June 24, 2018

Archives for February 2018

Interview with Jason St. Julien: Former History Teacher, Current Assistant United States Attorney, Devoted Mentor

Editor’s Note: In honor of Black History Month, Mary Dilworth, CBA-CLE’s Marketing Manager, is conducting a series of interviews of some of our distinguished faculty and authors. Click here for the previous post.

Colorado Bar Association CLE (CBA-CLE) continues the interview series with some of our African-American faculty and authors. Our hope is that this series is able to inspire others by sharing the journey and achievements of these successful attorneys.

Jason St. Julien, a CBA-CLE faculty member, is a charismatic, engaging, and driven attorney who hails from St. Martinville, Louisiana. Currently an Assistant United States Attorney in Denver, he works in the Major Crimes Section of the Criminal Division. Prior to becoming an Assistant United States Attorney, Jason served as a Judicial Law Clerk to the Honorable Mary Ann Vial Lemmon, Senior Judge in the United States District Court for the Eastern District of Louisiana and the Honorable Wiley Y. Daniel, Senior Judge in the United States District Court for the District of Colorado.

Jason strives to affect positive change in the human condition each day. Prior to attending law school, Jason taught 7th Grade Reading and Texas History in Pearland, Texas where he was named New Teacher of the Year in Secondary Education. He continues his devotion to youth by serving as a mentor/facilitator with Denver Urban Scholars (formerly Colorado Youth at Risk). Jason is a graduate of the Urban Leadership Foundation of Colorado’s 2014 Chamber Connect Leadership Program and the Colorado Bar Association’s 2017 Leadership Training class. He is also the immediate past President of the Sam Cary Bar Association.

What inspired you to become an attorney? My cousin is a patent attorney in Houston, Texas. While I taught 7th grade in Pearland, a suburb of Houston, we discussed a possible career in law. I chose law school over pursuing a Ph.D. in psychology because I believed a J.D. would open more doors. My choice panned out well. Law brought me to Colorado in 2012 and my world is a bigger place because of my experiences here in Denver.

What do you enjoy about the practice of law? As a criminal prosecutor, I know that I affect positive change every day. I know with absolute certainty that what I do makes a difference in the lives of Colorado’s citizens. I have my hand on the pulse of something much greater than myself. For that, I am thankful.

What historical black figure do you admire? Harriet Tubman

What about someone from today who inspires you? President Obama

Favorite Book? The Alchemist by Paulo Coelho

Favorite Movie? Star Wars: A New Hope. Return of the Jedi is a close second.

What do you do in your spare time for fun (if there is any spare time!) I am on my Harley Davidson Road King any time the weather permits! I usually purchase a season ticket package for the Colorado Symphony and get out to listen to live jazz music. And there is never a bad time for a good book.

What advice would you give to new attorneys? Whatever you “think” is happening or going on, it is not that serious. Really, it’s not. Find your advancement in the advancement of others and you will become your firm’s most valuable asset.

Colorado Court of Appeals: District Court had Personal Jurisdiction over Out of State Client in Legal Fee Dispute

The Colorado Court of Appeals issued its opinion in Dorsey & Whitney LLP v. RegScan, Inc. on Thursday, February 22, 2018.

Attorney Fees—Personal Jurisdiction—Long Arm Statute—Due Process—Expert Witness—Fed. R. Evid. 703—Jury Instructions—CRE 408—Settlement Negotiations—Evidence.

RegScan, Inc., a Pennsylvania-based Internet company, reached out to and retained a specific Colorado attorney in Dorsey & Whitney LLP (the law firm) to represent it in a matter ultimately filed in Virginia. After a disagreement about the amount of fees owed, the law firm sued RegScan in Denver District Court. Judgment was ultimately entered for $373,707.43 against RegScan.

On appeal, RegScan argued that the district court lacked personal jurisdiction. It contended that its actions connecting it to Colorado did not demonstrate purposeful availment because it merely contacted a Minnesota-based firm that happened to staff the case with Colorado attorneys. A plaintiff desiring to invoke a Colorado court’s jurisdiction over a nonresident defendant must show that doing so comports with the long-arm statute and due process. Here, RegScan specifically retained an attorney in Colorado based on an existing relationship. The totality of the circumstances surrounding this retention demonstrates that RegScan’s purposeful activities directed at Colorado satisfy the minimum contacts requirement. Further, requiring RegScan to defend this case in Colorado was not unreasonable. Therefore, the district court did not err in denying RegScan’s motion to dismiss for lack of personal jurisdiction.

RegScan next contended that the court erred by allowing the law firm’s expert witness on the reasonableness of its fees to testify to the substance of information in pro forma bills (records reflecting the total number of hours worked) that the law firm didn’t offer into evidence. Fed. R. Evid. 703 allows an expert to base his opinion on facts or data that wouldn’t be admissible if such facts and data are of a type on which experts in the field would reasonably rely. But the expert may not disclose those inadmissible facts to the jury unless the court so allows after engaging in the balancing analysis required by the rule. RegScan’s argument confuses information that can’t be admitted under the evidence rules with information that simply has not been admitted. Here, RegScan failed to timely argue that the pro formas weren’t admissible. Further, the substance of the testimony was already in evidence, and RegScan did not argue that the witness’s ultimate opinion was inadmissible or wrong. Therefore, there was no violation of Fed. R. Evid. 703.

RegScan also contended that the district court erred by failing to include a fairness element in the elemental breach of contract jury instruction. Even if the court erred in omitting the element that the fee agreement was “fair and reasonable under the circumstances,” all relevant evidence in the record overwhelmingly shows that the fee agreement was fair and reasonable under the circumstances. Thus, any error was harmless.

Finally, RegScan argued that the district court erred by relying on CRE 408 to exclude email communications in which RegScan disputed the reasonableness of the law firm’s fees and didn’t admit liability. This evidence was properly excluded under CRE 408 because at the time the communications occurred the parties disputed the amount owed and were exchanging offers to resolve the dispute.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Defendant Must be Prosecuted Under Specific Statute for Theft of Food Stamps

The Colorado Court of Appeals issued its opinion in People v. Rojas on Thursday, February 22, 2018.

Criminal Law—Theft—Colorado Public Assistance Act—Food Stamps—Fraudulent Acts.

Rojas received food stamps. When requesting an extension of food stamp benefits, Rojas reported that she had no employment income, although she had been hired as a restaurant manager. While continuing to work as a restaurant manager, Rojas received $5,632 worth of food stamps to which she was not entitled. Rojas was found guilty of two counts under the general theft statute, CRS 18-4-401, and one count under CRS 26-2-305(1)(a), which criminalizes failing to report a change in financial circumstances that affects that participant’s eligibility for food stamps.

On appeal, Rojas challenged the trial court’s denial of her motion to dismiss the general theft counts. She argued that the trial court erred in finding that she could be prosecuted for theft of food stamps under the general theft statute. The prosecution is barred from prosecuting under a general criminal statute when the legislature evinces a clear intent to limit prosecution to a more specific statute. CRS 26-2-305(1)(a) creates a more specific criminal offense, theft of food stamps by a fraudulent act, than the general theft statute, and the General Assembly intended it to supplant the general theft statute.

The convictions under the general theft statute were vacated.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 2/27/2018

On Tuesday, February 27, 2018, the Tenth Circuit Court of Appeals issued four published opinions and three unpublished opinions.

United States v. Bouziden

Winston v. Ross

United States v. Ramos

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

Proactively Manage the Financial Risks of Ethics Violations

By Karen A. Hammer, Esq., LL.M.[1]

Many business people say, “if you can’t work harder, then work smarter.” They focus on increasing profitability by either increasing revenue (while holding down costs) or decreasing costs (even when revenues are level). Even if you cannot increase your gross revenue, you can most likely decrease costs by proactively managing foreseeable risks.

OARC’s Lawyer Self-Assessment Program provides tools to help lawyers work smarter by anticipating and managing risk.

Why I’m a Fan of Self-assessment

When fielding calls for the Colorado Bar Association’s Ethics Hotline, I talk to some lawyers who don’t know how to evaluate and manage ethics risks. Attendees at ethics CLE I teach sometimes incorrectly assume ethics rules are merely “aspirational.” Those lawyers who treat ethics rules as “aspirational” still face ethics risks, but are blind to opportunities to manage those risks.

These misunderstandings exist among all experience levels and across practice areas.

That’s why I enthusiastically answered Attorney Regulation Counsel Jim Coyle’s request to join a Supreme Court subcommittee on proactively managing ethics risks. In late October 2017, Colorado’s OARC rolled out the first-in-the-nation ethics self-assessment program for lawyers to voluntarily and confidentially evaluate risks.

Understanding Risk

Transactional lawyers often help clients manage risk – parties voluntarily apportion certain risks contractually. Litigators routinely help their clients influence who bears the cost when the risk of harm has “blossomed” into actual or perceived damage to private or public interests protected by law.

Lawyers traditionally consider themselves the ones who give advice, but maybe we could learn from the impact on our clients – and on our colleagues – of inadequate risk management.

What is Risk Management?

Some learned as youngsters to look both ways before crossing the street so that we don’t walk into oncoming traffic. That may have been our first risk management lesson.

OARC Self-Assessment Program

The self-assessment tool identifies ten select areas where lawyers can manage the risks of the substantive and practical aspects of the business of law:

  1. Developing competent practices
  2. Communicating in an effective, timely, professional manner
  3. Ensuring the confidentiality requirements are met
  4. Avoiding conflicts of interest
  5. File management, security, and retention
  6. Managing the law firm/legal entity and staff appropriately
  7. Charging appropriate fees and making appropriate disbursements
  8. Ensuring that reliable trust account practices are in use
  9. Access to justice and client development
  10. Wellness and inclusivity

Each module includes thought-provoking questions and resources to help us work smarter. After completion of each online module, the lawyer can receive an analytical report.

Confidentiality

OARC actively designed the tool so that lawyers can honestly participate in self-assessments without revealing to others weak spots in their practice or ethics compliance. More information is available online.

Liability Insurance is Not the Only Risk Management Tool

Violations of the external standards imposed on us as lawyers and as civilians can be expensive and cause reputational damage. To manage that risk, many lawyers purchase liability insurance.

If you have professional liability coverage, check your policy to determine the size of your deductible for your defense. Now make a list of the things you could spend your deductible amount on that would be more rewarding, interesting, or satisfying than defending against risks that could have been proactively managed and/or mitigated.

Read your policy thoroughly to determine other essential terms. For example, your policy may not cover illegal acts.

Lawyers should know better than anyone how much time goes into defense against claims – that time could be used for more productive or enjoyable purposes. Ultimately, wouldn’t you rather make proactive decisions about where you spend your time and money?

One Example

Here’s a specific self-assessment example from the Competent Practice Working Group (Cori Peterson (Office of the Presiding Disciplinary Judge), David Wollins (David H. Wollins, P.C.) and me).

Many competence questions help lawyers identify weaknesses and strengths in our own substantive areas of practice. But the self-assessment also prompts lawyers to identify circumstances we might not otherwise anticipate that could undermine competence.

Competence Objective 1 is “Ensure you have the legal knowledge and education to handle all new matters.” That seems straightforward at first blush.

Then the tool provides a series of best practices for you to consider, including Best Practice 1.3: “Assess whether you are familiar with the factual context and subject matter of cases you take” (emphasis added).

After each objective, the online tool refers to some relevant Colorado Rules of Professional Conduct. For competence Objective 1, the tool also cites to “In re Shipley, 135 S. Ct. 1589-90 (2015) (a lawyer cannot delegate the duty of competence to a client).”

Going deeper, Objective 3 assesses whether you have the necessary resources to competently handle matters. Best Practice 3.5 prompts you to “Ensure your fees are adequate to support developing both the factual bases and the legal aspects of the matters you undertake.” You are then referred to “C.R.C.P. 11 (‘the signature of an attorney constitutes a certificate that he has read the pleading; that to the best of his knowledge, information, and belief formed after reasonable inquiry, is well-grounded in fact . . . .’).”

Rule 11 violations create financial risks; but, even without Rule 11 sanctions, ethics rules make false Rule 11 certifications potential discipline risks. Similarly, transactional lawyers also face external standards of care, such as securities laws governing legal opinions lawyers provide to investors and financial rating agencies to evaluate a potential investment. Insufficient due diligence creates direct financial risk under securities laws, and indirect financial risks from the professional disciplinary process.

OARC investigations can be triggered by request. Investigations can be uncomfortable, time-consuming, and potentially expensive, regardless of whether discipline follows.

Unlikely? Remember Boulder’s 1,000-year rain? In retrospect, well-maintained sump pumps weren’t “aspirational.”

Your Annual Check-up

OARC’s self-assessment is like your annual physical to gauge your medical condition or the financial snapshot your annual taxes provide. Why not click on the self-assessment link while renewing your annual attorney registration? http://coloradosupremecourt.com/AboutUs/LawyerSelfAssessmentProgram.asp

Upcoming CLE

On March 8, 2018, the Boulder County Bar Association will host its first CLE on OARC’s Lawyer Self-Assessment Program, “Sharpen Up: The Lawyer Self-Assessment.” For more information, click here.[2]

CBA-CLE hosted a program on the OARC’s Proactive Management-Based Program in December, “Proactive Practices: Maintaining Competence and Wellness in the Practice of Law.” To order the homestudy, click here: Video OnDemandMP3 Audio Download.


[1] Thanks to fellow Proactive Management-Based Program subcommittee member, Barbara K. Brown, Ph.D., for her insightful comments on this article.

[2] This article was updated on February 21, 2018 from the version initially published in the Boulder County Bar Association February e-newsletter to reflect more detailed information on the March 8, 2018 CLE.

 

Karen Hammer is the principal of Hammer-Law. Hammer is a member of the Boulder County Bar Association. She can be reached at hammer@hammer-law.comHammer has handled over two billion dollars of complex financial transactions involving businesses, government agencies, and quasi-governmental entities. She also does related types of litigation. A member of the CBA’s Professionalism Coordinating Council, Hammer is also co-Secretary of the CBA’s Ethics Committee. Hammer is a Hearing Panel board member for attorney discipline cases. She was Chair of the D.C. Bar’s Real Estate, Housing, and Land Use Section and an appointee to the White House and Congressional Commission on Character Building in Education.

 

Tenth Circuit: Unpublished Opinions, 2/26/2018

On Monday, February 26, 2018, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.

Hudson v. Kroll

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

Tenth Circuit: Unpublished Opinions, 2/23/2018

On Friday, February 23, 2018, the Tenth Circuit Court of Appeals issued three published opinions and one unpublished opinion.

United States v. McDaniel

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

Rule Change 2018(03) Amends Colorado Rules of Professional Conduct

On Thursday, February 22, 2018, the Colorado Supreme Court issued Rule Change 2018(03), amending the Colorado Rules of Professional Conduct. Rule 5.4, “Professional Independence of a Lawyer,” and Rule 7.3, “Solicitation of Clients,” were amended in this rule change.

Rule 5.4(d) and (e) were amended to add the phrase, “that is authorized to practice law for a profit,” as follows:

(d) A lawyer shall not practice with or in the form of a professional company that is authorized to practice law for a profit, if:

* * *

(e) A lawyer shall not practice with or in the form of a professional company that is authorized to practice law for a profit except in compliance with C.R.C.P. 265.

Rule 7.3(c)(1) was amended to correct a typo, as follows:

(1) no such communication may be made if the lawyer knows or reasonably should know that the person to whom the communication is directed is represented resented by a lawyer in the matter; and

For a redline and clean version of Rule Change 2018(03), click here. For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

Income Eligibility Guidelines Updated; Several CJDs Affected

On Thursday, February 22, 2018, the Colorado State Judicial Branch released revisions to the Income Eligibility Guidelines. Several Chief Justice Directives were affected by these revisions:

  • CJD 98-01 – “Costs for Indigent Persons in Civil Matters”
  • CJD 04-04 – “Appointment of State-Funded Counsel in Criminal Cases and for Contempt of Court”
  • CJD 04-05 – “Appointment and Payment Procedures for Court-appointed Counsel, Guardians ad litem, Child and Family Investigators, and Court Visitors paid by the Judicial Department in proceedings under Titles 12, 13, 14, 15, 19 (special respondents in dependency and neglect only), 22, 25.5, and 27, C.R.S.”
  • CJD 04-06 – “Court Appointments Through the Office of the Child’s Representative”
  • CJD 14-01 – “Appointment of State-Funded Counsel in Juvenile Delinquency Cases”
  • CJD 16-02 – “Court Appointments Through the Office of Respondent Parents’ Counsel”

All of the Colorado Supreme Court’s Chief Justice Directives can be accessed here.

Tenth Circuit: Unpublished Opinions, 2/22/2018

On Thursday, February 22, 2018, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.

United States v. Stevens

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

Gonna Be a Bright, Bright, Sunshiny Day

We met Sebastian Thrun last time. He’s a bright guy with a sunshiny disposition: he’s not worried about robots and artificial intelligence taking over all the good jobs, even his own. Instead, he’s perfectly okay if technology eliminates most of what he does every day because he believes human ingenuity will fill the vacuum with something better. This is from his conversation with TED curator Chris Anderson:

If I look at my own job as a CEO, I would say 90 percent of my work is repetitive, I don’t enjoy it, I spend about four hours per day on stupid, repetitive email. And I’m burning to have something that helps me get rid of this. Why? Because I believe all of us are insanely creative . . . What this will empower is to turn this creativity into action.

We’ve unleashed this amazing creativity by de-slaving us from farming and later, of course, from factory work and have invented so many things. It’s going to be even better, in my opinion. And there’s going to be great side effects. One of the side effects will be that things like food and medical supply and education and shelter and transportation will all become much more affordable to all of us, not just the rich people.

Anderson sums it up this way:

So the jobs that are getting lost, in a way, even though it’s going to be painful, humans are capable of more than those jobs. This is the dream. The dream is that humans can rise to just a new level of empowerment and discovery. That’s the dream.

Another bright guy with a sunshiny disposition is David Lee, Vice President of Innovation and the Strategic Enterprise Fund for UPS. He, too, shares the dream that technology will turn human creativity loose on a whole new kind of working world. Here’s his TED talk (click the image):

Like Sebastian Thrun, he’s no Pollyanna: he understands that yes, technology threatens jobs:

There’s a lot of valid concern these days that our technology is getting so smart that we’ve put ourselves on the path to a jobless future. And I think the example of a self-driving car is actually the easiest one to see. So these are going to be fantastic for all kinds of different reasons. But did you know that “driver” is actually the most common job in 29 of the 50 US states? What’s going to happen to these jobs when we’re no longer driving our cars or cooking our food or even diagnosing our own diseases?

Well, a recent study from Forrester Research goes so far to predict that 25 million jobs might disappear over the next 10 years. To put that in perspective, that’s three times as many jobs lost in the aftermath of the financial crisis. And it’s not just blue-collar jobs that are at risk. On Wall Street and across Silicon Valley, we are seeing tremendous gains in the quality of analysis and decision-making because of machine learning. So even the smartest, highest-paid people will be affected by this change.

What’s clear is that no matter what your job is, at least some, if not all of your work, is going to be done by a robot or software in the next few years.

But that’s not the end of the story. Like Thrun, he believes that the rise of the robots will clear the way for unprecedented levels of human creativity — provided we move fast:

The good news is that we have faced down and recovered two mass extinctions of jobs before. From 1870 to 1970, the percent of American workers based on farms fell by 90 percent, and then again from 1950 to 2010, the percent of Americans working in factories fell by 75 percent. The challenge we face this time, however, is one of time. We had a hundred years to move from farms to factories, and then 60 years to fully build out a service economy.

The rate of change today suggests that we may only have 10 or 15 years to adjust, and if we don’t react fast enough, that means by the time today’s elementary-school students are college-aged, we could be living in a world that’s robotic, largely unemployed and stuck in kind of un-great depression.

But I don’t think it has to be this way. You see, I work in innovation, and part of my job is to shape how large companies apply new technologies. Certainly some of these technologies are even specifically designed to replace human workers. But I believe that if we start taking steps right now to change the nature of work, we can not only create environments where people love coming to work but also generate the innovation that we need to replace the millions of jobs that will be lost to technology.

I believe that the key to preventing our jobless future is to rediscover what makes us human, and to create a new generation of human-centered jobs that allow us to unlock the hidden talents and passions that we carry with us every day.

More from David Lee next time.

If all this bright sunshiny perspective made you think of that old tune, you might treat yourself to a listen. It’s short, you’ve got time.

And for a look at a current legal challenge to the “gig economy” across the pond, check out this Economist article from earlier this week.

 

Kevin Rhodes writes about individual growth and cultural change, drawing on insights from science, technology, disruptive innovation, entrepreneurship, neuroscience, psychology, and personal experience, including his own unique journey to wellness — dealing with primary progressive MS through an aggressive regime of exercise, diet, and mental conditioning.

Check out Kevin’s latest LinkedIn Pulse article: Leadership and Life Lessons From an Elite Athlete and a Dying Man.

Colorado Supreme Court: Admission of Victim’s Out-of-Court Statements to Officer Did Not Affect Outcome of Trial

The Colorado Supreme Court issued its opinion in Pernell v. People on Tuesday, February 20, 2018.

Criminal Law—Harmless Error.

The supreme court reviewed the court of appeals’ opinion affirming defendant’s conviction for burglary, kidnapping, sexual assault, and other offenses. The court of appeals held that although the trial court erred by admitting a victim’s out-of-court statements as excited utterances under CRE 803(2), the trial court’s error did not require reversal because the statements were admissible as prior consistent statements to rehabilitate the victim’s credibility after defense counsel attacked it during his opening statement. The court concluded that any error in the admission of the victim’s out-of-court statements was harmless because there was no reasonable possibility that the admission of these statements contributed to defendant’s conviction. Accordingly, the court declined to address whether defense counsel’s opening statement opened the door to the admission of the victim’s out-of-court statements and expressed no opinion on this issue. The court therefore affirmed the judgment of the court of appeals, albeit on different grounds.

Summary provided courtesy of Colorado Lawyer.