September 25, 2017

Archives for May 11, 2017

ABA Formal Ethics Opinion Issued Regarding Secured Communications of Client Information

On Thursday, May 11, 2017, the ABA Standing Committee on Ethics and Professional Responsibility released Formal Opinion 477, “Securing Communication of Protected Client Information.” The opinion discusses internet transmission of protected client information, concluding that:

A lawyer generally may transmit information relating to the representation of a client over the internet without violating the Model Rules of Professional Conduct where the lawyer has undertaken reasonable efforts to prevent inadvertent or unauthorized access. However, a lawyer may be required to take special security precautions to protect against the inadvertent or unauthorized disclosure of client information when required by an agreement with the client or by law, or when the nature of the information requires a higher degree of security.

Formal Opinion 477 is an update to the basic confidentiality requirements addressed in Formal Opinion 99-413. The opinion was issued in response to the 2012 amendments to the ABA Model Rules in which technological competency was enunciated. This opinion discusses cybersecurity and measures that lawyers should take to safeguard client information, electing to reject requirements for specific security measures in favor of a fact-specific approach to business security obligations.

The opinion offers guidance on what reasonable steps an attorney may undertake in response to a cybersecurity threat, including:

  1. Understand the nature of the threat;
  2. Understand how confidential client information is transmitted and where it is stored;
  3. Understand and use reasonable security measures;
  4. Determine how electronic communications about client matters should be protected;
  5. Label confidential client information;
  6. Train lawyers and nonlawyer assistants in technology and information security; and
  7. Conduct due diligence on vendors providing communication technology.

To read the entire opinion, click here.

Colorado Court of Appeals: Double Recovery Not Considered in Forum Non Conveniens Determination

The Colorado Court of Appeals issued its opinion in Cox v. Sage Hospitality Resources, LLC on Thursday, May 4, 2017.

Forum Non Conveniens—Judicial Inefficiency—Double Recovery.

Cox, a Colorado resident, stayed at a hotel in California owned by defendant Sage Hospitality Resources, LLC. Sage’s members are Colorado residents, and its principal place of business is in Denver. WS HDM, LLC, incorporated in Delaware and licensed to do business in California, owns and operates the hotel. Cox fell on the hotel property and fractured his femur. Cox sued Sage in Denver District Court and WS HDM in California state court. Sage’s motion to dismiss the action in Denver District Court under the doctrine of forum non conveniens was granted.

On appeal, Cox argued that the Denver District Court erred in granting Sage’s motion to dismiss because there were no unusual circumstances sufficient to overcome the strong presumption in favor of Colorado courts hearing cases brought by Colorado residents. Colorado law is clear that the doctrine of forum non conveniens has “only the most limited application in Colorado courts.” Thus, unless there are “most unusual circumstances,” a Colorado resident’s choice of a Colorado forum will not be disturbed. Cox is a Colorado resident and claims to prefer to sue Sage in Colorado. Even though Cox filed a related suit in California state court, the existence of that lawsuit does not trump Cox’s choice of forum in Colorado. Further, the California state court suit is against a different defendant, and the record does not indicate that the joinder of Sage in Cox’s California state court suit is mandatory. Nor does the risk of double recovery overcome the presumption in favor of Colorado courts hearing suits filed by Colorado resident plaintiffs. The Denver District Court erred in dismissing Cox’s action.

The judgment was reversed and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: UCCJEA Vests Issuing State with Exclusive Jurisdiction to Modify Custody Order

The Colorado Court of Appeals issued its opinion in People in Interest of M.S. on Thursday, May 4, 2017.

Dependency and NeglectAllocation of Parental ResponsibilitiesSubject Matter JurisdictionUniform Child-Custody Jurisdiction and Enforcement Act.

The Mesa County Department of Human Services (Department) assumed temporary custody of 8-year-old M.S. and initiated a dependency and neglect proceeding. Mother lived in Texas.

The court, by stipulation, adjudicated M.S. dependent or neglected. The Department then moved for a permanent allocation of parental responsibilities (APR) for M.S. to mother. The magistrate determined it was in M.S.’s best interests to be placed with mother and issued an order granting permanent APR to mother.

Father appealed, and a court of appeals division dismissed for failure to obtain district court review. Father then filed a petition for district court review, which was denied, and he appealed again.

Initially, the court of appeals addressed the Department’s argument that the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) does not apply to dependency and neglect proceedings once a child has been adjudicated dependent and neglected. The UCCJEA does not exempt any stage of a dependency and neglect proceeding from its purview.

The court, sua sponte, concluded that the magistrate lacked jurisdiction under the UCCJEA to issue the permanent APR order. Under the UCCJEA, the court that makes an initial custody determination generally retains exclusive, continuing jurisdiction. As a result, a Colorado court, absent temporary emergency jurisdiction, may only modify a custody order issued by an out-of-state court under limited circumstances. Here, a California court had issued a custody order before the initiation of the dependency and neglect proceeding. The magistrate did not confer with the California court that issued the custody order or make a determination as to whether the California court had lost exclusive, continuing jurisdiction. Consequently, the magistrate failed to acquire jurisdiction under the UCCJEA before issuing the APR order that effectively modified the California custody order.

The judgment was vacated and the matter was remanded to the district court to direct the magistrate to determine whether it has jurisdiction to issue an APR order that modifies the California custody order.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Department of Human Services Must Make “Continuing Inquiries” About ICWA Status

The Colorado Court of Appeals issued its opinion in People in Interest of A.D. on Thursday, May 4, 2017.

Termination of Parental RightsIndian Child Welfare Act of 1978Continuing Inquiries.

In 2013, the Chaffee County Department of Social Services (Department) initiated a dependency and neglect proceeding involving Tr.D. Respondents denied the child was a member or eligible for membership in an Indian tribe, and the Department represented it had determined the child was not an Indian child. The petition was later withdrawn and the case closed.

In 2015, the Department initiated another dependency and neglect proceeding concerning Tr.D. and 6-month-old A.D. after mother and father were arrested on drug charges. The children were placed in foster care and adjudicated dependent and neglected. Treatment plans were developed for both parents, but neither could overcome their addictions. The Department ultimately filed a petition to terminate parental rights and stated that the children were not Indian children. No evidence concerning the Indian Child Welfare Act (ICWA) was elicited at the termination hearing. The trial court terminated parental rights and found the provisions of the ICWA did not apply.

On appeal, mother argued that the record failed to support the court’s ICWA finding because no questions were asked about possible Indian heritage during the proceedings and therefore the Department didn’t meet its “continuing inquiry” duty under the ICWA. The Department argued that the ICWA issue was resolved in the prior case and the trial court satisfied the ICWA requirements in this case because it took judicial notice of its ICWA finding in the previous case. The Department reasoned that because A.D. is a full sibling of Tr.D., the court’s previous finding as to Tr.D. must also apply to her. The ICWA required the Department to conduct new inquiries to determine whether the children were Indian children. Because there was no evidence in the record of such inquiries, further proceedings were required.

Because the ICWA inquiry may result in the court determining that the children are not Indian children, the court of appeals addressed the other issues raised on appeal. Mother argued that the grounds for terminating her parental rights were not established by clear and convincing evidence. Based on the record before it, the court disagreed. Father argued that the record did not support the finding that reasonable efforts were made to avoid the removal of the children from their home and to promote reunification of the family. Specifically, father argued that a dispute over venue delayed his ability to participate in a drug program, averring that reasonable efforts required not just providing services, but providing services “at the right time.” The court determined that father waived his right to raise this issue when he expressly agreed to hold the motion to change venue in abeyance and therefore failed to seek a ruling from the court.

The judgment was reversed and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 5/11/2017

On Thursday, May 11, 2017, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

United States v. Perez

United States v. Ransom

United States v. Coates

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

Why Good Lawyers Do Bad Things – Think It Can’t Happen to You?

High-Profile Lawyer Charged with Punching Client in Court,” Above the Law, October 30, 2015.

Storied Plaintiffs Lawyer Disbarred in Kentucky Over Excessive Fees,” National Law Journal, March 21, 2013.

Lawyer Charged with Forging Signatures of 7 Judges on Over 100 Court Documents,” Above the Law, February 24, 2016.

Biglaw Partner and Associate Destroyed Evidence, Suborned Perjury,” Above the Law, June 24, 2015

Headlines like these grab our attention, but they don’t give us much cause for concern. After all, we would NEVER do anything like that. But what about these?

“[Lawyer] agreed to represent a client in his immigration and criminal matters. On [Lawyer]’s advice, his client pleaded guilty to felony sexual assault. The client later regretted his decision to plead guilty, hired other counsel, successfully withdrew his plea, went to trial, and was acquitted.” People v. Romero, 16PDJ057, December 9, 2016.

“[Lawyer] was convicted five times of driving under the influence (DUI) or driving while ability impaired (DWAI). His most recent conviction took place in 2011. Through this conduct, [Lawyer] violated Colo. RPC 8.4(b) (a lawyer shall not commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects).” People v. Condon, 16PDJ050, December 23, 2016.

“In October 2015, [Lawyer] sought a $1,000.00 loan from a client to address cash flow problems. The client agreed, so [Lawyer] executed a promissory note in favor of the client, providing for 8% per annum interest and providing that the principal and interest would be due one month hence, in November 2015. The terms of the loan were fair and reasonable. But [Lawyer] did not advise the client in writing of the desirability of seeking independent legal counsel as to the transaction. Nor did he obtain the client’s written, informed consent to [Lawyer]’s role in the transaction, including whether [Lawyer] was representing the client in the transaction. [Lawyer] failed to pay the client by the agreed-upon date, though [Lawyer] did fully repay the client in March 2016. At that time, the client had not yet reported [Lawyer] to disciplinary authorities.” People v. Foster, 17PDJ018, March 15, 2017.

Do these still sound too far-fetched to you? How about these ones?

“Lawyer accepts $5,000 ‘flat fee,’ expecting a complex dispute, but skillfully resolves the matter in one hour. He then keeps the entire fee.”

“While [Lawyer] served as county attorney, he worked on legal issues involving third parties’ management of dirt track racing at El Paso County’s fairgrounds. He was involved with drafting a memorandum of understanding between the County and one of those third parties to address issues that exposed the County to liability. After [Lawyer] left the employ of El Paso County, the County faced ongoing legal issues with that same third party. In 2013, [Lawyer] began representing that party against El Paso County.”

“[Lawyer] is subject to several orders entered in Arapahoe County requiring him to pay child support, various child-related expenses, and child support arrearages. [Lawyer] paid just over half of the child support obligations he owed between June 2015 and November 2016. [Lawyer]’s failure to satisfy these obligations violated Colo. RPC 3.4(c) (a lawyer shall not knowingly disobey an obligation under the rules of a tribunal) and Colo. RPC 8.4(d) (a lawyer shall not engage in conduct prejudicial to the administration of justice).”

“[Lawyer] failed to obey a court order to pay monthly child support and to satisfy child support arrearages. Her failure to honor her court-mandated obligations tarnished the integrity of the legal system and harmed her child. Her conduct violated Colo. RPC 3.4(c) (a lawyer shall not knowingly disobey an obligation under the rules of a tribunal) and Colo. RPC 8.4(d) (a lawyer shall not engage in conduct prejudicial to the administration of justice).”

“[Lawyer] was retained by a client in March 2016 in a paternity case. Because he failed to pay registration fees, [Lawyer] was placed on administrative suspension on May 2, 2016. While suspended, [Lawyer] participated in a telephone conference with the court and set a status conference for June 2016.”

“[Lawyer], a bankruptcy attorney, was retained by a lawyer who had been disbarred for knowing conversion. The lawyer’s disbarment order required him to pay restitution to several former clients, as well as more than $220,000 to a medical lienholder. On the client’s behalf, [Lawyer] filed a Chapter 13 bankruptcy petition. He did so to stall a foreclosure sale on the client’s house in the hopes of protecting from creditors up to $105,000 in equity under the homestead exemption, and to avoid entangling the client’s second property in Crested Butte in a Chapter 7 bankruptcy. The petition showed that the client’s debt was over 99% of the allowable limit for Chapter 13 cases. The petition did not, however, list the $220,000 debt to the lienholder; instead, it characterized the amount of the debt as “unknown,” “unliquidated,” and “disputed.” Had that debt to the lienholder been included in the client’s total debt, the amount would have exceeded the Chapter 13 debt limit.”

Are you starting to feel uncomfortable? These situations and others are published monthly in The Colorado Lawyer. Although many of the disciplinary situations are too egregious to relate to, others could happen to anyone – even good lawyers like you.

If you ask any random group of people to rank how ethical they are on a scale of one to one hundred, responses will average about 75, meaning almost everyone is misjudging how they would react to actual ethical dilemmas. Studies regularly show a gap between an ethical goal (how ethical we aspire to be) and ethical judgment (what we actually do). This has been called “bounded ethicality,” and it examines why individuals fail to recognize that external influence and self-interest impact their ethical thinking.

Ethical decisions can be hard for anyone, but the stakes are higher for lawyers because the Colorado Rules of Professional Conduct dictate lawyers’ ethical responsibility. The preamble to the Rules states, “Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system, and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living. . . . The Rules do not . . . exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules.” There are plenty of shades of grey in determining the ethical path, in other words.

On May 15, 2017, Christopher P. Montville of Wheeler Trigg O’Donnell will present a one hour lunch program, “Why Good Lawyers Do Bad Things (And What to Do About it).” This can’t-miss program will explore the reasons why good people sometimes make bad choices, and how to avoid becoming a disciplinary summary in The Colorado Lawyer. Register today by calling (303) 860-0608 or clicking the links below.

 

CLELogo

CLE Program: Why Good Lawyers Do Bad Things

This CLE presentation will occur on May 15, 2017, at the CLE Large Classroom (1900 Grant St., 3rd Floor) from noon to 1 p.m. Register for the live program here and the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here — Video OnDemandMP3 Audio

Colorado Court of Appeals: Crim. P. 35 Requires Court to Allow Public Defender’s Office to Respond to Motion Requesting Counsel

The Colorado Court of Appeals issued its opinion in People v. Higgins on Thursday, May 4, 2017.

Crim. P. 35(c)—Notice—Public Defender.

Higgins pleaded guilty to felony menacing, and the court sentenced him to 18 months in prison. Higgins thereafter filed a Crim. P. 35(c) motion and requested counsel to represent him on his motion. The district court sent a copy of Higgins’s motion to the prosecution and, after receiving the prosecution’s response, denied the motion without a hearing and without hearing from the public defender’s office.

On appeal, Higgins contended that the district court erred by departing from the procedure outlined in Crim. P. 35(c)(3)(IV) and (V) and that the court’s error required reversal. The court has the authority to summarily deny a Crim. P. 35(c) motion without a hearing if the motion, files, and the record clearly show the defendant is not entitled to relief. However, if the court does not summarily deny the motion, the court is required to send a copy of the motion to the prosecutor and, if defendant has requested counsel, to the public defender’s office, who are given an opportunity to respond to the motion. Here, the court failed to send a copy of the motion to the public defender’s office. Thus, the court erred by departing from the Crim. P. 35(c)(3)(IV) and (V) mandatory procedure. The error was not harmless because it affected the fairness of the proceedings.

The order was reversed and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Authentication of Text Messages Requires Testimony Verifying Printouts and Identifying Sender

The Colorado Court of Appeals issued its opinion in People v. Heisler on Thursday, May 4, 2017.

Harassment—Text Messages—Evidence—Domestic Violence—Sentencing—Sixth Amendment.

The victim and Heisler dated for three years. After they broke up, the victim told Heisler that she no longer wished to communicate with him. Heisler ignored the victim’s request and sent her numerous text messages and letters, and eventually traveled from Florida, where he lived, to Colorado to talk to the victim in person—uninvited and unannounced. When the victim saw Heisler outside of her home, she called the police. Heisler was ultimately found guilty of harassment and sentenced to jail time and probation, and because the conduct underlying his conviction included an act of domestic violence, he was ordered to complete domestic violence treatment.

On appeal, Heisler contended that the trial court erred by admitting into evidence the text messages he sent to the victim because they were not properly authenticated under CRE 901(a). Here, the prosecution introduced printouts of the text messages, and the victim testified that they accurately reflected the texts she received, she recognized the number as being Heisler’s and had used that number to communicate with him, and she recognized the content of the text messages as being from Heisler. In addition, the content of the text messages included corroborative evidence that they came from Heisler. Accordingly, the text messages were properly authenticated and it was not error to admit them into evidence.

Heisler also contended that the domestic violence sentencing statute, C.R.S. § 18-6-801(1)(a), is facially violative of his constitutional right to a jury trial under the Sixth Amendment to the U.S. Constitution. He argued that the statute improperly authorizes the trial court to make a factual determination that the underlying crime of conviction included an act of domestic violence and unconstitutionally imposes a mandatory penalty (domestic violence treatment) above the minimum of the presumptive sentencing range (here, a $50 fine). He further contended that the trial court should have instructed the jury to determine whether his offense included an act of domestic violence and erred in denying his request for that instruction. C.R.S. § 18-6-801(1) allows a trial court to make a factual finding that the defendant’s underlying criminal conviction included an act of domestic violence. Court-ordered domestic violence treatment is not a form of punishment, and the statute does not mandate a penalty. The court did not err in denying Heisler’s request for a jury instruction. No Sixth Amendment violation occurred.

The judgment and sentence were affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 5/11/2017

On Thursday, May 11, 2017, the Colorado Court of Appeals issued no published opinion and 39 unpublished opinions.

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