September 19, 2014

Are Lawyers Unhappy? (Part 4)

rhodesEditor’s note: This is Part 4 of a series. For Part 1, click here; for Part 2, click here; and for Part 3, click here.

Formal research and media features have tried to identify just who’s happy in the law and who’s not. Some findings are more credible and useful than others. For example, if you graduated from the University of Virginia Law School in 1987, there’s an 81% probability you were happy in the law twenty years later. Good for UV graduates, but what about the rest of us?

Lawyers in solo and small firm practice consistently rank among the happiest, as do those who work for non-profits or in government. Lawyers over 50 are also generally sanguine, and so are most women lawyers, although the latter also leave law firms at twice the rate of their male colleagues. Racial minorities are among the happiest lawyers of all – that is, unless they’re female mid-level associates in large firms.

Speaking of large firms, both formal research and anecdotal observation agree that’s where lawyers are unhappiest, especially those new to the practice. One source estimated turnover among all large firm associates at 20% in any given year, and another found that 37% of new hires leave in the first three years. These percentages are even higher for associates who went to top-tier law schools – the kinds of graduates large firms like to hire.

Early career disillusionment seems unavoidable, since it can take awhile to find a practice area and setting that work for you. Maybe so, but that’s still a lot of turnover. It’s not suprising that one attorney and law professor declared, in a book darkly entitled The Destruction of Young Lawyers,  that “Lawyers are pathologically unhappy.”

My personal observation is that large firms don’t have a corner on new lawyer disillusionment. In my firm, I told associates that their phones would start ringing with inquiries from headhunters in their third year. They were surprised when it happened. I wasn’t clairvoyant, it’s just that I’d gotten those calls myself.

Conventional wisdom puts the dollar cost of all that turnover at 1.5 – 2.0 times annual salary, but one commentator called this an “overly conservative” estimate “because the pool of candidates is more limited, the requirements for relative expertise is higher, and the possibility of damage to or loss of client relationships is very real.”

Beyond the dollar costs, what about the costs that defy conventional metrics – e.g., the human cost when that many of our best and brightest are miserable? That’s where the focus turns from the global to the individual. Happiness is worth celebrating wherever we find it, but that doesn’t help much if you’re in one of the supposedly happy categories and you’re not feeling so cheery yourself.

To be continued…

After 20+ years in private practice, Kevin Rhodes recently gave himself the title “Change Guru” to describe his work helping individuals and organizations to make transformative changes. He leads lead workshops on that topic for a variety of audiences, including the CBA’s Job Search and Career Transitions Support Group. Check out his website at http://kevin-rhodes.com/.

Tenth Circuit: Disputed Issues of Material Fact Exist on Plaintiff’s Fourth Amendment Excessive Force Claim

The Tenth Circuit issued its opinion in Becker v. Bateman on Wednesday, February 27, 2013.

Plaintiff-Appellant David Becker was pulled over by Defendant-Appellee Officer Jason Bateman in a parking lot in Heber City, Utah. The Officer suspected Mr. Becker was intoxicated. A confrontation ensued that ended in Becker being thrown to the ground and suffering a severe traumatic brain injury. Becker brought suit against Officer Bateman, the Heber City Chief of Police in his official capacity, and Heber City under 42 U.S.C. §1983, alleging Officer Bateman used excessive force in violation of the Fourth Amendment. The district court granted the defendants’ motion for summary judgment, concluding Officer Bateman did not violate Becker’s constitutional rights. Becker appealed.

Officer Bateman

In reviewing the grant of summary judgment to Officer Bateman, the Tenth Circuit declined to consider whether the district court erred in concluding no constitutional violation occurred and instead addressed whether the rights at issue were clearly established at the time of the alleged violation. To overcome Officer Bateman’s defense of qualified immunity, Becker had to demonstrate it was clearly established that Officer Bateman’s use of force was excessive.

The Tenth Circuit held that Becker failed to carry this burden. The holding in Novitsky v. City of Aurora, 491 F.3d 1244, 1255–56 (10th Cir. 2007), indicates there was no clearly established law as of 2007 regarding the appropriate level of force that may be used to arrest a potentially intoxicated person during a stop. Because the conduct in Becker’s complaint took place in 2005, Becker cannot carry his burden requiring him to demonstrate the rights at issue were clearly established at the time of the alleged violation.

City Defendants

“A plaintiff suing a municipality under section 1983 for the acts of one of its employees must prove: (1) that a municipal employee committed a constitutional violation, and (2) that a municipal policy or custom was the moving force behind the constitutional deprivation.” Myers v. Okla. Cnty. Bd. of Cnty Comm’rs, 151 F.3d 1313, 1317 (10th Cir. 1998).

Here, the relevant facts are controverted, and the evidence construed in the light most favorable to Becker would establish a violation of his Fourth Amendment rights. That is, reasonable jurors could conclude Becker was not resisting arrest at the time he was taken to the ground by Officer Bateman. Accordingly, reasonable jurors could also find that Becker did not pose a threat to the safety of Officer Bateman. Because there exist disputed issues of material fact which, when construed in the light most favorable to Becker, establish Officer Bateman used excessive force, the district court erred in concluding as a matter of law Officer Bateman’s actions did not violate Becker’s Fourth Amendment rights.

AFFIRMED in part, REVERSED in part, and REMANDED to the district court for further proceedings consistent with this opinion.

Tenth Circuit: Unpublished Opinions, 2/28/13

On Thursday, February 28, 2013, the Tenth Circuit Court of Appeals issued no published opinions and two unpublished opinions.

United States v. Salazar-Salazar

United States v. Jackman

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

Tenth Circuit: ERISA Case on Calculation of Long-Term and Short-Term Disability Benefits

The Tenth Circuit issued its opinion in Cardoza v. United of Omaha Life Insurance Company on Wednesday, February 27, 2013.

Jose Cardoza brought this lawsuit pursuant to the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 to § 1461 (“ERISA”), challenging United of Omaha Life Insurance Company’s (“United of Omaha”) calculation of his long-term disability benefits (“LTD benefits”). United of Omaha answered, asserting its calculation was appropriate, and counterclaimed, demanding that Cardoza reimburse it for payments of short-term disability benefits (“STD benefits”), which it claimed were miscalculated. On cross-motions, the district court granted Cardoza’s motion for summary judgment and denied United of Omaha’s motion, concluding United of Omaha’s decision to calculate Cardoza’s LTD benefits and recalculate his STD benefits as it did was arbitrary and capricious. This appeal followed.

LTD Benefits Calculations

The terms of the LTD policy and the evidence in the administrative record showed United of Omaha’s calculation of Cardoza’s LTD benefits was reasonable and made in good faith. Courts review ERISA claims as they “would any other contract claim by looking to the terms of the plan and other evidence of the parties’ intent. If plan documents are reviewed and found not to be ambiguous, then they may be construed as a matter of law.” Hickman v. GEM Ins. Co., 299 F.3d 1208, 1212 (10th Cir. 2002).

The Tenth Circuit held that the district court erred in granting Cardoza’s motion for summary judgment with respect to United of Omaha’s LTD benefits calculation. The plain language of the long-term disability benefits policy (“LTD policy”) instructed United of Omaha to base its calculation of Cardoza’s LTD benefits on his earnings as verified by the premium it received, so United of Omaha’s calculation was reasonable and made in good faith.

STD Benefits Calculations

The district court did not err, however, in granting Cardoza’s motion for summary judgment with respect to United of Omaha’s recalculation of his STD benefits and demand for reimbursement. The plain language of the short-term disability benefits policy (“STD policy”) instructed United of Omaha to base its calculation of Cardoza’s STD benefits on his earnings. Thus, United of Omaha’s decision to recalculate Cardoza’s STD benefits based on his earnings verified by premium rather than his actual earnings was not reasonable.

REVERSED in part, AFFIRMED in part, and REMANDED to the district court with instructions to conduct further proceedings consistent with this opinion.

SB 13-155: Continuing the Board of Real Estate Appraisers and Changing Related Definitions

On Monday, February 4, 2013, Sen. Randy Baumgardner introduced SB 13-155 – Concerning the Continuation of the Board of Real Estate Appraisers, and, in Connection Therewith, Implementing the Recommendations of the 2012 Sunset Report by the Department of Regulatory Agencies. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill continues the board of real estate appraisers (board) until Sept. 1, 2022. The bill establishes that certified ad valorem appraisers certified under Colorado’s regulatory statutes are not subject to regulation under the federal “Financial Institutions Reform, Recovery, and Enforcement Act of 1989.” The bill requires the board to adopt rules for the regulation of certified ad valorem appraisers.

The bill eliminates the appraiser category “registered appraiser” and creates the category “certified ad valorem appraiser,” and requires the board to transfer registered appraisers from that category to the category of certified ad valorem appraisers. Such persons who are employees of a county assessor’s office have until Dec. 31, 2015, to meet any additional requirements imposed by the board.

The bill directs the board to adopt rules specifying the meaning of the term “moral character” for the purpose of appraiser certification and licensing. The bill clarifies that an appraiser may be disciplined for past deferred judgments and for any conduct that could have been used to deny the issuance of a certificate or license. On Feb. 20, the Business, Labor, & Technology Committee amended the bill and sent it to the Appropriations Committee for consideration of the fiscal impact.

SB 13-154: Continuing Division of Banking, and Implementing Recommendations of Sunset Report

On Monday, February 4, 2013, Sen. Cheri Jahn introduced SB 13-154 – Concerning Continuation of the Division of Banking, and, in Connection Therewith, Implementing the Recommendations of the 2012 Sunset Report by the Department of Regulatory Agencies. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill implements the recommendations of the sunset review and report on the division of banking by:

  • Extending the repeal date of the division, including the banking board, until Sept. 1, 2024;
  • Repealing industrial banks;
  • Extending the time the banking board has to approve or disapprove a merger agreement between banks from 30 to 60 days;
  • Repealing the authority for and regulation of private family trust companies;
  • Allowing interstate banks to establish a branch in Colorado by either the creation of a new financial institution or through the acquisition of an existing financial institution; and
  • Requiring banks exercising trust powers to invest fiduciary funds within a reasonable time.

The bill makes a variety of amendments to facilitate compliance with changes in federal law. The bill requires the directors of a trust company to have fidelity bonds for its officers and employees, to carry hazard insurance, and to annually specify the amount of the bonds and insurance in its minutes. On Feb. 20, the Business, Labor, & Technology Committee amended the bill and sent it to the Appropriations Committee for consideration of the fiscal impact.

SB 13-153: Continuing the Interagency Farm-to-School Coordination Task Force

On Wednesday, January 30, 2013, Sen. Angela Giron introduced SB 13-153 – Concerning Continuation of the Interagency Farm-to-School Coordination Task Force. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill continues the interagency farm-to-school coordination task force indefinitely. The composition and responsibilities of the interagency farm-to-school coordination task force is updated. On Feb. 21, the Senate gave approved the bill on 3rd Reading.

Since this summary, the bill was introduced in the House and assigned to the Agriculture, Livestock, & Natural Resources Committee.

SB 13-152: Continuing the Asbestos Abatement Certification Process

On Wednesday, January 30, 2013, Sen. Irene Aguilar introduced SB 13-152 – Concerning the Continuation of the Asbestos Abatement Certification Process Conducted by the Department of Public Health and Environment, and, in Connection Therewith, Implementing the Department of Regulatory Agencies’s Recommendations in the 2012 Sunset Report. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill implements the recommendations of the department of regulatory agencies’ review of the Colorado department of public health and environment’s certification process in connection with asbestos abatement by:

  • Continuing the certification process for nine years, until 2022; and
  • Requiring property owners applying for permits to renovate or demolish property to disclose knowledge of whether the building materials that will be disturbed by a renovation or demolition project have been inspected for asbestos. A local government entity need not require a property owner applying for a property renovation or demolition permit to make the disclosure until the entity has updated its application forms, which it may do when it otherwise creates and disseminates updated application forms pursuant to its standard practice.

On February 20, the Senate gave approved the bill on 3rd Reading.

Since this summary, the bill was introduced in the House and assigned to the Health, Insurance & Environment Committee.

SB 13-151: Continuing the Regulation of Massage Therapists and Replacing Registration of Massage Therapists with Licensure

On Wednesday, January 30, 2013, Sen. Jeanne Nicholson introduced SB 13-151 – Concerning the Continuation of the Regulation of Massage Therapists, and, in Connection Therewith, Requiring Licensure of Massage Therapists and Implementing Other Recommendations Contained in the Sunset Report Prepared by the Department of Regulatory Agencies. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill implements the recommendations contained in the sunset review and report on the “Massage Therapy Practice Act” (MTPA). The bill continues the regulation of massage therapists by the director of the division of professions and occupations (director) for nine years, until 2022. Current law requires massage therapists to be registered with the director. The bill replaces the registration requirement with a requirement that massage therapists obtain a license.

The bill adds the following as grounds for disciplining a massage therapist:

  • Failure to report the surrender of a massage therapy license, certification, or registration to, or an adverse action taken against a license, certification, or registration by, a licensing agency in another state, territory, or country, a governmental agency, a law enforcement agency, or a court for acts that constitute grounds for discipline under the MTPA;
  • Commission of an act that does not meet, or failure to perform an act necessary to meet, generally accepted standards of massage therapy care; and
  • Commission of a crime when the underlying act was related to the practice of massage therapy or was perpetrated against a massage therapy client during the therapeutic relationship.

The bill authorizes the director to issue letters of admonition and confidential letters of concern to a massage therapist against whom the director determines action against the license is not warranted but a statement from the director about the conduct is appropriate.

In order to register as a massage therapist under current law, an applicant must have obtained a degree or diploma from an approved massage therapy school, which is defined as a massage therapy educational school approved by the division of private and occupational schools; a massage therapy educational program certified by the Colorado community college system; or a massage therapy educational program accredited by a nationally recognized accrediting agency. The bill permits an applicant to obtain a degree or diploma from a massage therapy program at a school located outside Colorado that is approved by the director based on standards adopted by the director by rule.

The bill requires a massage therapist who has had his or her license revoked or has surrendered his or her license in lieu of discipline to wait at least two years before applying for a new license.

Under current law, a massage therapist is subject to discipline if he or she has a mental or physical condition or disability that renders him or her unable to provide massage therapy with reasonable skill and safety or that may endanger the health or safety of clients. The bill imposes discipline on a massage therapist who has such a condition or illness only if the massage therapist:

  • Fails to notify the director of the condition or illness;
  • Fails to act within the limitations created by the condition or illness; or
  • Fails to comply with the limitations agreed to under a confidential agreement entered into with the director.

The bill authorizes the director to enter into a confidential agreement with a massage therapist who suffers from a mental or physical condition or illness under which the massage therapist agrees to limit his or her practice to ensure client safety and also agrees to monitoring and reevaluations. On Feb. 13, the Health & Human Services Committee amended the bill and sent it to the Appropriations Committee for consideration of the fiscal impact.

Since this summary, the Appropriations Committee amended the bill and sent it for consideration by the Senate Committee of the Whole.

SB 13-150: Continuing the Water and Wastewater Facility Operators Certification Board

On Wednesday, January 30, 2013, Sen. Ted Harvey introduced SB 13-150 – Concerning the Continuation of the Water and Wastewater Facility Operators Certification Board, and, in Connection Therewith, Implementing the Recommendations of the 2012 Sunset Report by the Department of Regulatory Agencies. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill continues the water and wastewater facility operators certification board (board) until 2020 and implements recommendations in the sunset report:

  • Currently, one member of the board represents the Colorado rural water association. This member is replaced with a representative of water facilities serving less than 3,300 people.
  • Currently, the board may exempt industrial wastewater facilities from having a certified operator if the exemption does not endanger public health or the environment. This authority is expanded to include nonindustrial facilities and water facilities.
  • Certain statutes are reorganized.

On Feb. 14, the Agriculture, Natural Resources, & Energy Committee amended the bill and sent it to the Appropriations Committee for consideration of the fiscal impact.

Since this summary, the bill was referred unamended for consideration on the consent calendar for the Senate Committee of the Whole.