April 26, 2017

Archives for March 2, 2017

Modern Law Practice Initiative: A Win-Win for Lawyers and Clients

By Erika Holmes

The CBA’s Modest Means Task Force has been renamed – the Modern Law Practice Initiative! “Why the new name?” you ask. The reason for the name change is two-fold: first, to stop the misperception that this type of law practice only helps poor people, and second, to develop a moniker for this innovative way to practice law that provides enormous benefits for both clients and attorneys.

The Modest Mean Task Force was formed in 2012 to educate lawyers and judges about the justice gap – the huge portion of society (almost 60% of civil litigants) who make too much money to get a lawyer through public assistance but don’t make enough money to hire an attorney at traditional rates. MLPI’s mission is still the same – to serve this portion of the population. However, MLPI is striving to further educate both lawyers and the public that the justice gap doesn’t consist of just people of modest means. The justice gap is comprised of people across the full spectrum of income levels, including people with middle to upper-middle class incomes. By practicing modern representation, a lawyer can run a thriving, sustainable, and fulfilling practice by providing legal services to this largely untapped market.

The Modern Law Practice Initiative is expounding on its original mission by providing lawyers with the motivation and the specific means to engage in this exciting new method of law practice management. Modern representation is about more than providing legal services at an affordable rate. Modern representation is about practicing law in a manner that is beneficial for both the client and the lawyer in terms of feasibility, flexibility, versatility – and even enjoyability! MLPI’s goal is to teach lawyers how to create a sustainable law practice that simultaneously helps solve the access to justice gap and provides the lawyer with a fulfilling and prosperous career.

Check out MLPI’s new website for access to the latest version of Successful Business Planning for the Modern Law Practice, a step-by-step guide to creating a sustainable modern law practice. MLPI will also highlight for lawyers the best resources for creating and sustaining a modern law practice through CLEs, books, technology, mentoring, networking, volunteer opportunities, and more. Discover what it means to be a modern lawyer and to be part of a win-win solution to the access to justice dilemma!

Colorado Court of Appeals: Statute of Limitations Had Not Run for Enforcing Fair Campaign Practices Act Judgment

The Colorado Court of Appeals issued its opinion in Campaign Integrity Watchdog, LLC v. Alliance for a Safe and Independent Woodmen Hills on Thursday, February 23, 2017.

Fair Campaign Practices Act—Campaign and Political Finance Amendment—Statute of Limitations.

The Alliance for a Safe and Independent Woodmen Hills (Alliance) was established to work for the common good and general welfare of the Woodmen Hills community. Before the 2014 Woodmen Hills Metropolitan District board of directors’ election, Alliance sent postcards and created Facebook posts directed at undermining the character of a board candidate. Campaign Integrity Watchdog, LLC (CIW) filed a complaint with the Secretary of State alleging a violation of § 9 of the Campaign and Political Finance Amendment, Colo. Const. Art. 28 (Amendment) and various violations of the Fair Campaign Practices Act (FCPA). The matter was referred to the Office of Administrative Courts. After a hearing, the administrative law judge (ALJ) found that the alliance was a “political committee” under the FCPA and it failed to register and file required reports as of the first day of the hearing, June 26, 2014. Thus Alliance violated the FCPA. The ALJ imposed a fine and ordered Alliance to register with the Secretary of State and file all required reports.

Alliance filed a motion to stay the decision, which was denied, and immediately thereafter filed a notice of appeal, which it then withdrew. About a year later, CIW filed a complaint in district court to enforce the ALJ’s decision. Alliance filed a CRCP 12(b)(5) motion to dismiss alleging the Amendment’s one-year statute of limitations barred CIW’s enforcement action. The district court dismissed the complaint, finding it time-barred under the Amendment.

On appeal, both parties agreed that the statute of limitations is triggered by the date of “violation” in § 9(2)(a) of the Amendment, but disagreed about what “violation” means. The Court of Appeals concluded that “violation” means the act(s) of breaking or dishonoring the FCPA or Amendment and therefore the statute of limitations began running the day following the last such act.

The Court then reviewed CIW’s complaint and concluded it could be read to allege a continuing violation of the Amendment, and the record does not show when or if the continuing violation ended. The complaint states a plausible claim of a continuing violation sufficient to withstand a Rule 12(b)(5) motion to dismiss based on the statute of limitations.

The order dismissing the complaint was reversed and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Economic Loss Rule Does Not Bar Civil Theft Claims

The Colorado Court of Appeals issued its opinion in Bermel v. BlueRadios, Inc. on Thursday, February 23, 2017.

Breach of Contract—Unjust Enrichment—Colorado Wage Protection Act—Civil Theft—Conversion—Economic Loss Rule—Attorney Fees.

Bermel entered into a “Contractor Agreement” with BlueRadios, Inc. under which he provided engineering services to BlueRadios. He also signed a “Proprietary Information and Inventions Agreement” (PIAA). The parties later ended their relationship. Anticipating that he might end up in litigation over unpaid wages, Bermel breached the PIAA by forwarding to his personal email account thousands of BlueRadios emails and attachments, some of which contained proprietary information. Bermel sent a demand letter to BlueRadios for unpaid wages, which BlueRadios paid. Bermel thereafter filed a lawsuit against BlueRadios asserting claims for breach of contract, unjust enrichment, and violation of the Colorado Wage Protection Act (CWPA). BlueRadios filed counterclaims against him, including breach of contract; civil theft, under C.R.S. § 18-4-405; and conversion. The court granted summary judgment in favor of BlueRadios on Bermel’s CWPA claim, and following trial, found Bermel liable on all of BlueRadios’ counterclaims.

On appeal, Bermel contended that the trial court erred when it denied his motion for summary judgment, in which he argued that the economic loss rule barred BlueRadios’ claim for civil theft. Because the economic loss rule is a judicial construct and a civil theft claim is a statutory cause of action, the economic loss rule does not preclude a cause of action under the civil theft statute.

Bermel also argued that the trial court erred in granting BlueRadios’ motion for summary judgment on his CWPA claim, contending that the court failed to apply the CWPA’s definition of “employee” when it concluded he was an independent contractor. The evidence attached to BlueRadios’ motion for summary judgment did not establish that Bermel was free from control and direction under his contract or that he was customarily engaged in an independent trade, occupation, profession, or business related to the service performed. Accordingly, BlueRadios failed to establish that no genuine dispute of material fact existed as to whether, under the parties’ contracts, Bermel was an employee for purposes of the CWPA.

Finally, BlueRadios was entitled to its appellate attorney fees under the civil theft statute.

The summary judgment on the CWPA claim was reversed, the judgment was otherwise affirmed, and the CWPA claim was remanded for further proceedings.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 3/2/2017

On Thursday, March 2, 2017, the Colorado Court of Appeals issued no published opinion and 27 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, 3/1/2017

On Wednesday, March 1, 2017, the Tenth Circuit Court of Appeals issued two published opinions and three unpublished opinions.

Banks v. Katzenmeyer

United States v. Sandoval

Park v. Gaitan

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