there were four lawyers handling evictions and other housing issues, three will have to suffice; and where there were three doing foreclosure defense, now there will be two.  Other parts of the state are faring no better.  In Grand Junction, with an indigent population in Mesa County of about 17,000, there are now only two CLS lawyers, where formerly there were three.  The CLS offices in Colorado Springs and Alamosa have each lost a paralegal, and the Durango office has lost the sole member of its support staff, leaving just three lawyers and a paralegal to serve the entire southwest corner of the state, including the Southern Ute and Ute Mountain Ute Indian Reservations.  This serious understaffing is only going to get worse.

Bar-sponsored pro bono programs alone cannot be expected to pick up this much slack, particularly since they too are suffering from cuts in their COLTAF funding.  Nor can the court system, also suffering from inadequate funding, be expected to seamlessly absorb ever larger numbers of pro se litigants, especially if timely legal assistance would have eliminated the need for them to be there in the first place.  It is true that to maximize access for those in greatest need, a well-functioning civil legal aid delivery system must have well-managed pro bono programs; it must have a legal community committed to providing pro bono services to the poor; it must have self-help resources that make courts and administrative agencies accessible for those who are proceeding pro se; and it must maximize its use of technology to improve access in rural areas and otherwise.  But the backbone of any well-functioning system must be an adequately-funded, staffed legal aid program, with lawyers and paralegals, who are expert in dealing with the problems unique to low-income populations, and who are available on demand when low-income families are in crisis and time is of the essence.

The legal profession has a singular responsibility to respond to this crisis in our civil justice system.  CLS is the place of last resort for low-income families, the disabled, veterans and military families, and seniors who are facing serious civil legal problems.  If turned away, these Coloradans are effectively denied the rights, remedies, and protections afforded by the law, sometimes with devastating consequences – lethal injuries at the hands of an abusive spouse, a home lost to an unscrupulous lender, life on the street because of a wrongful denial of disability benefits.  As lawyers, we understand that the rule of law is in jeopardy when the protections of the law are not available to increasingly large numbers of our most vulnerable citizens.

The leadership of lawyers – whether in private practice or in-house corporate counsel, large firm or solo practice, government or nonprofit – is more important than ever in fulfilling our nation’s promise of equal justice for all.  The effect of CLS’ funding losses is calculable in terms of dollars lost, staff positions eliminated, and additional applicants for service turned away.  But the actual impact on the lives of low-income Coloradans, the damage to our communities, the tarnishing of our nation’s fundamental promise of equal justice, and the risk to our civil justice system and the rule of law is immeasurable.

Here are some things you can do to help:

  1. Give generously to the Legal Aid Foundation (http://www.legalaidfoundation.org/).
  2. Take a pro bono case from Metro Volunteer Lawyers (http://www.metrovolunteerlawyers.org/).
  3. Speak to your elected representatives (federal and state) about the importance of public funding for civil justice.
  4. Speak with your banker to ensure that the interest rate on your COLTAF account is as generous as possible.
Diana Poole is the Executive Director of the Legal Aid Foundation, which raises money for Colorado Legal Services, and COLTAF, which administers Colorado’s IOLTA program. She is also a member of the Colorado Access to Justice Commission.

Where Change Begins: Wake Up Call (Part 2)

Editor’s Note: This is the second in a three-part series of job search and career transition articles. Click here to read Part 1.

A former Marine drill sergeant once told me how they “greeted” new recruits – stomping into their barracks at 3:00 a.m., shouting and cracking whips. “I guess you could say we gave them a wake up call,” he chuckled. Then he got serious. “They needed to know right away that they weren’t in Kansas anymore. Otherwise they weren’t going to survive boot camp, let alone the kind of combat we send them into.”

Wake up calls jolt us into a present, unpleasant reality. They leave us disoriented, lost, afraid. They create tension, discomfort, dissonance. They ask us to take an unflinching look at what’s uncomfortable in our world – what’s making us unhappy, what we’d like to change. And not just what’s in our world, but what’s in us.

Lots of people have gotten nasty wake up calls the past few years:  the tough economy, job loss, business failure, downsizing, foreclosure, bankruptcy. Sometimes wake up calls aren’t so harsh, but come more subtly, from inside – a restless longing to pursue a dream, a resolve to reinvent ourselves in midlife, or a vague sense that all is not well in our world.

How wake up calls come to us ultimately isn’t important. What’s important is how we deal with them. It takes courage to wake up. It takes more courage to stay awake, and get moving in the direction of the change we want to see. There are always an overwhelming number of good reasons not to change – which is why most of use go right on living our lives of quiet desperation.

And to make it worse, our dreams just won’t leave us alone. They keep coming back – a nudge, an invitation, a crazy idea. Each time is more forceful than the last. If we keep putting them off, next time the wake up call might come drill sergeant style.

Just be warned, that’s all.

Kevin Rhodes left a successful 20+ years career in private practice to pursue a creative dream. He has led two workshops for the CBA’s Job Search and Career Transitions Support Group. His next one, scheduled for January 10, 2012, is called Work With Passion: Find Your Fire and Fuel It! Click here for registration information.

Tenth Circuit: Unpublished Opinions, 12/15/11

On Thursday, December 15, 2011, the Tenth Circuit Court of Appeals issued no published opinions and five unpublished opinions.

Unpublished

Chen v. Holder, Jr.

United States v. Estrella

Zaricor-Ritchie v. Astrue

United States v. Carrillo-Rodriguez

Ford v. Trani

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