July 26, 2014

Bankruptcy Plan Modification by Debtor’s Counsel – Part of Bankruptcy Update 2014

In any three- to five-year period, many of us face unanticipated financial obstacles – medical expenses, educational expenses, dependent expenses. For a bankruptcy debtor, these unexpected financial burdens can derail a payment plan. Thankfully, the Bankruptcy Code at 11 U.S.C. § 1329 allows post-confirmation plan modifications so that debtors can adapt to changing life circumstances.

Section 1329 permits a debtor, trustee, or holder of an unsecured loan to request modification to increase or reduce payments to a particular class; prolong or shorten the time for those payments; alter the amount of distribution to a creditor in order to account for another payment not covered by the plan; or reduce payments in order to cover health insurance expenses for the debtor.

Experienced bankruptcy attorney Andrew S. Trexler offers some of the common scenarios in which his clients have requested post-confirmation plan modification:

  • To remove unpaid mortgage arrears following a mortgage loan modification and reduce plan length;
  • To bring payments current and reduce payments to account for change in projected disposable income, such as from retirement;
  • To allow for debtor to transition from one job or business to another through temporary reduction in monthly payment and provide for post-petition mortgage and HOA arrears;
  • To provide for pre-petition priority support arrears and cram down secured debt;
  • To surrender property securing Class 2 or 3 debts (Note: this is explicitly allowed by Judge Tallman so long as in good faith but disallowed by Judge Campbell);
  • Generally, to accommodate any significant decrease in disposable income caused by reduction in hours, job loss, increase in taxes due to end of payroll tax holiday in 2013 or increased medical bills, insurance costs, lawsuit defense, etc.; or
  • To allow for the purchase of health insurance (now generally required by the Affordable Care Act), so long as the debtor complies with § 1329(a)(4).

Trexler also provides the sample modification request motions and projected plans for several of these scenarios. He will present on this topic at Friday’s CLE program – Bankruptcy Update 2014 – along with several bankruptcy court judges and other area bankruptcy attorneys. Click the links below to register or call (303) 860-0608.

CLE Program: Bankruptcy Update 2014

This CLE presentation will take place on June 6, 2014. Click here to register for the live program and click here to register for the webcast. You can also register by phone at (303) 860-0608.

Can’t make the live program? Order the homestudy here — CD homestudy • MP3 audio downloadVideo OnDemand

Creative Solutions in the Legal Profession

“Creativity is the soul of the scholar.” -Nnamde Azikiwe, First President of Nigeria

The practice of law is filled with complex problems, and clients frequently ask their attorneys to present creative solutions. Likewise, new attorneys are often tasked with finding creative solutions by senior attorneys. Creativity can be liberating, but it can also be risky—how far is too far to stray from the tried and true path?

Creative filings can lead to sanctions designed to prevent frivolous proceedings. Frivolous proceedings can lead to disciplinary proceedings for violations of Colo. RPC 3.1, which states that a lawyer shall not bring or defend a proceeding unless there is a basis in law or fact for doing so that is not frivolous. So how can a lawyer develop his or her creativity without violating any rules?

CLE is hosting a panel discussion on June 4, 2014, between Byeongsook Seo, a litigation attorney; Jonathan H. Steeler, a transactional attorney; and Hon. Jim S. Miller, a judge. These three panelists have very different backgrounds, but all three exercise creativity in their practices. They will present several scenarios in order to develop creative case strategies from their unique perspectives.

Creativity can open doors for new attorneys and experienced attorneys alike. Join us on June 4 for this interesting panel discussion about the benefits of creativity and the bounds of duty. Click the links below or call (303) 860-0608 to register.

“Creativity is just connecting things. When you ask creative people how they did something, they feel a little guilty because they didn’t really do it, they just saw something. It seemed obvious to them after a while. That’s because they were able to connect experiences they’ve had and synthesize new things.” -Steve Jobs

CLE Program: Creative Solutions in the Legal Practice

This CLE presentation will take place on June 4, 2014. Click here to register for the live program and click here to register for the webcast. You can also register by phone at (303) 860-0608.

Can’t make the live program? Order the homestudy here — MP3 audio downloadVideo OnDemand

Alternative Lawyer Relationships: Ethical Implications of Contract Lawyering

DavidCLittleOutsourced legal work and contract lawyers are becoming more prevalent. There are many reasons to outsource legal services or hire contract lawyers. David C. Little of Montgomery Little & Soren, PC, in Chapter 3, “Alternative Lawyer Relationships,” of Lawyers’ Professional Liability in Colorado – Preventing Legal Malpractice and Disciplinary Actions, proposes four hypothetical scenarios:

  1. A lawyer is not comfortable drafting a special needs trust to settle a minor client’s personal injury claim and seeks assistance from another lawyer (a specialist experienced in the intricacies of such arrangements) to create the trust.
  2. The general counsel of a business corporation being sued in an environmental damage claim hires a contract law firm that specializes in the defense of environmental damage claims.
  3. A lawyer in one state is not admitted to practice in another state and must retain local counsel in order to participate pro hac vice in the other state.
  4. A firm lawyer in charge of the management of complex litigation asks a temporary lawyer service agency to provide a contract lawyer to organize the client’s documents for discovery production.

These scenarios occur regularly in practice, and there is nothing inherently unethical about hiring contract lawyers or outsourcing legal work. However, each scenario has unique ethical pitfalls, as explained by Little:

In the first example, what happens if the contract lawyer engaged to draft the special needs trust makes a mistake and the minor client loses the benefits the trust would have provided? Does it make any difference if the principal lawyer informed the minor’s guardian about the contract lawyer or had the guardian’s consent? Does the knowledge or consent of the client to the contract lawyer arrangement make any difference?

In the second example, what happens if the specialized law firm hired by the corporation’s general outside counsel discovers that the general counsel has been giving incorrect advice to the client that may have compromised the corporation’s defense to the environmental damage claim? What obligations does the contract firm (the specialist) have to the client to advise the client about the incorrect advice? Is there an independent client-lawyer relationship between the contract specialist and the client, and does the existence of any such relationship depend upon the client’s knowledge of and consent to the arrangement?

In the third example, what are the obligations of local counsel to the client for the procedural aspects of the case in the local lawyer’s jurisdiction? Does the local counsel  have any responsibility to either the client or the referring counsel to advise on either procedural or substantive matters involved in the claim?

Finally, what happens in the fourth example if the contract lawyer fails to recognize the proprietary nature of many of the client’s scientific documents and the client is damaged when its scientific secrets are disclosed without a protective order? In this example where a temporary lawyer service agency or referral agency is involved, does the agency have any exposure for the temporary lawyer’s errors or omissions?

On May 12, 2014, David Little will discuss ethical considerations involved in alternative lawyer relationships at a lunchtime CLE program, “Alternative Lawyer Relationships: Contract Lawyering and Its Ethical Implications.” Join us for this informative program.

CLE Program: Alternative Lawyer Relationships: Contract Lawyering and Its Ethical Implications

This CLE presentation will take place on May 12, 2014. Click here to register for the live program and click here to register for the webcast. You can also register by phone at (303) 860-0608.

Can’t make the live program? Order the homestudy here — MP3 audio downloadVideo OnDemand

Probate Litigation Depositions – Not Your Grandmother’s Deposition

Probate Litigation ImageProbate litigation depositions can be many things – tense, perhaps emotionally draining for the deponent and the parties. But as David R. Struthers of Godfrey | Johnson PC illustrates, learning about probate depositions can be entertaining as well.

His tongue-in-cheek materials discuss the prudence of determining in each case whether it is desirable to “open the door of discovery,” despite the endless enjoyment every lawyer derives from conducting depositions. Amidst the humor are practical tips, such as applying to the probate court to use the Colorado Rules of Civil Procedure in order to engage in discovery and requesting permission to videotape the deposition. Struthers is truly a splendid wordsmith who excels at cleverly crafting instructional materials disguised as humor. But his true talent is with the guitar.

In the video clip below, Struthers explains the difficulty in removing a troublesome client who returns to Spencer Crona’s door every single day.

Click here to view online.

CLE Homestudy: Probate Litigation Depositions – Not Your Grandmother’s PI Depo

This CLE presentation took place on March 4, 2014. Click the links below to order the homestudy — MP3 audio downloadVideo OnDemand

Workplace Privacy To Be Discussed at Employment Law 2014 Conference in March

One of the hot-topic issues for employment law today is workplace privacy. Qusair Mohamedbhai, a leading Colorado employment law attorney, and Philip Gordon, a leading privacy attorney who focuses on HR privacy issues, will tackle this complex and rapidly evolving area of the law at the CBA-CLE 2014 Employment Law Conference on March 20-21. Expect a lively and informative discussion including critical privacy and information security issues raised by the “Bring Your Own Device” (BYOD) movement and how recent state laws and EEOC guidelines can impact workplace privacy policies involving background checks, especially the use of an employees’ criminal history for employment purposes, and access to employees’ personal social media. Below are excerpts from their upcoming presentation.

Workplace Privacy:
“In the coming year, employers may expect to see more restrictions on access to applicants’ and employees’ criminal history, credit information, and personal social media content.  To further complicate the challenges of addressing privacy in the workplace, employers will be required to grapple with next-generation issues raised by the use of social media as a business tool and the increasing adoption of “bring-your-own-device” (BYOD) programs.  The ever-shifting balance between employer prerogative and employee privacy likely will continue to move in a direction that favors employee privacy.” –  Philip L. Gordon, Littler Mendelson

Workplace Privacy: Criminal Background Checks & Victims of Crimes:
2012 EEOC Guidance on Arrest and Conviction Records in Employment Decisions: For criminal conduct exclusions in hiring practices that are alleged to have an unlawful disparate impact, relevant information includes the text of the policy or practice, associated documentation, and information about how the policy or practice was actually implemented. For example, the EEOC may look for offenses or classes of offenses that were reported to the employer (all felonies, all drug offenses) or how far back in time the report reached. 2012 WL1499883 § V (E.E.O.C. Guidance Apr. 25, 2012). – Qusair Mohamedbhai, RATHOD ǀ MOHAMEDBHAI LLC

CLE Program: Employment Law 2014

This CLE presentation will take place on March 20-21, 2014. Click here to register for the live program. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here — MP3 audio downloadVideo OnDemandCD homestudy

The New Public Benefit Corporations Act — Unique Features of the Colorado Act

In 2013, the Colorado General Assembly passed HB 13-1138 - Concerning Benefit Corporations, and, In Connection Therewith, Making an Appropriation. Governor Hickenlooper signed the bill into law on May 5, 2013, to be effective April 1, 2014. The bill creates a new category of business operation in Colorado – benefit corporations are designed as for-profit corporations that can elect to pursue a humanitarian interest without contraventing the shareholders’ stake in maximizing profits.

The Public Benefit Corporation Act (PBC Act) details requirements for corporations wishing to be considered “benefit corporations.” As defined in the PBC Act, “‘Public benefit’ means one or more positive effects or reduction of negative effects on one or more categories of persons, entities, communities, or interests other than shareholders in their capacities as shareholders, including effects of an artistic, charitable, cultural, economic, educational, environmental, literary, medical, religious, scientific, or technological nature.” This broad definition allows corporations much leeway in determining the public benefits they will offer.

A feature of Colorado’s PBC Act that is not mirrored in most other states allowing benefit corporations is that the Colorado Public Benefit Corporation must state its public purpose with specificity. In the clip below, J. William Callison of Faegre Baker Daniels explains some of the requirements of the PBC Act, with an example of a specific benefit outlined. Also appearing in the video are Herrick K. Lidstone, Jr., of Burns Figa & Will, and Carla Hoke of the Colorado Secretary of State’s office.

Click here to view online

The Colorado Public Benefit Corporation Act is legislation that every Colorado business law practitioner should become familiar with before its effective date of April 1, 2014. Click the links below to order the full homestudy.

CLE Homestudy: Public Benefit Corporation Act, Effective April 1, 2014

This CLE presentation took place on February 12, 2014. Click here to order the Video On Demand and watch the entire presentation online, click here for the MP3 Audio Download homestudy, click here for the CD homestudy, or call (303) 860-0608 to order by phone.

 

The Intersection of Religious Freedoms and Workplace Anti-Discrimination Laws

Qusair Mohamedbhia Bio PicBy Qusair Mohamedbhai

It is not every day that lawyers from the ACLU and Focus on the Family share a public stage to debate religious freedoms and workplace anti-discrimination laws. In recent years, tensions between employee anti-discrimination rights in the workplace and religious freedoms of employers have dramatically increased in magnitude and complexity. In the last decade, courts have significantly expanded the rights of religious employers. Additionally, religion-based discrimination charges filed with Equal Employment Opportunity Commission have more than doubled in the past fifteen years. And employees’ rights in the areas of sexual orientation and healthcare have been affected by employers claiming to be governed by faith-based principles.

“The Intersection of Religious Freedoms and Workplace Anti-Discrimination Laws,” which was part of a larger CLE in Colorado, Inc. program titled “Workplace Discrimination,” produced a lively and informative discussion. The presenters debated the tension between anti-discrimination laws including the Colorado Anti- Discrimination Act’s inclusion of sexual orientation as a protected class, and laws protecting religious employers’ rights including the Free Exercise Clause and Religious Freedom Restoration Act. As expected, the ACLU and Focus on the Family had divergent opinions on matters related to the contraceptive mandate issued by the U.S. Department of Health and Human Services and religious employer exemptions. The panelists also debated the holdings, reach, and implications of recent high-profile decisions spanning a variety of related topics including the cases of Hosanna-Tabor, Windsor, Hobby Lobby, Abercrombie & Fitch, Little Sisters of the Poor, and Masterpiece Cakeshop Lakewood Bakery. The presenters and moderator demonstrated extraordinary knowledge of these difficult constitutional law matters, as well as theological arguments, historical context, and pragmatic public policy consequences.

Click here to view online

Panelists: Mark Silverstein, Esq., American Civil Liberties Union of Colorado, L. Martin Nussbaum, Esq., Lewis Roca Rothgerber LLP, and Bruce Hausknecht, Esq., Focus on the Family. Moderator: Scott L. Levin, Esq., Regional Director, Mountain States Region, Anti-Defamation League.

Qusair Mohamedbhai, Esq., is a partner at Rathod | Mohamedbhai llc. His practice is exclusively in the areas of plaintiff’s employment discrimination and constitutional civil rights litigation. He advocates for the rights of employees in the workplace, and for the civil rights of all individuals against governmental and institutional abuses of power. He is a National Institute for Trial Advocacy trial skills and techniques faculty member, co-chair of the Employment Law Section for the Colorado Trial Lawyers Association, and General Counsel to the Colorado Muslim Society. He received his Bachelor of Science in biology from the University of Alberta in 2000, and his Juris Doctorate from the University of Wyoming in 2003.


CLE Homestudy: Workplace Discrimination

This CLE presentation took place on January 10, 2014. Click here to order the Video OnDemand, click here for the MP3 audio download, and click here for the CD homestudy. You may also call (303) 860-0608 to order.

Colorado Adopts Tougher Air Rules for the Oil and Gas Industry—The First in the Nation

BillRitterColorado air quality control commissioners voted 8-1 on Sunday to pass tougher air pollution rules for the oil and gas industry. The rules are the first in the nation designed to detect and reduce methane emissions, a gas linked to climate change. The impetus for the change was the failure of Front Range air to meet federal health standards.

Trying to satisfy environmental needs with those of the oil and gas industry can by difficult, as evidenced by the objections of the Colorado Oil and Gas Association and the Colorado Petroleum Association. The rule changes did, though, have the support of leading oil and gas companies including Anadarko Petroleum, Noble Energy, and Encana.  The impact of these new rules could be tremendous for environmental lawyers and those practicing in the area of Natural Resources & Energy.

This Friday, Feb. 28, the CBA Environmental Law Section is co-sponsoring a program with Colorado Bar Association CLE, “Oil & Gas Development in Colorado: Balancing Energy and the Environment.” Will Allison, the director for the Air Pollution Division, Colorado Department of Public Health and Environment, will review the new pollution rules and the potential effects in Colorado. Bill Ritter, former governor and now director for the Center for the New Energy Economy, is the keynote speaker and will address the challenges of balancing energy production and new environmental regulation in Colorado.

Other energy and environmental experts are speaking at the program including leaders from the Colorado Oil & Gas Commission, the Colorado Department of Natural Resources, and Colorado energy companies and law firms.

Scott Clark, chair for the program and attorney with Burns, Figa, & Will said, “This program will provide a balanced and focused look at key issues raised by the explosion of oil and gas development in Colorado.”

CLE Program: Oil & Gas Development in Colorado – Balancing Energy and the Environment

This CLE presentation will take place on February 28, 2014. Click here to register for the live program, and click here to register for the webcast. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here — MP3 audio downloadVideo OnDemandCD homestudy

Mental Health Experts and the Look of Science

Dr-JohnBy John A. Zervopoulos, Ph.D., J.D., ABPP

Do you know what science looks like?—a key Daubert/Shreck-era question for mental health experts. Statistics? Publications? A body of facts? Don’t view these badges as proofs of science. Instead, step back and view science as a mindset, a way of doing critical thinking—how one assesses which ideas are reasonable and which are not. A basic question highlights the scientific inquiry: “How do you know what you say you know?”

Too often we mistakenly accept imposters of science. Daubert caselaw, addressing this problem, stresses that courts must look past the badges of science to determine whether to trust the expert’s testimony. For example, pronouncements from experts with sterling qualifications don’t by themselves certify the testimony as trustworthy. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 157 (1999). Publication—one element of peer review—is not a sine qua non of admissibility; it does not necessarily correlate with reliability. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593 (1993). General acceptance does not help show that an expert’s testimony is reliable where the discipline itself lacks reliability, as, for example, do theories grounded in any so-called generally accepted principles of astrology. Kumho Tire Co., 526 U.S. at 151.

The late physicist Richard Feynman told a classic tale, Cargo Cult Science, to analogize how some people use the look of science to try to emulate real science. He described a group of South Sea people who had seen airplanes deliver cargos of goods and materials to their islands during World War II. After the War, these islanders wanted the imports to continue—but the pilots had gone home. So, the islanders set out to re-create the setting: They made runways; a hut for a man, the controller, to sit in; two bamboo pieces as antennae for the man to strap to his head. Then everyone waited for airplanes to land. The islanders, from their view, did everything right. The form seemed perfect, but no airplanes landed. The islanders were missing something essential.

Feynman’s point—and Daubert’s: Mental health experts, like the islanders, sometimes highlight badges of science to prove their testimony but neglect to exercise the essential critical thinking that science and caselaw require. Ask, “How do you know what you say you know?”—repeatedly, if necessary—to expose the bases of mental health testimony. Cargo cult science or critical thinking-based science?

John A. Zervopoulos, Ph.D., J.D., ABPP is a forensic psychologist and lawyer who directs PsychologyLaw Partners, a forensic consulting service providing consultation to lawyers on psychology-related issues, materials, and testimony. His second book, How to Examine Mental Health Experts: A Family Lawyer’s Guide to Issues and Strategies, is newly published by the American Bar Assn. He is online at www.psychologylawpartners.com and can be contacted at 972-458-8007 or at jzerv@psychologylawpartners.com.


CLE Program: How to Examine Mental Health Experts: A Practical Plan

This CLE presentation will take place on March 6, 2014. Click here to register for the live program, and click here to register for the webcast. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here — MP3 audio downloadVideo OnDemandCD homestudy

Online Marketing for Solo Practitioners and Small Law Firms

When you hear the words “online marketing,” what is your reaction? According to Martha Cusick Eddy, director of Catapult Growth Partners, some reactions she elicits with those words include “hype” and “I hate it.” Ms. Eddy and Phil Nugent, founder and managing director of NCG Strategic Marketing, recently spoke at CLE for the monthly Solo/Small Firm section luncheon, and stressed that although the phrase “online marketing” may evoke a visceral reaction, marketing is not hype.

In the clip below, Ms. Eddy explains that marketing is an opportunity to show potential clients why they should choose you to represent them by providing value-based marketing.

This snippet illustrates that online marketing can be a great tool for practitioners to attract and identify ideal clients. The program also discussed the reality of the business of law in today’s technological world, creating an online marketing strategy, the importance of search engine optimization, aspects of social networking, and more. To order the full video, click the links below.

CLE Homestudy: Online Marketing for Solo Practitioners and Small Law Firms

This CLE presentation took place on February 10, 2014. Click here to order the Video On Demand and watch the entire presentation online, or click here for the MP3 Audio Download homestudy.

Note: This program was not submitted for CLE credit.

Deposition Strategy and Technique – Five Tips For Your Next Deposition

DaveMarkowitzEvery litigator will conduct a deposition at some point in his or her career. Depositions are a chance for the litigator to obtain favorable (or unfavorable) evidence to use as part of the overall trial strategy. To quote Paul Gordon, however, “Depositions are one of the several points of friction between the science of practicing law and the art of practicing law. Understanding depositions is an essential tool for every litigator.”

Nationally renowned speaker David “Dave” Markowitz will be at the CLE offices on Wednesday, December 11, 2013, to teach about deposition strategies and techniques. He will share ten important goals for the litigator to accomplish in the deposition, including how to avoid undesirable results. Some of those goals are outlined here:

  1. Each deposition question should be aimed at accomplishing the desired result – the deposed witness should be questioned on relevant facts in order to create admissions to use at trial.
  2. Never attempt to accomplish improper deposition goals, such as deliberately trying to incur expense for the opponent.
  3. Determine what the big questions are and ask them. If they are answered, they will directly accomplish a major goal.
  4. Identify lying witnesses. Video record the deposition to visually demonstrate untruthfulness.
  5. Be thorough – decide which goals are the most important and spend the most time on these, while not neglecting points that are less important but will still help accomplish your goals.

If you are a litigator, or any attorney who conducts depositions, do not miss Dave Markowitz’s program on Wednesday, December 11. Click here to register or click the links below.

Dave Markowitz is considered by his peers to be among the best trial lawyers in the Northwest. His commanding presence and keen instincts have made him a courtroom icon. Over the last three decades, Dave has shepherded the firm from its beginning as an ambitious two-attorney litigation shop to its present status as one of the premier business litigation firms in the region.

 

CLE Program: Deposition Technique and Strategy with David Markowitz

This CLE presentation will take place on December 11, 2013, in the CLE Large Classroom. Click here to register for the live program and click here to register for the live webcast.

Can’t make the live program? Click here to order the homestudy.

Ted Atlass: Master of Tax Issues in Trust and Estate Law

Estate planning and tax law are inextricably intertwined, and no one knows this better than Ted Atlass. He has been practicing trust and estate law and tax law since 1975, when he was admitted to the bar in Colorado. Through the years, he has become known as a national expert on the intersection of tax law and estate planning.

Tax law is complicated, and there are many exceptions to general rules. For example, although there are general rules that apply to transactions between unrelated parties, there are several exceptions to these rules for related parties. Related parties can be family members of the whole or half blood, individuals and corporations in which individuals own more than 50 percent of stock, two corporations that are members of the same group, fiduciary and grantor of the same trust, two fiduciaries of trusts established by the same grantor, and more. There is no one better than Ted Atlass to explain some of these complex transactions between such related parties to which exceptions to the IRS’s general rules apply.

Another area where tax law and estate planning intersect is immediate pre-mortem estate planning. Appreciated assets that will receive a stepped up basis may remain in the estate, while passive activity loss assets may be disposed of. Income could be accelerated during the decedent’s lifetime so that the taxes that will be paid will be deductible for estate tax purposes. Business interests could be restructured to benefit the estate.

These and many other topics related to tax law in estate planning will be discussed at a half-day CLE program on October 10, “Practical Income Tax Issues in Everyday Estate Planning and Administration,” presented by Ted Atlass. Click the links below to register, or call (303) 860-0608.

CLE Program: Ted Atlass on Practical Income Tax Issues in Everyday Estate Planning and Administration

This CLE presentation will take place on October 10, 2013, in the CLE Large Classroom. Click here to register for the live program and click here to register for the live webcast.

Can’t make the live program? Click here to order the homestudy.