October 31, 2014

Comment Period Open for Changes to Colorado Rules of Judicial Discipline

The Colorado Supreme Court is seeking comments regarding proposed changes to the Colorado Rules of Judicial Discipline. The public comment period is now open, and will close at 4 p.m. on October 14, 2014. Comments should be submitted to Christopher Ryan, the clerk of the supreme court, at 2 E. 14th Ave., Denver, 80203.

The changes to the Rules are extensive. Several rules have been moved or deleted, including the rules on confidentiality, screening of complaints, investigation, discovery, and special masters. For a redline of the changes, click here.

For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

New C.J.E.A.B. Opinion States Judges Cannot Ethically Use Marijuana

On Thursday, July 31, 2014, the Colorado State Judicial Branch released Colorado Judicial Ethics Advisory Board (C.J.E.A.B.) Opinion 2014-01, advising Colorado judges that because marijuana is still illegal under federal laws, any use of marijuana violates Rule 1.1 of the Canon of Judicial Conduct.

The C.J.E.A.B. consists of judges and non-judges who provide advice on ethical issues to judicial officers who request an opinion. Any judicial officer in Colorado may request an opinion from the Board. Once the request is received, the C.J.E.A.B. will consider whether to research the question and issue an opinion regarding the propriety of the proposed conduct and the ethical issues presented.

The question raised in Opinion 2014-01 was whether a judge may use marijuana privately and in a manner consistent with the Colorado Constitution in light of the legalization of marijuana in Colorado. The C.J.E.A.B. decided that because marijuana is still illegal under federal law, using marijuana even in a manner consistent with Colorado law is more than a minor violation of the law and constitutes a violation of Rule 1.1 of the Canon of Judicial Conduct. The C.J.E.A.B. decided that virtually every violation of Colorado law is a violation of the CJC, because the exceptions delineated by the committee that crafted the CJCs were extremely minor, such as parking tickets. Further, because drug- and alcohol-related offenses were specifically mentioned as not falling under the exception, the C.J.E.A.B. determined that a judge’s use of marijuana is not a minor violation of law.

Click here for the full text of Opinion 2014-01 and click here for all of the C.J.E.A.B. opinions.

Colo. RPC 1.15 Concerning Fees and Trust Accounts Repealed and Reenacted as Five New Rules

On Wednesday, June 18, 2014, the Colorado Supreme Court released Rule Change 2014(07), which repealed Colo. RPC 1.15 and reenacted it as Colo. RPC 1.15A, 1.15B, 1.15C, 1.15D, and 1.15E. The rule change was signed on June 17, 2014 and is effective immediately.

Colo. RPC 1.15A, “General Duties of Lawyers Regarding Property of Clients and Third Parties,” sets forth rules regarding client property and accountings. Rule 1.15A mostly tracks the language of subsections (a) through (c) of former Rule 1.15, and adds that the provisions of 1.15B through 1.15E apply to all funds or property held or maintained by the lawyer.

Colo. RPC 1.15B, “Account Requirements,” makes significant changes to subsections (d) through (h) of former Rule 1.15. Rule 1.15B sets forth requirements for COLTAF and other accounts in which to maintain client funds, and specifies practical procedures for paying account fees and dispersing interest.

Colo. RPC 1.15C, “Use of Trust Accounts,” rearranges the management provisions previously contained in 1.15(i) and increases the rule’s readability.

Colo. RPC 1.15D, “Required Records,” establishes recordkeeping requirements for client property. Some of the provisions from former 1.15(d) through (h) regarding recordkeeping procedures were moved to Rule 1.15D, and the language of former 1.15(j) through (m) is also incorporated where appropriate.

Colo. 1.15E, “Approved Institutions,” lists requirements for financial institutions housing trust accounts and defines acceptable forms of accounts. Rule 1.15E is expanded from former 1.15(e)(3), and many provisions were added regarding the financial institutions.

For the full text of new Rules 1.15A through 1.15E, click here. For all of the Colorado Supreme Court’s rules changes, click here.

Colorado Supreme Court: Public Censure Appropriate Remedy Where Attorney Engaged in Negligent Conduct

The Colorado Supreme Court issued its opinion in In the Matter of Olsen on Monday, June 2, 2014.

Attorney Discipline—Colo. RPC 3.1 and 8.4(d).

In this attorney discipline proceeding, The Supreme Court held that the hearing board’s order suspending attorney John R. Olsen for six months with the requirement of reinstatement was unreasonable. The hearing board found that Olsen engaged in negligent conduct, not knowing falsehood. After reviewing prior decisions and the American Bar Association’s Standards for Imposing Lawyer Sanctions, the Court concluded that the appropriate sanction against Olsen was public censure. Accordingly, the Court affirmed the hearing board’s conclusions that Olsen violated Colo. RPC 3.1 and 8.4(d), but reversed its imposition of a six-month suspension with the requirement of reinstatement and instead ordered that Olsen be publicly censured for his misconduct.

Summary and full case available here.

Alternative Lawyer Relationships: Ethical Implications of Contract Lawyering

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

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

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

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

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

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

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

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

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

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

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

Colorado Supreme Court: Dismissal for Lack of Subject Matter Jurisdiction Improper in Attorney Discipline Case

On Monday, March 24, 2014, the Colorado Supreme Court issued its opinion in In re People v. Kanwal.

Rules of Procedure Regarding Attorney Discipline and Disability Proceedings—CRCP 251.12.

The People petitioned for relief pursuant to CRCP 251.1(d) and CAR 21 from an order of the Presiding Disciplinary Judge (PDJ) dismissing for lack of subject matter jurisdiction a claim of attorney misconduct. The PDJ concluded that the People were not authorized to plead, and the Hearing Board lacked jurisdiction to consider, any claim for the filing of which the Attorney Regulation Committee had not given specific approval. Because it was undisputed that the Committee had not specifically approved the filing of a claim for the violation of Rule 8.4(c) of the Rules of Professional Conduct, the PDJ dismissed Claim III in the People’s complaint alleging a violation of that rule.

The Supreme Court made the rule absolute and remanded the matter with instructions to reinstate Claim III, because it was undisputed that the conduct giving rise to the grounds alleged in this claim was conduct specifically addressed in the report of investigation presented to the Committee, as a result of which it authorized proceedings for public discipline. Because the Rules of Procedure Regarding Attorney Discipline and Disability Proceedings contemplate merely the Committee’s authorization for the initiation of formal proceedings before a tribunal capable of administering public discipline, rather than mandating the Committee’s approval of the specific claims to be filed, including the identification of precise rule violations, the PDJ misinterpreted the controlling rules.

Summary and full case available here.

IAALS: Integrating More Professionalism and Ethics into Law School Curriculum

This post originally appeared on IAALS Onlinethe blog for IAALS, the Institute for the Advancement of the American Legal System at the University of Denver, on February 10, 2014.

Alli_Gerkman_bw_2014By Alli Gerkman

In his Voices from the Field interview, Bill Walters, Partner at Heizer Paul and former president of the Colorado Bar Association, suggests that law schools need to expose students to the various career options they have following law school, which extend far beyond the traditional big firm practice of law. For example, dual degree programs, like dual J.D./M.B.A. programs, allow law students to use the skills they’ve learned in combination with business skills to potentially and more successfully run a business after graduating.

As to better preparing law students for practice, Walters suggests that the first year curriculum should remain largely traditional through use of the Socratic method and fundamental courses. However, in the second and third year of law school, professors should use different pedagogical methods to teach students, like experiential course offerings. Walters also underscores the importance of having practicing attorneys teach students.

Finally, Walters advocates for integrating more professionalism and ethics into law school curriculum to help produce law school graduates that are better prepared for the practice of law and serving clients. He suggests that schools need exposure to these issues beyond the Rules of Professional Conduct. By “infusing” the curriculum with ethical issues, students can better understand the issues in the context of practice. Walters suggests that a student who attends a law school that emphasizes professionalism by modeling ethical behaviors will have an advantage interviewing with law firms and will increase the potential for the student to get hired.

Hear more of Bill Walters’ suggestions for reforming legal education in his Voices from the Field interview below.

William E. (“Bill”) Walters, III, has practiced law for more than 36 years in Denver, Colorado. His practice focuses on advising nonprofit organizations, trade and professional associations, and for-profit business entities. Bill also has expertise in antitrust and trade regulation law. 

From 1978 to 1981, Bill was an Assistant Attorney General for the State of Colorado. He was President of the Denver Bar Association from 2001 to 2002 and is a former Chair of the Colorado Lawyers Committee. He was President of the Colorado Bar Association from 2008 to 2009 and served on its Executive Council and Board of Governors for many years. 

Alli Gerkman became the first full-time Director of Educating Tomorrow’s Lawyers, a national initiative to align legal education with the needs of an evolving profession, in May 2013. She joined IAALS in June 2011 as Online Content Manager, developing and managing all IAALS web properties, including Educating Tomorrow’s Lawyers, and became IAALS’ Director of Communications in August 2012. She brings significant professional development experience to the initiative, having spent five years in continuing legal education, first as a program attorney organizing multi-day conferences for a national provider and then as program attorney and manager of online content for Colorado Bar Association CLE. While at CBA-CLE, she developed an online legal resource that was the recipient of the Association of Continuing Legal Education’s 2011 Award of Professional Excellence for use of technology in education. She has written and presented nationally to continuing legal education providers, bar executives, and lawyers. Prior to her work in continuing legal education, she was in private practice.

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.

Comment Period Open for Proposed Changes to Rules of Professional Conduct and Rules of Civil Procedure

The Colorado Supreme Court has announced proposed changes to the Colorado Rules of Professional Conduct. The public comment period for proposed changes to Comment [2A] of Colo. RPC 8.4 and a proposed new Rule 8.6 is now open. Written comments should be submitted to Christopher Ryan, Clerk of the Supreme Court, no later than 5 p.m. on February 25, 2014. There will be a public hearing on these proposed changes on March 6, 2014, at 1:30 p.m. at the Colorado Supreme Court courtroom.

Proposed changes to the Colorado Rules of Civil Procedure were also announced. Changes to C.R.C.P. 54(d) and C.R.C.P. 121, § 1-22 are submitted for public comment. Comments should be submitted in writing to Christopher Ryan by 5 p.m. on April 15, 2014, and the public hearing on the proposed changes will be held on April 29, 2014, at 1:30 p.m. in the Colorado Supreme Court courtroom.

Additional changes to the Colorado Rules of Professional Conduct were also announced, concerning the repeal and readoption of Colo. RPC 1.15. Comments regarding this proposed change are due no later than 5 p.m. on Tuesday, May 20, 2014, and should be submitted in writing to Christopher Ryan. The public hearing regarding this change will be held on June 5, 2014, at 1:30 p.m. in the Colorado Supreme Court courtroom.

For more information on these proposed changes or for the address at which to submit written comments, click here.

Michael H. Berger of Husch Blackwell, LLP, Appointed to Colorado Court of Appeals

6113On Wednesday, December 18, 2013, Governor Hickenlooper’s office announced the appointment of Michael H. Berger to the Colorado Court of Appeals. Judge Berger will replace Judge Russell Carparelli, who retired on December 15, 2013.

Michael Berger currently is a partner at Husch Blackwell, LLP, where his practice consists of civil litigation, legal ethics advice to lawyers, and representation of lawyers in attorney discipline proceedings. He is very active in the legal community, especially regarding legal ethics, and he is a member and past chair of the CBA Ethics Committee. He is also a member of the Colorado Supreme Court Appellate Rules Committee and Committee on the Rules of Professional Conduct. He is a Fellow of the American College of Trial Lawyers. He frequently presents for CBA-CLE on legal ethics topics, and presented at the Ethics 7.0 seminar in November 2013.

Governor Hickenlooper’s office also announced on December 18 the appointment of Emily Anderson as district court judge on the Seventeenth Judicial District bench. Emily Anderson currently serves as a Magistrate for the 17th Judicial District, where she presides over civil, domestic relations, juvenile and criminal matters. Previously, Anderson was a part-time Magistrate for the Denver County Court, president of her own law firm with a focus on family law, civil litigation and mediation, and a senior associate at Bell & Pollock, P.C.

U.S. District Court of Colorado Local Rules Changed as of December 1

The United States District Court for the District of Colorado approved amendments to its Local Rules, effective December 1, 2013. The amended rules can be found on the court’s website. The changes are largely stylistic.

Among other changes, the local rules dealing with attorneys have been moved to a new “Attorney Rules” section and the Colorado Rules of Professional Conduct that have not been adopted by the court have been listed in the new rules, rather than in an administrative order.

A new Rule 15.1, “Amended Pleadings,” requires parties to file a strike through and underlined copy of the amended pleading as an exhibit. Another non-stylistic change is that a subsection on confidentiality has been added to Rule 16.6, “Alternative Dispute Resolution.”

Tenth Circuit: Filing Restrictions Imposed on Abusive, Frivolous Pro Se Filer

The Tenth Circuit Court of Appeals published its opinion in Landrith v. Schmidt on Tuesday, October 15, 2013.

Bret D. Landrith was admitted to the Kansas bar in 2002, but he was disbarred in 2005 for violating six of the Kansas Rules of Professional Conduct and “total incompetence in the practice of law.” He began filing baseless lawsuits and appeals related to the disbarment proceedings, as well as other unrelated frivolous and abusive lawsuits and mandamus proceedings.

The Tenth Circuit ordered Landrith to show cause why the court should not impose the following filing restrictions on him: “Subject to Landrith’s opportunity to file written objections that we outline below, we propose to enjoin Landrith from petitioning this court for relief, either by appeal or through an original proceeding, including a petition for a writ of mandamus under 28 U.S.C. § 1361, unless he either (1) is represented by an attorney who is admitted to practice in this court or (2) obtains permission to proceed pro se.”

Landrith failed to demonstrate good cause why the proposed filing restrictions should not be imposed. The court therefore ordered that the filing restrictions take effect immediately upon entry of this order.

Contributing Mask for the Benefit of Denver Hospice is Equivalent to Fundraising

The Colorado Judicial Ethics Advisory Board issued Opinion 2013-04 on August 19, 2013.

The requesting judge was asked to contribute a handcrafted mask to The Mask Project, an annual fundraiser for Denver Hospice. Masks are created by artists, celebrities, sports figures, and community leaders, and an online auction identifies each mask’s creator. The judge’s mask would identify her as a judge, but she noted that she would not solicit contributions or bids. The judge wanted an opinion regarding whether contributing a mask to The Mask Project would violate Rule 3.7 of the Code of Judicial Conduct.

The Judicial Ethics Advisory Board opined that contributing the mask would indeed violate Rule 3.7, as it is the equivalent of fundraising or soliciting contributions for Denver Hospice. The Board noted that the clear language of Rule 3.7(A)(2) and (4) prohibits both active and passive fundraising for a non-law-related non-profit organization. Although the Board noted that the line between permissible and disallowed may not always be clear, it opined that there is no such uncertainty in this instance.

For more information about the Colorado Judicial Ethics Advisory Board, and for a complete list of its opinions, click here.