November 22, 2017

Archives for August 17, 2017

But Isn’t Legal Work Essential?

“The most common complaint expressed within the legal profession
is a lack of meaning or sense of fulfillment from work.”

The above quote is from an article published by the Lawyers Assistance Program of British Columbia. But how can anyone think their work in the law lacks meaning? I mean, the law is essential to the functioning of society, isn’t it? Yes, but apparently essential doesn’t count for much in the pursuit of meaning.

Andrew Russel, Dean and Professor in the College of Arts & Sciences at SUNY Polytechnic Institute in Utica, New York, says this in his Aeon Magazine article, “Hail the Maintainers: Capitalism excels at innovation but is failing at maintenance, and for most lives it is maintenance that matters more” (April 7, 2016):

Innovation is a dominant ideology of our era . . . As the pursuit of innovation has inspired technologists and capitalists, it has also provoked critics who suspect that the peddlers of innovation radically overvalue innovation. What happens after innovation, they argue, is more important. Maintenance and repair, the building of infrastructures, the mundane labour that goes into sustaining functioning and efficient infrastructures, simply has more impact on people’s daily lives than the vast majority of technological innovations.

Maybe so, but the maintainers themselves aren’t buying their own importance. This Huffington Post article from May 11, 2017, reported a study by Britain’s Office of National Statistics that found that workers in “maintainer” jobs — manual labor, construction, building trades, processing plants, factories, agriculture — had the highest rates of suicide in the U.K. A 2016 Center for Disease Control and Prevention study reported similar results in the U.S., with rates highest among lumberjacks, farmworkers, fishermen, carpenters, miners, electricians, construction trades, factory and production workers, and others who build, install, maintain, and repair things.

Other noteworthy findings of both studies were that suicide rates were three times higher among men than women; the highest female suicide rate was among police, firefighters and corrections officers; the second highest female suicide rate was in the legal profession; and among the professions, lawyer suicides were in third place after doctors and dentists.

The CDC study speculated that the principle causes behind these statistics include job-related isolation and demands, stressful work environments, and work-home imbalance, all of which are endemic in the legal profession. The British Columbia LAP piece quoted above states flatly that:

From a health perspective it is unhealthy to do meaningless, unchallenging, uncreative work, especially for those that are intelligent and well trained.

The article reports that a sense of meaningless is expressed differently by older vs. younger lawyers:

[A sense of meaningless about their work] is stated more directly by older practitioners as boredom, lack of job satisfaction, just getting through each day, turning out work without time to contemplate, turning out product for clients like a machine, and lack of connection to clients, which is often expressed as lack of client loyalty. Legal professionalism has been eroded by the need for volume, speed and uniformity of work product.

The younger practitioners . . . ask, “What good am I doing?” They express a lack of control over work or life. They worry about the demands of clients, and that there is little opportunity for them to utilize creative thinking. They also ask if they can have a life and practice law. . . . [T]hey do not get a sense of fulfillment from practicing law. They do not get a sense of meaning from it and it seems to be valueless.

We’ve been looking at books, articles, surveys, and academic research from business, academia, the professional world, and even the United Nations. All agree that meaningless malaise in the workplace is worldwide and afflicts both men and women across a full range of occupations from the “maintainers” to professionals. Money doesn’t help, neither does living in a “happy,” first world country. Striving after wealth and income growth only makes things worse. Meanwhile, rates of self-destruction are alarmingly on the rise, especially in this century.

More next time.

 

Kevin Rhodes is on a mission to bring professional excellence and personal wellbeing to the people who learn, teach, and practice the law. His past blog posts for the CBA have been collected in two volumes — click the book covers for more information.

Colorado Court of Appeals: Announcement Sheet, 8/17/2017

On Thursday, June 17, 2017, 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.

Colorado Court of Appeals: District Court Properly Denied Attorney Fees to Non-prevailing Party

The Colorado Court of Appeals issued its opinion in Klein v. Tiburon Development, LLC on Thursday, August 10, 2017.

Attorney Fees—Fee-Shifting Provision—Contract—Violation of Public Policy—Substantial Justification.

Following remand, the district court denied the Kleins’ request for attorney fees and costs pursuant to a line of credit agreement (LOC) between them and Tiburon Development LLC (Tiburon). The district court granted Tiburon’s and Sell’s (a member of Tiburon) motions for attorney fees and costs.

On appeal, the Kleins contended that the district court erroneously denied their request for attorney fees pursuant to the fee-shifting provision of the LOC. However, enforcing  and awarding the Kleins their attorney fees and costs pursuant to the LOC would violate public policy because the Kleins lost the predominant and only contested part of the LOC claim, and they had only nominal success on the secondary and uncontested issue of entitlement to interest on the LOC. It would have been an abuse of discretion to conclude that the Kleins were the prevailing party on the LOC claim. Further, the Kleins were sanctioned for their conduct during the litigation and ordered to pay all of Tiburon’s attorney fees.

The Kleins next contended that the district court erred in awarding Sell the attorney fees he incurred in seeking an award of fees because Sell failed to carry his burden to prove that the Kleins’ defense to his fees motion lacked substantial justification, and the district court never found that the Kleins’ defense was frivolous. An award of fees incurred in seeking fees under C.R.S. § 13-17-102 must be supported by a determination in the record that the sanctioned party’s defense to the fees motion lacked substantial justification. Because the record in this case does not support that finding, the district court erred in including in its fee award the fees Sell incurred in pursuing his motion for fees.

The Kleins further contended that the district court’s award of fees to Sell unreasonably included fees Sell incurred to respond to the Kleins’ C.R.C.P. 59 motion, which they asserted was not relevant to their claims against Sell. It was not an abuse of discretion for the district court to award Sell the attorney fees he incurred to respond to the Kleins’ C.R.C.P. 59 motion, and the decision was supported by findings in the record.

The judgments denying an award of attorney fees and costs to the Kleins and awarding Sell the attorney fees he incurred to respond to the Kleins’ C.R.C.P. 59 motion were affirmed. The judgment was reversed insofar as the court awarded Sell the attorney fees he incurred in seeking fees against the Kleins, and the case was remanded for the district court to subtract the amount of such fees from the award.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Multiple Counts of Identity Theft Proper for Multiple Instances with Same Victim

The Colorado Court of Appeals issued its opinion in People v. Allman on Thursday, August 10, 2017.

Identity Theft—Forgery—Theft from an At-Risk Adult—Merger—Sentence—Concurrent—Probation.

Using an alias, Allman presented himself to the victim as a businessman who had recently moved from Washington to Colorado. Allman moved into the victim’s basement, gained her trust, and when the victim left on vacation, Allman accessed the victim’s bank accounts and stole money from them. Allman also opened several credit cards in the victim’s name, moved out of her home, took her car, and obtained over $40,000 of credit in her name. Allman was convicted of eight counts of identity theft, two counts of forgery, one count of aggravated motor vehicle theft, and one count of theft from an at-risk adult. He was sentenced consecutively for some counts and concurrently for others.

On appeal, Allman argued that the convictions for identity theft are unconstitutionally multiplicitous and must merge into one conviction and sentence for that offense because identity theft is a continuing crime where, as here, the identity of only one victim has been stolen. The Colorado Court of Appeals concluded that the crime of identity theft under C.R.S. § 18-5-902(1)(a) is not a continuing course of conduct and, therefore, each discrete act of identity theft under that subsection is a separately chargeable offense.

Allman also appealed a number of sentencing issues. He first contended that his sentences for the identity theft counts should merge. The court rejected this argument based on its finding that identity theft is not a continuing crime. Second, Allman alternatively contended that the identity theft sentences should run concurrently because they are based on identical evidence. Because Allman’s eight convictions for identity theft were based on factually distinct evidence, the trial court was not required to impose concurrent sentences. Third, he argued that his sentence for two counts of forgery should run concurrently to each other and to one of his sentences for identity theft because he used the same credit card for all three offenses. The record is clear that neither forgery offense is factually identical to the other, nor is either of them factually identical to the identity theft count. Thus the trial court was not required to impose concurrent sentences for these offenses. Fourth, Allman argued that he was illegally sentenced to both the custody of the Department of Corrections and probation. Where, as here, a court sentences a defendant for multiple offenses in the same case, it may, within its discretion and subject to statutory limitations, impose imprisonment for certain offenses and probation for others, including probation consecutively to a period of incarceration. Fifth, Allman contended that his sentence for theft from an at-risk adult should run concurrently to his other sentences because the jury was not required to make a specific finding regarding exactly what Allman stole from the victim as the basis for that count. Under the circumstances of this case, the sentencing court was not required to order a concurrent sentence for the theft conviction.

The judgment and sentence were affirmed.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 8/16/2017

On Wednesday, August 16, 2017, the Tenth Circuit Court of Appeals issued no published opinion and nine unpublished opinions.

United States v. Pacheco-Soto

Webb v. Thompson

Arp v. McCollum

Harper v. Guthrie

United States v. Nevarez-Barela

Leatherwood v. Rios

GCIU-Employer Retirement Fund v. Coleridge Fine Arts

Cain v. Frawner

Carbajal v. O’Neill

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