April 29, 2017

Top Ten Programs and Homestudies of 2016: Business Law

The year is drawing to a close, which means that the compliance period is ending for a third of Colorado’s attorneys. Still missing some credits? Don’t worry, CBA-CLE has got you covered.

Today we are featuring the Top Ten Business Law Programs and Homestudies of 2016. These programs represent only a sampling of the wide array of business law programs and homestudies available; visit www.cba-cle.org/Practice-Area/Business to see a great selection of business-related books and programs.

10. M&A World in 15 & 2016: What Did Your CO Investment Bankers See in 15 & What Do They Expect in 2016
Investment bankers from five of Denver’s investment banking firms discussed their thoughts on what they expected to see in the M&A world in 2015, what they actually saw in 2015 and what they expected to see in 2016. The panel will provide their insights on the M&A market, trends in structuring and negotiating M&A transactions, legal issues arising in M&A transactions, particular trends in the Colorado M&A market, and their expectations going forward in 2016. Watch this  Video OnDemand homestudy (or listen to the MP3 audio homestudy) to find out if the investment bankers’ predictions were correct. Available for 2 general credits.

9. How to Understand and Analyze Financial Statements: What Lawyers Need to Know
Complex financial issues are involved in nearly every area of law, and it is your responsibility to master the skills and knowledge necessary to handle those issues effectively. This detailed program provides you with the financial literacy required to protect yourself and your clients by guiding you through an understanding of accounting concepts, terminology, and financial statements. Beginning with an examination of Generally Accepted Accounting Principles and continuing with an overview of an actual financial statement, you will gain hands-on-experience from Doug Smith, one of the nation’s leading experts in the field. Order the Video OnDemand here, the CD homestudy here, or the MP3 here. Available for 6 general credits.

8. Business Document Drafting Series: Drafting Compensation and Other Employment Agreements
Learn about the various agreements employers enter into with their current and former employees. Learn about the mechanics of these agreements, the legal parameters that apply to these agreements, how employers use these agreements to protect intellectual property and retain key employees, and the challenges posed by M&A activities. Our experienced practitioner will also teach about the important provisions in executive compensation agreements, including change in control provisions, non-competition and other restrictive covenants, and separation agreements. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 2 general credits.

7. Business Document Drafting Series: Drafting LLC and Partnership Agreements
This program provides an overview of the primary drafting considerations in both LLC and partnership agreements. Learn about the key provisions and issues in drafting the LLC operating agreement as well as how to prepare the Articles of Organization. Also, learn about the most important drafting issues for a partnership, such as capital and partnership interests, profit, loss, cash flow, management and dissolution. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 2 general credits.

6. Business Contracts — The Fundamentals
Drafting contracts is the bread and butter of business law attorneys. In this program, twelve Moye White attorneys discussed various aspects of contract drafting, from compliance with state and federal securities laws to sponsorship agreements and sweepstakes events to mergers and acquisitions. As a bonus, the ePDF of CBA-CLE’s book, Business Contracts, is provided with every homestudy. Order the Video OnDemand here, the CD homestudy here, or the MP3 here. Available for 6 general credits.

5. Business Document Drafting Series: Boilerplate and Drafting Business Documents
This program provides practical advice on the perils of boilerplate in document drafting. Hear specific examples of drafting issues when you use forms. Learn the importance of keeping provisions current with case law, and knowing the definition of terms you use in your agreements. Better understand the value of silence, ambiguity, and knowing for whom you are drafting provisions. Know when to avoid “overdrafting.” Learn from a practitioner with a wealth of experience in preparing the many, many different documents required of a business lawyer. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 2 general credits.

4. Advising Entrepreneurs
Whether you are new to the business law arena, expanding your practice, or simply need a refresher to get up to date on advising entrepreneurs, this homestudy provides current and expert guidance on the issues, questions, and documents you will most likely encounter when representing the entrepreneur.  Develop and fine tune the lawyering skills needed to better advise entrepreneurs and start-up companies. Order the Video OnDemand here, the CD homestudy here, or the MP3 here. Available for 6 general credits, including 1 ethics credit.

3. Business Document Drafting Series: Drafting IP Licenses, InfoTechnology Contracts, and Related Documents
Businesses are focusing more and more on their intellectual property assets, and license agreements are used both to protect those assets and to leverage those assets as a source of revenue. You don’t have to be an intellectual property specialist to benefit from a fundamental understanding of how and why licenses for software, trademarks, copyrights, patents and other types of intellectual property are created. In addition, software and information technology services are increasingly a part of every type of business, so it is important to understand the company’s rights with respect to IT services and software that it receives from third parties. Learn the basics of drafting and reviewing these documents in this information-packed program! Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 2 general credits.

2. Limited Liability Companies in Colorado
The limited liability company (LLC) has been a very popular choice of entity for many types of business since the Internal Revenue Service adopted the “check-the-box” regulations in December 1996. Because of the combination of limited liability for all owners of the LLC, pass-through tax treatment, and ease and flexibility in customizing the relationships between the owners, the LLC is seen by many as providing the best of all worlds. Of course, there are specific disadvantages to using an LLC, and the specific facts of each matter must be analyzed before making a decision to move forward with organizing an LLC. Each homestudy order receives a copy of the CBA-CLE book, Limited Liability Companies and Partnerships in Colorado, First Edition as part of the course materials for this program. Please note the book will be provided in PDF. Order the Video OnDemand here, the CD homestudy here, and the MP3 here. Available for 8 general credits, including 1 ethics credit.

1. Annual Institute on Advising Nonprofit Organizations in Colorado/A Primer on Advising Nonprofits
This annual program provides a comprehensive overview of issues related to advising nonprofit organizations. Although it is not available as a homestudy, the live program is worth attending every year. Visit ColoradoBusinessLawInstitute.org for more information and registration information for the 2017 program.

Jury Selection in a High-Profile Death Penalty Case

On April 19, 1995, a Ryder truck filled with explosives parked outside the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma, and detonated. The blast damaged 324 buildings in a 16-block radius, 168 people were killed in the attack, and 680 were injured. Many of the deceased were children; an “America’s Kids” child care center was inside the federal building, and 15 of the 21 infants and children at the child care center were killed.

Approximately 80 minutes after the attack, Timothy McVeigh was pulled over for a missing registration tag on his 1970s yellow Mercury. When the officer stopped McVeigh’s vehicle, McVeigh got out of the car and the officer could see the outline of a gun under his jacket. McVeigh admitted he had the weapon and it was loaded, and the trooper arrested him and booked him into jail. Within days of the attack, the Ryder truck was linked to McVeigh and his friend Terry Nichols, McVeigh’s Army buddy.

McVeigh and Nichols were charged with eleven counts: (1) conspiracy to use a weapon of mass destruction; (2) use of a weapon of mass destruction; (3) destruction by explosive related to the Murrah building; and (4) through (11) first degree murder, for the deaths of seven federal law enforcement officers who died in the Murrah building. McVeigh and Nichols were tried separately.

Both defendants moved to disqualify the federal judge presiding over the case. Only Nichols appealed for mandamus from the denial; the Tenth Circuit found that because the judge’s own chambers were destroyed in the blast, it would be difficult for the judge to be fair and impartial. Venue was moved in Nichols’ case to Colorado.

N. Reid Neureiter represented Nichols in his death penalty case. He faced many difficult issues in jury selection and during trial. On Wednesday, December 21, 2016, he will discuss the case and the voir dire issues as part of a half-day program, “Courtroom Technology and Voir Dire.” To register, call (303) 860-0608 or click the links below.

 

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CLE Program: Courtroom Technology and Voir Dire

This CLE presentation will occur on December 21, 2016, at the CBA-CLE offices (1900 Grant Street, Third Floor), from 9 a.m. to 12 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.

Ethical Issues for Lawyers Serving on Nonprofit Boards

nonprofitLawyers are invited to join the boards of nonprofit corporations for a variety of reasons, the best of which relate to the judgment and analytical and communication skills lawyers may bring to bear. Service on nonprofit boards, however, often presents lawyers with irresistible opportunities to their exercise their legal training, with potential ethical implications.

One of the primary ethical concerns for attorneys serving on nonprofit boards is whether the attorney is perceived as representing the organization or actually represents the organization. Lawyers serving on nonprofit boards must take care to avoid establishing an accidental attorney-client relationship. If a lawyer does not want to enter into an accidental attorney-client relationship, he or she would be wise to make it clear from the beginning of his or her service, perhaps in writing, that there is no attorney-client relationship. Similarly, attorneys serving on nonprofit boards should emphasize their roles to the other board members.

Conflicts of interest are another ethical pitfall for attorneys serving on nonprofit boards. The lawyer’s independent professional judgment may be compromised by his or her obligation to respect the conduct of the organization regardless of whether that conduct complies with the Colorado Rules of Professional Conduct. There is also the potential for conflict between the organization and the attorney’s law firm.

Although serving on boards of directors for nonprofit organizations presents unique ethical concerns, attorneys provide valuable contributions to boards. Good practices, such as clarifying the lawyer’s role before beginning board service or refraining from voting on issues involving the lawyer’s firm, can help avoid ethical dilemmas.

Ericka Houck Englert, Of Counsel at Davis Graham & Stubbs, will present a one-hour lunch program on December 20, 2016, to discuss ethics for attorneys sitting on nonprofit boards. Register by calling (303) 860-0608, or click the links below.

 

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CLE Program: Ethical Issues for Attorneys Serving on Nonprofit Boards

This CLE presentation will occur on December 20, 2016, at the CBA-CLE offices (1900 Grant Street, Third Floor), from 12 p.m. to 1 p.m. Register for the live program here or register for the webcast here. You may also call (303) 860-0608 to register.

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

When Your Client’s Kid Needs Help: Juvenile Criminal Justice for Every Attorney

pow6qw4fks1i955Every lawyer has had the experience of their client asking questions about an area of law in which they don’t practice. A tax lawyer may field questions about her client’s DUI matter. An immigration attorney may receive a question from his client about preparing an estate plan. A domestic relations attorney may hear questions about her client’s business. Regardless of an attorney’s area of expertise, clients will ask legal questions and expect informed answers.

So what do you do when your client tells you his kid might be in trouble with the law? Because few matters are more important to a parent than the well-being of his or her child, knowing what to say and when to recommend that your client seek a juvenile defense attorney is vital.

From the legalization of marijuana in Colorado to the perils of social media, kids live in a different world than a generation ago. These days, it seems there are more and more ways for kids to find themselves in trouble with the law, not because of criminal intent, but because the children or their families do not understand what behavior the law criminalizes. The pitfalls kids face in the criminal system and school disciplinary settings can be extraordinary, and the consequences can be far-reaching—even lifelong.

In seeking to protect the client’s children from lifelong consequences, it is imperative and ethically required for an attorney to fully understand the laws applicable to the matter, or to find someone who specializes in juvenile law to provide guidance. The Criminal Code and Children’s Code are complex, and children are frequently treated differently than adults in regard to criminal matters.

On Monday, December 12, 2016, attorney Lara Marks Baker will deliver a one-hour breakfast presentation on guiding your client through juvenile criminal justice issues. This program is a great way to learn about what to do when your clients need help with their kids. Lara will highlight the federal and state laws which are frequently implicated in matters of juvenile justice, and when to signal a client that criminal or disciplinary matters may be forthcoming. Register by calling (303) 860-0608 or by clicking the links below.

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CLE Program: When Your Client’s Kid Needs Help

This CLE presentation will occur on December 12, 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.

Privileges and Confidentiality in the Attorney-Client Relationship

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

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

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

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

 

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CLE Program: Privileges and Confidentiality

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

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

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

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

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

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

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

 

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

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

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

When Your Client’s Kid Needs Help — Advising Clients Whose Children are in Trouble

On Thursday, November 17, 2016, the Colorado Court of Appeals issued its opinion in People in Interest in R.C. When R.C. was 14 years old, he took a picture of his friend, L.P., during class one day. R.C. used Snapchat to draw a picture of a penis ejaculating near L.P.’s face. R.C. showed the picture to L.P. and three other friends, giggling. One other friend laughed, but L.P. felt bad. The class ended and the boys went to lunch. In the cafeteria, R.C. showed the altered pic to a few more people. L.P.’s friends could tell he was upset and asked R.C. to apologize, which he tried to do, but L.P. pushed him away. After lunch, L.P. and his friends reported the incident to the school’s principal.

R.C. was charged with disorderly conduct, and, after a trial, the court found that R.C. had committed disorderly conduct and sentenced him to three months’ probation, therapy, and eight hours of work crew.

R.C. appealed, arguing the prosecution failed to prove every element of disorderly conduct and that his drawing was protected speech under the First Amendment, because only “fighting words” were banned and the altered photo did not qualify as “fighting words.” The Colorado Court of Appeals noted that “fighting words” are words that by their very utterance tend to provoke retaliatory conduct in others. The court remarked that the Colorado statute does not prohibit utterances or displays that inflict injury, but only those that tend to incite an immediate breach of the peace.

The court found that the cartoon-like drawing on the photo was not enough to constitute “fighting words.” The court noted that the district court had apparently found the picture to be “fighting words” because it implied that L.P. was gay, and disagreed with this reasoning. The court found no evidence that R.C. intended to imply L.P. was gay, and even if he did, the court remarked, “We disagree with the district court, and the dissent, that the suggestion of homosexuality or homosexual conduct is so shameful and humiliating that it should be expected to provoke a violent reaction from an ordinary person.” The court determined that the average person, even the average 14-year-old, would not be expected to fly into a violent rage by seeing a picture of himself with a penis drawn on it.

The court of appeals agreed with R.C. that his photo did not amount to fighting words, and therefore found that the government failed to prove an element of the offense. The court of appeals reversed the conviction.


It is no surprise that adolescents make bad decisions. Many 14-year-old boys have joked about their friends inappropriately. R.C. did just that. But for R.C., the bad decision had severe consequences. His immature and inappropriate decision to draw a picture of a penis ejaculating near his friend’s face caused him far more than a phone call home from the principal. He faced years of legal troubles. He was charged with a criminal offense, went to trial, and was convicted. Although his conviction was reversed on appeal, he spent many years fighting it.

R.C. could have been any kid who made an immature decision. R.C.’s parents could have been any of us. But what happens when R.C.’s parents happen to be your clients for a business transaction, or estate planning, or even for a domestic dispute? The parents, your clients, are naturally going to call you for advice.

All too often attorneys are contacted by a current client that has a kid accused of wrongdoing. Federal and state laws have increased the number of suspensions, expulsions, probation, and criminal allegations against high school and college students. Educate yourself about how the laws work in Colorado.

On December 12, Lara E. Baker of Foster Graham Milstein & Calisher, LLP will present a one-hour seminar, “When Your Client’s Kid Needs Help,” to discuss the pitfalls young students face in Colorado with attorneys who have routinely handled these kinds of matters. Learn how to guide these children to avoid mistakes that can have lifelong consequences.

  • Avoiding pitfalls in the juvenile justice system, focusing on the perils of social media
  • Drugs and alcohol
  • Sex and the laws of consent
  • School disciplinary consequences
  • Law enforcement interaction with juveniles

This is a program no parent can afford to miss. And if you represent parents of teenagers, you should attend, too. Register by calling (303) 860-0608 or clicking the links below.

 

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CLE Program: When Your Client’s Kid Needs Help

This CLE presentation will occur on December 12, 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.

Inadvertent Disclosure — Damage Control, Recipient Requirements, and More

EthicsInadvertent disclosure of privileged or confidential information is not a new problem for attorneys. However, email and the electronic age have widened the scope of inadvertent disclosure. What happens when you use your email’s auto-fill feature and accidentally fill opposing counsel’s name instead of your client’s? How about when you hit “Reply All” instead of only replying to one party, or when you reply instead of forwarding? These problems are the stuff of nightmares.

To address the problems created by inadvertent disclosure of privileged or confidential information, the Colorado Bar Association Ethics Committee created Formal Opinion 108, adopted on May 20, 2000. Formal Opinion 108 contemplates that a lawyer who receives documents (“receiving lawyer”) from an adverse party or an adverse party’s lawyer (“sending lawyer”) has an ethical duty to disclose the receipt of the privileged or confidential documents to the sending lawyer. If the receiving lawyer realizes the inadvertence of the disclosure before examining the documents, the receiving lawyer has a duty to not examine the documents and follow the sending lawyer’s directions regarding disposal or return of the documents.

In 2008, the Colorado Supreme Court repealed and reenacted the Colorado Rules of Professional Conduct. Rule 4.4(b) provides that “A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.” Rule 4.4(b) applies to situations in which the sending lawyer accidentally provides privileged or confidential information to the receiving lawyer, such as when someone hits “Reply All” instead of forwarding to the client.

Rule 4.4(c) addresses a far less common scenario, when the sending lawyer realizes the disclosure prior to receipt by the receiving lawyer and contacts the receiving lawyer before the privileged or confidential information is viewed. Rule 4.4(c) requires the receiving lawyer to “abide by the sender’s instructions as to its disposition.” Comments [2] and [3] to Rule 4.4 expand on the receiving lawyer’s duties, including providing that as a matter of professional courtesy the receiving lawyer may inform the sending lawyer of the inadvertent disclosure.

Colorado Rule of Civil Procedure 26(b)(5)(B) also addresses inadvertent disclosure. C.R.C.P. 26(b)(5)(B) imposes on the receiving lawyer a mandatory prohibition on review, use, or disclosure of the information until the privilege claim is resolved, if the sending lawyer informs the receiving lawyer of the inadvertent disclosure. C.R.C.P. 26(b)(5)(B) differs slightly from Fed. R. Civ. P. 26(b)(5)(B); lawyers who practice in both federal and state courts should familiarize themselves with the different rules.

On Monday, November 28, 2016, attorney Cecil E. Morris, Jr., will deliver a lunchtime presentation on inadvertent disclosure, which is available for one general CLE credit and one ethics credit. This program is a great way to learn about what to do in case you inadvertently disclose confidential or privileged information, and also what to do if you receive information inadvertently disclosed. Cecil will discuss the differences between the federal and state rules, and will also address the substantive areas of law most affected by inadvertent disclosure. Register here or by clicking the links below.

 

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CLE Program: Inadvertent Disclosure – Professional Liability Series

This CLE presentation will occur on November 28, 2016, at the CBA-CLE offices (1900 Grant Street, Third Floor), from 12 p.m. to 1 p.m. Register for the live program here or register for the webcast here. You may also call (303) 860-0608 to register.

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

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.