May 27, 2018

Archives for November 11, 2016

Inadvertent Disclosure — Damage Control, Recipient Requirements, and More

EthicsInadvertent disclosure of privileged or confidential information is not a new problem for attorneys. However, email and the electronic age have widened the scope of inadvertent disclosure. What happens when you use your email’s auto-fill feature and accidentally fill opposing counsel’s name instead of your client’s? How about when you hit “Reply All” instead of only replying to one party, or when you reply instead of forwarding? These problems are the stuff of nightmares.

To address the problems created by inadvertent disclosure of privileged or confidential information, the Colorado Bar Association Ethics Committee created Formal Opinion 108, adopted on May 20, 2000. Formal Opinion 108 contemplates that a lawyer who receives documents (“receiving lawyer”) from an adverse party or an adverse party’s lawyer (“sending lawyer”) has an ethical duty to disclose the receipt of the privileged or confidential documents to the sending lawyer. If the receiving lawyer realizes the inadvertence of the disclosure before examining the documents, the receiving lawyer has a duty to not examine the documents and follow the sending lawyer’s directions regarding disposal or return of the documents.

In 2008, the Colorado Supreme Court repealed and reenacted the Colorado Rules of Professional Conduct. Rule 4.4(b) provides that “A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.” Rule 4.4(b) applies to situations in which the sending lawyer accidentally provides privileged or confidential information to the receiving lawyer, such as when someone hits “Reply All” instead of forwarding to the client.

Rule 4.4(c) addresses a far less common scenario, when the sending lawyer realizes the disclosure prior to receipt by the receiving lawyer and contacts the receiving lawyer before the privileged or confidential information is viewed. Rule 4.4(c) requires the receiving lawyer to “abide by the sender’s instructions as to its disposition.” Comments [2] and [3] to Rule 4.4 expand on the receiving lawyer’s duties, including providing that as a matter of professional courtesy the receiving lawyer may inform the sending lawyer of the inadvertent disclosure.

Colorado Rule of Civil Procedure 26(b)(5)(B) also addresses inadvertent disclosure. C.R.C.P. 26(b)(5)(B) imposes on the receiving lawyer a mandatory prohibition on review, use, or disclosure of the information until the privilege claim is resolved, if the sending lawyer informs the receiving lawyer of the inadvertent disclosure. C.R.C.P. 26(b)(5)(B) differs slightly from Fed. R. Civ. P. 26(b)(5)(B); lawyers who practice in both federal and state courts should familiarize themselves with the different rules.

On Monday, November 28, 2016, attorney Cecil E. Morris, Jr., will deliver a lunchtime presentation on inadvertent disclosure, which is available for one general CLE credit and one ethics credit. This program is a great way to learn about what to do in case you inadvertently disclose confidential or privileged information, and also what to do if you receive information inadvertently disclosed. Cecil will discuss the differences between the federal and state rules, and will also address the substantive areas of law most affected by inadvertent disclosure. Register here or by clicking the links below.

 

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CLE Program: Inadvertent Disclosure – Professional Liability Series

This CLE presentation will occur on November 28, 2016, at the CBA-CLE offices (1900 Grant Street, Third Floor), from 12 p.m. to 1 p.m. Register for the live program here or register for the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here: MP3Video OnDemand.

Colorado Courts Celebrate National Adoption Day Throughout November

Each November, National Adoption Day is celebrated to recognize and raise awareness of the over 100,000 children in foster care awaiting permanent families. Since its inception, National Adoption Day has made the dreams of thousands of children come true through the cooperative work of courts, judges, attorneys, adoption professionals, child welfare agencies and advocates to finalize adoptions and find permanent, loving homes for children in foster care. In Colorado, the adoptions of 132 children will be finalized this month. Currently, 283 Colorado children await permanent families.

In 2006, for the first time, National Adoption Day was celebrated in all 50 states, the District of Columbia and Puerto Rico. This year, events will be held throughout the country to finalize the adoptions of more than 4,500 children in foster care, and to celebrate all families who adopt. Since 2000, more than 50,000 children have had their adoptions finalized on National Adoption Day.

Throughout the state, courts will be celebrating Adoption Day this month. Some of the events are listed here:

  • First Judicial District (Jefferson and Gilpin counties): On Thursday, November 17, 2016, from 1 to 5 pm at the Jefferson County Courthouse, Magistrates Andrew Fitzgerald and Margaret Tims will preside over adoptions for 15 families. On Saturday, November 19, 2016, from 8:30 am to noon, Judges Margie Enquist, Gail Meinster and Tamara Russell, and Magistrate Jamin Alabiso will preside over 24 adoptions for 18 families. Cameras are welcome; contact Mallory Hyatt at (303) 271-4389 for more information.
  • Second Judicial District (Denver County): On Thursday, November 10, 2016, the Denver County Court held its National Adoption Day celebration. Forty-six children were united with 31 families. Contact Barbara Bosley, Family Court Facilitator, Denver Juvenile Court, (720) 337-0584 or (303) 638-5098 for more information.
  • Third Judicial District (Huerfano and Las Animas counties): On Tuesday, November 29, 2016, at 2 pm, Judge Leslie J. Gerbracht will preside over the adoptions of three children into two families. All families who have adopted children in the Third Judicial District are invited to attend, and cameras are welcome with the families’ permission. Contact Joanne A. Montero at (719) 497-8208 for more information.
  • Tenth Judicial District (Pueblo County): On Friday, November 18, 2016, District Court Judge David W. Crockenberg will preside over six adoptions. Expanded media coverage has been granted; contact Amanda Ledbetter at (719) 583-4716 for more information.
  • Twelfth Judicial District (Alamosa, Conejos, Castillo, Mineral, Rio Grande, and Saguache counties): On Tuesday, November 1, 2016, the Twelfth Judicial District held a reception to honor the 27 children who were adopted into 18 families last year. Members of the public, the courts, Departments of Human Services, county attorneys, and county commissioners were in attendance. Chief Judge Pattie Swift addressed the group and discussed the important role of adoptive families in the justice system and thanked DHS staff and attorneys for the work that they do.
  • Seventeenth Judicial District (Adams and Broomfield counties): On Saturday, November 19, 2016, from 9 am to noon, nine children will be united with eight families. District Court Judges John Popovich and Jill-Ellyn Straus, as well as Magistrate Fran Simonet, will preside over the adoptions. Cameras will be allowed in the courtroom with the permission of the families. For more information, contact Simone Jones, Court Programs Coordinator, at (303) 654-3230.
  • Eighteenth Judicial District (Arapahoe, Douglas, Elbert, and Lincoln counties): On Friday, November 18, 2016, Adoption Day hearings will be held at both the Arapahoe County Courthouse and the Douglas County Courthouse. Judge Theresa Slade will preside over the adoptions of 13 children in Arapahoe County from 8:30 am to 4 pm. Magistrate Rebecca Moss will preside over eight adoptions in Douglas County from 2 to 4 pm. Cameras will be permitted in both courts with written permission of the families. For more information, contact Shaun Clark, Deputy District Administrator, at (303) 649-6382.
  • Twentieth Judicial District (Boulder County): On Friday, November 18, 2016, from 10:30 am to noon, Boulder County will host a celebration for all children adopted in Boulder County this past year. County Court Judge Elizabeth Brodsky and District Court Magistrate Monica Haenselman will be in attendance to celebrate with the families. There will be a reception, a short presentation, and crafts and games for the children. The celebration is open to the public; contact Erika Skufca at erika.skufca@judicial.state.co.us or (303) 441-4921 or Raina Lesser at raina.lesser@judicial.state.co.us or (303) 441-3744 for more information.
  • Twenty-first Judicial District (Mesa County): On Friday, November 18, 2016, from 9 am to 1 pm, District Court Judge Valerie Robison will preside over eight adoptions. An additional celebration will be held in the jury assembly room at 3 p.m. for all adopted on November 18 and in the past. Cameras will be allowed in the courtroom with permission of the families. For more information, contact Angeline Roles, Mesa County Department of Human Services, at (970) 248-2453 or angeline.roles@mesacounty.us.

For more information about Adoption Day events, click here.

Tenth Circuit: Unpublished Opinions, 11/10/2016

On Thursday, November 10, 2016, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

Bevan v. State of Utah

United States v. Moreno

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