September 26, 2016

Ask the Experts: Why Do Lawyers Get Sued?

EthicsThe ABA Standing Committee on Lawyers’ Professional Liability compiled a comprehensive Profile of Legal Malpractice Claims, evaluating claims from 2008 through 2011. According to the Committee’s report, real estate lawyers held the dubious honor of having the highest percentage of malpractice claims, followed by family law, trust and estate, and personal injury law. Forty-five percent of all malpractice claims were filed due to substantive errors, like failure to know or properly apply the law, discovery errors, procedural choice errors, missing deadlines, and conflicts of interest. Administrative errors counted for the second-highest reason for claims, including procrastination in performance or follow-up (read: not returning phone calls), lost files, calendaring errors, and other clerical errors. Together, nearly three-quarters of all legal malpractice claims filed during the Committee’s study period were due to errors. That is a frightening statistic.

One way to avoid becoming the subject of a malpractice claim is to choose clients carefully. Everyone has experienced “problem” clients—clients who won’t leave you alone, who lack the ability to pay, and who seem to criticize your every move. Attorney Sally Field (no relation to the actress) compiled a list of the top ten warning signs for problem clients:

  1. Clients who want to change lawyers in the middle of the case;
  2. Clients who trash the lawyer they just left;
  3. Clients who are reluctant to answer basic questions;
  4. Clients who are overly opinionated about the law without justification;
  5. Clients who have unreasonable expectations;
  6. Clients who micromanage everything;
  7. Clients who won’t let you end an excessively long initial client interview;
  8. Clients who want to exact revenge or punishment through the legal system;
  9. Clients who make negative comments about judges, courts, and the judicial system; and
  10. Companies with unusually high turnover of key staff or unusual corporate structures.

Bottom line? Many potential malpractice claims can be avoided by refusing to represent those clients who seem like trouble from the outset. Avoiding mistakes is helpful, too.

Sally Field, along with John Palmeri, will discuss common reasons for lawyer malpractice lawsuits in a panel discussion moderated by Heather Kelly. Join us for this interesting and informative breakfast CLE on Tuesday, September 27, 2016. Call (303) 860-0608 to register, or click the links below.

 

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CLE Program: Why Lawyers Get Sued

This CLE presentation will occur on September 27, 2016, at the CBA-CLE offices (1900 Grant Street, Third Floor), from 8:30 a.m. 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.

Event Data Recorders, Drones, and Evidence: What You Need to Know

DroneThe Denver District Attorney’s monthly newsletter for September 2016 warned consumers about connecting their cell phones to the computers in rental cars. The newsletter warned, “Once your phone is connected to the car, it can access all your phone’s information such as GPS searches, home address, phone calls, contacts, etc. The information is stored indefinitely, waiting for the next person to connect to the car, and to your private information. The risk is obvious.”

The risk to rental car drivers concerns the car’s Event Data Recorder, or EDR. However, EDRs in cars can be useful for more than accessing another driver’s playlist. EDRs can record when and how often drivers use certain features in cars, such as the hand brake or the turn signal. The raw data from a vehicle’s EDR can be enormously useful in litigation. C.R.S. § 12-6-402 governs the use of EDR evidence in litigation, providing

EDR data is the personal information of the vehicle’s owner and the data shall not be retrieved by a person who is not the owner unless:

  1. The owner or the owner’s agent has consented to the retrieval in the last 30 days;
  2. The data is retrieved by a technician performing service or repair;
  3. The data is subject to discovery pursuant to the rules of civil procedure in an auto accident case;
  4. A court or administrative agency with jurisdiction orders the data be retrieved;
  5. The EDR is installed after the manufacturer or dealer sells the vehicle; or
  6. A peace officer retrieves the data pursuant to a court order as part of an investigation.

Another relatively new source of litigation evidence comes from drones. Drones, or unmanned aerial systems, collect video evidence from their on-board cameras. The use of drones is fraught with controversy, as cases collect regarding people shooting drones in the airspace above their property, people expressing surveillance concerns regarding drones, and more. The Federal Aviation Administration has promulgated rules regarding the use of drones, but more will be developed as these unmanned aircraft gain popularity.

Savvy lawyers need to know about the complexities of digital evidence preservation and the ethical considerations of working with technology and the experts who gather the data. Join Fay Engineering and Chad Lieberman, Esq. for an exciting presentation about the cutting edge technology of drones, dash cams and black boxes. Digital information is being gathered by our vehicles, our phones, and in nearly every aspect of our lives. The technology of aerial photography continues to rapidly change. The presentation covers the latest advances in evidence collection by drones and commercial services. Register online here, or by clicking the links below.

 

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CLE Program: New Technology for Evidence Preservation: Drones, Dashcams, Black Boxes and More

This CLE presentation will occur on September 26, 2016, at the CBA-CLE offices (1900 Grant Street, Third Floor), from 12 p.m. to 1:30 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.

Should We Get Involved In the Government Marketplace?

Editor’s Note: This article is reprinted with permission courtesy of Richard F. Busch, II,  www.rbuschlaw.com. All rights reserved.

By Richard F. Busch, II, Esq.

The federal government spends trillions of dollars annually for a wide range of goods and services to meet mission needs. Current events indicate that one potential factor in the recovering economy will include stable or increasing government procurement budgets. Construction and construction related activity is a very large part of the government’s budget and recovery plans, including here in Colorado. In addition, along with the current depletion of the spare parts inventory for the military, technology advancements require up-to-date development programs and a consistent focus on maintaining our lead in state of the art equipment. Finally, the government must/has become increasingly reliant on industry and the commercial markets to provide the technical expertise to advance the infrastructure and the required solutions for mission success.

While many of the largest defense companies and government contractors have an operational presence in Colorado, the majority of existing defense/government construction projects, contracting, and research/development opportunities remain untapped by Colorado businesses. The doors are opening, particularly in the areas of construction project, remodeling, and refurbishment. High technology practice areas in Colorado include but are not limited to energy and construction, nanotechnology, space, and software development. Colorado businesses, as well as the state legislature, are realizing the vast potential in the government marketplace and the unique position Colorado has in becoming a primary state to provide the government marketplace with the supplies and services needed to successfully accomplish its mission.

Doing business in the federal or state marketplace has changed over the years. Past difficulties have been eliminated with the new focus on the commercial contractor and smaller businesses. Please consider the following FAQs to better understand the current opportunities:

Q: If a business entity was considering entering the government marketplace and you could give them just one piece of advice, what would it be?

A: Do it right! The concept is simple, but the execution can be complex if a company attempts to perform in the government marketplace without the experience or advice necessary to succeed. Unique skills are needed because the government marketplace is a different forum than the commercial market. A company must recognize, understand, and prepare for the differences. In order to take advantage of the many opportunities when dealing with the government, the company must be prepared to understand there are differences, those differences can be “handled,” and the potential is worth the focus. In that regard, it is crucial to have experienced, qualified professionals advising you about those unique requirements when dealing with the government—contract administrators, accountants, quality and marketing experts, and legal professionals. It’s not always necessary to hire people experienced in these areas, but a company should have such advisors available as needed. A government contract is not “just” a contract. It is important to look to organizations like the Small Business Administration and the Department of Defense’s Procurement Technical Assistance Centers for help and guidance on the proper proactive approach to government contracting.

Q: Once a company wins a government contract or is awarded an order, what focus should they have in completing their obligation?

A: It’s important to remember that a company’s “past performance” is not just a concept, but rather an important element of success. While there is no such thing as a perfect contract, careful administration, timely performance, quality work, and accurate accounting are essential to securing an outstanding performance evaluation. The manner in which a company performs and how its contracts are administered is a primary factor the government considers when awarding new opportunities. Exercising sound business judgment, even on those occasions when the company must seek an equitable adjustment or relief from the contracting officer, is important in avoiding and/or resolving disputes over the performance of the contract. Remember, the government has responsibilities under the contract as well and must be held accountable. If approached in a business-like manner and supported by the guiding principles in the regulations, executive orders, and statutes, the government generally appreciates an attempt to resolve issues at the lowest level and in the quickest amount of time.

Q: Is it important to understand the commercial-item procurement initiative when dealing with the government?

A: Federal Acquisition Regulation Part 12 provides guidelines for the purchase of “commercial” supplies and services. Briefly, the regulation states a preference for the acquisition of commercial items and that commercial items shall be acquired to meet the needs of the agency whenever they are available. In addition, the regulation requires prime contractors and subcontractors at all tiers to incorporate, to the maximum extent practicable, commercial items as components of items supplied to the government agency. This initiative is very important for any business participating in or considering entering the government marketplace. Having a product or service designated as “commercial” affects intellectual property rights, accounting audits, quality programs, socioeconomic requirements, and the imposition of most of the normally required terms and conditions.

Q: Obviously contract terms and conditions are important, but how closely should contracts be reviewed?

A: As with all legal documents, it is important to understand the terms you are committing to and your responsibilities under the contract. The government has responsibilities also. Over-incorporation of clauses only creates opportunity for increased spending and a forum for failure. In one situation, our client, a small subcontractor on a major program, was given flow-down terms and conditions from the large prime contractor. We were requested to review these flow-down clauses and comment on the applicability of the requirements. Although the subcontractor was on the prime’s proposal team, the prime flowed down more than 115 contract provisions. Upon review, we found only a limited number of clauses that were mandatory due to the unique status of dealing with the government and 14 clauses that would be acceptable if appropriately modified to support the prime contractor’s responsibilities to the government. The rest of the clauses did not apply or were not appropriate. Always review the clauses and negotiate the final contract as much as possible. Balance your review by recognizing acceptable risks, managing those risks, and keeping in mind your goals in acquiring and performing the contract.

Q: What are some important considerations when establishing the Prime-Subcontractor relationships?

A: A company’s approach to entering the realm of government contracts should include various relationships with prime contractors. Those contractual relationships could include not only the traditional subcontract, but also teaming arrangements, joint ventures, and mentor-protégé programs. Be thorough and proactive in the development of such relationships. Ensure that there is an understanding in terms of the focus and goals to be achieved and the responsibilities assigned to each party. Understand billing, risk allocation, intellectual property issues, marketing, and quality issues between the contract parties. Most important, clearly identify the roles and goals of the parties. Finally, understand and limit the terms and conditions necessary to successfully perform the contract.

Q: How should the contractor handle a dispute with the government or prime over contract award or performance?

A: There are different approaches to resolving disputes with the government or prime over a contract award or performance. In my opinion, it is most important not to be arbitrary and to understand that there is a certain cost to performing any business obligation. Management must balance the rights supplied under the contract with the importance of the company’s relationship with its customer. Generally, my experience has been that the government understands that parties to a contract may have a dispute—there is no perfect contract. While there are no guarantees, most government officials understand that it is “just business” as long as the issues are presented in a business-like approach. A professional approach goes a long way toward resolving issues and maintaining a high past performance rating.

Whatever the level of the dispute, the contractor must ensure that the claim is drafted well and fully supported. While there are times that demand a more formal resolution technique, I am a firm believer in trying to resolve issues through unassisted negotiation or formal mediation. There are a number of government directives that encourage alternative dispute resolutions between parties; take advantage of those directives as much as possible. It’s just good customer relations.

© Busch Law Firm LLC (2016)

Richard Busch, II, is a solo practitioner at The Busch Law Firm, which is a boutique government contract practice firm. His practice involves all aspects of government contracts, commercial contracts, conflict management systems design, ADR, and white collar crime. More specifically, his practice focuses on the formation and administration of contract relationships through the utilization of a proactive approach of addressing the objectives of the relationship, requirements for successful performance, and the resolution of disputes. Mr. Busch has extensive experience in negotiating complex business issues involving high technology and major weapons system contracts, contract compliance issues, and resolving both internal and external disputes involving the business organization. Richard has reviewed and negotiated multimillion dollar solicitations, proposals, equitable adjustments, terminations, and other related government acquisition and commercial-based contract matters with a number of government agencies and subcontractor/vendors. He concentrates on the legal issues facing a corporation doing business with the government or its prime contractors in the areas of construction, high technology, major weapons systems, and information⁄communication technology. Mr. Busch has worked with corporations, the DoD, and other government agencies in the highly structured areas of classified contracts. As a result, he has gained a wealth of experience in dealing with classified authorities pertaining to these agencies. Prior to entering private practice, Mr. Busch held positions as General Counsel of a multi-billion dollar product area with a Fortune 50 defense contractor and a legal advisor to the Director of Contracts at the National Security Agency (NSA).  Mr. Busch earned an L.L.M. (Government Contract Designation) from George Washington University National Law Center, a J.D. from the Hamline University School of Law, and a B.A. from Westminster College, Fulton, Missouri.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

 

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CLE Program: Finding Federal Contract Work — Meet the Attorneys, Veterans, the SBA and Bankers Your Clients Need

This CLE presentation will occur on September 16, 2016, at the CBA-CLE offices (1900 Grant Street, Third Floor), from 9 a.m. to 4:10 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: CD • MP3Video OnDemand.

John Moye and John McCabe Receive Cathy Stricklin Krendl Business Lawyer Lifetime Achievement Award

Moye-McCabeIn 2014, the Colorado Bar Association Business Law Section created the “Cathy Stricklin Krendl Business Lawyer Lifetime Achievement Award.” The award is named for the first recipient in 2014, Cathy Stricklin Krendl, and is intended to recognize and honor her contributions to Colorado business law, including intellectual and professional excellence in the practice Colorado business law; generosity of spirit as reflected in the advancement of Colorado business law; efforts to enhance the general quality of business law practice by Colorado lawyers; and devotion to the principles of legal professionalism, all manifested consistently over years of endeavor.

The CBA Business Law Executive Council chose two outstanding recipients for 2016—John Moye, founding partner at Moye White, and John McCabe, Senior Of Counsel, with Davis Graham and Stubbs LLP. The awards will be presented at the 2016 Business Law Institute at the reception on the first day, September 15 at 5 p.m.  We invite all members of the CBA Business Law Section to attend the awards ceremony and reception even if you are unable to attend the Institute.  The exemplary contributions that the recipients have made to the area of business law will be shared at the ceremony. We look forward to seeing everyone there to celebrate their achievements.

 

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CLE Program: 2016 Business Law Institute

This CLE presentation will occur on September 15-16, 2016, at the Marriott City Center (1701 California Street, Denver). Register for the live program here. You may also call (303) 860-0608 to register.

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

Two Law Legends and CBA-CLE Recognized by International CLE Organization for Legal Publication: Limited Liability Companies & Partnerships in Colorado

StarburstAwardsLogoThe Association for Continuing Legal Education (ACLEA), an international continuing legal education organization, awarded Colorado Bar Association CLE (CBA-CLE) with the Award of Outstanding Achievement in the publication category for its business law book Limited Liability Companies and Partnerships in Colorado.

Lidstone-SparkmanAttorneys Herrick Lidstone, Jr. and Allen Sparkman, two business law legends in Colorado, have taken a complex subject and written a clear, concise treatise on how to structure a business. The criteria for an ACLEA award include excellence in style, innovation, and content, in addition to the book’s appeal to a broad spectrum of the legal community. CBA-CLE Assistant Executive Director Dawn McKnight says, “We are extremely honored to win this award and grateful to have as authors two legends in the field, Herrick Lidstone and Allen Sparkman. Their vast experience, diligence, and thoroughness are evident throughout the book. They spent countless hours researching, writing, and revising this treatise to make it a comprehensive guide for practitioners.”

ABOUT THE BOOK:

Partnerships and other business entities have a fascinating history going back thousands of years.  Now in the twenty-first century, the variety of ways in which a new business may be formed and operated has made this a complex and especially important practice area.  Limited Liability Companies and Partnerships is a business law treatise for practitioners as they advise clients on issues from the time of a business’s formation to the time of dissolution. Topics include: choice of entity, formation and dissolution of the entity, creditor rights, securities and tax issues, as well as ethical considerations.

ABOUT THE AUTHORS:

Lidstone_HerrickHerrick Lidstone, Esq. is a shareholder and managing director of Burns Figa & Will, P.C. in Greenwood Village, Colorado. Mr. Lidstone practices in the areas of business transactions, including partnership, limited liability company, and corporate law, federal and state securities compliance, mergers and acquisitions, contract law, tax law, real estate law, and natural resources law. Mr. Lidstone’s work includes the preparation of securities disclosure documents for financing transactions, as well as agreements for business transactions,

limited liability companies, partnerships, lending transactions, real estate and mineral property acquisitions, mergers, and the exploration and development of mineral and oil and gas properties.

SparkmanAllenAllen Sparkman, Esq. practices law in Denver and Houston as a partner of Sparkman + Foote LLP. Mr. Sparkman’s practice includes the areas of business transactions, securities, tax, and professional responsibility. Mr. Sparkman’s work includes the preparation of securities disclosure documents for start-up companies in a variety of fields, including offshore oil and gas exploration, foreign mining operations, real estate, and comic book certification. He also regularly prepares LLC and partnership documents, and represents buyers and sellers of businesses, including preparing or reviewing all necessary legal documents.

ABOUT CBA-CLE:
Colorado Bar Association CLE (CBA-CLE) is the nonprofit educational arm of the Colorado Bar Association and the Denver Bar Association. We produce high-quality continuing legal education programs and legal publications for attorneys and legal professionals.

Dr. Ulrich Herrmann, Chief Judge of the III Civil Panel in Germany, to Speak at Brown Palace

Herrmann_pic_02The Colorado Bar Association International Law Section and the Colorado Chapter of the German American Chamber of Commerce are hosting a luncheon with Dr. Ulrich Herrmann, Chief Judge of the III Civil Panel of the Supreme Court of Germany. Dr. Herrmann will discuss the refugee crisis, Brexit, and political freedom of speech.

Dr. Herrmann was appointed presiding justice of the Federal Court of Justice (Bundesgerichtshof) and chairman of the 3rd Civil Panel on August 4, 2015. The Bundesgerichtshof is the German Federal Supreme Court for civil, family, and criminal cases. As chairman of the 3rd Civil Panel, his jurisdiction includes state liability, liability of notaries, service contracts, mandate law, law of private foundations and several other subjects. Dr. Herrmann was first appointed to the Justice of the Federal Court of Justice and to the 3rd Civil Panel in December 2003. He has additionally served as judicial tasks representative for the court on IT matters since March 2007.

Dr. Herrmann began his law career as an assistant at the Institute of Civil Procedure and Insolvency Law of the University of Bonn, writing his doctoral thesis on “The Principle Structure of a Pending Civil Law Suit” (Die Grundstruktur der Rechtshängigkeit). He was appointed as a judge at the Regional and the Local Court of Bonn in February1990. Over the following seven years, Dr. Herrmann served first as presidential and later as presiding judge of the Regional Court of Frankfurt (Oder) in the state of Brandenburg. Here he was also responsible for the personal matters of the judges of the district court.

In August 1998, Dr. Herrmann became judge of the Higher Regional Court of Brandenburg, where he continued to take responsibility for the personal matters of regional judges. In December 1999, he became chief of staff of the Brandenburg Ministry of Justice and in December 2002, he was appointed vice president of the agency for legal exams of the state of Brandenburg.

He originally hails from the city of Bonn in North Rhine Westphalia. He is married and has two children, aged 24 and 30 years old.

The program will take place on Friday, August 5, 2016, from noon to 1:30 at the Brown Palace. To register, call (303) 860-1115, ext. 727, or email lunches@cobar.org.

Commercial/Preference Owned Business in the Commercial Marketplace

Editor’s Note: This article is reprinted with permission courtesy of Richard F. Busch, II,  www.rbuschlaw.com. All rights reserved.

By Richard F. Busch, II, Esq.

Why should an otherwise commercial company consider entering the Government market place as a prime contractor, vendor, or subcontractor at any level, especially if you can qualify for a preferred status (Veterans, SDVOSB, or Women Owned Small Business? 

Due to the growth in technology, the Government has determined that the commercial business sector must be the primary force to develop and provide the products and services they need to achieve society’s goals. Consequently, the Federal Acquisition Regulation (“FAR”) and the individual agency supplements have been revised to become much more “commercial” friendly in most situations. If the potential contractor is a “commercial” business engaged in supplying commercial products or services, many of the complex requirements simply do not apply. Except for a very limited number of government unique provisions, most clauses are negotiable. In addition, there are award goals set by Federal statute that define prime contracting goals for small businesses, veteran owned small businesses, women-owned small business, Service Disable Veteran Owned Small Businesses, and more.

The following are some general points a commercial/preference business should consider:

  • Just over $573B DoD 2016 proposed spending plan and an additional $163 B for Veterans Affairs programs (total government budgets much bigger)
  • Limited government audit rights for commercial companies with commercial products
  • Terms and conditions more conducive to commercial application (subject to the unique mission of the government)
  • Over 11 Million commercial supplies (products) and services at volume discounts offered on GSA Schedule contracts
  • Favorable research and development terms if negotiated correctly
  • Commercial pricing based on the market—(Government does request the best commercial prices under like terms and conditions)
  • Electronic Payment with automatic interest on due and payable amounts for late payments
  • Joint venture, teaming arrangements, and subcontract opportunities in addition to prime status purchases

The government market sector has vast potential for a company that has the resources and products/services to benefit the goals of the government. If a company is considering doing business with the government, the effort must be based on one simple principle—DO IT RIGHT!

© Busch Law Firm LLC (2016)

Richard Busch, II, is a solo practitioner at The Busch Law Firm, which is a boutique government contract practice firm. His practice involves all aspects of government contracts, commercial contracts, conflict management systems design, ADR, and white collar crime. More specifically, his practice focuses on the formation and administration of contract relationships through the utilization of a proactive approach of addressing the objectives of the relationship, requirements for successful performance, and the resolution of disputes. Mr. Busch has extensive experience in negotiating complex business issues involving high technology and major weapons system contracts, contract compliance issues, and resolving both internal and external disputes involving the business organization. Richard has reviewed and negotiated multimillion dollar solicitations, proposals, equitable adjustments, terminations, and other related government acquisition and commercial-based contract matters with a number of government agencies and subcontractor/vendors. He concentrates on the legal issues facing a corporation doing business with the government or its prime contractors in the areas of construction, high technology, major weapons systems, and information⁄communication technology. Mr. Busch has worked with corporations, the DoD, and other government agencies in the highly structured areas of classified contracts. As a result, he has gained a wealth of experience in dealing with classified authorities pertaining to these agencies. Prior to entering private practice, Mr. Busch held positions as General Counsel of a multi-billion dollar product area with a Fortune 50 defense contractor and a legal advisor to the Director of Contracts at the National Security Agency (NSA).  Mr. Busch earned an L.L.M. (Government Contract Designation) from George Washington University National Law Center, a J.D. from the Hamline University School of Law, and a B.A. from Westminster College, Fulton, Missouri.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

 

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CLE Program: Finding Federal Contract Work — Meet the Attorneys, Veterans, the SBA and Bankers Your Clients Need

This CLE presentation will occur on September 16, 2016, at the CBA-CLE offices (1900 Grant Street, Third Floor), from 9 a.m. to 4:10 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: CD • MP3Video OnDemand.

New and Revised Ethics Opinions Address Unbundling, Missing Clients

The Colorado Bar Association’s Ethics Committee has released Formal Opinion 128, addressing missing clients, and has revised Formal Opinion 101, addressing unbundling of legal services. Formal Opinion 128, “Ethical Duties of Lawyer Who Cannot Contact Client,” addresses situations where a client disappears at some time during the representation, or situations where a lawyer is retained by an insurance company to represent an insured but cannot locate the client. The CBA Ethics Committee opines that the lawyer should continue to act on behalf of the client in order to preserve legal rights, as long as the actions do not conflict with other ethical rules. The Committee also notes that the lawyer should take reasonable steps to locate the missing client.

Formal Opinion 101, “Unbundled Legal Services,” was revised by the Ethics Committee and reenacted as a new opinion. Formal Opinion 101 addresses unbundled legal services, where a lawyer undertakes part of the representation for a client but does not provide full services, such as in situations where a client cannot afford the full range of legal services but retains a lawyer to “ghostwrite” pleadings. The Ethics Committee incorporated the changes to Colo. RPC 1.2(c), which rule specifically allows limited representation, and the amendments to C.R.C.P. 11(b) and 311(b), which allow “ghostwriting” of pleadings. The opinion discusses the rule changes and their significance to lawyers in limited representations.

These rules and more will be discussed at CBA-CLE on July 26, 2016, at a breakfast program: “Ethics Rules Changes – Effective April 6, 2016.” Speakers Marcy Glenn, David Stark, and Jamie Sudler will discuss the new and revised rules and their implications for practitioners. Click the links below to register, or call (303) 860-0608.

 

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CLE Program: Ethics Rules Changes — Effective April 6, 2016

This CLE presentation will occur on July 26, 2016, at the CBA-CLE offices (1900 Grant Street, Third Floor), from 8:30 a.m. to 9:50 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.

The Ethical Danger of the Microsoft/LinkedIn Merger

Editor’s Note: This post originally appeared on Stuart Teicher’s blog, “Keeping Lawyers Out of Trouble,” on June 16, 2016. Reprinted with permission.

Headshot-Stuart-TeicherBy Stuart Teicher

This week it was announced that Microsoft is buying LinkedIn. There are some hidden attorney ethics implications about which we all need to be aware.

A review of the recent news articles announcing the acquisition reveals that a key motivating factor in Microsoft’s purchase of LinkedIn was access to LinkedIn’s data.  Of course, sharing data is nothing new. But when companies improve their ability to share our data across various platforms, my ears perk up. Not just because it’s creepy or because of obvious privacy implications. The type of data sharing they’re contemplating in the Microsoft/LinkedIn combination makes me worry about confidentiality (and other) issues.

Why they are merging:

According to the Wall Street Journal, Microsoft sees a critical synergy with LinkedIn:

“LinkedIn’s users are, arguably, Microsoft’s core demographic. They also offer Microsoft something it has long sought but never had—a network with which users identify. Microsoft needs to persuade LinkedIn users to adopt that identity, and use it across as many Microsoft products as possible.

Access to those users, as well as the enormous amounts of data they throw off, could yield insights and products within Microsoft that allow it to monetize its investment in LinkedIn in ways that the professional networking site might not be able to. [Microsoft CEO] Mr. Nadella already has mentioned a few of these, including going into a sales meeting armed with the bios of participants, and getting a feed of potential experts from LinkedIn whenever Office notices you’re working on a relevant task.“

In other words, Microsoft wants to have your Outlook and other Microsoft software products speak to your LinkedIn profile. The intersection of that data is valuable—various sellers of products and services would be willing to pay for it.

It appears that Microsoft wants to be able to read through the work we do on their products like Word, review our upcoming appointments in our Outlook calendar, search for keywords in our emails, and then find connections with people with our LinkedIn connections. That’s what they are searching for—connections they could monetize.

For instance, let’s say accountant X has an Outlook Calendar appointment which sets a meeting with “Charles McKenna of Account-Soft Corp.” Microsoft could then search LinkedIn and it would learn that McKenna works for a company that sells workflow management software. Well, now Microsoft knows the accountant is in the market for workflow management software… and they could sell that knowledge to other software companies who would then direct solicitations in the accountant’s direction. That’s an annoyance for an accountant, but a potential ethics disaster if he/she were a lawyer.

Basic issue, Confidentiality:

If Microsoft scours our Word documents and emails, then there could be Rule 1.6 confidentiality issues.  That’s so obvious that we don’t need to spend time talking about it now. I think the more unusual issues come from the Calendar function…

If they leverage the data in our Calendar, it could reveal our client relationships:

The substance of what we learn from the client is confidential, but so is the very existence of the lawyer-client relationship. Will the integration of these platforms make it easier for people to figure out who we represent?

Think about how much information Microsoft could piece together from our Calendar. They might see a potential client introduction (which lists Pete Smith as present), a court appearance (which lists Pete Smith as present), and a meeting for settlement purposes (which lists Pete Smith as present). It’s not going to be too tough for the Microsoft bots to figure out that Pete Smith is your client.

If they leverage data in our Calendar, it could reveal key substantive information that could harm the client:

If Microsoft looks at our Calendar they can see that we’re heading to a particular locale. They might then cross reference our LinkedIn connections and send a message to one of them that says something like, “Your connection Bruce Kramer is going to Chicago next week. Why don’t you look him up?”

That heads-up might give someone the incentive to look into our movements a bit more… and who knows what they could find. What if that info was given to a real estate agent that we know in Chicago… and maybe we are representing a successful land owner… and we’re clandestinely scouting a real estate purchase because we don’t want people to figure out that we’re there on behalf of our deep-pocketed client… because if they know, the purchaser will run up the price. That LinkedIn message tipped off the real estate agent and it could cost the client a lot of money.

If they leverage data in our Calendar, it could end up revealing a misrepresentation:

Imagine that Client A asks you to accompany them to a meeting in Los Angeles. You tell her that you can’t go because you’ll be on vacation on the East Coast. That’s not true, however. The truth is that you’ve already scheduled a meeting with a potentially new client in Los Angeles. You didn’t want Client A to know that you’d be in town because you didn’t want to have to shuffle between clients—it would just be too much work. You could have told Client A that you’d be in town but you didn’t have time to meet her, but you thought she’d be insulted. It was just easier to say you’re far away and be done with it.

Later, Client A gets a LinkedIn message that says, “Your Connection Mary Smith is going to be in Los Angeles next weekend… send her a message and try to link up!” Do you know what you are now? Busted. And not only do you have egg on your face, but you may also have committed an ethical violation.

Is the white lie that you told your client going to be considered a misrepresentation or deception per Rule 8.4(c)? That rule states: “It is professional misconduct for a lawyer to (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation…”

I know what you’re thinking… it was a half-truth. No harm no foul. Well, I searched the ethics code, and I didn’t find the term “white lie” or “half-truth” anywhere in the code. You should also note that Rule 8.4(c) does not require that the misrepresentation be “material.” It doesn’t allow you to lie about inconsequential things and there’s no modifying language- it just says that you can’t lie or deceive.

These are just a few issues. Some of these are clear ethics concerns, others are more akin to PR nightmares. Are they so terrible that we all need to get off LinkedIn right away? That might be a bit premature. After all, they only just announced the merging of the platforms- they haven’t actually done anything yet. I don’t know what dangers will actually be realized, or whether any dangers will be realized at all. What I do know is that part of being a responsible attorney in this technological age is to be diligent in thinking about these issues. As lawyers practicing in an ever-changing technological environment, we need to be aware of the potential problems. Keep your eye on the news and stay abreast about the details regarding the integration of these two platforms. Then, if you determine that you need to act, do so.  That way we are “keep[ing] abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” Comment [8], Rule 1.1.

Save the Date!

Stuart Teicher will be at the CLE offices on Thursday, September 8, 2016, to present two ethics programs. Registration is not yet open, but mark your calendars and don’t miss these important programs.

 

Stuart I. Teicher, Esq. is a professional legal educator who focuses on ethics law and writing instruction. A practicing attorney for over two decades, Stuart’s career is now dedicated to helping fellow attorneys survive the practice of law and thrive in the profession. Stuart teaches seminars and provides in-house training to law firms/legal departments.

Stuart helps attorneys get better at what they do (and enjoy the process) through his entertaining and educational CLE Performances. His expertise is in “Technethics,” a term Stuart coined that refers to the ethical issues in social networking and other technology. He also speaks about “Practical Ethics”– those lessons hidden in the ethics rules that enhance a lawyer’s practice. Stuart writes the blog “Keeping Lawyers Out of Trouble.”

Mr. Teicher is a Supreme Court appointee to the New Jersey District Ethics Committee where he investigates and prosecutes grievances filed against attorneys, an adjunct Professor of Law at Rutgers Law School in Camden, New Jersey where he teaches Professional Responsibility and an adjunct Professor at Rutgers University in New Brunswick where he teaches undergraduate writing courses. He is a member of the bar in New York, New Jersey and Pennsylvania. In 2014, he authored the book Navigating the Legal Ethics of Social Media and Technology (Thomson Reuters).

The End of Law Firms? Legal Service Delivery in the 21st Century

3e5ee2a2014 marked the 100th anniversary of World War I – the “Tipping Point” wherein the automobile forever replaced the horse as the predominant form of ground transportation in the modern era. In the three decades that followed World War I, livery stables closed and buggy whip manufacturers went out of business.

The Great Recession of 2008 has served as a “Tipping Point” of its own sort for the legal profession, where alternative legal services delivery models – LegalZoom for consumers and Legal Process Outsourcing companies (“LPOs”) for corporations – now challenge the monopoly that traditional law firms once held for legal services delivery. Prices for legal services are plummeting in a free fall. Competition for clients is at an all-time high, even as U.S. law schools churn out 44,000 new lawyers a year into a 100% saturated legal market. Corporate clients in the current buyers’ market are increasingly demanding lower, fixed prices and value-based Alternative Fee Arrangements (“AFAs”) in lieu of hourly billing – making law firms bear the ‘risk of loss’ in uncertain but complex litigation and transaction matters – even as the costs of running law firms continue to climb. To survive, most law firms have already morphed from their 1980s ‘Pyramid’ shaped organizational structures into ‘Diamond’ shaped organizational structures staffed by experienced attorneys – with virtually no associates to ‘fill out’ the base of once ‘Pyramid’ shaped law firm. But some commentators believe that this ‘Diamond’ shaped organizational structure is only a temporary change – like the hull of a great ship that rises out of the water before the whole thing sinks. What if in our lifetime we are watching the end of law firms, just as our great grandfathers watched the end of livery stables? From ‘Pony Express’ to ‘Federal Express’…

In this thought-provoking CLE presentation, attorney Mark Lassiter presents his vision of how the legal profession can ‘rise like the great Phoenix out of the ashes’ of its current malaise – all without traditional law firms. He argues that, if current legal trends continue unabated, the historic law firms as we have known them must become extinct – with the largest dying last. He does NOT argue that lawyers will not practice together with each other in communities or associations. Rather, he argues that such associations will look different from the traditional law firms of the 20th Century, which still prevail (for now…). He predicts a day when future lawyers will collaborate and work together on legal matters in Cloud based, temporary ‘teams’– not based on law firm allegiances or employment, but rather on their own, specific expertise and skill sets. In other words, the ‘mission’ (not the ‘law firm’) will drive and determine the lawyers and staff recruited to a temporary legal team – allowing clients to ‘cherry pick’ the best, most qualified lawyers and legal staff for the clients’ unique legal matters – with all legal work tasks being monitored and controlled from secure, Cloud-based portals. Such arrangements will empower solo and small practice lawyers, ‘Soccer Mom’ and ‘Disabled Dad’ lawyers, and young, new lawyers as never before.

If you are a new, small, solo or part-time lawyer you won’t want to miss hearing how the coming decades may actually be the best yet for attorneys like you. Come and watch this thought-provoking presentation from one of America’s emerging legal thought leaders.

 

CLE Program — The End of Law Firms? Rethinking Legal Services Delivery in the 21st Century

This CLE presentation will occur on July 19, 2016, at the CBA-CLE offices (1900 Grant Street, Third Floor). Register online or call (303) 860-0608.

Can’t make the live program? Register for the live webcast here.

The Internet of Things: A Disrupter? Precarious? The Jetsons?

IP_2016By John Ritsick, Esq.

Predictions about how much and how quickly technology will change the world can vary – we all can ask “where’s my flying car” now that the 2015 of “Back to the Future has come and gone and we still don’t have those flying cars. But the impact of The Internet of Things (IoT) will be significant, and the scope and scale can be mind-boggling. The IoT is the network of physical objects—devices, vehicles, buildings, and other items—embedded with electronics, software, sensors, and network connectivity that enables these objects to collect and exchange data. I work in the manufacturing industry and see the changes coming before they are close to the market, and I am constantly blown away by what we know is coming.

Nearly every industry and every type of tangible item is a potential participant in the IoT. The industries affected include automotive, transportation, city infrastructure, homes and household goods, retail stores—virtually all industries can potentially be incorporated into the IoT. Self-driving cars necessarily mean the car is connected to the Internet and is “smart” technology, but a self-driving car also means that other cars and vehicles are connected, that the roads the cars drive on and traffic systems are part of a larger environment, and that our emergency response services are connected as well.

I’ll be moderating a talk on the IoT at the 2016 Rocky Mountain IP & Technology conference in Denver in June. My colleague at Flex, Kenji Takeuchi, leads Products and Technology Management for the Flex’s Connected Living and IoT Software business. He’ll be talking about this subject and other thoughts on where technology is headed—it will be an insightful look into the future!

John Ritsick, Esq., is in-house counsel at Flex, a global leader In the categories of design, manufacturing, distribution, and aftermarket services. Find out more about the 2016 IP & Technology Institute at the links below.

 

CLE Program — 14th Annual Rocky Mountain Intellectual Property & Technology Institute

This CLE presentation will occur on June 2-3, 2016, at the Westin Westminster Hotel. Register online or call (303) 860-0608.

Can’t make the live program? Order the homestudy here: CDMP3

Top Ten Reasons to Attend the Rocky Mountain Intellectual Property Institute

Each year, Colorado Bar Association CLE hosts the Rocky Mountain Intellectual Property & Technology Institute, the “place to be for the best IP.” In case you haven’t yet registered for this year’s event, here are the Top Ten Reasons to Attend:

Top Ten Reasons to Attend the 2016 Intellectual Property & Technology Institute

10. Anyone who’s anyone will be there! And if you’re not there, anyone who’s anyone will know.
9. Patents … Trademarks …Copyrights … Licensing …Technology & Transactions!
8. Learn best practices and practical tips that you can apply immediately.
7. Special panels of USPTO patent judges and SPEs discussing developments at the USPTO.
6. Over 40 sessions presented by an all-star faculty of leading IP practitioners.
5. Grow your professional contacts through networking opportunities with IP attorneys from … well … from all over!
4. Receive the digital course materials AND the MP3 audio download for the ENTIRE Institute!
3. Some of the best from across the nation come together to share their knowledge & insights with you!
2. Annual case law updates of all branches of IP law.
1. This Institute has quickly become “the place to be for the best IP” in the western United States!

If that wasn’t enough to convince you, watch this video of Rocky Mountain Regional U.S. Patent & Trademark Office Director Molly Kocialski and Program Chair Nate Trelease explaining what you’ll learn at the Institute:

Don’t miss the 14th Annual Rocky Mountain Intellectual Property & Technology Institute! Register today.

CLE Program — 14th Annual Rocky Mountain Intellectual Property & Technology Institute

This CLE presentation will occur on June 2-3, 2016, at the Westin Westminster Hotel. Register online or call (303) 860-0608. Can’t make the live program? Order the homestudy here: CDMP3