May 27, 2017

Archives for September 2016

The Addicted Lawyer: Silence is Deadly

Editor’s Note: This article originally appeared on Above the Law on September 16, 2016. Reprinted with permission.

September is Suicide Awareness Month. If you or someone you know is struggling with addiction or suicidal thoughts, please get help. The Colorado Lawyer Assistance Program provides confidential assistance — call (303) 986-3345 or visit coloradolap.org

briancuban-e1473974781722By Brian Cuban, Esq.

July 2005. A dark room. Table, desk, chairs. I’m with a staff psychiatrist of the Green Oaks Psychiatric Facility in Dallas, Texas. My brothers, Mark and Jeff, are sitting at the table across from me. I have a vague recollection of my younger brother rousing me from my bed. My .45 automatic lying on my nightstand.

The residuals of cocaine, Xanax, and Jack Daniels are still coursing through my veins. Questions from the attending psychiatrist pierce my fog and anger like tracer rounds. “What drugs have you taken? How are you feeling? Do you want to hurt yourself?”

In the back of my mind, what’s left of the lawyer takes over. I know that my family can’t commit me, but he can. Proceed with caution. I don’t mention that I had been “practicing” sticking the barrel of the gun in my mouth and dry-firing the gun.

Ripped back to reality. Voices in the room. The doctor is talking to me again. When was the last time I used cocaine? I’m pretty sure it has been recently, since it was all over the room when my brothers showed up. I had become the consummate liar in hiding the obvious cocaine habit and drinking problem from my family.

More questions. Do I think I need help? Will I go to rehab? Sure, whatever will get me out of here? I lash out again. They have no right to do this. I yell across the table. “You have no right to control my life! I am an adult! Mind your own business!” They quietly let me rant.

Blaming them for the darkness is so much easier than seeing the light. The doctor is asking calm, focused questions, to ascertain whether I am a danger to myself. At times I am calm in my answers. At times I am crying, angry at him, then at my brothers. Quit asking the same questions! I know your game! Quit treating me like an idiot!

An hour has passed. The room is getting brighter. The love and calm of my brothers soothes me. Quiets me, softens my edges. It’s always been there, but I wasn’t present enough to sense it. I was thinking only of myself: My next high. My next drink. Without the drugs, what am I going to see in the mirror each morning? The thought terrifies me. My brothers calm me, and I begin to focus on my love for my family. Arms are around me. Holding me. I begin to feel the love penetrating my shell. They are not the enemy. Should I go to rehab? What about twelve-step? I’m still on the defensive, but at least for the moment I can listen. Have to grab those moments. They don’t come often.

Sitting in that room during my first of two trips to a psychiatric facility seems so long ago. Today I am closing in on ten years of long-term recovery from addiction. I still deal with clinical depression and take medication daily. I see a psychiatrist weekly. I am also a lawyer. I am part of profession with an alarmingly high suicide rate. An alarmingly high rate of substance use, particularly alcohol. I’ve been there. I get it. I also talk to many in the profession weekly who are currently struggling. Some have contemplated suicide. I ask them what they are afraid of. What’s holding them back from taking that first step forward towards the light. It’s almost always about loss. Loss of license. Loss of job. Loss of family. Interestingly however, the fear of loss is generally attached to disclosure of the problem and not the possible consequences of the problem itself. That is what we know as the “stigma of addiction.” A problem that cuts across demographics but is particularly powerful in the legal profession. We are strong. We are hard chargers. We are “thinkers” who can problem solve our way out of any situation without disclosure. We are not vulnerable.

I am here to tell you that that emotional vulnerability is a good thing in taking that first step to get help. Reaching out is not weakness, it’s courage. Asking questions as a friend or family member is not intrusive, it’s compassionate.

September is Suicide Prevention and Awareness Month. Be vulnerable. Be compassionate. Ask questions. Provide resources. Learn what your state Lawyers Assistance Program (LAP) has to offer. Learn what your local bar association has to offer.  Above all, talk! Talking is healing. Silence can be deadly.

 

Brian Cuban (@bcuban) is The Addicted Lawyer. A graduate of the University of Pittsburgh School of Law, he somehow made it through as an alcoholic then added cocaine to his résumé as a practicing attorney. He went into recovery April 8, 2007. He left the practice of law and now writes and speaks on recovery topics, not only for the legal profession, but on recovery in general. He can be reached at brian@addictedlawyer.com.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Colorado Supreme Court: Laches Can Apply as Defense to Child Support Claim

The Colorado Supreme Court issued its opinion in In re Marriage of Johnson on Monday, September 26, 2016.

Interest on Child Support Debt—Laches.

The Supreme Court considered whether a father may rely on the doctrine of laches to defend against a mother’s claim for the interest on his child support debt. The Court concluded that laches may be asserted as a defense to a claim for interest on child support arrearages. The Court therefore reversed the judgment of the Court of Appeals, which had concluded otherwise, and remanded this case for further proceedings consistent with this opinion.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Consent to Search Truck Was Valid so Suppression Unnecessary

The Colorado Supreme Court issued its opinion in People v. Chavez-Barragan on Monday, September 26, 2016.

Fourth Amendment—Traffic Stops—Reasonableness of Investigatory Detention—Voluntariness of Consent to Search.

The Supreme Court reversed the trial court’s order suppressing drugs found in defendant’s truck and defendant’s incriminating statements made to police after they discovered the drugs. Defendant was pulled over for a traffic violation and detained after he consented to a police search of his truck. The Supreme Court concluded that this investigatory detention, which resulted from defendant’s authorization of the search, was reasonable. After considering the totality of the circumstances, the Court also concluded that defendant’s consent to the search was voluntary and the search was lawful. Accordingly, the Court determined that no prior illegality tainted defendant’s incriminating statements. Therefore, neither the drugs nor the statements should have been suppressed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Purported Annexation Failed to Comply with Colorado Common Interest Ownership Act

The Colorado Supreme Court issued its opinion in Ryan Ranch Community Association, Inc. v. Kelley on Monday, September 26, 2016.

Colorado Common Interest Ownership Act—Creation, Alteration, and Termination of Common Interest Communities.

The Colorado Supreme Court considered whether a developer annexed several lots into a common interest community such that the lot owners would owe assessments to the community’s homeowners association. The court concluded that the lots were not annexed because the purported annexation failed to comply with the Colorado Common Interest Ownership Act, C.R.S. §§ 38-33.3-101 to -402. The lot owners therefore were not liable for the association’s assessments.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 9/29/2016

On Thursday, September 29, 2016, the Colorado Court of Appeals issued no published opinion and 35 unpublished opinions.

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, 9/29/2016

On Thursday, September 29, 2016, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

Orso v. Colvin

Burris v. McCollum

Shawley v. Bear

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

Rule Change 2016(10) Regarding Public Access to Records Released

On September 22, 2016, the Colorado Supreme Court adopted Rule Change 2016(10), amending the rules regarding public access to information and records. The changes affect Rule 2, “Public Access to Administrative Records of the Judicial Branch.” A redline of the changes is available here.

The changes are relatively minor, including adding a designation of custodian of records for the Office of Respondent Parents’ Counsel and adding a reference to the Office of Respondent Parents’ Counsel in the definition of “judicial branch.” An error in the numbering of subsections was corrected in Section 3 of the rule. Sections 4 and 5 of Rule 2 and Rules 1 and 3 were unchanged.

Colorado Supreme Court: Developer’s Recordation of Covenants and Plat Did Not Create Common Interest Community

The Colorado Supreme Court issued its opinion in Pulte Home Corp. v. Countryside Community Association, Inc. on Monday, September 28, 2016.

Colorado Common Interest Ownership Act—Creation, Alteration, and Termination of Common Interest Communities—Management of the Common Interest Community.

The Supreme Court addressed when and how common interest communities are 16 formed under the Colorado Common Interest Ownership Act, CRS §§ 38-33.3-101 to -402. In particular, the Court analyzed whether the declarant developer was liable for past-due assessments for maintenance of the developer’s unsold properties and related common elements. The Court concluded that, on the facts presented, the developer’s recordation of the covenants and plat did not create a common interest community. Rather, the community was created when the developer first subjected property to the covenants, and the remaining property could not become part of the community until the developer added it in accordance with certain prescribed steps. The developer’s property was therefore not part of the community and was not subject to assessments. The Court also concluded that the homeowners association had no remedy for unjust enrichment because its covenants fully allocated responsibility for assessment costs.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Colorado Speeding Statute Creates Mandatory Rebuttable Presumption

The Colorado Supreme Court issued its opinion in People v. Hoskin on Monday, September 26, 2016.

Statutory Interpretation—Due Process—Traffic Infraction—Sufficiency of the Evidence.

A county court judge found that Hoskin committed a traffic infraction in violation of Colorado’s speeding statute, C.R.S. § 42-2-1101. The district court reversed and held that the county court judge had impermissibly shifted the burden of proof to Hoskin by requiring him to prove that his speed was reasonable and prudent under the circumstances after the People presented evidence that Hoskin was driving in excess of the posted speed limit. The supreme court reversed the district court’s judgment, holding that the plain language of Colorado’s speeding statute creates a mandatory rebuttable presumption. Specifically, if the People prove that Hoskin was driving in excess of the posted speed limit, the burden of proof going forward shifts to Hoskin to prove that his speed was reasonable and prudent under the circumstances. The court further held that the speeding statute’s mandatory rebuttable presumption does not violate due process. Finally, the court concluded that there was sufficient evidence in the record to support the county court’s judgment against Hoskin for speeding.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 9/28/2016

On Wednesday, September 28, 2016, the Tenth Circuit Court of Appeals issued no published opinion and six unpublished opinions.

Wilson v. Jones

Vreeland v. Coffman

Marie v. Moser

United States v. Burciaga

United States v. McGirr

Twobabies v. Patton

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

Comment Period Open for Proposed Changes to District of Colorado Local Rules

On Monday, September 26, 2016, the U.S. District Court for the District of Colorado proposed changes to its local rules. The proposed changes will take effect December 1, 2016.

The district court invites public comment on the proposed changes; comments may be submitted via email to LocalRule_Comments@cod.uscourts.gov or via U.S. Mail to Clerk of the Court, United States District Court, Attn: Edward Butler, Legal Officer, Alfred A. Arraj U.S. Courthouse, Room A-105, 901 19th Street, Denver, Colorado 80294. Comments should specify to which local rule they relate. All comments must be received by October 26, 2016, to be considered.

The comments include a new Section III, “Local Patent Rules,” which comprehensively addresses patent filings in the district court. There are many other changes to the existing rules, including updates to rules about written discovery requests, changes to reflect filings by unrepresented prisoners, disposition of conventionally submitted materials after the time for filing appeals has passed, and more. A redline of the changes is available here.

For more information regarding the updates to the District of Colorado Local Rules, click here.

Colorado Supreme Court: Test Enunciated to Determine Personal Jurisdiction for Non-resident Company Based on In-state Contacts

The Colorado Supreme Court issued its opinion in Griffith v. SSC Pueblo Belmont Operating Co. on Monday, September 26, 2016.

Constitutional Law—Personal Jurisdiction—Corporations and Business Organizations—Related or Affiliated Entities.

The Colorado Supreme Court held that, to exercise personal jurisdiction over a nonresident parent company based on the in-state contacts of its resident subsidiary, a trial court shall perform the following analysis: First, the trial court shall determine whether it may pierce the corporate veil and impute the resident subsidiary’s contacts to the nonresident parent company. If so, the court shall analyze all of the nonresident company’s contacts with Colorado, including the resident subsidiary’s contacts, to determine whether exercising either general or specific personal jurisdiction over the company comports with due process. Conversely, if the trial court concludes that it may not pierce the corporate veil, it shall treat each entity separately and analyze only the contacts that each parent company has with the state when performing the personal jurisdiction analysis. Here, because the trial court did not perform this two-step analysis when it determined that petitioners were subject to personal jurisdiction in Colorado, the court made its rule to show cause absolute.

Summary provided courtesy of The Colorado Lawyer.