May 25, 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.

Tenth Circuit: Unpublished Opinions, 5/11/2017

On Thursday, May 11, 2017, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.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Case summaries are not provided for unpublished opinions.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: 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.

Tenth Circuit: Unpublished Opinions, 5/9/2017

On Tuesday, May 9, 2017, the Tenth Circuit Court of Appeals issued no published opinion and five unpublished opinions.

Cincinnati Specialty Insurance Underwriters Co. v. Urbano

United States v. Twitty

Hartz v. Sale

United States v. Chavira-Nunez

Blair v. Alcatel-Lucent Long Term Disability Plan

Case summaries are not provided for unpublished opinions.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

Graywater Exemption Bill and Hospital Reimbursement Bill Signed Monday

On Monday, May 8, 2017, the governor signed two bills into law. To date, he has signed 213 bills and vetoed one bill this legislative session. The bills signed Monday are summarized here.

  • HB 17-1008“Concerning an Exemption from the Water Quality Control Commission’s Graywater Control Regulations for Graywater Used for the Purpose of Scientific Research Involving Human Exposure,” by Rep. Jeni Arndt and Sen. Jerry Sonnenberg. The bill creates an exemption from the commission’s graywater control regulations for scientific research whereby a water utility, an institution of higher education in Colorado, or a public or private entity that a water utility or an institution of higher education in Colorado contracts with to conduct graywater research may collect, treat, and use graywater for purposes of scientific research under certain circumstances.
  • SB 17-256“Concerning Hospital Reimbursement Rates for the 2017-18 State Fiscal Year,” by Sen.  Kent Lambert and Rep. Millie Hamner. For the 2017-18 state fiscal year, if the amount of revenue collected from the hospital provider fee is insufficient to fully fund all of the statutory purposes for the fee, the bill requires any reduction to be taken from hospital reimbursements.

For a list of all of the governor’s 2017 legislative actions, click here.

James Craig Dolezal Appointed to Sedgwick County Court

On Monday, May 8, 2017, the Colorado State Judicial Branch announced the governor’s appointment of James Craig Dolezal to the Sedgwick County Court. Dolezal will fill a vacancy created by the resignation of Hon. Tera Neugebauer, effective May 1, 2017.

Dolezal is currently an enumerator with the National Agriculture Statistic Service and the State of Colorado Division of the National Association of States Department of Agriculture. He has also been a financial advisor for JCD Wealth Management Services and UBS Financial Services, staff executive for George S. May Co., operations manager for Larson Motors, and has held various other positions in banking and business ownership. He received his undergraduate degree from Colorado State University.

For more information about the appointment, click here.

Tenth Circuit: Unpublished Opinions, 5/8/2017

On Monday, May 8, 2017, the Tenth Circuit Court of Appeals issued no published opinion and one unpublished opinion.

United States v. Contreras

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

Tenth Circuit: Unpublished Opinions, 5/5/2017

On Friday, May 5, 2017, the Tenth Circuit Court of Appeals issued no published opinion and one unpublished opinion.

Lowe v. Allbaugh

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

Magistrate Priscilla Loew Appointed to District Court Bench in 17th Judicial District

On Wednesday, May 3, 2017, the Colorado State Judicial Branch announced the governor’s appointment of Priscilla Jeffrey Loew to the 17th Judicial District Court. Loew will fill a vacancy created by the retirement of Hon. John Popovich, effective May 31, 2017.

Loew is currently a magistrate in the 17th Judicial District, where she has been since 2016. Prior to her work as a magistrate, Loew was a Senior Deputy District Attorney in the 2nd Judicial District from 2008 to 2016, and a Deputy District Attorney in Weld County from 2006 to 2007. She also clerked for Hon. Larry Naves in the Denver District Court. Loew received her law degree from the University of Denver Sturm College of Law and her undergraduate degree from the University of Colorado.

For more information about the appointment, click here.

Bills Requiring Mediation for CORA Disputes and Allowing Local Governments to Tax Marijuana More Signed

On Thursday, May 4, 2017, the governor signed two bills into law. To date, he has signed 211 bills and vetoed one bill. The bills signed Thursday are summarized here.

  • HB 17-1177“Concerning the Use of Alternative Methods of Resolving Disputes that Arise Under the ‘Colorado Open Records Act,’ by Reps. Cole Wist & Alec Garnett and Sen. John Cooke. During the 14-day period before the person may file an application with the district court, the bill requires the custodian who has denied the right to inspect the record to either meet in person or communicate on the telephone with the person who has been denied access to the record to determine if the dispute may be resolved without filing an application with the district court.
  • HB 17-1203“Concerning the Authority of Certain Local Governments to Levy a Special Sales Tax on Retail Marijuana in Certain Circumstances Subject to Voter Approval by the Eligible Electors of the Local Government,” by Rep. Steve Lebsock and Sens. Larry Crowder & Beth Martinez Humenik. The bill authorizes counties and municipalities to levy, collect, and enforce a special sales tax on retail marijuana and retail marijuana products; except that a county may levy, collect, and enforce a special sales tax on retail marijuana and retail marijuana products only under certain circumstances.

For a list of all of the governor’s 2017 legislative decisions, click here.

Colorado Court of Appeals: Announcement Sheet, 5/4/2017

On Thursday, May 4, 2017, the Colorado Court of Appeals issued seven published opinions and 29 unpublished opinions.

People v. Thompson

People v. Davis

People v. Higgins

People v. Heisler

Cox v. Sage Hospitality Resources, LLC

People in Interest of M.S.

People in Interest of A.D.

Summaries of these cases are forthcoming.

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