October 20, 2017

ABA Formal Ethics Opinion Issued Regarding Secured Communications of Client Information

On Thursday, May 11, 2017, the ABA Standing Committee on Ethics and Professional Responsibility released Formal Opinion 477, “Securing Communication of Protected Client Information.” The opinion discusses internet transmission of protected client information, concluding that:

A lawyer generally may transmit information relating to the representation of a client over the internet without violating the Model Rules of Professional Conduct where the lawyer has undertaken reasonable efforts to prevent inadvertent or unauthorized access. However, a lawyer may be required to take special security precautions to protect against the inadvertent or unauthorized disclosure of client information when required by an agreement with the client or by law, or when the nature of the information requires a higher degree of security.

Formal Opinion 477 is an update to the basic confidentiality requirements addressed in Formal Opinion 99-413. The opinion was issued in response to the 2012 amendments to the ABA Model Rules in which technological competency was enunciated. This opinion discusses cybersecurity and measures that lawyers should take to safeguard client information, electing to reject requirements for specific security measures in favor of a fact-specific approach to business security obligations.

The opinion offers guidance on what reasonable steps an attorney may undertake in response to a cybersecurity threat, including:

  1. Understand the nature of the threat;
  2. Understand how confidential client information is transmitted and where it is stored;
  3. Understand and use reasonable security measures;
  4. Determine how electronic communications about client matters should be protected;
  5. Label confidential client information;
  6. Train lawyers and nonlawyer assistants in technology and information security; and
  7. Conduct due diligence on vendors providing communication technology.

To read the entire opinion, click here.

ABA Model Rule of Professional Conduct 8.4 Amended to Prohibit Discrimination

ABAOn Monday, August 8, 2016, the ABA announced that the ABA House of Delegates passed a resolution to amend Model Rule 8.4 in order to bring into the black letter of the rule an express prohibition against discriminatory conduct in the practice of law.

Revised Resolution 109 amended subparagraph (g) of Model Rule 8.4 as follows:

(g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination harass or discriminate on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This Rule paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

Additionally, the Comment to the Model Rule was amended as follows:

[3] A lawyer who, in the course of representing a client, knowingly manifests by words or conduct,  bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation  or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the  administration of justice. Legitimate advocacy respecting the foregoing factors does not violate  paragraph (d). A trial judge’s finding that peremptory challenges were exercised on a  discriminatory basis does not alone establish a violation of this rule.

[3] Discrimination and harassment by lawyers in violation of paragraph (g) undermines confidence  in the legal profession and the legal system. Such discrimination includes harmful verbal or  physical conduct that manifests bias or prejudice towards others because of their membership or  perceived membership in one or more of the groups listed in paragraph (g). Harassment includes  sexual harassment and derogatory or demeaning verbal or physical conduct towards a person who is, or is perceived to be, a member of one of the groups. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature. The substantive law of antidiscrimination and anti-harassment statutes and case law may guide application of paragraph (g).

[4] Conduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law. Paragraph (g) does not prohibit conduct undertaken to promote diversity. Lawyers may engage in conduct undertaken to promote diversity and inclusion without violating this Rule by, for example, implementing initiatives aimed at recruiting, hiring, retaining and advancing diverse employees or sponsoring diverse law student organizations.

[5] Paragraph (g) does not prohibit legitimate advocacy that is material and relevant to factual or legal issues or arguments in a representation. A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of paragraph (g). A lawyer does not violate paragraph (g) by limiting the scope or subject matter of the lawyer’s practice or by limiting the lawyer’s practice to members of underserved populations in accordance with these Rules and other law. A lawyer may charge and collect reasonable fees and expenses for a representation. Rule 1.5(a). Lawyers also should be mindful of their professional obligations under Rule 6.1 to provide legal services to those who are unable to pay, and their obligation under Rule 6.2 not to avoid appointments from a tribunal except for good cause. See Rule 6.2(a), (b) and (c). A lawyer’s representation of a client does not constitute an endorsement by the lawyer of the client’s views or activities. See Rule 1.2(b).

The remaining comments were renumbered.

The ABA Model Rules Committee considered the changes a “necessary and significant first step to address the issues of bias, prejudice, discrimination and harassment in the Model Rules,” but noted that it is only the first step in a multi-disciplinary effort to provide access to justice.

The chair of the ABA Standing Committee on the Model Rules, Myles V. Lynk of Arizona, noted that 25 jurisdictions across the country have enacted similar language. Over 70 lawyers signed up to speak in support of the changes, while none spoke in opposition. Only a few members of the House of Delegates voted “no” in a voice vote.

For the complete text of the ABA Resolution, click here.

ABA Ethics Committee Recommends Adoption of Model Ethics Rule Prohibiting Discrimination

The ABA Center for Professional Responsibility announced that the Standing Committee on Ethics and Professional Conduct submitted with the ABA House of Delegates a resolution to amend the Model Rules of Professional Conduct to include a black-letter prohibition against discrimination. The proposed change would add a new subparagraph (g) to Model Rule 8.4, which states:

It is professional misconduct for a lawyer to:

. . .

(g) harass or discriminate on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This Rule does not limit the ability of a lawyer to accept, decline, or withdraw from a representation in accordance with Rule 1.16.

The proposal would also add new comments to Model Rule 8.4 explaining that “Discrimination and harassment by lawyers in violation of paragraph (g) undermines confidence in the legal profession and the legal system,” and clarifying that paragraph (g) is not intended to prohibit legitimate advocacy. The Committee on Ethics and Professional Responsibility explained that the rule is intended to further the ABA’s goal of eliminating bias and enhancing diversity in the profession.

To read more about the proposal, click here. For a redline of the proposed changes to Model Rule 8.4, click here.

Comment Period Open for Proposed Amendments to ABA Model Rule of Professional Conduct 8.4

The ABA Standing Committee on Ethics and Professional Responsibility has developed proposed amendments to the Model Rules of Professional Conduct. The Standing Committee has proposed the addition of a subsection (g) to Model Rule 8.4 to address discrimination in the practice of law, and a revision to the comments to explain the purpose of new subsection (g):

Rule 8.4: Misconduct

It is professional misconduct for a lawyer to:

***

(g) in conduct related to the practice of law, harass or knowingly discriminate against persons on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.

 

Comment [3] Paragraph (g) applies to conduct related to a lawyer’s practice of law, including the operation and management of a law firm or law practice. It does not apply to conduct unrelated to the practice of law or conduct protected by the First Amendment. Harassment or discrimination that violates paragraph (g) undermines confidence in the legal profession and our legal system. Paragraph (g) does not prohibit lawyers from referring to any particular status or group when such references are material and relevant to factual or legal issues or arguments in a representation. Although lawyers should be mindful of their professional obligations under Rule 6.1 to provide legal services to those unable to pay, as well as the obligations attendant to accepting a court appointment under Rule 6.2, a lawyer is usually not required to represent any specific person or entity. Paragraph (g) does not alter the circumstances stated in Rule 1.16 under which a lawyer is required or permitted to withdraw from or decline to accept a representation. A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d). A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule.

The Standing Committee also issued a memorandum explaining the origin of the amendments, available here. The memorandum explains that although the comments to the Model Rules have addressed discrimination in the practice of law for many years, the Committee thought it important to add the prohibition to the black letter portion of the Model Rules in order to authoritatively prohibit discrimination. As the ABA Young Lawyers Division eloquently explained, “There is a need for a cultural shift in understanding the inherent integrity of people regardless of their race, color, national origin, religion, age, sex, gender identity, gender expression, sexual orientation, marital status, or disability, to be captured in the rules of professional conduct. This is true because the Model Rules are supposed to ensure the integrity of the legal profession.”

The Standing Committee invites comments on the draft proposal, both in writing and at its public hearing from 3 to 5 p.m. on Sunday, February 7, 2016, at the Marriott Marquis San Diego Marina, 3rd Floor, South Tower, Balboa & Mission Hills Meeting Rooms, San Diego, CA. Persons wishing to speak should register by sending an email to abamodelruleamend@americanbar.org by January 29, 2016. Speakers should be prepared to speak for four to five minutes and then take questions from the Committee, and there may not be time to accommodate all interested speakers. Comments may be submitted in writing as well to the above email address by March 11, 2016. Comments will be made publicly available.

For more information about the proposed Model Rule change, click here.

Free Legal Assistance Available for Storm & Flood Survivors — Partnership between the Colorado Bar Association, ABA and FEMA

floodColorado lawyers are among those ready to lend a hand to the survivors of Colorado’s recent storms and flooding. The Colorado Bar Association Disaster Relief Program is gearing up to offer no-cost, disaster-related legal advice to those impacted in Adams, Boulder, Clear Creek, El Paso, Jefferson, Larimer, and Weld Counties. The CBA and its Young Lawyers Division, Colorado Legal Services, Colorado Trial Lawyers Association, Colorado Criminal Defense Bar, and several local bar associations are partnering in this effort with FEMA and the ABA Young Lawyers Division.

“I’m proud to see attorneys from across the state stepping up to lend a hand to their fellow Coloradans and hope we can offer some assistance during these tragic events,” said Colorado Bar Association President Terry Ruckriegle.

Victims seeking legal advice can visit www.ColoFloodLegalRelief.org to complete a legal assistance form or call the toll-free helpline at 855-424-5347 24 hours a day. Those seeking assistance are asked to provide as many details about their situations in the online form or message as possible.  Applications of victims seeking help will be reviewed to determine the areas in which they need assistance and then paired with a volunteer attorney who has experience in those areas of the law.  This free service begins immediately.

The type of legal assistance available includes:

  • Assistance with securing FEMA and other government benefits available to disaster survivors
  • Assistance with life, medical and property insurance claims
  • Help with home repair contracts and contractors
  • Replacement of wills and other important legal documents destroyed in the disaster
  • Assisting in consumer protection matters, remedies and procedures
  • Counseling on mortgage-foreclosure problems
  • Counseling on landlord/tenant problems

Attorneys wishing to help should complete the online form at ColoFloodLegalRelief.org/volunteer. Attorneys are needed to provide assistance in many areas of the law, and volunteer opportunities are available in person in several counties or by phone.

ABA President James Silkenat to Speak at Hispanic National Bar Association Convention in Denver

James Silkenat, current president of the ABA, will be in Denver this weekend to speak at the Hispanic National Bar Association‘s 2013 Annual Convention. Mr. Silkenat became president of the ABA this August at the ABA Annual Meeting in San Francisco, where the ABA report, Latinos in the United States: Overcoming Legal Obstacles, Engaging in Civic Life, was also unveiled.

The report was prepared by the ABA’s Commission on Hispanic Legal Rights and Responsibilities. The Commission on Hispanic Legal Rights and Responsibilities was formed in 2010 to explore and report on urgent legal issues facing the Latino population, including the effect of overcoming legal hurdles on the civic lives of Latinos and Latinas, the country’s largest ethnic group.

The commission and its work represent the ABA’s commitment to advancing the needs of the Latino community and its organizations in America. Lawyers and policymakers can use this report as a resource to help them understand the important issues impacting Latinos.

“Through this report, the ABA recognizes that Hispanic legal rights and responsibilities are at the forefront of legal issues affecting our nation, such as immigration, voting rights, language and citizenship,” said Stephen N. Zack, the ABA’s first Hispanic president. “This is a first step toward putting a spotlight on and resolving these important issues.”

Mr. Silkenat is expected to present on the recommendations of the report at the HNBA Annual Convention this weekend. Mr. Silkenat has been active in the ABA for many years. He has been a member of the ABA House of Delegates since 1990, and has been active in many ABA committees, especially in areas related to international law. He received the Diversity Champion Award from the Bar Association of the City of New York. He is a frequent lecturer, and will present with the perspective of an experienced international law practitioner at the HBNA convention.

Click here for more information regarding the ABA’s Commission on Hispanic Legal Rights and Responsibilities. Click this link for the full report, Latinos in the United States: Overcoming Legal Obstacles, Engaging in Civic Life.

Report Regarding The 2013 ABA Mid-Year House Of Delegates Meeting In Dallas, Texas

Troy RackhamBy Troy Rackham

I have the privilege of serving the Denver Bar Association as a delegate to the American Bar Association (“ABA”) House of Delegates. The ABA House of Delegates met at the ABA’s midyear meeting held in Dallas, Texas on February 11, 2013. The agenda was relatively light. This Article summarizes the House of Delegates events at the midyear meeting and the action taken by the House.

The House opened with a welcome speech by Senator Kay Bailey Hutchinson. Senator Hutchinson thanked the House for its leadership in maintaining the integrity of the profession and ensuring the quality of judges.

ABA President Laurel Bellows also spoke to the House. She thanked the House for the privilege of serving as President. She discussed the concept of justice as fairness. She raised important questions on how best to improve the quality of justice delivered and how to make justice more accessible. She also discussed the Gender Equity Task Force and commented on the fact that it is addressing issues of unfairness to women, including inequity of pay to women lawyers. Additionally, President Bellows discussed human trafficking and the ABA initiatives relating to the epidemic of human trafficking. Finally, President Bellows discussed promoting programs supporting law students and young lawyers, as well as reforms to legal education.

After hearing some other speeches, the House got to work on resolutions submitted to the house. First, the House passed Resolution 108, which encouraged practitioners, when appropriate, to consider limiting the scope of their representation, including the unbundling of legal services as a means of increasing access to legal services. The House also considered and approved three resolutions relating to administrative law.

Additionally, the House considered and approved Resolution 109 which supported the position that United States Bankruptcy Judges have the authority, upon the consent of all the parties to the proceeding, to hear, determine, and enter final orders and judgments in those proceedings designated as “core” within the meaning of 28 U.S.C. § 157(b) but that may not otherwise be heard and determined by a non-Article III tribunal absent consent. The House voted to revise the resolution and later approved it.

The House considered nine resolutions relating to issues of criminal justice. Those were as follows:

  • Resolution 104A – Indigent Defense. The Criminal Justice Section urged the adoption of Resolution 104A, as revised, which urged Congress to establish an independent federally funded Center for Indigent Defense Services for the purpose of assisting state, local, tribal and territorial governments in carrying out their constitutional obligation to provide effective assistance of counsel for the defense of the indigent accused in criminal, juvenile and civil commitment proceedings. The House adopted the resolution as revised.
  • Resolution 104C – Prohibiting Retaliatory Discharge Against Public Defenders. The Criminal Justice Section also urged the House to adopt Resolution 104C. Resolution 104C urged state and local governments to enact legislation to prohibit the retaliatory discharge of a Chief Public Defender or other head of an indigent defense services provider because of his or her good faith effort to control acceptance of more clients than the office can competently and diligently represent. The House adopted the resolution.
  • Resolution 104D – Increased Funding for Prosecutor Training. The Criminal Justice Section moved the House to adopt Resolution 104D, which urged the federal government to restore, maintain, and, where appropriate, increase funding to organizations which provide training to state and local prosecutors, to better promote justice, increase public safety, and prevent wrongful convictions. The House approved the resolution.
  • Resolution 104E – Investigation of Immigration Status of the Accused. Fourth, the Criminal Justice Section asked the House to adopt Resolution 104E, which urged courts to ensure that defense counsel inquires and investigates a juvenile defendant’s immigration status and informs the juvenile about any possible collateral consequences that may flow from different dispositions of the case. The resolution also sought to minimize adverse immigration consequences. Several revisions were made to the resolution and the House adopted it, as revised.
  • Resolution 104F – Victims of Human Trafficking. Additionally, the Criminal Justice Section urged the House to adopt Resolution 104F, as revised. Resolution 104F urged governments to enact laws and regulations and to develop policies that assure that once an individual has been identified as an adult or minor victim of human trafficking, that individual should not be subjected to arrest, prosecution or punishment for crimes related to their prostitution or other non-violent crimes that are a direct result of their status as an adult or minor victim of human trafficking. The House approved the resolution as revised in the House.
  • Resolution 104G – Affirmative Defenses for Victims of Human Trafficking. Consistent with President Bellows’ focus on Human Trafficking, the Criminal Justice Section also moved the House to adopt Resolution 104G, which urged governments to enact legislation allowing adult or minor human trafficking victims charged with prostitution related offenses or other non-violent offenses to assert an affirmative defense of being a human trafficking victim. The House revised the resolution and later adopted it.
  • Resolution 104H – Vacating Convictions for Victims of Human Trafficking. The Criminal Justice Section further moved the House to adopt Resolution 104H, which urged governments to aid victims of human trafficking by enacting and enforcing laws and policies that permit adult or minor victims of human trafficking to seek to vacate their criminal convictions for offenses related to their prostitution or other non-violent offenses that are a direct result of their trafficking victimization. The House approved the resolution as revised.
  • Resolution 104I – Training Relating to Human Trafficking. As the final human trafficking resolution, the Criminal Justice Section and the Commission on Domestic and Sexual Violence jointly urged the House to adopt Resolution 104I, which was revised. Resolution 104I urged bar associations to work with judges, lawyers, and other professionals with subject matter expertise in human trafficking, to develop and implement training programs for judges, prosecutors, defense counsel, law enforcement officers, immigration officials, civil attorneys, and other investigators that will enable them to identify adult and minor victims of human trafficking and enable them to direct victims and their families to agencies that offer social and legal services and benefits designed to assist adult and minor victims of human trafficking. The House approved Resolution 104I as revised.
  • Resolution 104J – Model Charge for Grand Juries. Finally, the Criminal Justice Section moved the House to adopt Resolution 104J, which urged the Judicial Conference of the United States to amend the Model Grand Jury Charge to clarify that the Grand Jury should be instructed to vote separately on each defendant. After hearing the arguments in support of the resolution, the House passed it without revision.

Additionally, the House considered several resolutions proposed by the Ethics 20/20 Commission. The resolutions largely sought amendments to the Model Rules of Professional Conduct, or other Model Rules, to address the realities of increasing lawyer mobility. The Ethics 20/20 Commission resolutions are discussed in turn.

First, the House approved revised Resolution 107A, which approved proposed amendments to Model Rule of Professional Conduct 5.5(b) and the ABA Model Rules of Professional Conduct (Unauthorized Practice of Law; Multijurisdictional Practice of Law) to allow foreign lawyers to serve as in-house counsel in the United States, as long as the foreign lawyers not advise on United States law except in consultation with a U.S.-licensed lawyer. There was a variety of interesting debate and discussion on this resolution. Ultimately, the House passed Resolution 107 as revised.

Second, the Ethics 20/20 Commission urged the House to adopt Resolution 107B. Resolution 107B proposed amendments to the ABA Model Rule for Registration of In-House Counsel so that the model rule would permit foreign lawyers to serve as in-house counsel in the United States with some restrictions. The House revised the resolution and adopted it.

Third, the House considered Resolution 107C, which proposed amendments to the ABA Model Rule on Pro Hac Vice Admission. The amendments were designed to provide judges with guidance about whether to grant limited and temporary practice authority to foreign lawyers to appear in courts in the United States. There was some interesting discussion prior to the House, and during the House debates, on the resolution. Ultimately, after an amendment, the House adopted the resolution.

Finally, the Ethics 20/20 Commission urged the House to adopt Resolution 107D, which proposed amendments to Model Rule of Professional Conduct 8.5. Rule 8.5 relates to choice of law applicable to conduct standards and lawyer discipline. The proposed amendments were designed to address common choice of law problems that are more frequently occurring in the context of conflicts of interest. The House approved the resolution.

The House considered a number of resolutions in addition to the nine resolutions proposed by the Criminal Justice Section and the four resolutions urged by the Commission on Ethics 20/20. Those are described below:

  • Resolution 10A – Court Funding Crisis. The New York State Bar Association moved the House to adopt Resolution 10A, which urged federal elected officials to adequately fund the federal courts and the Legal Services Corporation as they negotiate deficit reduction with the imminent threat of the implementation of sequestration if they fail. The House approved the resolution.
  • Resolution 101A – Patentable Subject Matter. The Section of Intellectual Property Law moved the House to adopt Resolution 101A, which was revised. Revised Resolution 101A provided that the ABA would support the principle that laws of nature, physical phenomena, and abstract ideas are not eligible for patenting as a process under 35 U.S.C. §101, even if they had been previously unknown or unrecognized. The House approved the resolution as revised.
  • Resolution 101B – Standards for Finding Direct Infringement. Additionally, the Section of Intellectual Property Law urged the House to adopt Resolution 101B, which supported clarifying the standards for finding direct infringement under 35 U.S.C. § 271(a) for a patent directed to a multiple-step process in the fact situation where separate entities collectively, but not individually, perform the required steps of the patented process. After a revision, the House approved the resolution.
  • Resolution 106 – Principles for Jury Trials. As its one resolution, the Commission on the American Jury Project asked the House to adopt Resolution 106, which proposed amendments to the 2005 ABA Principles for Juries and Jury Trials. The amendments were to Principles 1(C) through (F), 6(C), 10(C) and 11(A) of those Principles. After an interesting discussion in support of the resolution, the House approved the resolution.
  • Resolution 100 – Medicare Reimbursements. The ABA’s Standing Committee on Medical Professional Liability moved the House to adopt Resolution 100. Resolution 100 supports timely and efficient resolution of requests from a claimant or applicable plan for conditional payment reimbursement amounts where Medicare has a right to reimbursement from a recovery by way of settlement, judgment or award. The resolution also urged Congress and the Department of Health and Human Services to establish reasonable time limits and procedures for responding to such requests. The House approved the resolution.

Finally, the House of Delegates also considered a number of uniform acts proposed by the National Conference of Commissioners on Uniform State Laws. It is fairly typical for the House to consider proposed uniform laws at its meetings. The three uniform laws that the House considered were the Uniform Asset Freezing Orders Act, the Uniform Deployed Parents Custody and Visitation Act, and the Uniform Premarital and Marital Agreements Act. The House approved all three resolutions.

Conclusion

I hope this Article sufficiently highlighted many of the more interesting or important the agenda items considered by the House of Delegates at the midyear meeting in Dallas. The annual meeting this year will be in August 2013 in San Francisco. I appreciate all input that any members of the Denver Bar Association have regarding any of the issues that have been considered, or will be considered, by the ABA House of Delegates.

Troy Rackham defends lawyers, hospitals, nursing homes, long term care facilities and other health care organizations in a wide variety of cases and claims. He regularly advises legal professionals on ethics, malpractice and professional liability issues. Mr. Rackham co-wrote a treatise on Colorado Legal Malpractice litigation, which is updated annually. He has orally argued and prepared briefs in dozens of appellate cases, most of which involved claims against lawyers, hospitals, physicians, or health care systems. Mr. Rackham is a member of the American, Colorado, and Denver Bar Associations, and he is a member of the CBA Ethics Committee and the ABA House of Delegates.

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.

Your Help Needed for Colorado Bar Association’s 2013 Fire Recovery Projects

The Colorado Bar Association (“CBA”) and the Environmental Law Section (“ELS”) are sponsoring a statewide tree planting project this Spring in areas devastated by wildfires.  The CBA and the ELS donated funds to seed these projects and CBA members are organizing them.  Now we need your help.

Recent fires have devastated forests and communities in Colorado.  In Colorado Springs, the 2012 Waldo Canyon fire burned 18,000 acres, destroyed 347 homes, and took 2 lives.  In Douglas, Jefferson, Park and Teller Counties, the 2002 Hayman fire was the largest wildfire in Colorado history. Hundreds of firefighters fought the fast-moving fire, which caused nearly $40 million in firefighting costs, burned 133 homes and 138,114 acres, forced the evacuation of 5,340 people, and resulted in 6 indirect fatalities.  The 2012 Lower North Fork fire in a nearby area also burned 4,500 acres and 23 homes, leaving 3 people dead, but the area will not be ready for tree planting this Spring.  In the Durango area, the 2012 Weber fire burned 10,000 acres.  Near Fort Collins, the 2012 High Park fire burned 87,000 acres and 259 homes, and took one life.  And, in Boulder County, the land and residents are still recovering from the 2010 Four Mile Canyon fire which at the time was the most damaging fire in Colorado’s history.  Planting trees and other restorative efforts will help heal the land, support fire victims, and demonstrate that attorneys in these communities care.

The 2013 projects are modeled on successful tree planting projects conducted in the Four Mile fire area in Boulder County in 2011 and 2012. Committees of attorneys have organized the projects and ordered trees.  They now need some of your time and money.  A $100 donation can purchase up to 100 trees and make a significant difference in an area denuded by fire.  Volunteering for a half day or a day to plant trees is good for the environment, good for the community, and good for you.

Please consider donating a few dollars and/or your time to help the following projects in a community near you.  You can donate to a particular project through the contacts below or make a donation to the state-wide effort as described below.

Colorado Springs (Waldo Canyon Fire):

Date:               May 4, 2013

Location:        Flying W Ranch, Colorado Springs

Note:               1,500 trees to be planted

Co-Sponsors:  El Paso County Bar Association, Coalition for the Upper South Platte

Contact:          Dan Stuart (danstuart@coloradolawyers.net)

Durango (Weber Fire):

Date:               April 27, 2013

Location:        Mancos, Weber Canyon Area, Montezuma County, Colorado

Note:               2,000 trees will be planted

Co-Sponsors:  Southwest Colorado Bar Association, Montezuma County Firewise

Contact:          Marla Underell (marla@underell-law.com)

Fort Collins (High Park Fire):

Date:               April 28, 2013

Location:        Rist Canyon

Note:               Due to the condition of the soils, this project will focus on mulching and seeding grasses for erosion control

Co-Sponsors:  Larimer County Bar Association, Wildland Restoration Volunteers

Contact:          Gail Goodman (ggoodman@ftccolaw.com)

Jefferson County (Hayman Fire):

Date:               May 18, 2013

Location:        Near the Junction of FS 211 and CR 126, Jefferson County, approximately 3 miles from Cheesman Reservoir (map will be provided)

Note:               750 trees to be planted

Co-Sponsors:  First Judicial District Bar Association, Coalition for the Upper South Platte

Contacts:         Michelle Marcu (marcu.michelle@epa.gov )

Karen Kellen (kellen.karen@epa.gov)

Boulder (Four Mile Canyon Fire):

Date:               April 20, 2013

Location:        Four Mile Canyon (meet at Boulder County Justice Center)

Note:               1,000 trees to be planted

Co-Sponsors:  Boulder County Bar Association, Boulder County Open Space

Contacts:         Gabriella Stockmayer (gstockmayer@dietzedavis.com)

Josh Anderson (janderson@dietzedavis.com),

Adam Lewis (mal@bhgrlaw.com

Donations to the statewide effort can be made by mailing a check to the “CBA Foundation” at:

Colorado Bar Association Foundation

c/o Dana Collier Smith

1900 Grant Street, #900

Denver, CO 80203

(please be sure to put “2013 Trees” in the memo section of your check)

For more information on statewide projects: Ann Rhodes (amr@bhgrlaw.com), Maki Iatridis (adi@bhgrlaw.com), Michelle Marcu (marcu.michelle@epa.gov)

ABA One Million Trees Project

The CBA 2013 projects are part of the American Bar Association’s One Million Trees Project.  The Section of Environment, Energy, and Resources (“SEER”) of the ABA commenced its One Million Trees Project in 2009.  The goal of the public service project is to bring volunteer resources together with a variety of local programs to plant one million trees by 2014.  Subtitled “The Right Tree for the Right Place at the Right Time,” the Project is a nationwide public service project that was adopted by the entire ABA organization through its Board of Governors in the summer of 2012.  Click here for more information.

ABA House of Delegates’ Ethics 20/20 Commission Approves Changes to the Model Rules of Professional Conduct

The dawn of the information age has changed life as we know it. Our personal lives and businesses have been affected, and the practice of law is no exception. The ABA House of Delegates’ Ethics 20/20 Commission met in August to decide how best to advise attorneys of their ethical obligations in the global marketplace. The top ten issues addressed by the House of Delegates were:

  1. Protecting client information in electronic communications;
  2. Cloud storage and properly safeguarding protected client information;
  3. How to set up an ethical screen for a new attorney with a shared electronic network;
  4. The importance of competency in a multi-jurisdictional practice;
  5. How attorneys who frequently change jurisdictions can practice law without undergoing rigorous admittance procedures;
  6. Outsourcing to other lawyers and non-lawyers, and potential hazards;
  7. What types of online behaviors could potentially create an attorney-client relationship (including social media, communications on law firm websites, etc.);
  8. The ethical propriety of advertising on the internet, and whether pay-per-click ads constitute improper referral services;
  9. The importance of competency in technology, including some understanding of electronically stored information; and
  10. Advising clients on technology, such as maintaining electronically stored information.

The American Bar Association Model Rules of Professional Conduct are intended to provide guidance to the states, and to encourage adoption of a standard procedure throughout the country for attorney regulation and discipline. However, although resolutions on the above topics were passed by the ABA, they are not binding on Colorado attorneys absent amendments to the Colorado Rules of Professional Conduct.

Join us at CBA-CLE on Wednesday, September 12, for a breakfast seminar where Troy Rackham, a representative of the House of Delegates, and Alec Rothrock, from the Colorado Rules of Professional Conduct committee, will present on the changes adopted by the ABA and what this means for attorneys in Colorado.

CLE Program: Competency and Confidentiality in Lawyers’ Use of Technology – New Changes to Model Rules of Professional Conduct

This CLE presentation will take place on Wednesday, September 12, at 8:30 a.m. Participants may attend live in our classroom or watch the live webcast.

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

Report from the ABA House of Delegates Meetings at the 2012 Midyear Meeting in New Orleans

I have the privilege of serving the Denver Bar Association as a delegate to the American Bar Association (“ABA”) House of Delegates.  The ABA House of Delegates met at the ABA’s midyear meeting held in New Orleans, Louisiana, on February 6, 2012.  This Article summarizes the House of Delegates events at the midyear meeting and the action taken by the House.

The Midyear Meeting was very well-attended.  It had the best reported attendance on record.  The ABA sponsored numerous programs on issues such as the Ethics 20/20 commission, the state court funding crisis, and efforts to improve access to justice.  There were many important issues addressed by the House of Delegates at the midyear meeting.  This Article summarizes a few of them.

Ethics 20/20 Commission’s White Papers and Proposals Relating to the Ethics of Litigation Financing, Non-Lawyer Ownership of Law Firms, Outsourcing, and the Use of Technology of Mobile Devices

Before the House of Delegates convened, the Ethics 20/20 Commission sent information around to the delegates regarding the work of the Commission and its proposals.  Specifically, the Commission informed the delegates of its plan to bifurcate its presentation of proposals to help facilitate the House of Delegates’ consideration of the Commission’s recommendations.  The decision to bifurcate the presentation of proposals foretells a concern that some of the Commission’s proposals will be controversial and will generate much discussion and debate.

Indeed, from the preview that the Commission has provided, some of the issues that the Commission will put before the House will generate much discussion.  The Commission has produced white papers that discuss many of the complex ethical issues that cannot effectively be addressed through changes to Model Rules.  Specifically, one of the Commission’s white papers discusses ethical issues involved with litigation financing, including issues regarding conflicts of interest, a lawyer’s duty of confidentiality, the attorney-client privilege, and rules regulating the exercise of the lawyer’s independent judgment.  The Commission’ white paper can be found by clicking here.

The Commission also is working on proposals relating to alternative business structures for law firms, outsourcing of legal services and confidentiality-related ethics issues arising from lawyers’ use of technology. Additionally, the Commission also is working on a model rule relating to lawyers’ obligations to retain client files.  An issues paper regarding alternative business structures for law firms – including non-lawyer ownership of law firms – has been distributed by the Commission.  It can be found by clicking here.

During the House of Delegates meeting, Former ABA President Carolyn B. Lamm addressed the House about the Commission’s progress.  President Lamm explained that numerous various roundtable sessions and meetings have been held around the country.  She explained that formal recommendations will be presented at the annual meeting in 2012 and at the midyear meeting in 2013.  President Lamm explained that one of the Commission’s more controversial issues is whether non-lawyers should be allowed under legal ethics rules to have a limited ownership interest in law firms in the United States.  This issue has been discussed extensively in Colorado previously.

President Lamm explained that the Commission is considering other issues relating to the need to balance the convenience and efficiencies inherent in a lawyer’s use of new technologies, while also preserving the lawyer-client relationship, confidentiality, competence and the values of the profession.  President Lamm explained that the Commission plans in presenting proposals on each of these issues for consideration by the House of Delegates.  All interested members of the Bar should get in touch with me or other Colorado delegates to discuss any concerns about any of the issues that are being considered by the Ethics 20/20 Commission, or the proposals that are likely coming from the Commission.

Summary of the House of Delegates

After the House of Delegates convened on February 6, 2012, the Delegates were greeted by Mitchell Landrieu, the Mayor of New Orleans, who also is a lawyer.  Mayor Landrieu talked about the challenges that the city has been through in recent years, with Hurricanes Katrina and Rita, and the BP oil spill.  Mayor Landrieu quipped that the city is “waiting for locusts now.”  Mayor Landrieu’s speech was interesting and insightful, explaining that New Orleans is truly resilient and has become the “a laboratory for innovation and change,” because of the disasters it has suffered.  Mayor Landrieu’s speech was an excellent way to kick-off the work of the House.

After the Mayor’s speech and some other introductory actions, the House got to work debating and voting on resolutions before the House.  The House adopted a number of important resolutions, including:

  • Resolution 101A, which adopted the black letter ABA Criminal Justice Standards on Law Enforcement Access to Third Party which provide a framework through which legislatures, courts acting in their supervisory capacity and administrative agencies can balance the needs of law enforcement and the interests of privacy, freedom of expression and social participation.
  • Resolution 101B, which urged governments at various levels to require laboratories producing reports for use in criminal trials to adopt pretrial discovery procedures requiring comprehensive and comprehensible laboratory and forensic science reports, and listed relevant factors to be included in such reports.
  • Resolution 101C, which urged trial judges who have decided to admit expert testimony to consider a number of factors in determining the manner in which that evidence should be presented to the jury, and also provided guidance about how to instruct the jury in its evaluation of expert scientific testimony in criminal and delinquency proceedings.
  • Resolution 101F, which supported legislation, policies and practices that allow equal and uniform access to therapeutic courts and problem-solving sentencing alternatives, such as drug treatment and anger management counseling, regardless of the custody or detention status of the individual.
  • Resolution 113, which called for adoption as ABA policy uniform standards for language access in courts.  The policy provides clear guidance to courts in designing, implementing, and enforcing a comprehensive system of language access services that is suited to the need in the communities they serve.
  • Resolution 102B, which approved the Uniform Electronic Legal Material Act promulgated by the National Conference of Commissioners on Uniform State Laws in 2011, as an appropriate Act for those states desiring to adopt the specific substantive law suggested therein.  The Uniform Act provides rules for the authentication and preservation of electronic legal material.
  • Resolution 108, which urged state and territorial bar admission authorities to adopt rules and procedures to accommodate the unique needs of military spouse attorneys who move frequently in support of the nation’s defenses.
  • Resolution 111, which urged entities that administer a law school admission test to provide appropriate accommodations for a test taker with a disability to best ensure the exam reflects what the test is designed to measure and not the test taker’s disability.
  • Resolution 302, which supported the principle that “private” lawyers representing governmental entities are entitled to claim the same qualified immunity provided “government” lawyers when they are acting “under color of state law.”  This issue is particularly important given that there is a pending case before the United States Supreme Court considering this question.  See Filarsky v. Delia, U.S. No. 10-1018, argued 1/17/2012.

A summary of the resolutions adopted by the House can be found by clicking here.  Additionally, I can provide a copy of the resolutions to any interested reader. Contact me if interested.

Statement from President Robinson

In addition to this important work, the House of Delegates heard from Bill Robinson, President of the ABA.  President Robinson explained that the most pressing issue facing the legal system today is under-funding of the courts, which is at a crisis level.  President Robinson urged all ABA members to consider the under-funding crisis to be a threat to our liberty and rule of law.  President Robinson explained the ABA’s efforts to combat this crisis, including its extensive education efforts and its efforts to increase public awareness about the crisis.  Additionally, the ABA has made the crisis the core of the law day events, which will focus on the theme: “No Courts, No Justice, No Freedom.”

Nomination of James Silkenat as President-Elect

Additionally, the nominating committee announced that James Silkenat of New York was nominated to be President-Elect Designee of the ABA.  The House of Delegates will vote on his nomination at the Annual Meeting in Chicago this August.  If elected, Mr. Silkenat will serve a one-year term as President beginning in August, 2013.  All members of the Bar are urged to give any input on Mr. Silkenat to me or any of the other Colorado delegates.

Other Matters

Finally, the House of Delegates also considered other matters.  Those other matters included a report from the ABA’s Executive Director, Jack Rives, and a report from the ABA’s treasurer.  The House also heard from Chief Judge Washington, who is the President of the Conference of Chief Justices.  Chief Judge Washington spoke about language access to the courts.  He also discussed the core focuses of the Conference, which are judicial independence and civics education.

Conclusion

I hope this Article sufficiently highlighted many of the more interesting or important the agenda items considered by the House of Delegates at the midyear meeting in New Orleans.  I appreciate all input that any members of the Denver Bar Association have regarding any of the issues that have been considered, or will be considered, by the ABA House of Delegates.

The American Bar Association is offering a free trial membership in the ABA and in a section of the ABA. Sign up here.

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Ben Aisenberg: Reasonableness of a Contingent Fee – A Prospective or Retrospective Approach

In assessing the reasonableness of a contingent fee on completion of the contingency, must the reasonableness of the fee be judged as of the time the contingency fee agreement was entered into, pursuant to ABA Formal Opinion 94-389, or does the attorney have the obligation to take a retrospective approach to determine whether the fee is reasonable?  See ABA Formal Opinion 94-389 and Contingent Fee Agreements, Bennett S. Aisenberg, Colorado Lawyer, July, 1996 at pg. 65.

In what would appear to be the most definitive appellate declaration to date as to whether the reasonableness of a contingent fee should be determined prospectively or retrospectively, the Colorado Court of Appeals in Berra v. Springer & Steinberg, 251 P.3d 567 (Colo. App. 2010) held that it is incumbent for a reviewing Court to scrutinize a contingent fee agreement to determine its enforceability.  The Appellate Court found that the reasonableness of a contingent fee agreement is subject to a retrospective approach, i.e. it must be assessed not only in light of the circumstances which existed at the time the agreement was entered into, but also retrospectively as to whether the services were reasonably worth the percentage amount set forth in the agreement, in effect, a quantum meruit approach using the factors set out in Colo. RPC 1.5(a).  The approach followed by the Court in affirming the trial court was to multiply the number of hours plaintiff’s counsel reasonably spent, times his hourly rate, and then multiply that figure by, in this case, 2.5, pursuant to Colo. RPC 1.5(a)(8), the fact that it was a contingency and the potential risk this involved.  The multiplier approach is consistent with Brody v. Hellman, 167 P.3d 192 (Colo. App. 2007) (multiplier of 2.3 times lodestar amount permitted in a common fund case).

It is noteworthy that the trial court and the Appellate Court only considered counsel’s contemporaneously documented hours and rejected some 50 to 100 additional hours to which plaintiff’s counsel testified, but which were not documented.  The final result was the contingent fee was cut by more than half.  The Supreme Court denied certiorari.  If there is a message to be learned from Berra v. Springer & Steinberg, it is to keep contemporaneous timesheets.

Berra was essentially a collection case which went on for six years.  In 2006, when the judgment debtor discovered he had terminal cancer, he decided to sell all his assets and pay his debts.  The Court of Appeals further held that it was this fortuitous circumstance that brought about the payment of the judgment to the exclusion of Springer & Steinberg’s efforts to collect it.  Query, will the holding in Berra open a floodgate of litigation whereby a contingent fee pursuant to a settlement is contested, based on the fact that other circumstances played into the defendant’s decision to settle the case?  Does this put the contingent fee attorney in a situation similar to a real estate broker, where the broker must be the “procuring cause” of the transaction?

Bennett S. Aisenberg practices law in Denver. He has served as a member of the Colorado Bar Association Ethics Committee since 1986. In 2003, he received the Denver Bar Association Award of Merit. Ben is a past president of the Colorado Bar Association, the Denver Bar Association, and the Colorado Trial Lawyers Association. He blogs at coloradoethics, where this post originally appeared on August 22, 2011.

American Bar Association Issues Formal Ethics Opinion Regarding Fee Arrangements

On August 4, 2011, the ABA released an ethics opinion, Formal Opinion 11-458, which discusses Changing Fee Arrangements During Representation:

Modification of an existing fee agreement is permissible under the Model Rules, but the lawyer must show that any modification was reasonable under the circumstances at the time of the modification as well as communicated to and accepted by the client. Periodic, incremental increases in a lawyer’s regular hourly billing rates are generally permissible if such practice is communicated clearly to and accepted by the client at the commencement of the client-lawyer relationship and any periodic increases are reasonable under the circumstances. Modifications sought by a lawyer that change the basic nature of a fee arrangement or significantly increase the lawyer’s compensation absent an unanticipated change in circumstances ordinarily will be unreasonable. Changes in fee arrangements that involve a lawyer acquiring an interest in the client’s business, real estate, or other non-monetary property will ordinarily require compliance with Rule 1.8(a).

Comment [16] to Rule 1.8 advises that when a lawyer acquires by contract a security interest in property other than that recovered through the lawyer’s efforts in litigation (e.g., a contingent fee agreement), such an acquisition is a business or financial transaction with a client and is governed by the requirements of Rule 1.8(a). When it applies, Rule 1.8(a) requires that:

  1. the terms of the transaction are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client;
  2. the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent counsel; and
  3. the client gives informed consent to the essential terms of the transaction and the lawyer’s role in the transaction in a writing signed by the client.

Compliance with Rule 1.8(a) is appropriate in such situations to protect clients from potential overreaching by lawyers. When the client takes advantage of the advice to consult independent counsel, it also provides an opportunity for a neutral evaluation of the reasonableness of a fee that may be paid or secured by non-monetary property.

Click here to read the full opinion.