June 24, 2017

Archives for December 2015

Top Ten Law Practice Management Programs and Homestudies

The year is almost over, and with it the compliance period is ending for many Colorado attorneys. As we draw to a close with our review of the Top Ten Programs and Homestudies in several substantive practice areas, we wanted to include something important to practitioners across all fields of law—law practice management and legal writing. Colorado CLE offers law practice management and legal writing programs throughout the year, including classes on how to use Adobe Acrobat in a law practice, analyzing financial statements, conducting online research, and much more. Read on for the Top Ten Law Practice Management Programs and Homestudies.

10. Essential Legal Research Methods and Resources for Colorado Lawyers. Legal research in a university setting often involves analyzing a long-standing legal issue with well-established outcomes. Research in practice, however, can focus on cutting edge and messy legal issues where the law is only starting to emerge, with conflicting and ethical issues. This program provides advanced techniques for finding and analyzing primary and secondary law sources, free legal research, and more. Three general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

9. Drafting Complex Legal Documents with Microsoft Word. This program, taught by nationally renowned speaker Barron Henley, features tips and tricks to create, share, automate, and manage electronic documents. Learn about Word’s style features, simple automation techniques, file organization, keeping documents secure while allowing comments, and more. Seven general credits, including one ethics credit; available as DVD homestudy and Video OnDemand.

8. Legal Writing in the Smartphone Age. Gone are the long, flowing emails messages with pretty graphics and lots of attachments. Today’s communication — almost 100% electronic — is immediate, brief, clear, and powerful. Designed to boost your instant or near-instant message-drafting skills, this practical half-day program will teach you how to draft clearer and more effective emails, court documents, and memoranda. Three general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

7. Accounting and How to Understand and Analyze Financial Statements. There are financial issues involved with every type of law practice and it is your duty to possess the skills and knowledge necessary to handle those issues effectively.  This detailed program will provide you with the financial literacy required to protect yourself and your clients through your understanding of accounting concepts, terminology, and financial statements. Six general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

6. iPad for Legal Professionals — Basics and Advanced. These two half-day programs provide useful tips for using iPads in a law practice. The first half covers “must-have” apps that should be on every lawyer’s iPad and tackle important security settings and how-to’s on loading documents and printing. The second half answers more advanced questions, like “How can you do legal research on the iPad? How do you give a presentation on the iPad? Do you need to buy a keyboard or stylus?” Four general credits each; available as DVD homestudy (Basics/Advanced) or Video OnDemand (Basics/Advanced).

5. Better Motion Practice — How to Argue, Present, and Write Motions More Effectively. This program is designed for lawyers who want to sharpen their skills. It provides a practical overview of various kinds of motions likely encountered in pre-trial civil practice. Specific techniques, skills, and methods for persuading the court and decision-makers are covered. The program will generally reference state and federal rules of procedure and evidence. Seven general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

4. The Art of Communication. Being a lawyer means being an effective communicator. Yet, in an increasingly electronic age, what is effective communication and how do we measure our own effectiveness in keeping our clients informed as to complex issues, guiding them in making difficult decisions, and speaking on their behalf to others? This half-day interactive seminar is designed to explore in depth the art of strategic communication by introducing participants to theories and specific practice tips concerning improved written and electronic communications. Four general credits; available as MP3 audio download and Video OnDemand.

3. How to Become Your Own Cybersleuth: Conducting Effective Internet Investigative and Background Research. In this fast-paced investigative research seminar, you will learn to create more effective Internet searches to locate information crucial to your matters, which you might otherwise miss. We will reveal hidden Google search features and shortcuts to speed up your research. You will also learn to use free public record sites and sites with free “publicly available” information (including social media sites), for discovery, trial preparation, background checks, and for locating missing persons. Discover the advantages (and limitations) of data broker databases. Each homestudy comes with a copy of the book, The Cybersleuth’s Guide to the InternetSeven general credits; available as live Video Replay in Denver on January 5, 2016, or as CD homestudy.

2. Hanging Your Shingle 2015: Hardware. Software. Anywhere You Go. In this intensive two and a half day course, you will get the tools, information and building blocks you need to confidently open the doors to your new firm. If you believe you can’t afford to venture out on your own, is it time to ask yourself if you can afford not to? Eighteen general credits, including 7.9 ethics credits; available as CD homestudy, MP3 audio download, and Video OnDemand. NOTE: This program is repeated annually. Click here for the 2014 program and click here for the 2013 program.

1. Preventing Legal Malpractice. Each year, CLE presents two Preventing Legal Malpractice programs: one directed at transactional attorneys, one directed at litigation attorneys. In addition to the printed materials, each attendee receives a copy of CLE’s book, Lawyers’ Professional Liability in Colorado. For 2016, there will be Preventing Legal Malpractice programs in Denver on March 11 and in Colorado Springs on March 17. Registration is not yet open, but save the dateFour general credits, including four ethics credits. NOTE: This program is repeated annually. Click here for the 2015 programs (transactional/litigation) and click here for the 2014 programs (transactional/litigation).

Top Programs and Homestudies — Intellectual Property, Elder Law, Immigration, and More

Over the past few weeks, we have been featuring the Top Ten Programs and Homestudies in various practice areas. Previous posts include:

Although we addressed several substantive practice areas, we offer many more great programs not featured on the previous Top Ten lists. These are discussed today.

Intellectual Property The Annual Rocky Mountain Intellectual Property & Technology Institute is the region’s premier event for IP lawyers. The 2015 Institute featured four simultaneous tracks of sessions for attorneys, covering patents and patent litigation, trademarks/copyrights, licensing, and transactional/e-commerce. As a bonus, Odyssey Beerwerks in Arvada donated custom brews for the 2015 Institute. The 2016 IP Institute is scheduled for June 2 and 3, 2016, at the Westin Westminster. Click here for more information about the IP Institute and the 2016 conference agenda.

Elder Law Colorado CLE presents an annual mountain program for elder law practitioners, the Annual Elder Law Retreat. The 2015 Retreat, held in beautiful Snowmass, discussed social security issues, including maximizing benefits; trends in VA, including special programs and applications for long-term care; atypical beneficiary requests; financial exploitation of the elderly; long-term care planning; and much more. The dates for the 2016 Retreat have not yet been announced; stay tuned to cle.cobar.org/elder for details.

Immigration — In addition to the comprehensive reference book, Immigration Law for the Colorado Practitioner, Colorado CLE offers several great immigration programs each year. Most recently, the CBA Immigration Law Section co-sponsored the program, “Immigration Law — Asylum and Other Humanitarian Relief,” which covered U visas, T visas, VAWA, special immigrant juvenile status, asylum law, and more. Find this and other important immigration law programs here.

Alternative Dispute Resolution Colorado CLE offers many great ADR programs, but the flagstone event is the 40-hour Mediation Training. This five day live program, taught by renowned mediator Judy Mares-Dixon, presents an in-depth guide to mediation as well as several breakout sessions to practice mediation skills. The 40-hour Mediation Training will occur on January 18, 19, 20, 25, and 26, 2016. Space is limited so register today.

Workers’ Compensation — Each year, the CBA Workers’ Compensation Section co-sponsors two annual events: the Workers’ Compensation Fall Update and the Workers’ Compensation Spring Update. Topics vary from year to year but each program features case law updates and news from the Division. In addition, many times medical professionals will provide education on particular types of injuries, including psychological injuries. More information about CLE’s workers’ compensation offerings can be found here.

Health Law — Two years ago, Colorado CLE began offering an annual Health Law Symposium, co-sponsored by the CBA Health Law Section and the American Health Lawyers Association. This program offers an exceptional speaker lineup of nationally recognized health law experts focused on current issues in health law of interest and concern to practicing attorneys in the rocky mountain. Topics discussed at the 2015 Health Law Symposium include discussion of the Affordable Care Act, franchising in the health care industry, HIPAA and meaningful use, antitrust rules in the provider context, and more.

Juvenile Law Although many family law programs cover topics of interest to juvenile law practitioners, this important practice area also has its own programming. Each year, Colorado CLE presents a juvenile law update, co-sponsored by the CBA Juvenile Law Section. The 2016 Juvenile Law Program, “Ethics! Ethics! Ethics!,” is scheduled for April 1, 2016, with a focus on—you guessed it—ethics. Topics covered include implicit bias, social media, ethical challenges in juvenile defense, and more. Click here to register.

Solo/Small Firm — This technically is not a practice area, but there are myriad issues that solo practitioners face while running a law business that their biglaw counterparts do not. The Solo and Small Firm Section of the CBA puts on great programming throughout the year, including topical lunches, and hosts monthly networking meetings, the Solo in Colo blog, and much more. For information on joining the Solo and Small Firm Section, click here.

If you don’t see your practice area listed here or on the previous Top Ten posts, please let us know. If you are interested at speaking at an event in your practice area, we would love to hear from you. Contact us today!

Colorado Court of Appeals: Announcement Sheet, 12/31/2015

On Thursday, December 31, 2015, the Colorado Court of Appeals issued six published opinions and thirteen unpublished opinions.

People v. Bohn

Johnson v. VCG Restaurants Denver, Inc.

Williams v. Department of Public Safety

Makeen v. Hailey

A Child’s Touch v. Industrial Claim Appeals Office

Legro v. Robinson

Summaries of these cases are forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Unpublished Opinions, 12/30/2015

On Wednesday, December 30, 2015, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

United States v. Cordova

Robinson v. Patton

Tennyson v. Raemisch

Franklin v. Douglas County District Court

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

Top Ten Marijuana Law Programs and Homestudies

Colorado is in the forefront of the marijuana industry, and as such the need for legal guidance regarding medical and recreational marijuana has exponentially increased. In fact, the CBA has a new Cannabis Law Committee to further the legal profession’s understanding of marijuana law. Today’s Top Ten Programs and Homestudies feature marijuana law. (In case you missed it, we previously featured ethics, family law, trust and estate law, real estate law, litigation,business law, employment law, criminal law, and construction/environmental/oil and gas/water law.) Grab a snack and read on for the Top Ten Marijuana Law Programs and Homestudies:

10. Ethics 7.0 2014. Although not strictly a marijuana law program, the 2014 Ethics 7.0 program featured a discussion by Chief Deputy Regulation Counsel James Sudler on hot topics in attorney regulation, including marijuana. As a bonus, this program fulfills an entire compliance period’s ethics credits requirements. Seven general credits, including seven ethics credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

9. Marijuana in Estate Planning and Administration. Even trust and estate attorneys encounter marijuana-related issues. The recent addition of recreational marijuana rights to the already-existing medical marijuana industry means that estate and probate attorneys are almost certain to encounter marijuana-related issues in both estate planning and probate. This is a must-attend session dealing with everything from a joint found with a decedent’s personal property to an estate-planning client who owns a thriving, licensed marijuana business. One general credit; available as MP3 audio download and Video OnDemand.

8. Criminal Law Fall Update 2013. Amendment 64 provides for the regulation of marijuana like alcohol, and allows for the lawful operation of marijuana-related facilities. Amendment 64 presented issues of first impression in Colorado and in the United States, as no other state except Washington State at that time had legalized marijuana for non-medical, adult use in the face of federal legal restrictions. What are the implications for the criminal law landscape on the state and federal levels? What does it mean from a behavioral health perspective? Get answers to these questions and more. Seven general credits, including one ethics credit; available as CD homestudy, MP3 audio download, and Video OnDemand.

7. Lending Compliance Update: Appraisals, Marijuana, and More. As the Colorado marijuana industry flourishes, banking issues related to marijuana become more and more important. This program discusses banking compliance and provides a CPA’s perspective on the marijuana business and compliance issues. One general credit; available as MP3 audio download and Video OnDemand.

6. New Colorado Rule of Professional Conduct 1.2: Marijuana Law Update. On March 24, 2014, the Colorado Supreme Court adopted a comment to Colorado Rules of Professional Conduct 1.2. According to the comment, a lawyer may counsel a client regarding the validity, scope and meaning of Colorado’s marijuana laws and may assist a client in conduct the lawyer believes is permitted under state law. It’s important to know not only what the comment said, but what it didn’t say—and possible consequences for Colorado attorneys. Two general credits, including two ethics credits; available as MP3 audio download and Video OnDemand.

5. Banking for Marijuana Businesses — An Update. Get up to speed on banking for marijuana businesses! Learn about the Justice Department’s efforts to craft guidance for banks that work with marijuana businesses and how banking views those efforts. Learn what bank regulators, who aren’t bound by Justice Department actions, are doing. Are banks still at risk of racketeering charges if they knowingly handle money made from the sale of marijuana? Hear obstacles, potential solutions and potential best practices. One general credit; available as MP3 audio download and Video OnDemand.

4. The Business of Marijuana. In November 2012, Colorado voters passed Amendment 64, which makes the personal, non-medical use, possession, and limited home-growing of marijuana legal under Colorado law for adults 21 years of age and older. Amendment 64 presented issues of first impression in Colorado and in the United States, as no other state except Washington State had legalized marijuana for non-medical, adult use in the face of federal legal restrictions at that time. This 2013 program discussed tax, accounting and legal implications for people involved in marijuana-related businesses in light of Amendment 64. Six general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

3. Marijuana — The Colorado Model. Colorado pulled in $2 million in taxes related to the sale of recreational marijuana… in January 2014 alone. Combined with taxes on sales from medicinal marijuana, Colorado pulled in nearly $3.5 million in pot-related tax revenue. This growing industry and resulting revenue has created a myriad of legal, financial and regulatory issues for the State of Colorado. Hear from some of the State’s top regulatory and legal experts on what’s going on in the ever-changing marijuana industry. Seven general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

2. Medicolegal Aspects of Marijuana in Criminal Law, Civil Regulations, and Forensic Science. The legalization of both medical and later recreational possession of marijuana in Colorado has brought an abundance of new legal issues in criminal, civil and regulatory law. With a focus on the new book Medicolegal Aspects of Marijuana (Lawyers and Judges Publishing, 2015), the faculty explores both the forensic and legal issues of running a dispensary, drug testing for confirmation in narcotics cases and THC levels for DUI-D cases. Topics covered include land use and HOA laws, federal controlled substance laws, licensing and regulation, business regulation, and more. Eight general credits; available as live Video Replay in Denver on January 6, 2016, and also available as CD homestudy, MP3 audio download, and Video OnDemand.

1. The Colorado Marijuana Industry — Legal and Accounting Advice and Compliance. Colorado marijuana stores sold a record amount of marijuana in June 2015, a huge leap over the previous record set in March 2015. Recreational marijuana sales topped $50 million for the first time. Medical marijuana also had its biggest month in more than a year. Some owners reported seeing more than 300 customers a day. At the halfway mark of 2015, Colorado stores had sold nearly half a billion dollars in marijuana and paid about $60 million in taxes to the state. Clearly, the marijuana business is thriving in Colorado. But we as attorneys, accountants, business valuators, regulators, bankers and citizens still have a lot to learn about this fledgling industry. Find out what you need to know about marijuana law in Colorado at this important program. Seven general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

Ramsey Lama Appointed to District Court Bench in 11th Judicial District

On Tuesday, December 29, 2016, Governor Hickenlooper’s office announced the appointment of Ramsey Lama to the Eleventh Judicial District Court Bench, effective January 12, 2016. Lama will fill a vacancy created by the retirement of Hon. David Thorson.

Lama currently is a solo practitioner in Salida at the Law Offices of Ramsey Lama, where he practices criminal defense. Prior to opening his solo practice, Lama worked at the Colorado State Public Defender’s Office in Grand Junction and Salida. He also worked for the Cleveland Public Defender’s Office in Ohio. He received his law degree from the Cleveland-Marshall School of Law, cum laude, and his undergraduate degree from Aquinas College in Michigan.

 

Tenth Circuit: District Court Within Discretion to Deny Late-Filed Motion to Amend Complaint

The Tenth Circuit Court of Appeals issued its opinion in Zisumbo v. Ogden Regional Medical Center on Friday, September 4, 2015.

Raymond Zisumbo worked at Ogden Regional Medical Center (ORMC) as a CT scan technician from March 2005 to October 2009. In 2009, Anthony Rodebush became Zisumbo’s supervisor. About the same time, Zisumbo applied for a promotion to a vacant CT Coordinator position. Rodebush expressed curiosity about why Zisumbo was eager for the promotion, and asked whether he’d ever been fired from other jobs. In response, Zisumbo produced letters from three previous employers to prove he was not fired, which Rodebush filed without reviewing. On September 15, 2009, at a staff pizza party, Rodebush remarked that Zisumbo wanted the CT Coordinator position and invited criticism from Zisumbo’s coworkers about why he was not suited for the job. Later that day, Zisumbo accused Rodebush of treating him differently because Zisumbo is Hispanic. Rodebush informed Zisumbo that he should discuss his concerns with the human resources manager, Chris Bissenden. Zisumbo interpreted this as a threat. Rather than discuss his concerns with Bissenden, Zisumbo filed a complaint with the Utah Antidiscrimination and Labor Division about a week after the pizza party alleging race discrimination, and also contacted ORMC’s ethics line with complaints of race discrimination and unprofessional behavior. ORMC’s record of the call noted only complaints of unprofessional behavior.

Judd Taylor, ORMC’s ethics compliance officer, investigated Zisumbo’s ethics line complaint and met privately with Rodebush during his investigation. He later met with Zisumbo and Rodebush, and the following day issued a written warning to Zisumbo for events that had occurred months earlier. Taylor and Rodebush also reviewed the letters Zisumbo had provided from his previous employers and immediately became suspicious that they were fabricated. On October 8, Rodebush and Taylor gave the letters to Bissenden, who began investigating their authenticity and discovered that at least one letter was falsified. Later that day, Taylor, Bissenden, and Rodebush met with Zisumbo and terminated his employment based on dishonesty because of the falsified letters.

On May 2, 2010, Zisumbo filed this action, alleging a Title VII hostile work environment claim. Six months later, ORMC permitted Zisumbo to amend his complaint to include Title VII claims based on race discrimination, hostile work environment, failure to promote, and discriminatory termination; a Title VII retaliation claim asserting that Zisumbo was fired for complaining about race discrimination; and a state law claim for breach of the duty of good faith and fair dealing. The district court entered a stipulated order setting deadlines for the litigation, including a September 2011 deadline for amending pleadings. However, in January 2012, Zisumbo sought to amend his complaint to add a claim of race discrimination under 42 U.S.C. § 1981. The district court denied his motion. Zisumbo then filed a new lawsuit in the same court alleging the same claims he unsuccessfully sought to add to his previous complaint and moved to consolidate the two actions. The district court dismissed his second complaint, and Zisumbo appealed to the Tenth Circuit. A prior panel of the Tenth Circuit ultimately rejected his “ill-conceived effort to end-run the district court’s decision.”

In the meantime, the district court granted summary judgment to ORMC on Zisumbo’s good faith and fair dealing, hostile work environment, and failure to promote claims. Zisumbo moved for reconsideration and alternatively sought to amend his complaint, which motions the district court denied. Zisumbo’s remaining claims were tried to a jury, which ultimately found against him on his discriminatory termination claim but for him on his retaliatory termination claim. Zisumbo sought back pay up to trial and reinstatement or front pay up to three years, but the district court foreshortened his award based on Zisumbo’s misdemeanor conviction for assaulting his daughter. Both parties sought attorney fees and ORMC moved for judgment as a matter of law on Zisumbo’s retaliatory termination claim. The district court denied ORMC’s motion and awarded attorney fees to Zisumbo, reducing his request based on his limited success in the litigation.

On appeal, the Tenth Circuit first addressed Zisumbo’s claim that the district court abused its discretion by not allowing him to amend his complaint after the September 2011 deadline. Although Zisumbo asserted his lawyer did not realize he could assert the § 1981 claim until January 2012, he possessed all the facts forming the basis of the claim by April 2011. The Tenth Circuit attributed the failure to timely amend his complaint to Zisumbo and found it well within the district court’s discretion to deny the proposed amendment. The Tenth Circuit also found no error in the district court’s grant of summary judgment to ORMC on Zisumbo’s good faith and fair dealing claim, finding that Zisumbo was an at will employee and had no contractual relationship with ORMC to necessitate a duty of good faith and fair dealing.

The Tenth Circuit next addressed ORMC’s cross-appeal regarding the district court’s denial of its renewed motion for judgment as a matter of law on the retaliatory termination claim. ORMC disputed that there was a causal nexus between the employee’s opposition to discrimination and the employer’s adverse action. The Tenth Circuit found ample record support for the nexus, including that Bissenden’s termination decision was made based on more than one of the falsified letters and that she acted together with Taylor and Rodebush in making the termination decision. ORMC also argued that no reasonable jury could have concluded that its decision to terminate Zisumbo was pretextual, but the Tenth Circuit again disagreed, finding that the timing of the termination supported an inference that he was terminated because he complained of discrimination.

Zisumbo also argued the district court erred in denying his request for a punitive damages instruction. The Tenth Circuit found Zisumbo’s proffered cases inapposite, and instead noted that he must show that ORMC, not just its employees, failed to make good faith efforts to comply with Title VII. Because ORMC had well established anti-discrimination policies, trained its managers on those policies, and consistently investigated reports of discrimination, the Tenth Circuit agreed with the district court that punitive damages were inappropriate.

Finally, the Tenth Circuit evaluated Zisumbo’s argument that he should have received more in back pay and front pay or reinstatement. The Tenth Circuit agreed with the district court that ORMC would have terminated Zisumbo based on the misdemeanor assault conviction and therefore it was appropriate to cut off the back pay award after the date Zisumbo pleaded guilty to the charge. The Tenth Circuit likewise approved of the method used by the district court to calculate the back pay award. The Tenth Circuit also approved of the district court’s reduction of the attorney fee award based on Zisumbo’s limited success in litigation.

The Tenth Circuit affirmed the district court.

Tenth Circuit: Unpublished Opinions, 12/29/2015

On Tuesday, December 29, 2015, the Tenth Circuit Court of Appeals issued five published opinions and three unpublished opinions.

United States v. Hill

United States v. Obregon-Perez

Jolliff v. Corrections Corp. of America

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

Top Ten Programs and Homestudies for Construction, Environmental, Water, and Oil and Gas Law

As 2015 winds to a close, we continue our review of the Top Ten Programs and Homestudies in various practice areas. In case you missed it, we previously reviewed the Top Ten Programs and Homestudies in ethics, family law, trust and estate law, real estate law, litigation, business law, employment law, and criminal law. Today, we have consolidated several related practice areas, because there is often a great deal of overlap in the programs for these practice areas. And now, here are the Top Ten Programs and Homestudies for Construction, Environmental, Water, and Oil and Gas Law.

10. Mechanics’ Liens: Advanced Issues. Mechanics’ liens are the stuff of nightmares for homeowners. This program tackles some of the tough issues with mechanics’ liens, including oil and gas liens, priority following a public trustee sale, and the impact of a bankruptcy filing on a mechanics’ lien. Three general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

9. Oil and Gas Law Nuts and Bolts. This Oil and Gas Law Nuts and Bolts program is for attorneys who are new to the oil and gas arena or want to expand their practice. It is also for attorneys who have been practicing in the area and want to refresh their knowledge, get up-to-date on recent developments, or simply want essential information on oil and gas law. Eight general credits, including one ethics credit; available as CD homestudy, MP3 audio download, and Video OnDemand.

8. Agricultural, Environmental, and Water Law Symposium 2014: The Great Drought and What It Means To You. From agriculture to tourism, real estate, and oil and gas development, the lack of water is affecting many segments of our economy and communities across the state. This program brings together some of the top public officials, academics, and attorneys to address the great western drought and how you can help your clients respond to it. Four general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

7. Oil and Gas Law Advanced Topics 2015. Power up your oil and gas practice and knowledge as you learn about the legal framework for oil and gas in the Rocky Mountain West region, emerging title issues, ethics, master limited partnerships, and federal access issues. Eight general credits, including one ethics credit; available as CD homestudy, MP3 audio download, and Video OnDemand.

6. Colorado’s River Basins: A Comprehensive UpdateThis program provides insights on basins in 6 of Colorado’s 7 water divisions. Topics discussed include water administration related to marijuana cultivation, alternative transfer methods, surface water irrigation improvement rules implementation, water rights versus property rights in storm water management, new/proposed groundwater rules, and more. Seven general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

5. Oil and Gas Development in Colorado: Balancing Energy and the Environment. Striking the balance: energy production and use is desirable, but not without challenges and risks. Environmental regulation is effective and positive, but not without costs. Learn how hot button energy and environmental interests are being balanced by state and local governments, the energy industry, environmental and technical professionals, and practitioners. Eight general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

4. Mechanics’ Liens: Getting Paid for Accomplished Work. When a homeowner does not pay for work that has been done on his or her property, the construction workers can assert a lien on the subject property. Whether you represent the homeowner or the construction worker, there is much to learn about this area of the law! Although mechanics’ liens are effective tools, there are numerous pitfalls in meeting the deadlines for recording a mechanics’ lien, for accurately drafting the lien, and for correctly serving the lien. Learn about the nuances of mechanics’ liens in this program. Four general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

3. Water, Oil, and Gas: Nuts and Bolts of Oil and Gas Leases, Surface Use Agreements, and Water Rights for Non-Oil and Gas Attorneys. This program focuses on critical water, oil and gas issues in Colorado. This program provides those who don’t practice in the area with essential information regarding oil and leases, surface use agreements, government’s role in authorizing locations for oil and gas development; the ins and outs of nontributary and produced nontributary ground water and nontributary ground water as a landowner asset. Six general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

2. Residential Construction Defect Law Update 2014. The program will highlight recent liability, damages and insurance developments as discussed in the 2013 Fourth Edition of Residential Construction Law in Colorado (CLE) authored by Ronald M. Sandgrund, Scott F. Sullan and Leslie A. Tuft. A PDF copy of the book is included as part of the course materials, along with a summary list of significant, recent cases. Three general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

1. Basics of Mechanics’ Liens and Verified Claims. The ins and outs of mechanics’ liens are addressed in this program, including who can claim a lien, what may be liened, commercial and residential property, what pleadings are needed to assert a lien, lien waivers, and more. A PDF copy of the CLE book, Colorado Liens and Claims Handbook, is included as part of the course materials. Five general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

Comment Period Open for Proposed Amendments to ABA Model Rule of Professional Conduct 8.4

The ABA Standing Committee on Ethics and Professional Responsibility has developed proposed amendments to the Model Rules of Professional Conduct. The Standing Committee has proposed the addition of a subsection (g) to Model Rule 8.4 to address discrimination in the practice of law, and a revision to the comments to explain the purpose of new subsection (g):

Rule 8.4: Misconduct

It is professional misconduct for a lawyer to:

***

(g) in conduct related to the practice of law, harass or knowingly discriminate against persons on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.

 

Comment [3] Paragraph (g) applies to conduct related to a lawyer’s practice of law, including the operation and management of a law firm or law practice. It does not apply to conduct unrelated to the practice of law or conduct protected by the First Amendment. Harassment or discrimination that violates paragraph (g) undermines confidence in the legal profession and our legal system. Paragraph (g) does not prohibit lawyers from referring to any particular status or group when such references are material and relevant to factual or legal issues or arguments in a representation. Although lawyers should be mindful of their professional obligations under Rule 6.1 to provide legal services to those unable to pay, as well as the obligations attendant to accepting a court appointment under Rule 6.2, a lawyer is usually not required to represent any specific person or entity. Paragraph (g) does not alter the circumstances stated in Rule 1.16 under which a lawyer is required or permitted to withdraw from or decline to accept a representation. A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d). A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule.

The Standing Committee also issued a memorandum explaining the origin of the amendments, available here. The memorandum explains that although the comments to the Model Rules have addressed discrimination in the practice of law for many years, the Committee thought it important to add the prohibition to the black letter portion of the Model Rules in order to authoritatively prohibit discrimination. As the ABA Young Lawyers Division eloquently explained, “There is a need for a cultural shift in understanding the inherent integrity of people regardless of their race, color, national origin, religion, age, sex, gender identity, gender expression, sexual orientation, marital status, or disability, to be captured in the rules of professional conduct. This is true because the Model Rules are supposed to ensure the integrity of the legal profession.”

The Standing Committee invites comments on the draft proposal, both in writing and at its public hearing from 3 to 5 p.m. on Sunday, February 7, 2016, at the Marriott Marquis San Diego Marina, 3rd Floor, South Tower, Balboa & Mission Hills Meeting Rooms, San Diego, CA. Persons wishing to speak should register by sending an email to abamodelruleamend@americanbar.org by January 29, 2016. Speakers should be prepared to speak for four to five minutes and then take questions from the Committee, and there may not be time to accommodate all interested speakers. Comments may be submitted in writing as well to the above email address by March 11, 2016. Comments will be made publicly available.

For more information about the proposed Model Rule change, click here.

Tenth Circuit: Sanctions Against Attorney Affirmed Where He Negligently Disregarded Discovery Obligations

The Tenth Circuit Court of Appeals issued its opinion in Sun River Energy, Inc. v. Nelson on Wednesday, September 2, 2015.

Attorneys James E. Pennington and Stephen E. Csajaghy were sanctioned for their refusal to disclose insurance coverage during securities litigation involving Sun River. Pennington was in-house counsel for Sun River and Csajaghy was retained to represent the company in the underlying litigation. During the underlying litigation, a magistrate judge set a discovery deadline of April 6, 2011, by which time Sun River was obligated to disclose any insurance coverage. However, no disclosure was made until nearly 18 months later, after repeated requests from opposing counsel, and by the time the policy was disclosed the coverage period had expired. Opposing counsel moved for sanctions against Sun River under Rule 37(b)(2)(A), requesting that Sun River’s claims against defendants be dismissed and entering default judgment for defendants on their counterclaims.

The magistrate judge held an evidentiary hearing, and ultimately recommended that default judgment be entered against Sun River but not approving dismissal. The magistrate judge noted that there was not intentional misrepresentation by Sun River’s attorneys, but neither attorney actually looked at the policy to see if it provided coverage, instead relying on their mistaken beliefs that the policy would not be relevant. Sun River objected to the magistrate judge’s recommendations, and a district judge addressed the contentions at a pretrial hearing. By that time, Csajaghy had withdrawn from the representation and Pennington appeared as counsel of record. The district court decided counsel were culpable for the misrepresentation and should be held personally responsible. The district court ultimately imposed the sanction of opposing counsel’s attorney fees against Pennington and Csajaghy in the amount of $20,435.

Pennington and Csajaghy moved for reconsideration, arguing Rule 37(c) does not allow imposition of sanctions on counsel, counsel acted with substantial justification, any sanction should have been imposed on Sun River, and due process precluded imposition of a sanction against Csajaghy, who had withdrawn before the sanctions were imposed. In response, defendants argued the sanction was not only justified under Rule 37 but under Rule 26(g)(3) and the district court’s inherent power as well, also noting that counsel’s deliberate indifference demonstrated a lack of substantial justification, sanctioning counsel was appropriate, and that both attorneys had been afforded substantial due process in the matter. The district court issued a thorough written decision, granting in part and denying in part the motion for reconsideration. The district court noted that Rule 37(b)(2)(C) authorizes a monetary sanction for failure to obey a discovery order and expressly allowed the attorney advising the party to be sanctioned, finding that since Csajaghy was Sun River’s attorney of record at the time of the discovery violation the sanction against him was appropriate. As to Pennington, since he was not the attorney of record at the time of the discovery violation, the district court held he was not subject to Rule 37(b)(2)(C) sanctions, but became responsible for timely updating discovery responses under Rule 26 when he became attorney of record, and therefore the sanction was justified under Rule 37(c)(1)(A). The attorneys appealed.

The Tenth Circuit began its analysis by examining the sanction against attorney Pennington. The Tenth Circuit noted that the only case law on the subject held that the sanctions were enforceable against parties only, not attorneys. The district court rejected the holding as unpersuasive, but the Tenth Circuit disagreed with the district court’s analysis as overbroad. The Tenth Circuit noted that there was no express textual reference extending the sanction against attorneys, and found that consideration of the relevant text cut against the district court’s analysis. Under the circumstances of this case, the Tenth Circuit found the sanctions against Pennington unwarranted by Rule 37. Turning to defendants’ argument that the sanctions were allowed by the district court’s inherent power, the Tenth Circuit again disagreed, finding that although his failure to disclose was not substantially justified, it was not vexatious, wanton, oppressive, or done in bad faith. The Tenth Circuit reversed the sanction against Pennington.

Turning to attorney Csajaghy, the Tenth Circuit found there was no question that the district court had authority to impose a personal sanction. Csajaghy objected to the sanction, arguing the sanction was not warranted on the facts, sanctioning counsel was inconsistent with the decision not to sanction Sun River, and the procedure through which he was sanctioned violated due process. The Tenth Circuit found no merit to any of his arguments. The Tenth Circuit admonished that, as counsel of record in the litigation, it was irresponsible for Csajaghy to assume that the in-house counsel, Pennington, had reviewed the policy. Even if had known Pennington reviewed the policy, Csajaghy should have conducted an independent review to satisfy his professional obligations. The Tenth Circuit further chastised Csajaghy for assuming the policy would not provide coverage in lieu of exercising critical judgment. The Tenth Circuit also approved of the district court’s decision to sanction Csajaghy while not sanctioning Sun River, because the company reasonably relied on its counsel to provide relevant disclosures and counsel failed to do so. Finally, the Tenth Circuit addressed Csajaghy’s due process arguments, and although it agreed with the district court that the initial order imposing the sanction was procedurally defective, any defect was cured by the subsequent proceedings on the motion for reconsideration.

The Tenth Circuit reversed the sanction against attorney Pennington and affirmed the sanction against attorney Csajaghy.

Colorado Court of Appeals: Announcement Sheet, 12/24/2015

On Thursday, December 24, 2015, the Colorado Court of Appeals issued no published opinion and 32 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.