August 17, 2017

Archives for July 20, 2017

Can Money Buy Lawyer Happiness?

I thought the answer might be yes. Why? Because a few years back I blogged about the 2013 Colorado Supreme Court Lawyer Satisfaction and Salary Survey, which showed that, although 2/3’s of Colorado lawyers didn’t like their jobs enough to recommend them to someone else, at least they liked the money. And because a widely-cited study published the following year found that people in wealthier countries are happier than people in poorer countries. Put those two together, and maybe lawyers might say they’re happy overall, despite their job dissatisfaction.

I was wrong. I went several pages into the results of several Google searches and found nothing about happy lawyers or what makes them so. Happiness isn’t bad news, so maybe it doesn’t get reported, but still… why the long faces? More Google searches turned up a LegalCheek.com poll conducted in Great Britain the day after Theresa May gave the required notice of Great Britain’s withdrawal from the European Union. It reported that 70% of British lawyers weren’t happy about Brexit. But that doesn’t really count, does it?

The Happy Lawyer: Making a Good Life in the Law (2010) by law professors Nancy Levit and Douglas O. Linder had a promising title, but then, after an extensive review of the literature on lawyer happiness, the authors concluded that “[M]oney is the root of virtually everything that lawyers don’t like about their profession: the long hours, the commercialization, the tremendous pressure to attract and retain clients the fiercely competitive marketplace, the lack of collegiality and loyalty among partners, the poor public image of the profession, and even the lack of civility.”

So… money doesn’t just fail to make lawyers happy, it actually makes them unhappy. Hmmm.

Money certainly doesn’t make associates happy, even though 2016 saw associate salaries leap to new heights – at least in the world of BigLaw. In fact, the position of associate attorney came in rock bottom in a 2013 CareerBliss survey of not just lawyers, but 65,000 employees of all kinds. Forbes, “The Happiest And Unhappiest Jobs In America,” March 22, 2013. (Here’s Above the Law’s take on that story.)

A couple years after the CareerBliss poll, the Dean of Pepperdine Law School countered that well, there at least some happy associates. Go ahead — guess who they were — answer below.

If money doesn’t make lawyers happy, then what does? Earlier this year, Global Financial (“Financing Justice”) reported survey results by Robert Half Legal that a business casual dress policy helps lawyers deal with stress. Not quite the same as making lawyers happy.

Seriously? Business casual is the best we can do?

An August 2016 Above the Law article had a promising title — Why Are Lawyers So Happy? — but it turned out to be a tongue-in-cheek response to an earlier article by Jeena Cho, author of The Anxious Lawyer, all-around great person and reigning Goddess of Mindfulness in the Marketplace. (I’ve met Jeena, and she would be horrified at me giving her that title, but I do it with a smile, and besides, I think it’s true.) Both articles were written in response to a survey conducted by the ABA and the Betty Ford Foundation, which Forbes reported in an article whose title tells you everything you need to know:  “Study Indicates Lawyers Struggling With Substance Use And Other Mental Health Issues,” July 30, 2016.

No, money doesn’t buy lawyer happiness — according to pollsters anyway. Of course some lawyers are happy — with the money, their work, and maybe even life in general. I hope that’s you, and I hope you know lots of people like you. As for the rest, it’s hard to be happy about much of anything when you don’t like your work.

We’ll keep following the thread of money and happiness next time, to see what else we can learn from it. In the meantime, here’s your answer: Who are the happiest associates?  Tax lawyers.

Kevin Rhodes left a successful long-term law practice to scratch a creative itch and lived to tell about it… barely. Since then, he has been on a mission to bring professional excellence and personal wellbeing to the people who learn, teach, and practice the law. He has also blogged extensively and written several books about his unique journey to wellness, including how he deals with primary progressive MS through an aggressive regime of exercise, diet, and mental conditioning.

Colorado Court of Appeals: Consent Not Available as Affirmative Defense to Violation of Protection Order

The Colorado Court of Appeals issued its opinion in Hotsenpiller v. Hon. Bennet A. Morris on Thursday, July 13, 2017.

C.R.C.P. 106(a)(4)—Affirmative Defense of Consent—C.R.S. § 18-1-505.

J.C. obtained a temporary civil protection order (CPO), issued on JDF 399, against her ex-boyfriend Hartsuff. The county court made the CPO permanent in 2015. Among other things, the CPO states that it does not expire and only the court can change it. It prohibits contact of any kind and includes a notice to the protected person that she cannot give the restrained person permission to change or ignore the order. The restrained person is similarly notified that if he violates the order because he believes the protected person has given permission, he is wrong and can be arrested and prosecuted.

J.C. called the police and stated Hartsuff was on her front porch threatening her. In addition, J.C. showed the responding officer text messages and logs of phone calls from Hartsuff over the previous two days. Hartsuff was charged with harassment and violation of a protection order, both as acts of domestic violence.

Hartsuff raised the affirmative defense of consent, which the trial court allowed. The district attorney sought judicial review pursuant to C.R.C.P. 106(a)(4), contending that the harm sought to be prevented by the CPO statute is broader than simply contact between the protected and restrained persons and includes preserving the integrity of a court order and preventing domestic violence. The district court found no abuse of discretion and remanded to proceed with trial. The district attorney appealed. The sole issue on appeal was whether the affirmative defense of consent as defined in C.R.S. § 18-1-505 is available to a defendant who is criminally charged with violating a CPO.

The court of appeals considered the entire statutory scheme relating to the offense of a violation of a protective order to give effect and meaning to all its parts. Under C.R.S. § 18-1-505, the defense of consent of the victim is not available to any crime unless “the consent negatives an element of the offense or precludes the infliction of the harm or evil sought to be prevented by the law defining the offense.” The court found the “harm or evil” clause ambiguous and unclear. It therefore examined the legislative history, consequences of a given construction, and goals of the relevant statutes. Following an extensive analysis, the court concluded it was error as a matter of law to allow the affirmative defense of consent for the crime of violation of a protection order.

The order was reversed and the case was remanded to the county court with instructions to preclude Hartsuff from asserting consent as an affirmative defense to the violation of a protection order charge.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Withdrawal of Charge by DHS Does Not Constitute Final, Appealable Order

The Colorado Court of Appeals issued its opinion in People in Interest of C.S. on Thursday, July 13, 2017.

Dependency and Neglect—Expungement—Lack of Jurisdiction.

The Weld County Department of Human Services (Department) filed a motion with the juvenile court to dismiss a dependency and neglect petition involving C.S. Father agreed to the dismissal but requested expungement of administrative findings of child abuse made against him by the Department. The court dismissed the case and denied father’s request, finding that father could obtain due process through an administrative hearing.

On appeal, father argued that the juvenile court denied him a fundamentally fair proceeding when it dismissed the case without also ensuring the expungement of the administrative child abuse filing that led to the filing of the case. The court of appeals concluded that the juvenile court lacks authority to order expungement of child abuse and neglect records and reports, and the court’s order granting the parties’ voluntary dismissal of the petition is not final and appealable. The court does not have jurisdiction to hear the appeal.

The appeal was dismissed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Defendant Not Entitled to Bond in Probation Revocation Case

The Colorado Court of Appeals issued its opinion in People v. Johnson on Thursday, July 13, 2017.

Setting Bond—Persons Charged with Felonies Awaiting Trial—Persons Who Plead Guilty to Felonies and Are Awaiting Trial.

While Johnson was serving probation in a criminal impersonation case and deferred judgment in a menacing case, he was charged with, among other things, felony murder and robbery. Johnson was arrested, jailed, and held without bond in the latter case pending his combined preliminary hearing and bond hearing. After Johnson’s arrest in the murder case, the prosecution filed motions to revoke his deferred judgment in the menacing case and his probation in the criminal impersonation case based on the offenses charged in the murder case. The revocation court issued an arrest warrant in the menacing and criminal impersonation cases because of allegations that he had not complied with the terms of his probation. The trial court set bond in the murder case. Later the revocation court held a hearing to determine whether it would grant Johnson’s request for bond in the menacing and criminal impersonation cases. The revocation court denied these requests, drawing a distinction between these cases and the pending murder case based on the fact that the murder case was preconviction and the other cases were postconviction.

On appeal, Johnson asserted that the revocation court was “constitutionally required” to set bond in the menacing case and the criminal impersonation case and abused its discretion when it refused to set bond, with the result that Johnson is being unconstitutionally held without bond. He asserted that the motions to revoke in the menacing case and the criminal impersonation case are “new charges” for which he has a right to bond because he has not yet been “convicted” of them. The court of appeals considered whether the same set of rules governs a court’s decision to set bond in two categories of cases: cases in which bond is set for persons who have been charged with felonies and are awaiting trial, and cases in which defendants have pleaded guilty to felonies, courts have sentenced them to probation or placed them on deferred judgments, and the prosecution then files motions to revoke the probation or deferred judgments. The court decided that the same set of rules does not apply because (1) defendants in the first category are presumed to be innocent, but defendants in the second category have admitted their guilt and are not therefore entitled to many of the fundamental rights that those in the first category enjoy. In addition, probation revocation and revocation of deferred judgment proceedings are focused on whether the sentences that courts originally imposed are still appropriate; and (2) Colorado’s constitution and the pertinent bond statutes recognize the separation between the two categories. In the first, the law requires courts to set bond for defendants who await trial, subject only to a few clearly delineated exceptions. In the second, the law gives discretion to set bond.

Here, the court concluded that Johnson’s criminal impersonation and menacing cases fell into the second category; the revocation court therefore had discretion to deny his request for bond in those cases; and the court did not abuse its discretion when it denied his request for bond because the record supported its decision.

The appeal was dismissed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 7/19/2017

On Wednesday, July 19, 2017, the Tenth Circuit Court of Appeals issued one published opinion and seven unpublished opinions.

Harris v. Cozza-Rhodes

Coburn v. Wilkinson

Pledger v. Russell

Robles v. United States

Jimenez v. Allbaugh

Northern New Mexicans Protecting Land v. United States

United States v. Lopez

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