November 22, 2017

Archives for August 5, 2014

The InQuiring Lawyer: Is There a Better Exit Strategy Than Death?—Part I

Editor’s Note: This article appeared in the August 2014 issue of The Colorado Lawyer. This is the first part of a 5-part series on Legal Connection. Stay tuned for the interviews.

SandgrundIntroduction to Part I of the Dialogue

by Ronald M. Sandgrund, Esq., InQ.

This two-part article discusses an issue all lawyers must face during their careers: developing and deploying an exit strategy. This can mean exiting one practice area for another; transitioning from the law to a different career; accommodating the demands of raising a family; and slowing down or retiring near the end of one’s career. This article explores the issue through the eyes of two groups of lawyers: the first group transitioned from the day-to-day practice of law to a different job; the second group sought to reduce their hours either to accommodate family needs or as they travelled the long and winding road to retirement.

Although it is easy for me to reflect on the extraordinary blessings my legal career has afforded me—I basically worked for the same law firm and with the same terrific people for thirty years—there were more than a few times when I wanted to run for the hills. One time came when I noticed a small, balding spot in the back of my head due to a nervous habit I had developed of unconsciously twisting and plucking out my hair. With this incontrovertible evidence in hand, I worried that my job was ruining my mental and physical health. Then, my firm’s revenues dropped by 70% over thirty-six months due to sea changes that were occurring in our insurance defense practice. At the time, it appeared like a good opportunity to make a change, but I could imagine no exit strategy that seemed feasible. How would working at another firm change anything? At least I was a partner in my current firm, which allowed me greater control over my life—but which also burdened me with sometimes crushing managerial and financial worries. Also, what skills did I have that would have transferred to a job outside the law? Zero: I had gone straight from college to law school, and practicing law was all I knew.

In the end, I was very lucky. My law partners and I effectively doubled down on our law practice (that is what gamblers do, right?), jumping from the defense bar and into the strange new world of a plaintiff contingency-fee practice. In my twelfth year of practice, at age 36, I realized that the last thing I wanted to do was work for someone else or work with anyone else. I also recognized that I had developed a civil trial skill set that, if refocused, could still bring me joy and, hopefully, reward.

My wife and I adopted austerity measures that I found liberating rather than constraining. Eight years and a lot of good fortune later, things had come full circle. I sat down with my law partner and told him I wanted to map out a five-year exit strategy (which took seven years to implement). Later, I realized there was so much that I enjoyed about practicing law that we agreed to lengthen the exit ramp. I still practice some today, as of counsel with an energetic and skilled group of attorneys in a newly merged law firm—and my little bald spot has (mostly) grown back in. I also teach occasionally at Colorado Law, have written much short fiction (which I am trying to get published), started this column, travel to places I thought I’d never see, and I am working really, really hard on my tennis backhand—the last, always a work in progress (and now a greater challenge with an artificial hip and a reconstructed knee).

The story of every lawyer I spoke to is different; however, the moral of those stories is the same: there are many, many better exit strategies than death. For those who want to “jump to the chase,” I will tell you right up front that all the people I spoke to were happy to have employed their exit strategies. Not a single one of them left the full-time practice of law with any serious regrets.

Is There a Better Exit Strategy Than Death?—Part I

Some view practicing law like the Hotel California, a place “you can check out anytime you like, but you can never leave,” and where the guests are “all just prisoners here, of [their] own device.”[1] I spoke at length to eight lawyers over the past year, each of whom sought to exit the full-time practice of law, either early on, in the middle of, or near the end of their legal careers. Their reasons for exiting were personal to each, and none was provided a road map on how to accomplish this goal. All enjoyed the practice of law, but each saw the need to develop an exit strategy. By “exit strategy” I mean a change from the status quo, but not necessarily leaving the practice of law entirely—although for many, this is exactly what it entailed. For example, one lawyer with whom I spoke, Sue Borgos, practiced law for ten years, and then transitioned to information technology (IT) for twenty years. She ran her own IT company for the last nine of those twenty years before being hired as a territory manager for a national IT firm. Sue told me that she firmly believes her law degree was not wasted, nor was her time as an attorney, and that she still uses the skills she gained as a lawyer in many different ways on a regular basis.

None of the lawyers I spoke to found a “how to” book on transitioning effectively. For each, it was dynamic process; they learned as they went along. Based on what they shared with me, the keys to their accomplishment included:

1) recognizing that a change was necessary to make their lives more fulfilling;

2) imagining how their world would be after they had made such a change;

3) making and implementing a plan to effect this change; and

4) clearly communicating their desire for change to those around them.

In this Part I, we talk to four lawyers who sought a change of scenery outside the day-to-day practice of law. In Part II, we will talk to four lawyers who sought a reduction in workload on the road to retirement.

 

 


[1] From “The Hotel California,” by the Eagles, words by Don Felder, Don Henley, and Glenn Frey (1977). Having grown up in the 1970s and 1980s, I am most familiar with the Eagles’ lyrics; but every generation’s music seems to repeat their themes.

Colorado Court of Appeals: Wife’s Failure to Disclose Financial Records Not Fraud or Misconduct Under Rule 16.2(b)(2)

The Colorado Court of Appeals issued its opinion in In re Marriage of Roddy and Betherum on Thursday, July 31, 2014.

Modification of Child Support—Abuse of Discretion—Financial Disclosures—CRCP 16.2(e)(10)—CRCP 60(b)(2) and (5).

When the parties’ 2003 decree of dissolution was entered, the court adopted their stipulation that wife would be the primary residential parent for the parties’ minor child and husband would pay her $3,000 in monthly child support. Eight years later, husband moved to modify child support on the bases that his parenting time had increased and his income had decreased since the order. After a hearing, the district court increased husband’s child support obligation to $4,604 per month.

On appeal, husband contended that the district court erred in its child support calculation. Because husband’s appeal from the child support order was untimely, this part of husband’s appeal was dismissed.

Husband also argued that the district court abused its discretion when it denied his motion for post-trial relief after he established that wife had withheld financial information. The plain language of CRCP 16.2(e)(10) does not allow a court to re-determine a child support award. Further, although husband’s post-hearing evidence demonstrated that wife was “inconsistent” insofar as her finances were concerned, the court already made a finding at the child support hearing that wife’s testimony in that regard was “inconsistent” and “incredible.” Additionally, the parties did not dispute that their combined gross incomes exceed the uppermost guideline limits. Therefore, an exact income for wife was not required, because the court had discretion to deviate from the guidelines and enter an appropriate support order. As a result, the district court did not err by denying husband’s motion for relief.

Husband further argued that the court should have granted relief under CRCP 60(b)(5). Because husband alleged that wife either fraudulently failed to disclose or misrepresented her income, his motion fell squarely under CRCP 60(b)(2). In such cases, the residual provision of CRCP 60(b)(5) is not applicable. The appeal from the child support order was dismissed and the post-decree order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Juvenile Court’s Combination of Sentencing Options Produced Illegal Sentence

The Colorado Court of Appeals issued its opinion in People in Interest of J.S.R. on Thursday, July 31, 2014.

Illegal Sentence—Juvenile.

J.S.R. was adjudicated a juvenile delinquent in two previous cases and had two new delinquency cases pending against him. He entered into a plea agreement wherein he pleaded guilty to one count of felony menacing and one count of possession of a handgun by a juvenile in exchange for dismissal of the remaining two counts and the other pending case. Sentencing was left to the court’s discretion.

The court accepted the plea, adjudicated J.S.R. (then 17 years old) a juvenile delinquent as a mandatory sentence offender, and sentenced him to the Department of Youth Corrections (DYC) for a determinate one-year mandatory minimum term of commitment and a mandatory parole period. The court ordered one year of probation immediately following his release from the DYC and advised him that, because he would be 18 upon his release, he would be subject to a county jail sentence if he did not comply with probation.

J.S.R. completed his term of commitment and began serving his probationary term in February 2013. In June and July 2013, the probation department filed petitions to modify or revoke J.S.R.’s probation, which resulted in his arrest. J.S.R then filed a motion to correct an illegal sentence, alleging the probationary term was illegal. The district court denied the motion.

The Court of Appeals firstinterpreted a court’s authority to impose a combination of sentencing options under CRS § 19-2-907. The Court concluded that CRS §§ 19-2-907 and -908(1)(a) can be harmonized and applied together; however, here, the district court erred in the combination that it chose, thereby imposing an illegal sentence.

The Court noted that, in general, probation is an alternative sentence to commitment. A prison sentence is generally punitive, and probation is intended to be rehabilitative. CRS §§ 19-2-907 and -925(1)(b) allow a combined sentence of commitment and probation, but only if the term of commitment is limited to no more than forty-five days. Because J.S.R.’s sentence was a combined sentence of commitment and probation, and the period of commitment exceeded the forty-five day maximum, the sentencing court exceeded its statutory sentencing authority and that the sentence was illegal. The judgment was reversed and the case was remanded with directions to resentence J.S.R. to a determinate one-year mandatory minimum commitment to the DYC, nunc pro tunc to the original date of sentencing, and to correct the mittimus accordingly.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: ALJ’s Opinions Unsupported by Sufficient Evidentiary Findings

The Tenth Circuit Court of Appeals issued its opinion in Knight v. Colvin on June 24, 2014 as an unpublished opinion. On July 30, 2014, the Tenth Circuit granted the parties’ Unopposed Motion to Publish and reformatted the opinion as a published opinion.

Dawn Knight applied for Supplemental Security Income (SSI) benefits for her daughter, P.K., in April 2007, claiming that her daughter suffered hearing loss, a learning disability, ADHD, and “temper.” In July 2007, Dr. David LaCourt evaluated P.K. for the New Mexico Disability Determination Services Unit. He reported that she was taking Dextroamphetamine for her ADHD, had written a self-harming note recently, and was reading at a second-grade level even though she was in fourth grade at the time of the examination. P.K.’s third and fourth grade teachers filled out functional assessment questionnaires and indicated that P.K. had serious problems acquiring and using information. In September 2009, P.K.’s fifth grade teacher filled out a similar questionnaire, noting the same problems with acquiring and using information and also detailing P.K.’s aggressive behavior on the playground.

Dr. E.B. Hall managed P.K.’s medication regimen from 2007 through 2010. His notes reflected behavioral problems including threatening a sibling with a knife, hearing voices, hitting another child in the face, mood swings, and failure to take her medication. He also noted, however, that P.K. was getting good grades at school.

In March 2010, P.K. was evaluated at Hogares, a mental health evaluation and treatment center for children. There, she told the therapist that she often thinks about killing herself, that she hears voices and thinks people are talking about her when they are not, and that she feels like nothing is ever going to get better for her. The therapist diagnosed P.K. with ADHD, oppositional-defiant disorder, bipolar disorder, and adjustment disorder with anxiety. The therapist noted that P.K. was doing poorly in school, apparently due to her mental health problems.

In June 2010, Knight and P.K. appeared before an administrative law judge (ALJ). Both P.K. and Knight testified as to P.K.’s behavior, performance in school, and medications. The ALJ found that P.K. suffered from hearing loss, a reading disorder, and ADHD, but concluded that none of these impairments medically or functionally equalled an impairment listed in the regulations. He rejected Dr. Hall’s opinions and those of the Hogares therapist, concluding they were only credible insofar as they supported a finding that P.K. was not disabled.

Knight sought review from the Appeals Council and submitted additional therapy notes from Hogares to evidence that P.K. inconsistently takes her medication and that one of the goals of therapy was to stop P.K. from talking about harming herself and others. Knight also reported that they were being kicked out of their housing arrangement because P.K. had broken a window and punched a hole in the wall. The Appeals Council denied review. Knight then appealed to the district court. The district court adopted a magistrate judge’s recommendation that the petition be denied. Knight then appealed to the Tenth Circuit.

The Tenth Circuit’s review was limited to whether the Commissioner applied the correct legal standards and whether the agency’s factual findings were supported by substantial evidence. First, the Tenth Circuit addressed Knight’s contention that the ALJ improperly discounted her credibility, Dr. Hall’s opinions, and the functional equivalency of P.K.’s impairments. The Tenth Circuit found that the ALJ dismissed Knight’s testimony without making necessary credibility determinations. The ALJ referred to credibility only generically, saying that statements were only credible to the extent they supported a finding that P.K. was not disabled. There was no record whether his statements applied to Knight, P.K., or both. There was also no record of what evidence, if any, belied Knight’s or P.K.’s testimony. The Tenth Circuit reversed and remanded for a proper credibility determination.

Next, the Tenth Circuit turned to Knight’s challenge to the ALJ’s determination that P.K. has only a marked limitation in interacting and relating with others. Knight argued that the ALJ improperly diminished the importance of Dr. Hall’s opinion, which characterized P.K.’s limitation as extreme. The Tenth Circuit was unable to tell if the evidence was sufficient to discredit Dr. Hall’s opinion, since the ALJ did not adequately link evidence to its vague reasoning discounting Dr. Hall’s opinion. The Tenth Circuit reversed and remanded for sufficient findings on this issue as well.

Knight next contended that the ALJ improperly determined that P.K. has less than a marked limitation in the domain of caring for herself. Focusing on the child’s “personal needs, health, and safety,” the Tenth Circuit found adequate references in the record to P.K.’s suicidal ideation and refusal to take medication. The Tenth Circuit found the ALJ’s determination “devoid of support” in the record and remanded for determination of the severity of P.K.’s impairment. The Tenth Circuit also addressed additional findings that would be needed on remand and directed the ALJ to reevaluate P.K.’s functioning in all domains.

The Tenth Circuit reversed the judgment of the district court and remanded so that the district court could remand to the proper agency for further findings consistent with the Tenth Circuit’s opinion.

Tenth Circuit: Unpublished Opinions, 8/4/2014

On Monday, August 4, 2014, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

Ball v. Patton

United States v. Lavorchek

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.