October 24, 2017

Privileges and Confidentiality in the Attorney-Client Relationship

EthicsConfidentiality is one of the cornerstones of the attorney-client relationship. It allows clients to feel comfortable discussing sensitive issues with their attorney without fear of disclosure. Colorado Rule of Professional Conduct 1.6 provides, “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted [in certain enumerated circumstances].” The counterpoint to this is the privilege that protects attorney-client communications. The attorney-client privilege in Colorado is governed by C.R.S. § 13-90-107(1)(b), which states, “An attorney shall not be examined without the consent of his client as to any communication made by the client to him or his advice given thereon in the course of professional employment.”

These seemingly straight-forward rules have many nuances, including the scope of confidentiality versus the attorney-client privilege, the lawyer’s responsibility to reveal information to prevent a client’s misconduct, the lawyer as witness, the lawyer’s duty to prevent the disclosure of client information, and the extension of the attorney-client privilege to others in the attorney’s office.

The Colorado Bar Association Ethics Committee has tackled some of these issues in Formal Opinion 108, “Inadvertent Disclosure of Privileged or Confidential Documents,” and Formal Opinion 90, “Preservation of Client Confidences in View of Modern Communications.” As this guidance suggests, attorneys must always be aware of when issues of privileges and confidentiality may arise in their practices.

At 8:30 am on Wednesday, December 14, 2016, attorney John Palmeri will discuss the intricacies of privileges and confidentiality in one-hour CLE program co-sponsored by the CBA Lawyers Professional Liability Committee. Attendees will also receive a copy of Mr. Palmeri’s chapter inLawyers’ Professional Liability in Colorado with further discussion of the topic. Register here or by clicking the links below.

 

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CLE Program: Privileges and Confidentiality

This CLE presentation will occur on December 14, 2016, at the CBA-CLE offices (1900 Grant Street, Third Floor), from 8:30 to 9:30 a.m. Register for the live program here or register for the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here: MP3Video OnDemand.

Candor to the Tribunal and the Duty of Confidentiality: How to Broach This Ethical Pitfall

qtq80-uSztbKRule 3.3 of the Colorado Rules of Professional Conduct provides that a lawyer shall not “make a false statement of material fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer” or “fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.” But what exactly does this mean in the everyday practice of attorneys in Colorado?

Suppose the lawyer faces a client who intends to give false testimony or who refuses to correct a misstatement. What is material? May or must the lawyer withdraw from representation? Must the lawyer take further remedial measures? What must the lawyer do in an ex parte situation? In sum, how must the lawyer balance his or her duties to the client (particularly the attorney-client privilege) and the tribunal?

The Colorado Bar Association Ethics Committee addressed these questions in Formal Opinion 123, “Candor to the Tribunal and Remedial Issues in Civil Proceedings.” Opinion 123 requires the attorney to first remonstrate with the client. If that is unsuccessful, the attorney may be required to withdraw from representation. As a final measure, the attorney may make disclosure to the tribunal under certain circumstances. However, “the disclosure to remedy such a false statement must be limited to the extent reasonably necessary to achieve such ends and must be made in the manner that is the least harmful to the client while satisfying the commands of Colo. RPC 3.3.”

At noon on Tuesday, December 6, 2016, attorney Paul Gordon will delve into the intricacies involved with Colo. RPC 3.3 in a timely one-hour CLE. Mr. Gordon will bring his expertise in representing plaintiffs in malpractice claims against lawyers throughout the United States. Attendees will also receive a copy of Mr. Gordon’s chapter in Lawyers’ Professional Liability in Colorado with further discussion of the topic. Register here or by clicking the links below.

 

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CLE Program: Lawyers’ Duty of Candor to the Tribunal and Remedial Measures in Civil Actions and Proceedings

This CLE presentation will occur on December 6, 2016, at the CBA-CLE offices (1900 Grant Street, Third Floor), from noon to 1 p.m. Register for the live program here or register for the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here: MP3Video OnDemand.

SB 14-161: Implementing Provisions of the Voter Access and Modernized Elections Act of 2013

On March 18, 2014, Sen. Jessie Ulibarri introduced SB 14-161 – Concerning the Modernization of Provisions of the “Uniform Election Code of 1992” that Ensure Voter Access for Eligible Electors, and, in Connection Therewith, Reducing the Deadline by which a Voter Registration Application Must be Submitted Via Certain Methods, Altering Procedures Pertaining to National Change-of-Address Searches, Allowing Emergency Ballots to be Obtained for Nonmedical Reasons, Amending Provisions Relating to Military and Overseas Voters, Increasing the Penalty for Providing False Residential Information, and Making the Aiding or Abetting the Provision of False Residential Information a New Felony Offense. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The “Voter Access and Modernized Elections Act,” enacted in 2013, made various changes to the “Uniform Election Code of 1992.” To facilitate implementation of that act and the conduct of elections generally, the bill makes various corrections, clarifications, and alterations to the code.

The bill defines the term “post office box” as compartments on premises administered by the United States postal service or other commercial mail service entity.

Currently, when a person moves from one county or precinct in the state to another with the intention of making the new county or precinct his or her permanent residence, the person is considered to reside in that new county or precinct. The bill modifies this provision to apply to any in-state changes of residence when the elector intends the new residence to be his or her sole legal place of residence.

Various deadlines apply by which voter registration must be completed, depending on the method of application. The bill imposes the same deadline (i.e., eight days prior to the date of an election) for voter registration applications by any method of submission, except for applications submitted through voter registration drives or at voter service and polling centers (VSPCs). Further:

  • The bill requires a person to register to vote on or before the eighth day before an election in order to receive a mail ballot for that election;
  • The bill clarifies the time during which voter registration applications may be submitted at VSPCs for elections, other than general elections, coordinated by a county clerk and recorder; and
  • The bill allows voter registration applications to be processed after the 8-day deadline, though voters so registering must still obtain ballots in person.

Currently, to change an address or political party affiliation using the on-line voter registration system, an elector is required to provide the last four digits of his or her social security number. The bill makes the provision of this information optional. The bill also eliminates the requirement that a county clerk and recorder send a nonforwardable postcard to an elector’s former address of record after the elector effects a change of residence using the on-line voter registration system.

The bill harmonizes the self-affirmation a person makes when registering to vote with the statutory residency requirements.

Regarding the monthly national change of address search that the secretary of state must undertake, the bill:

  • Specifies that the search must be performed using the database maintained by the United States postal service;
  • Allows elector registration records to be changed only if the elector has signified that his or her move was permanent;
  • When a search indicates that an elector has added or changed a post office box, directs the county clerk and recorder to update only the elector’s deliverable mailing address and to notify the elector of such change by sending him or her a conformation card;
  • Repeals the prohibition on changing an elector’s record within 60 days of a primary or general election; and
  • Requires that electors who appear, pursuant to such change of address search, to have moved within a county be treated the same whether active or inactive, requires the new addresses of such electors be kept current when confirmation cards mailed to their old addresses are returned as undeliverable.

Because registration records are maintained and accessible electronically, the bill removes obsolete requirements that county clerk and recorders maintain original records at their offices.

The bill makes the use of ballot stubs and duplicate stubs optional and repeals provisions relating to acceptance and processing of those stubs and instead requires election judges to issue credit for ballots provided to each elector in the voter registration list.

The bill eliminates the requirements for electors to manually write in signature card information and instead directs election judges to prepare signature cards using elector information contained in the on-line voter registration system for those cards. The bill also harmonizes the self-affirmation contained on signature cards with those that appear on return envelopes for voted mail ballots.

The bill consolidates provisions pertaining to persons who assist electors with disabilities or who do not speak English. As a result of this consolidation, the bill makes a conforming amendment, and updates terminology pertaining to the physical area in which an elector votes.

The bill modifies the bases on which VSPCs are required for certain elections.

With respect to military and overseas voters:

  • The bill clarifies that ballots cast in accordance with the “Uniform Military and Overseas Voters Act” (UMOVA) are deemed timely and are counted pursuant to that act;
  • In the same way that children are covered by the UMOVA, the bill adds spouses and civil union partners of UMOVA-covered voters who are United States citizens to the purview of that act;
  • The bill removes the deadline by which an election official must receive a declaration from such voters in order for processing prior to an election; and
  • The bill deems electronic requests for ballots to be timely if received any time through seven days prior to election day.

Currently, an elector may obtain an emergency replacement ballot if he or she, or a member of his or her family, is confined to a hospital or residence on election day. The bill allows electors to obtain and vote such ballots for nonmedical reasons, including natural disasters.

The bill requires a self-affirmation on a mail ballot to be signed by the elector, and not a person acting on the elector’s behalf, to be valid.

The bill makes corrections to the bases on which the residency or age of voters are challenged.

With regard to criminal offenses relating to elections:

  • The bill makes the tampering with, or unauthorized opening of, a ballot box a class 5 felony.
  • Currently, the offense of knowingly giving false information regarding an elector’s place of present residence constitutes a class 6 felony. The bill makes that offense a class 5 felony.
  • The bill makes knowingly aiding or abetting an elector in committing the offense of knowingly giving false information as to the elector’s place of present residence a class 6 felony.

Currently, county clerks and recorders are directed to verify the changes of addresses of voters who, pursuant to information received from the United States post office or a driver’s license examination facility, appear to have moved in-state. The bill repeals this verification requirement.

The bill is assigned to the State, Veterans, & Military Affairs Committee.

Since this summary, the State, Veterans, & Military Affairs Committee referred the bill, amended to the Appropriations Committee, and the Appropriations Committee referred the bill, amended, to the Senate Committee of the Whole.

University of Colorado Law School Alumni Awards Banquet on Wednesday, March 12, 2014

The University of Colorado Law School will celebrate the achievements of its alumni when it hold its 33rd Annual Law Alumni Awards Banquet on Wednesday, March 12 at the Seawell Grand Ballroom at the Denver Center for the Performing Arts. Four outstanding alumni have been chosen to receive awards.

The Honorable Roy R. Romer, class of 1952 and former Governor of Colorado, will receive the William Lee Knous Award, the highest honor that the law school can bestow upon an alumnus.

The Honorable Claudia J. Jordan, class of 1980 and Denver County Judge, Second Judicial District, will receive the Distinguished Achievement in the Judiciary Award.

Thomas M. Ray, class of 1986 and President and CEO, CoreSite, will receive the Distinguished Achievement in Industry Award.

Thomas W. Fredericks, class of 1972 and Partner, Fredericks Peebles & Morgan LLP, will receive the Distinguished Achievement in Private Practice Award.

Dean Phil Weiser will also recognize the exceptional contributions three individuals have made to Colorado Law this year with the presentation of two Dean’s Choice Awards.

Douglas J. Friednash, Shareholder at Brownstein Hyatt Farber Schreck, LLP, and Scott Martinez, Denver City Attorney, will receive the Dean Edward C. King “Pay it Forward” Award.

Ann Getches will receive the Richard Schaden “Adopted Alumna” Award.

For sponsorship information or to purchase tickets online, click here (http://www.colorado.edu/law/alumni/colorado-law-alumni-awards-banquet) or contact Cheryl Franchi at cheryl.franchi@colorado.edu.

More than 600 Attendees Celebrate 32nd Annual CU Law Alumni Awards

cu-wolf-law-bldgOn Wednesday, March 13, 2013, the University of Colorado School of Law celebrated its 32nd annual Law Alumni Award Banquet with more than 600 attendees gathering at the Denver Center for the Performing Arts. Dean Phil Weiser served as master of ceremonies as six distinguished award recipients were honored.

In the first award of the night, Regina Rodriguez received the Distinguished Achievement Award for private practice. Ms. Rodriguez is a 1988 graduate of CU Law. She is now a partner with the Denver office of Faegre Baker Daniels. Prior to joining Faegre Baker Daniels, Ms. Rodriguez was an assistant U.S. attorney. She supports numerous pro bono causes and is a founding member of Colorado Youth at Risk and a board member at Open Door and Family Star Montessori.

The Honorable Timothy Tymkovich of the Tenth Circuit Court of Appeals was honored for the judiciary. Judge Tymkovich is a 1982 graduate of CU Law. After clerking for Chief Justice William Erickson of the Colorado Supreme Court, Judge Tymkovich was in private practice with Davis Graham & Stubbs. He served as solicitor general and founded the firm of Hale Hackstaff Tymkovich Friesen before being nominated to the Tenth Circuit by President George W. Bush.

Carole Yaley was recognized for distinguished achievement in industry. She received her J.D. from CU Law in 1980 and is recently retired from Exxon Mobil Corporation after a distinguished 33-year career. Ms. Yaley was Chief Attorney for Exxon Mobile, managing more than 70 attorneys around the world. She handled such various legal issues as antitrust, real estate, construction, cybersecurity, data privacy, and much more.

This year’s Dean Edward C. King “Pay it Forward” Award went to John Schultz, who is a 1953 graduate of CU Law. He practiced in the oil and gas field for 37 years. Mr. Schultz and his late wife founded the John and Cynthia Schultz Law Scholarship. As the school’s largest scholarship fund, it is awarded each year to a second- or third-year student. Mr. Schultz also supported the construction of the Wolf Law Building and generously contributed to the Loan Repayment Assistance Program. In accepting his award, Mr. Schultz thanked the person who would receive next year’s award for all he or she will do for CU Law in the coming year.

The Richard Schaden “Adopted Alumnus” Award was presented to Jason Mendelson. Mr. Mendelson co-founded the Foundry Group and is managing director and general counsel at Mobius Venture Capital. Prior to this, he practiced corporate and securities law with Cooley Godward Kronish. Mr. Mendelson currently teaches the VC 360 course as an adjunct professor at CU Law. He was instrumental in securing $1 million to establish a permanent professorship for the Entrepreneurial Law Clinic.

The final award of the night went to Colorado Supreme Court Chief Justice Michael Bender as he accepted the William Lee Knous Award, the law school’s highest award. Justice Bender graduated from CU Law in 1967. He was appointed to the Colorado Supreme Court by Governor Roy Romer in 1997 and selected as Chief Justice in 2010. Attendees enjoyed a video with tributes from Justice Bender’s friends, family, and colleagues. All of the justices of the Colorado Supreme Court were present to celebrate Justice Bender’s award with him. As Justice Bender thanked his family, colleagues on the bench, law clerks, and many others who had impacted his career, he asked them to remain standing to emphasize that it takes the support of a village of people to achieve success is one’s career.

SB 13-038: Providing for Confidentiality of Certain Communications of Emergency Responders

On Wednesday, January 16, 2013, Sen. David Balmer introduced SB 13-038 – Concerning the Confidentiality of Certain Communications Among Emergency Responders. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Current law makes certain communications between law enforcement officers and firefighters and their peer support team members confidential for purposes of testifying in court. The bill extends this confidentiality to emergency medical service providers and members of rescue units. The bill is assigned to the Judiciary Committee.

Since this summary, the Judiciary Committee referred the bill, unamended, to the Consent Calendar of the Senate Committee of the Whole.

Jacqueline St. Joan to Speak on “My Sisters Made of Light”

Jacqueline St. Joan has worn many hats in the Colorado legal community: practicing attorney, judge, and law professor. During a legal career dedicated to domestic violence law reform, her numerous contributions have included being the first presiding judge in the Denver Protective Orders Court and cofounding Project Safeguard. Most recently, Ms. St. Joan has turned her talents to writing, culminating with her first novel, My Sisters Made of Light. The book was an immediate success, gaining recognition as a finalist for the Colorado Book Awards in the Literary Fiction category and as a book of the month by the American Association of University Women. My Sisters Made of Light is a fictional chronicle of social, political, and religious life in Pakistan. In a review of the book, the reviewer wrote:

Traversing the diversity of Pakistan’s distinct cultures and classes, My Sisters Made of Light successfully weaves past and present, foreign and familiar, and personal and political to create a compelling account of the devastating suffering and extraordinary heroism that exists in ordinary lives. In addition to vividly illustrating the risks and successes of human rights activism in Pakistan, My Sisters Made of Light depicts the heart-wrenching complexities that rest at the core of familial allegiances and alienation.

You can also find more information at Mysistersmadeoflight.com and jacquelinestjoan.com. As part of the Literary Lawyers series, Ms. St. Joan will discuss her book at the CBA-CLE offices on November 26, 2012. Her presentation will tackle such complex issues as Shariah courts, honor crimes, and Pakistan’s legal system. Join her live or via the live webcast.

CLE Program: My Sisters Made of Light with Jacqueline St. Joan (A Literary Lawyers Program)

This CLE presentation will take place on Monday, November 26, at 12:00 p.m. Participants may attend live in our classroom or watch the live webcast.

If you can’t make the live program or webcast, the program will also be available as a homestudy in two formats: MP3 audio download or Video On-Demand.

Professors Calhoun and Wilkinson Named Winners of Jules Milstein Scholarship Award

Editor’s Note: Celebrate the opening of the Supreme Court’s next term. Details below.

The University of Colorado School of Law has announced professors Emily Calhoun and Charles Wilkinson as the 2012 winners of the Jules Milstein Scholarship Award. Prof. Calhoun is the author of Losing Twice, while Prof. Wilkinson was recognized for The People are Dancing Again. As noted on the CU Law website, the award is given to “Colorado Law faculty . . . for a substantial published work that best demonstrates excellence in legal scholarship. It is normally given once a year at the end of the spring semester for a work published at any point in the preceding two calendar years.”

Prof. Calhoun began her legal career in the early 1970s as a civil rights attorney with the Southern Regional Office of the ACLU. She has consulted with organizations and attorneys on civil rights issues, and has worked to protect faculty rights and privileges through administrative and other service at the University of Colorado. She teaches and writes in the areas of civil rights, intractable disputes, and federal jurisdiction. In addition to her faculty responsibilities, Professor Calhoun currently serves as both a mediator and an ombudsperson for faculty disputes at the University. In Losing Twice, Prof. Calhoun argues that Supreme Court decisions often inflict a second loss on the losing parties and that the outrage generated by well-known decisions such as Gonzales v. Carhart and Bowers v. Hardwick is a consequence of this second loss.

Prof. Wilkinson worked with the Native American Rights Fund and taught at the University of Oregon, the University of Michigan, and the University of Minnesota before coming to CU Law in 1987. Prof. Wilkinson’s scholarship and teaching focus on federal public land law and Indian law. He is the author of thirteen books, ranging from text books on public land law and Indian law to books aimed at a general audience. Prof. Wilkinson received the 2005 Colorado Book Award in the History category for Blood Struggle: The Rise of Modern Indian Nations and the 2000 Colorado Book Award in the Colorado/West category for Messages From Frank’s Landing. His latest book, The People Are Dancing Again: The Siletz Tribe Of Western Oregon, explores the history of Oregon’s Siletz tribe from initial contact with Europeans through termination of the tribe and eventual restoration of the tribe’s official status.

Please join Prof. Calhoun at the CBA-CLE offices on October 1, 2012, as we celebrate the opening of the Supreme Court’s next term. Prof. Calhoun will discuss Losing Twice, and encourages participants to bring examples of U.S. Supreme Court constitutional rights decisions that they consider to be outrageous. These decisions will be used to explore Professor Calhoun’s argument about losing twice in rights disputes.

CLE Program: Losing Twice – Harms of Indifference in the Supreme Court with Emily Calhoun

This CLE presentation will take place on Monday, October 1. Participants may attend live in our classroom or watch the live webcast.

If you can’t make the live program or webcast, the program will also be available as a homestudy in two formats: video on-demand and mp3 download.

Local Case and Attorneys at the Supreme Court: Cheney’s Secret Service Agents Entitled to Qualified Immunity

It isn’t often that a case rooted in Colorado reaches the U.S. Supreme Court, but on June 4, 2012, the Supreme Court announced its decision in a case with deep Colorado connections, Reichle v. Howards. The facts of the case occurred in Beaver Creek, Colorado, and the respondent, Golden resident Steven Howards, was represented by Denver attorney David Lane of Kilmer Lane & Newman LLP, while the petitioner Secret Service agents were represented by Denver lawyer Sean Gallagher of Polsinelli Shughart, PC.

The case involved Howards, who confronted Vice President Cheney at a 2006 event at a mall in Beaver Creek. According to the Court’s opinion, Howards entered the line to meet Cheney, made critical remarks regarding the administration’s policies in Iraq, and touched Cheney on the shoulder before leaving (something Howards later denied to Secret Service agents). Howards was arrested by Secret Service agents Gus Reichle and Dan Doyle. He was charged with harassment, but the charges were later dropped. Howards then brought suit against the agents, claiming that he had been arrested without probable cause, a violation of the Fourth Amendment, and in retaliation for his comments to Vice President Cheney, a violation of the First Amendment.

The Court granted certiorari on the questions of (1) whether a First Amendment retaliatory arrest claim could be brought where the arrest was supported by probable cause and (2) whether there was clearly established law at the time of Howards’s arrest as to the first question. The Court only addressed the second question, and found that the law was not clearly established at the time of the arrest, entitling the agents to qualified immunity.

Lane summarized his thoughts on the ruling in a statement to the Associated Press, “‘They broke absolutely no legal ground while managing to duck every significant issue in the case.’” However, Gallagher saw the decision differently: “‘This ruling confirms that the federal courts will not subject law enforcement officials to personal liability except when it is absolutely clear that they have no basis to make the arrest.’” While it remains an open question whether a First Amendment retaliatory arrest claim can be brought where the arrest is supported by probable cause, this case was certainly fascinating for the facts and issues involved, as well as its connections to Colorado and two of Denver’s prominent attorneys.

University of Colorado Law School Awards Dinner Honors Alumni and David Getches

The University of Colorado held its 31st Annual Law Alumni Awards Banquet last week at the Hyatt Regency Denver. The banquet was opened with remarks by CBA-CLE board member and Law Alumni Board Chair Kristin Rozansky. In addition to speeches by Dean Phil Weiser, the evening included recognition of this year’s honorees: Bill Johnson (William Lee Knous Award), Joe Blake (Distinguished Achievement in the Public Sector Award), Jane B. Korn (Distinguished Achievement in Education Award), and Joseph Neguse (Distinguished Recent Alumnus Award). For more about the nominees, click here.

The evening ended with a moving tribute to the late dean of the law school, David Getches. Dean Weiser began by noting that in the Jewish tradition of mourning for one year, he was dedicating the first year of his deanship to honoring Getches’s memory. Getches was remembered in a video that included testimonials from his widow, Ann Getches, members of the law school faculty, including Prof. Charles Wilkinson and Dean Weiser, and colleagues from his work with the Native American Rights Fund. On behalf of the Getches family, Getches’s son-in-law, Rudy Verner, thanked the CU Law community for its support, well wishes, and memories of Dean Getches.

CLE: AT&T Mobility LLC v. Concepcion and the Future of Class Actions

Just this Wednesday, the Supreme Court issued its opinion in AT&T Mobility LLC v. Concepcion, greatly impacting the ability of plaintiffs to pursue class proceedings. In a 5-4 decision, the Court overruled the California Supreme Court’s holding in Discover Bank v. Superior Court that class-arbitration waivers in consumer contracts were unconscionable and unenforceable.

For the majority, Justice Scalia wrote:

Because it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” Hines v. Davidowitz, 312 U. S. 52, 67 (1941), California’s Discover Bank rule is preempted by the [Federal Arbitration Act].

Justice Thomas concurred, but argued that contract defenses allowed for under § 2 of the FAA should be limited to defenses related to the formation of the arbitration agreement, such as fraud, duress, or mutual mistake. Arbitration agreements should not be invalidated on the basis of defenses that do not relate to the formation of the agreement, such as public policy.

In his dissent, Justices Breyer disagreed with Justice Scalia’s assertion that Discover Bank defeated the purposes of the FAA.

[I]nsofar as we seek to implement Congress’ intent, we should think more than twice before invalidating a state law that does just what § 2 requires, namely, puts agreements to arbitrate and agreements to litigate “upon the same footing.”

CLE Program: May 10, 2011, 11:30am

Join us on Tuesday, May 10, at 11:30 am for a discussion of the case and its potentially far-reaching implications. Register for the live event or the live webcast. The program will also be available as a homestudy in two formats: MP3 download and online video.