October 22, 2017

Archives for August 16, 2016

ABA Model Rule of Professional Conduct 8.4 Amended to Prohibit Discrimination

ABAOn Monday, August 8, 2016, the ABA announced that the ABA House of Delegates passed a resolution to amend Model Rule 8.4 in order to bring into the black letter of the rule an express prohibition against discriminatory conduct in the practice of law.

Revised Resolution 109 amended subparagraph (g) of Model Rule 8.4 as follows:

(g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination harass or discriminate on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This Rule paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

Additionally, the Comment to the Model Rule was amended as follows:

[3] 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.

[3] Discrimination and harassment by lawyers in violation of paragraph (g) undermines confidence  in the legal profession and the legal system. Such discrimination includes harmful verbal or  physical conduct that manifests bias or prejudice towards others because of their membership or  perceived membership in one or more of the groups listed in paragraph (g). Harassment includes  sexual harassment and derogatory or demeaning verbal or physical conduct towards a person who is, or is perceived to be, a member of one of the groups. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature. The substantive law of antidiscrimination and anti-harassment statutes and case law may guide application of paragraph (g).

[4] Conduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law. Paragraph (g) does not prohibit conduct undertaken to promote diversity. Lawyers may engage in conduct undertaken to promote diversity and inclusion without violating this Rule by, for example, implementing initiatives aimed at recruiting, hiring, retaining and advancing diverse employees or sponsoring diverse law student organizations.

[5] Paragraph (g) does not prohibit legitimate advocacy that is material and relevant to factual or legal issues or arguments in a representation. A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of paragraph (g). A lawyer does not violate paragraph (g) by limiting the scope or subject matter of the lawyer’s practice or by limiting the lawyer’s practice to members of underserved populations in accordance with these Rules and other law. A lawyer may charge and collect reasonable fees and expenses for a representation. Rule 1.5(a). Lawyers also should be mindful of their professional obligations under Rule 6.1 to provide legal services to those who are unable to pay, and their obligation under Rule 6.2 not to avoid appointments from a tribunal except for good cause. See Rule 6.2(a), (b) and (c). A lawyer’s representation of a client does not constitute an endorsement by the lawyer of the client’s views or activities. See Rule 1.2(b).

The remaining comments were renumbered.

The ABA Model Rules Committee considered the changes a “necessary and significant first step to address the issues of bias, prejudice, discrimination and harassment in the Model Rules,” but noted that it is only the first step in a multi-disciplinary effort to provide access to justice.

The chair of the ABA Standing Committee on the Model Rules, Myles V. Lynk of Arizona, noted that 25 jurisdictions across the country have enacted similar language. Over 70 lawyers signed up to speak in support of the changes, while none spoke in opposition. Only a few members of the House of Delegates voted “no” in a voice vote.

For the complete text of the ABA Resolution, click here.

Name Change, Adoption, and Seal My Case Forms and Instructions Amended in August

The Colorado State Judicial Branch revised sixteen JDFs in August. The revised forms include change of name forms and instructions, a motion and order to seal criminal records, a motion to convert a legal separation to dissolution, and adoption forms and instructions. These revised forms are available here as PDF downloads or from the State Judicial forms page.

PLEASE NOTE: The court’s website hosting the JDF forms has been revised to eliminate the option of modifying the form itself. This decision was made to protect the integrity of forms presented to the court with a JDF designation. This will allow the court to know that forms with a JDF designation contain only the JDF version’s information. Users can continue to download the PDF version of the forms from the court’s website for completion but modification of the form itself is not available. CBA-CLE will continue to provide selected JDF forms in our books and in Bradforms in a word processable format. PLEASE REMEMBER, if you modify a JDF form, you must remove the JDF designation from the footer or the court may reject your filing.

ADOPTION

  • JDF 495 – Instructions for Second Parent Adoption Without Civil Union (R8/16)
  • JDF 498 – Instructions for Kinship Adoption (R8/16)
  • JDF 499 – Instructions for Custodial Adoption (R8/16)
  • JDF 500 – Instructions for Stepparent Adoption (R8/16)

DOMESTIC RELATIONS

  • JDF 1321 – Motion to Convert Decree of Legal Separation to Decree of Dissolution of Marriage (R8/16)

NAME CHANGE

  • JDF 385 – Instructions for Filing a Change of Name following Conviction/Adjudication for a Felony (R8/16)
  • JDF 387 – Final Decree for Change of Name to Obtain Identity-Related Documents (R8/16)
  • JDF 388 – Instructions for Filing a Change of Name for an Individual 70 Years of Age or Older (R8/16)
  • JDF 389 – Petition for Change of Name (70 Years of Age or Older) (R8/16)
  • JDF 420 – Instructions for Filing a Change of Name (Minor) (R8/16)
  • JDF 421 – Petition for Change of Name (Minor Child) (R8/16)
  • JDF 432 – Instructions for Filing a Change of Name (Adult) (R8/16)
  • JDF 433 – Petition for Change of Name (Adult) (R8/16)

SEAL MY CASE

  • JDF 477 – Motion to Seal Criminal Justice Records (R8/16)
  • JDF 478 – Order to Seal Criminal Justice Records (R8/16)

For all of State Judicial’s JDF forms, click here.

Colorado Court of Appeals: Reversal Based on Firm and Definite Conviction that Mistake Had Been Made

The Colorado Court of Appeals issued its opinion in Indian Mountain Corp. v. Indian Mountain Metropolitan District on Thursday, August 11, 2016.

In 1970, Indian Mountain Corporation’s (IMC’s) predecessor in interest purchased land and water rights in Park County with the intent of creating an upscale subdivision within a community of amenities. After residential construction had begun in the Indian Mountain subdivision, SB 72-35 passed, requiring the subdivision to obtain a water-court-approved augmentation plan. The plan required homeowners to drill a well at their own expense, but for many years, IMC maintained and operated the plan at its own expense.

In 1972, the developer spearheaded the creation of the Indian Mountain Parks & Recreation District, which was converted into the Indian Mountain Metropolitan District (IMMD) in 2012 in order to be able to legally purchase and provide water services. IMMD negotiated to purchase the plan from IMC, but was not successful. In 2013, owners of a neighboring ranch approached IMC’s director about purchasing the reservoir, and eventually purchased all of the assets of IMC, including the water plan. IMC’s new owner charged IMMD for its water usage, but IMMD did not pay the invoices.

IMC filed an action in district court, seeking a declaratory injunction that it is the legal owner of the water rights and the plan and IMMD has no right, title, or interest in them. IMMD filed an answer and counterclaim, seeking a declaratory injunction that the Indian Mountain lot owners owned the plan and water rights as beneficiaries of a constructive trust. The district court issued an order in favor of IMMD. IMC filed a post-judgment motion requesting a hearing on the amount of reasonable fees it could charge IMMD for ongoing operation of the plan, which the district court denied.

On appeal, the court of appeals ruled the district court erred in finding that the water rights and augmentation plan were held in a constructive trust. The court based its reversal on a “firm and definite conviction that a mistake ha[d] been made.” Because three experts testified that the lot prices included the cost of the plan, but all advanced different theories that were directly refuted by the documentary evidence in the record, the court found reversal necessary. The court of appeals found that the district court clearly erred in finding that the lot prices included the cost of the plan, and the unjust enrichment analysis failed at the first prong.

The judgment of the district court was reversed.

Tenth Circuit: Unpublished Opinions, 8/15/2016

On Monday, August 15, 2016, the Tenth Circuit Court of Appeals issued two published opinions and two unpublished opinions.

United States v. Laster

United States v. Young

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