May 19, 2013

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.

American Bar Association Issues Formal Ethics Opinions Regarding Email Confidentiality

On August 4, 2011, the ABA released two ethics opinions. The first, Formal Opinion 11-459, discusses the Duty to Protect the Confidentiality of E-mail Communications with One’s Client:

A lawyer sending or receiving substantive communications with a client via e-mail or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access. In the context of representing an employee, this obligation arises, at the very least, when the lawyer knows or reasonably should know that the client is likely to send or receive substantive client-lawyer communications via e-mail or other electronic means, using a business device or system under circumstances where there is a significant risk that the communications will be read by the employer or another third party.

Whenever a lawyer communicates with a client by e-mail, the lawyer must first consider whether, given the client’s situation, there is a significant risk that third parties will have access to the communications. If so, the lawyer must take reasonable care to protect the confidentiality of the communications by giving appropriately tailored advice to the client.

Click here to read the full opinion.

In conjunction with that opinion, the ABA also released Formal Opinion 11-460, entitled Duty when Lawyer Receives Copies of a Third Party’s E-mail Communications with Counsel:

When an employer’s lawyer receives copies of an employee’s private communications with counsel, which the employer located in the employee’s business e-mail file or on the employee’s workplace computer or other device, neither Rule 4.4(b) nor any other Rule requires the employer’s lawyer to notify opposing counsel of the receipt of the communications. However, court decisions, civil procedure rules, or other law may impose such a notification duty, which a lawyer may then be subject to discipline for violating. If the law governing potential disclosure is unclear, Rule 1.6(b)(6) allows the employer’s lawyer to disclose that the employer has retrieved the employee’s attorney-client e-mail communications to the extent the lawyer reasonably believes it is necessary to do so to comply with the relevant law. If no law can reasonably be read as establishing a notification obligation, however, then the decision whether to give notice must be made by the employer-client, and the employer’s lawyer must explain the implications of disclosure, and the available alternatives, as necessary to enable the employer to make an informed decision.

Click here to read the full opinion.

Disaster Preparedness and Response: Do You Have a Plan?

While Colorado may be situated at a safe distance as Hurricane Irene makes her away along the east coast, we’re not immune to potentially crippling disasters. Just this week, the strongest earthquake in forty years shook the state. Having a business plan to counter the sudden and often unforeseen effects of such disasters is essential for all legal professionals. Just because nothing catastrophic has happened to your practice before doesn’t mean that you shouldn’t plan ahead now. It’s easy to do and, as they say, better safe than sorry.

Beginning September 6th, 2011, the ABA Tort Trial & Insurance Practice Section will introduce a series of programs dedicated to Disaster Preparedness and Response. This series will address issues arising out of disasters caused by foreign and domestic acts of terrorism, by negligent acts, by natural events, and by threats to our cyber-security. The programs will also confront the issues of preparedness, risk management, recovery and response, liability, insurance, claims, and litigation.

Each webcast in this not-to-be-missed series is listed below. Enroll in the program or programs of your choice today and be sure to follow updates on the ABA-TIPS Blog and Twitter pages.

The Tort Trial & Insurance Practice Section (TIPS) of the American Bar Association is the home for emerging issues and technologies in tort, trial, and insurance law.

Vote CBA-CLE Legal Connection as One of the ABA’s Top 100 Law Blogs

The ABA Journal’s Blawg 100 is back for 2011 and we need your help! The ABA is compiling its list of the 100 best law blogs and it is up to you, our loyal readers, to nominate us for consideration.

Click here to vote!

Your vote will help raise our profile even more and able us to reach more Colorado (and national!) legal professionals with updates on everything from revised forms, rule changes, case law, legislation, and happenings and news from around our legal community. We’ve also started a new Law Practice Management section on the blog, covering helpful and trending topics like legal technology, legal writing and research, networking, and social media!

We’re working hard to make sure Colorado attorneys can easily stay on top of all the legal updates and tips they need to make their practices successful. If you like the content that we provide you here, we hope you’ll consider voting for us. The nomination process ends September 9, 2011.

We are greatly appreciative of all our readers. Thank you for visiting, subscribing, and sharing.

And, as always, we welcome your feedback. Is there something you’d like to see featured on CBA-CLE Legal Connection that we don’t currently cover? Something you’d like to see more of? Email me (zwillis@cobar.org), call me (303-824-5332), or just stop by the next time you’re here for a CLE program or CBA meeting.

Thanks for your vote!

Roy Ginsburg: ABA Rules – No Major Ethics Overhaul Needed to Address Web Marketing

In a draft proposal issued last month, the ABA Commission on Ethics 20/20 recommended no new restrictions relating to online marketing. The Commission did offer some useful guidance on how to interpret some web-based marketing tools within the context of existing ethics rules – guidance that I intend to pass along to the solo and small-firm lawyers that I coach.

Lead-generating tools

The Commission approved the use of “pay-per-click” and “pay-per-lead” internet sites to generate leads.  Some feared that that the ABA would interpret its Model Rule 7.2, which prohibits lawyers from paying someone else for a recommendation of their services, to ban web-based lead-generation tools.

Instead, the ABA said use of these tools is fine as long as there is no improper fee-sharing, false or misleading communication, or improper solicitation – just like in print. Further, the proposal clarified that a “recommendation” is defined as any communication that “endorses or vouches for the lawyer’s credentials, abilities or qualities.”

Solicitation

Increasingly, lawyers are posting information on their own websites, blogs and social networking sites that is read by people who may become clients. Increasingly, interaction between lawyer and reader is encouraged.  Under Model Rule 7.3, when does this information or interaction become “solicitation”?

According to the ABA draft proposal, solicitation occurs only when the lawyer “offers to provide, or can be reasonably understood to be offering to provide, legal services to a specific potential client.” Information provided to the general public is fine. Also allowed is information provided in response to a specific request or information automatically generated by an internet search.

Who is a “prospective client”

Model Rule 1.18 prohibits lawyers from using or revealing information they have received from someone who is a “prospective” (but not yet an actual) client. The Commission proposes revising the rule to clarify its application in an electronic world, where lawyers receive and send communications in a wide variety of new formals.

As proposed, a “prospective client” would be defined as someone who communicates with a lawyer about the possibility of forming a lawyer-client relationship and has a “reasonable expectation that the lawyer is willing to consider forming” such a relationship. A well-worded disclaimer on all electronic communications can protect the lawyer or firm from the creation of an unplanned and unwanted lawyer-client relationship.

Long story short

What impact will the draft proposal have on the solo or small-firm lawyer? Very little.  The same adherence to the Rules that serves you well when marketing in person, over the phone and in print will serve you just as well when marketing on the internet.  Just use good sense.

Editor’s Note: This post originally appeared as a guest post on Carolyn Elefant’s My Shingle blog on August 12, 2011. Carolyn Elefant has been a resource, an advocate, and an inspiration to lawyers around the country who are either currently solo or considering solo, and she is in Denver this week! Don’t miss her keynote presentation at CBA-CLE’s Hanging Your Shingle event! Click here to register.

Roy Ginsburg is an attorney coach in the areas of business development, practice management, and career development/transitions. He helps his nationwide clients achieve individualized practice goals and career satisfaction. He is also a solo practitioner and practices in the area of legal marketing ethics. His clients include FindLaw and Super Lawyers magazine, Thomson Reuters businesses.

Stacey L. Bowers: Free and Low-Cost Online Legal Resources

There are an abundance of free or low-cost legal research sites available on the Internet. Some sites provide all of their content for free; others provide a mixture of free and fee-based information. Although each site is different, there can be significant overlap among the materials available.

Many of the free sites are “mega-sites,” which are ideal for accessing a wide range of information. Many universities and nonprofit organizations also provide legal resources on their sites, either as a free service to the public or as a free service to paying members. Government sites also are valuable for free legal research at both the federal and state levels.

This article discusses a few key sites from each of these categories. It provides an overview of the site, as well as some background information and the type of information that can be located through each resource.

Mega-Sites

Legal mega-sites provide access to a wide variety of information, including summaries of legal topics, cases, statutes, legal news, and directories of legal professionals and experts. Two of the most well-known mega-sites are FindLaw and Justia. Neither site charges users to access its content.

FindLaw

FindLaw, which is owned by Thomson Reuters, claims to be the “world’s leading provider of online legal information” and initially was launched in 1996 by two attorneys. FindLaw maintains two versions of its site—one for the public and one for legal professionals. Though each version is a comprehensive portal to legal information, this discussion will focus on the version for legal professionals.

FindLaw provides a number of high-level options for searching or browsing cases and codes, practice management topics, jobs and careers, legal news, legal blogs, and service providers. It also offers a number of “quick links” that lead users directly to main points of interest, including forms, law technology information, and newsletters. The newsletter quick link also contains case summaries and blogs.

From the home page, researchers can use the general search box to search across the entire site and retrieve the broadest number of results. A section called “Research the Law” allows users to narrow their search to find specific cases, contracts, or articles. The home page also enables users to browse research materials by type, jurisdiction, or practice area, and to review the latest blog posts and legal news headlines.

The “Cases & Codes” section provides access to federal laws, U.S. Court of Appeals opinions and resources, federal trial courts, and state resources. Coverage varies depending on the court. Additionally, researchers can use the “Search Opinion Summaries” feature to look for specific legal topics in selected courts.

Consider using the advanced search option when searching from the home page or from the cases and codes section. Use the operators AND, OR, and NOT and the proximity locator NEAR, which searches for terms within fifty words of one another. Use the asterisk (*)—which acts as the truncation symbol—to find multiple roots for the indicated search term.

Justia

Justia’s mission is to “advance the availability of legal resources for the benefit of society,” and its site is “focused on making primary legal materials and community resources free and easy to find on the Internet.” From the home page, users can search the entire Justia site by using the keyword search box, or can limit their search to a specific legal practice area by clicking on an area of law listed. Selecting a specific legal practice area brings up a custom search box, as well as an overview of the practice area and related information, including Web resources, important cases, legislation and regulations, articles, and news.

The Justia home page also has a legal research section where users can gain access to information regarding cases and codes, federal and state courts, federal and state government, blogs, legal forms, and podcasts. A section discussing cases that are currently in the news is accessible through the home page, as well.

Justia maintains a U.S. Supreme Court Center that is useful when researching information or cases at this level. It can be accessed by clicking on the “more” tab on the home page. Justia also provides the option to search dockets and court filings, which also is located under the “more” tab.

A unique feature of Justia is its Latin America section. Here, researchers can access laws, codes, and cases for Mexico and countries in Central and South America. Most of this information is provided in the specific country’s language but can be translated into English by clicking the “translate” button on the Google toolbar. Keep in mind that when using any type of free translation service, there may be nuances that are lost or errors in translation that may occur.

When searching in Justia, use the operators AND and OR. A space between keywords defaults to the use of the AND operator. To exclude a term from the search query, place a minus sign (-) directly to the left of the term to exclude, with no space in between.

Additional Mega-Sites

In addition to FindLaw and Justia, mega-sites worth exploring are MegaLaw, the Public Library of Law, LexisOne Community, HG, LexisNexis InfoPro—Zimmerman’s Research Guide, and Google Scholar. As with any resource, users will discover that one is more valuable than another for particular types of research.

University and Nonprofit Organization Sites

Many universities and nonprofit organizations provide legal information online. Some organizations provide free access to all of the information on their site; others require membership to gain full access to their legal research tools.

Cornell’s Legal Information Institute

One of the best sites is the Legal Information Institute (LII), which is hosted by the Cornell University Law School. The site was created to further the school’s belief that “everyone should be able to read and understand the laws that govern them, without cost.” To that end, LII publishes laws, creates materials that help assist in understanding the law, and explores technologies that allow people to find the law easily.

Unlike many home pages on legal research sites, the LII page is clutter-free and easy to navigate due to its simplicity. From the home page, researchers can use the keyword search box to search across the entire site or can choose to explore one of LII’s sections in more depth.

Within the site’s “Read the Law” section, researchers can access both federal and state constitutions, laws, codes, statutes, and cases. Where applicable, the site provides links to other sites where this information is available, rather than creating a repository for the data. The “Popular Topics” section allows users to explore specific legal topics. In many instances, LII provides a narrative overview of the topic and supplies a list of relevant resources, including applicable statutes, recent court decisions, and other key Internet resources. In the “Learn More” section, searchers can access the online legal dictionary called Wex, the Supreme Court bulletin, the annotated U.S. Constitution, and the LII legal blog. LII also has sections to assist in locating a lawyer, asking a question, or following the site via a social network.

When searching within LII, use the operators AND, OR, and NOT. If an operator is not indicated, the default is AND. The asterisk (*) acts as the truncation symbol and finds multiple roots of the search term.

American Bar Association

Although the American Bar Association (ABA) is member-driven, the organization’s site contains both free and fee-based information. From the home page, researchers can use the keyword box to search the entire site. The home page also provides relevant news stories, a list of upcoming ABA events, and links to popular resources.

The “Resources for Lawyers” tab directs users to a page where they can access the career center, search practice management information, locate information based on the type of practice setting, and access the ABA Model Rules of Professional Conduct. Within the practice setting area, there is a section dedicated to solo practitioners that contains useful information. By clicking on the “Publications & CLE” tab, researchers can access the newsletters section. Many of these newsletters are available for free to non-ABA members.

Additional Nonprofit Sites

The Colorado Bar Association (CBA) website offers a variety of legal information in its “For Lawyers,” “For the Public,” and “From the Courts” sections. Some of the information is available for free to anyone, and some of it is available only to CBA members. Other resources to check are local state bar associations, the American Association for Justice site, and the WWW Virtual Library—Law site.

Government Sites

Most federal and state government entities maintain a website. These sites include general information about the entity and often more specific information about that particular area of the law. Government sites can be very useful for legal research, because they have a more targeted focus.

Agencies

Government agency sites generally include the relevant rules and regulations, administrative decisions, laws, forms, and staff directories pertinent to the applicable legal area. The official sites for the U.S. government and the Colorado state government contain a list of all the federal and state agencies, respectively. In addition, the U.S. Government Manual contains a listing of all federal agencies, including information regarding the formation of the agency and its enabling legislation, a brief description of the agency and its responsibilities, the organizational structure of the agency, contact information, and other relevant facts. Users can search or browse the Manual, and its content is updated on an annual basis.

Researchers will find that some agency sites are better structured and easier to search than others. When encountering a site that seems particularly difficult to search, users should consider using the Google advanced search option. The Google advanced search page allows users to create a search query and specify the domain for the search by including the desired URL in the specified box.

Conducting legislative history research often is a difficult and time-consuming task. When engaging in federal legislative research, two of the best sites to consult are FDsys, the new online version of the Government Printing Office, and Thomas, provided by the Library of Congress. At the state level, researchers should consult the Colorado General Assembly site for information regarding legislation, as well as the Colorado Legislative Council site.

Court Websites

Other useful government-produced websites are those for particular courts. At the federal level, the U.S. Courts site is an excellent starting point. From the “Federal Courts” tab, researchers can access links to all the federal courts, including the U.S. Supreme Court, Courts of Appeals, District Courts, Bankruptcy Courts, and Courts of Special Jurisdiction. Under the “Rules & Policies” tab, researchers can find information on federal rulemaking, codes of conduct, and subpoena regulations. Within the “Forms & Fees” area, users can access information regarding various filing fees and a variety of free forms. Under the “Court Records” tab, users can find a link to PACER, the system that provides access to federal case files and dockets.

At the state level, the Colorado State Judicial Branch site provides access to the Colorado appellate and trial courts. From the home page, researchers can access a wealth of information, including court opinions, the self-help library (which contains forms), the e-filing system, and court dockets.

Conclusion

There are an overwhelming number of free and low-cost legal resources available on the Internet. This article has provided an overview of some of them. Users often will turn to one resource more than another, depending on the type of information they need and their practice area, and it’s helpful to be familiar with what is available before starting a search. Free resources usually are a good place to begin one’s research, and supplementing this research with fee-based resources likely produces the best results.

Reproduced by permission. ©2011 Colorado Bar Association, 40 The Colorado Lawyer 103 (August 2011). All rights reserved.

Stacey L. Bowers is the Outreach and Instructional Services Coordinator for the Westminster Law Library at the University of Denver Sturm College of Law. She can be reached at (303) 871-6079 or sbowers@law.du.edu.

The Colorado Lawyer, the official publication of the Colorado Bar Association, serves as an informational and educational resource to improve the practice of law. When you see the logo, you’re reading an article from The Colorado Lawyer. CBA members can also still read the full issue online at cobar.org/tcl.

Legal Affairs: Attorney Accolades, July 2011

Rothgerber Johnson & Lyons LLP is proud to announce that Charles Goldberg is the recipient of this year’s Isaac Hecht Award by the American Bar Association’s National Client Protection Organization.

Bryan D. Biesterfel has been elected Chair of the Board of Trustees for The Community Foundation, serving Boulder County. Biesterfeld is a business and real-estate lawyer in the Denver based law firm of Robinson Waters & O’Dorisio, P.C. He works with privately held businesses and their owners in mergers and acquisitions, entity formation and operations, sales, and purchases and leasing of real estate, as well as private placements of securities, wills, trusts and business succession planning.

 

 

Jennifer Eiteljorg, a shareholder at the law firm of Brownstein Hyatt Farber Schreck (Brownstein), was recently appointed to the Project Angel Heart Board of Directors. As a board member, Eiteljorg will help guide the strategic growth of the organization, which includes completion of a capital campaign for a new facility. Project Angel Heart’s mission resonates with her because of the impact a life-threatening illness has had on her own friends and family.

Attorney Otto Hilbert, a commercial litigator with the full-service law firm of Robinson Waters & O’Dorisio, has been named the Colorado Judicial Institute’s Board Chair.

 

As Board Chair, Hilbert will continue the Colorado Judicial Institute’s mission to ensure fair and impartial courts and improve accountability in the legal system.

 

Emma R. Keyser, an associate at the law firm of Brownstein, recently was appointed to the Colorado Ballet Board of Trustees. As a board member, Keyser will help fundraising and advocacy efforts to further the organization’s mission of enhancing the community’s cultural life.

 

 

The Docket eFile brings features from your favorite Denver Bar Association publication to you digitally. When you see the logo, you’re reading an article from The Docket. You’ll also still be able to read the full issue online at denbar.org/docket.

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