April 20, 2014

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.

Judge Not Disqualified from Foreclosure Actions Due to His Interest in PERA

The Colorado Judicial Ethics Advisory Board issued C.J.E.A.B. Opinion 2013-03 on Wednesday, July 10, 2013.

The opinion discusses whether a judge must disqualify himself from two C.R.C.P. 120 foreclosure actions because of his interest in the Public Employees Retirement Association (PERA). The motion requesting the judge to disqualify himself alleged that because PERA held investments in the foreclosing banks, and has an economic interest in litigation involving mortgage-based securities.

The Judicial Ethics Advisory Board opined that the judge need not recuse, because he has at most a de minimus interest in the outcome of the proceedings through PERA, he does not have actual bias or prejudice regarding the parties, and does not have a disqualifying interest in the foreclosing bank.

For the full text of the opinion, click here. For all of the Colorado Judicial Advisory Board opinions, click here.

Colorado Supreme Court: PDJ’s Motion Alleging Probation Violations Filed Before Order for Successful Completion of Probation Issued

The Colorado Supreme Court issued its opinion in In the Matter of Bass on Monday, June 24, 2013.

Attorney Discipline—CRCP 251.7.

Betty Bass appealed from the Presiding Disciplinary Judge’s (PDJ) denial of her motion filed pursuant to CRCP 60(b)(3) for relief from his earlier order revoking her probation and suspending her license to practice law. After a half dozen unsuccessful attempts to notify Bass of his show cause order, by mail and e-mail, over a period of approximately four months, the PDJ found Bass in default of the Attorney Regulation Counsel’s allegations of violation. After another six months, Bass filed her motion, requesting relief on the grounds that the order revoking her probation was void, both for failure to provide her adequate notice and for failure of regulation counsel to assert a violation until after the period of her probation had expired. Bass then asked for a ruling on the PDJ’s authority to proceed in the absence of a motion to revoke filed by regulation counsel before the expiration of the period of probation originally imposed on her.

The Supreme Court affirmed the order denying Bass’s motion. The Attorney Regulation Counsel’s motion alleging probation violations and seeking a show cause order was filed with the PDJ before the issuance of an order of successful completion of probation, as required by CRCP 251.7 for termination. Therefore, the PDJ was empowered by the rule to lift the stay and activate Bass’s suspension.

Summary and full case available here.

Colorado Court of Appeals: Rules of Professional Conduct and Common Law Do Not Establish Standard of Care for Disclosure of Representing Attorney’s Medical and Arrest History

The Colorado Court of Appeals issued its opinion in Moye White LLP v. Beren on Thursday, June 6, 2013.

Law Firm Fiduciary Duty to Disclose Information About Attorneys.

Defendant David I. Beren appealed the trial court’s judgment and order of costs in favor of plaintiff Moye White LLP, denying, as relevant here, Beren’s counterclaim for breach of fiduciary duty. The judgment and order were affirmed.

Moye White sued Beren for recovery of attorney fees incurred during its representation of Beren in a probate matter form 2009 to 2010. Moye White sought $229,118.10 from Beren on a breach of contract claim. Beren counterclaimed, alleging that Moye White breached its fiduciary duty to him by failing to disclose and intentionally concealing material information related to one of the attorneys working on his case (Attorney A), who had a history of disciplinary proceedings, mental illness, alcoholism, and related arrests. The trial court found in favor of Moye White on all claims. As the prevailing party, Moye White moved for an award of costs totaling $76,637.49 and was awarded $69,975.59.

On appeal, Beren asserted it was error to find no duty existed for Moye White to disclose Attorney A’s medical and arrest history, because the duty exists under common law and Colo. RPC 1.4 and 7.1. The Court of Appeals disagreed. Neither party cited cases in Colorado or other jurisdictions addressing this issue. The Court looked to cases involving other professionals’ fiduciary duty to disclose material information to a principal and concluded no duty existed here, because the failure to disclose did not pose a demonstrable risk to the firm’s ability to represent Beren.

Attorney A was added to the team representing Beren at the recommendation of the partner assigned to the case. Attorney A had a longstanding history of marital, alcohol, domestic violence, and other issues. He self-reported to the Office of Attorney Regulation Counsel (OARC), which, following a full investigation, suspended his license to practice law conditioned on his receiving ongoing substance abuse treatment. He was monitored and tested positive several times. From June 2010 until the date of the trial court’s order in this case, he remained sober. Moye White was aware of these issues but allowed him to return to work and instituted a supervision plan under which his legal work was reviewed by another attorney.

Moye White never advised Beren regarding Attorney A’s medical and arrest history, and his stayed suspension. Beren found out about Attorney A’s history after Moye White moved to withdraw from representing Beren in July 2010; however, the information was of public record.

Beren asserted that had he known about Attorney A’s medical and arrest history, he would have objected to his representation. The Court noted that a fiduciary relationship exists as a matter of law between an attorney and his or her client. To prevail on a claim of breach of fiduciary duty against an attorney, a plaintiff must establish that a particular standard of care existed and that the attorney failed to adhere to that standard. Here, Beren asserted that the common law and Colo. RPC 1.4 and 7.1 established a standard of care that required such a disclosure when any such history has a possibility of interfering with the representation. The Court disagreed.

Under the common law, the information has to be material to require disclosure. The Court found that the information was not material, because the presented evidence demonstrated that Attorney A’s medical and arrest history did not adversely affect the quality of Moye White’s representation. The risk was speculative and not material.

The Colorado Rules of Professional Conduct do not create a fiduciary duty, but they may evidence standards of care. Colo. RPC 1.4 was inapposite because it relates to disclosure of information necessary for a client to give informed consent. There is no requirement for a client’s informed consent before a law firm can allow an additional attorney to work on a case. Moreover, the information was not material.

Colo. RPC 7.1(a)(1) also is inapposite. The rule pertains to attorneys’ advertisements of legal services. Even if it were applicable, it would again not impose a duty to disclose because the information was not material to the representation.

Summary and full case available here.

Colorado Supreme Court: In Disciplinary Proceeding, PDJ Erred in Determining Issue Preclusion

The Colorado Supreme Court issued its opinion in In re Matter of Greene on Monday, May 20, 2013.

Attorney Discipline—Claim Preclusion—Identity of Claims—Same Criminal Episode.

The Attorney Regulation Counsel sought review of the Presiding Disciplinary Judge’s (PDJ) order granting summary judgment in favor of respondent David Jerome Greene. The PDJ found that all of the claims in the complaint for attorney discipline should have been joined and adjudicated along with the claims raised in a previous complaint. Therefore, they were barred according to the doctrine of claim preclusion.

The Supreme Court held that although the doctrine of claim preclusion applies to complaints for attorney discipline, a single claim in that context is analogous to a single “criminal episode” for the purposes of barring sequential prosecutions of the same defendant. Because none of the claims alleged in the instant complaint was identical with any claim that had already been finally adjudicated, according to that standard, the PDJ erred. The Court therefore vacated the order granting summary judgment in favor of Greene and remanded the case for further proceedings on the claims as to which summary judgment was ordered.

Summary and full case available here.

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.


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.