May 1, 2016

Attorney at Work—Mixing Cocktails with Legal Advice: Don’t

Editor’s note: This article originally appeared on Attorney at Work on April 19, 2016. Reprinted with permission.

Mark3By Mark Bassingthwaighte

I can appreciate a well-crafted cocktail. But when I am in a situation where such beverages are being served, I never get involved in a conversation about someone’s legal problems. And I strongly encourage you to do the same.

Here’s a short story that explains why.

An associate at a law firm — not a litigator in any way — attended a social function and had a few more than she should have. She got involved in a conversation with another guest about a personal injury matter. In addition to sharing some generic advice, the associate also let the guest know there was still plenty of time to deal with the matter, saying the statute of limitations in that jurisdiction was two years. Unfortunately, unbeknownst to our heroine, there was an exception to the statute in play and the actual time to file suit was six months. The guest, relying on the advice, did not obtain legal counsel until after the filing deadline had passed.

The young lawyer and her firm were eventually sued for malpractice.

The Accidental Client

We all know drinking and driving can have serious consequences — when your judgment and reflexes are impaired, accidents can happen. Mixing cocktails and legal advice is similarly problematic. It’s too easy for a casual setting, coupled with a few adult beverages, to cloud your thinking. You may then find yourself dealing with an accidental client.

Malpractice claims can easily arise out of these situations, but the risk isn’t limited to cocktail parties. Casual conversations online with extended family members or friends and gatherings with members of your church congregation or other community organizations are all situations where you should proceed with caution.

You can’t overlook the office setting, either.

Should you be concerned about passing along a little casual advice in a conversation with a corporate constituent while representing the entity itself? How about discussing issues with beneficiaries while representing the estate, trying to help a prospective client out during that first meeting when you know you are going to decline the representation? Or what about being a good Samaritan by making a few suggestions on the phone to someone who clearly has a problem but really can’t afford an attorney? How about answering a few questions from an unrepresented third party?

The answer is, of course, yes — these are all situations that can easily lead to an accidental client.

“No Good Deed Goes Unpunished”

Old sayings became old sayings because they have a ring of truth to them.

I am always surprised by what attorneys say when they have to deal with a claim brought by an accidental client. Comments like “I never intended to create an attorney-client relationship,” “There was no signed fee agreement,” and “No money was exchanged so how could this be?” are common.

Guess what: It’s not about you! Typically, it is more about how the individual you interacted with responded to the exchange. If they happened to respond as if they were receiving a little legal advice from an attorney, and that response was reasonable under the circumstances, it can start to get muddy. Worse yet, if it was reasonably foreseeable that this individual would rely or act on your casual advice — and then, in fact, did so to their detriment — you may have a serious problem on your hands.

I share this not with a desire to convince you to keep quiet and never try to help someone. By all means, be helpful. The world could use a few more good Samaritans, and a desire to help others is a good thing as long as you stay the course. I share this because I want you to be cognizant of the risk involved whenever you decide to step into those waters.

Here’s the Bottom Line

Accidental clients are for real and there is no such thing as “legal lite.” So if you are enjoying a wonderful evening at a party, cocktail in hand, and find yourself conversing with another guest who has just learned you are an attorney and wants to “pick your brain,” don’t talk about legal issues you are not well-versed in. If you feel compelled to pass along a little advice, then remember to ask questions so you understand the entire situation. Just know that you may be held to the accuracy of that advice later on, so you might want to jot down a few notes as soon as you can.

Finally, know that it’s okay to say you’re not the right person to be asking, particularly after you’ve had a few.

That said, salute!

Mark Bassingthwaighte, Esq. has been a Risk Manager with ALPS, an attorney’s professional liability insurance carrier, since 1998. In his tenure with the company, Mr. Bassingthwaighte has conducted over 1150 law firm risk management assessment visits, presented numerous continuing legal education seminars throughout the United States, and written extensively on risk management and technology.  Mr. Bassingthwaighte is a member of the ABA and currently sits on the ABA’s Law Practice Division’s Professional Development Board, the Division’s Ethics and Professionalism Committee, and he serves as the Division’s Liaison to the ABA’s Standing Committee on Lawyers Professional Liability. Mr. Bassingthwaighte received his J.D. from Drake University Law School and his undergraduate degree from Gettysburg College.

Contact Information:
Mark Bassingthwaighte, Esq.
ALPS Property & Casualty Insurance Company
Risk Manager
PO Box 9169 | Missoula, Montana 59807
(T) 406.728.3113 | (Toll Free) 800.367.2577 | (F) 406.728.7416
mbass@alpsnet.com | www.alpsnet.com

ALPS offers up to a 10% premium credit for each attorney in a firm who receives 3 CLE credits annually in the areas of ethics, risk management, loss prevention, or office management. ALPS is a lawyers’ malpractice carrier endorsed by the CBA. Learn more at try.alpsnet.com/Colorado

Colorado Supreme Court: Legislature Lacks Authority to Regulate IEC Dismissals Based on Frivolity

The Colorado Supreme Court issued its opinion in Colorado Ethics Watch v. Independent Ethics Commission on Monday, April 25, 2016.

Constitutional Interpretation—Amendment 41—CRS § 24-18.5-101(9)—Judicial Review.

In this original proceeding, the Supreme Court considered whether the Independent Ethics Commission’s (IEC) decision to dismiss a complaint against a public officer as frivolous is subject to judicial review. Plaintiff contended that the General Assembly authorized such review when it enacted CRS § 24-18.5-101(9), which provides that “[a]ny final action of the commission concerning a 18 complaint shall be subject to judicial review.” The Supreme Court concluded that, while the General Assembly may authorize judicial review of IEC’s enforcement decisions, it may not encroach on the IEC’s decisions not to enforce. Therefore, the Court held that the General Assembly’s “judicial review” provision does not apply to frivolity dismissals. Accordingly, the Court made its rule to show cause absolute and remanded the case to the trial court with instructions to dismiss plaintiff’s complaint.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court Adopts Changes to Colorado Rules of Professional Conduct, Colorado Appellate Rules

The Colorado Supreme Court adopted Rule Change 2016(04), 2016(05), and 2016(06) last week, approving changes to the Colorado Rules of Professional Conduct and the Colorado Appellate Rules.

Rule Change 2016(04), adopted and effective April 6, 2016, enacts substantial changes to the Colorado Rules of Professional Conduct. Many of the changes were to the Comments to the Rules, and language was added to many comments about lawyers contracting outside their own firms to provide legal assistance to the client. Additionally, a new model pro bono policy was added to the Comment to Rule 6.1. The changes are extensive; a redline and clean version is available here.

Rule Change 2016(05) amended Rules 35, 40, 41, 41.1, and 42 of the Colorado Appellate Rules, adopted and effective April 7, 2016. The changes to the affected rules were extensive, and the Comments to those rules generally explain the changes. Rule 41.1 was deleted and incorporated into Rule 41. A redline and clean version of the rule change is available here.

Rule Change 2016(06), adopted and effective April 7, 2016, amended the Preamble to the Rules Governing the Practice of Law, Chapters 18 to 20 of the Colorado Rules of Civil Procedure. The Preamble addresses the Colorado Supreme Court’s exclusive jurisdiction and its ability to appoint directors of certain legal programs to assist the court. The Preamble also sets forth the court’s objectives in regulating the practice of law. A clean version of the newly adopted Preamble is available here.

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

Two Law Firm Hacks Should Be Scaring Your Firm Into Action

Editor’s Note: This post originally appeared on Stuart Teicher’s blog, “Keeping Lawyers Out of Trouble,” on April 4, 2016. Reprinted with permission.

Headshot-Stuart-TeicherBy Stuart Teicher

For years people have been warning that law firms of all sizes are major targets for cyber-criminals. If your firm didn’t take that seriously before, then there are two major hackings last week that should get your attention.

The Wall Street Journal reported that cyber criminals breached Cravath, Weil Gotshal, and several other unnamed firms (read the article here: http://on.wsj.com/1MzYlN2). The paper states that it’s not clear what (or whether) information was taken, but the focus is on the possibility of confidential information being stolen for purposes of insider trading.

The other major breach is so big that it has its own hashtag— search Twitter for #PanamaPapers or #PanamaLeaks.  According to Reuters, the target was a law firm in Panama who specializes in setting up offshore companies. Hackers stole data from the firm and provided that data to journalists who promptly revealed it to the public (read the article here: http://reut.rs/25GEy4X). The information allegedly reveals a network of offshore loans. According to the BBC, the stolen data reveals how the law firm, “has helped clients launder money, dodge sanctions and avoid tax” (read the BBC’s article here: http://www.bbc.com/news/world-35918844). Political figures and friends of popular politicians are allegedly implicated, according to the report.

My concern is not about the obvious political ramifications. My concern is about the ethical ramifications to lawyers. The danger of hacking is real.

No report has implicated any type of ethical wrongdoing on the part of any firm. That needs to be restated and made abundantly clear: there has been no report of any evidence of ethical impropriety by any of the law firms mentioned in the news. I am bringing this to your collective attention because it should serve as a warning. Confidential client information was stolen from that law firm in Panama… which reminds us that we are targets.

All lawyers are targets. Small firms, large firms, in-house counsel, government lawyers, you name it. The bad guys know that lawyers are the custodians of valuable information and they are coming after us in a big way. The message for all of us is clear: you could be subject to an ethics grievance if you don’t take proper steps to secure your clients’ information.

The responsibility to protect our client information is nothing new. However, these recent events require us apply an increased sense of urgency to evaluating our compliance with that duty. Have you, or your firm, taken the necessary steps to adequately protect your clients’ information? Have you considered the fact that bad guys could be targeting you? What steps have you taken to counteract the potential piracy that could be aimed at your clients’ information?

You could be darn sure that someone is going to be asking those questions to the firms that were targeted in the hacks. Maybe you need to put yourself in their position and ask, “how would we fare if that review was directed toward us?”

Our duty of competence requires that we take appropriate steps to protect our clients’ confidential information. And remember that you, as the lawyer, have the primary ethical duty, not your IT people. Furthermore, various ethics opinions have held that, in some circumstances, the lawyer needs to understand the underlying technology itself.

If these issues weren’t on the front burner in your office before, these two hacks should be causing you to shift your priorities.

Quickly.

 

Save the Date!

Stuart Teicher will be at the CLE offices on Thursday, September 8, 2016, to present two ethics programs. Registration is not yet open, but mark your calendars and don’t miss these important programs.

 

Stuart I. Teicher, Esq. is a professional legal educator who focuses on ethics law and writing instruction. A practicing attorney for over two decades, Stuart’s career is now dedicated to helping fellow attorneys survive the practice of law and thrive in the profession. Stuart teaches seminars and provides in-house training to law firms/legal departments.

Stuart helps attorneys get better at what they do (and enjoy the process) through his entertaining and educational CLE Performances. His expertise is in “Technethics,” a term Stuart coined that refers to the ethical issues in social networking and other technology. He also speaks about “Practical Ethics”– those lessons hidden in the ethics rules that enhance a lawyer’s practice. Stuart writes the blog “Keeping Lawyers Out of Trouble.”

Mr. Teicher is a Supreme Court appointee to the New Jersey District Ethics Committee where he investigates and prosecutes grievances filed against attorneys, an adjunct Professor of Law at Rutgers Law School in Camden, New Jersey where he teaches Professional Responsibility and an adjunct Professor at Rutgers University in New Brunswick where he teaches undergraduate writing courses. He is a member of the bar in New York, New Jersey and Pennsylvania. In 2014, he authored the book Navigating the Legal Ethics of Social Media and Technology (Thomson Reuters).

Colorado Court of Appeals: Claim Preclusion Bars Suit Against Attorney for Disclosure of PRE Report

The Colorado Court of Appeals issued its opinion in Foster v. Plock on Thursday, March 10, 2016.

Claim Preclusion—Attorney Fees.

This case stemmed from Foster’s dissolution of marriage action but also involved related criminal and tort cases. Plock represented Foster’s wife (wife) in the dissolution action, but was not a named party in any of the other cases.

Wife filed to dissolve her marriage to Foster, and a temporary civil protection order was issued by the domestic relations court barring Foster from contacting wife.

The court ordered a Parental Responsibilities Evaluation (PRE), which reported that Foster had an extensive criminal history. The PRE recommended that the court grant wife sole decision-making authority for the minor child. Foster requested a second evaluator, who noted that it was questionable whether all the crimes in the first report had actually been committed by Foster, but made the same recommendation. Both PREs were confidential and not to be “made available for public inspection” without court order.

Two misdemeanor criminal cases arose against Foster from multiple violations of the domestic court’s temporary civil protection order. In May 2013, the district attorney in one of those cases contacted Plock and asked whether he had any information that would be helpful to the criminal court in sentencing if Foster was convicted. Plock emailed him both PREs without Foster’s knowledge or consent, and without a court order releasing the PREs. The PREs were used in sentencing and, on Foster’s motion, ordered to be sealed.

In November 2013, Plock filed a motion with the domestic relations court admitting that he had disclosed the PREs to the prosecuting attorney, and in July 2014 the court sanctioned Plock and ordered him to pay Foster’s attorney fees associated with responding to Plock’s motion in which he admitted disclosing the PREs to the prosecutor.

During this time period, Foster filed 11 separate lawsuits regarding the first PRE alleging libel, slander, and outrageous conduct. These cases were all consolidated and all defendants moved to dismiss. Foster then filed 11 amended complaints against wife and the first investigator alleging that each had caused the disclosure of the PREs to the prosecutor in the criminal case. Plock wasn’t named in any of these cases, but in the complaint against wife, it was alleged that she, through her attorney, caused the PREs to be disclosed. In May 2014 the district court dismissed all of Foster’s complaints. Foster appealed but then voluntarily dismissed the appeal.

Four months after the dismissal and 10 months after he learned that Plock had disclosed the PREs to the prosecutor, Foster filed this action against Plock alleging invasion of privacy, defamation, and outrageous conduct. The court granted Plock’s motion to dismiss based on both claim and issue preclusion.

On appeal, Foster argued that it was error to conclude that his claims were barred by claim preclusion because there was no identity of subject matter, claims, or parties. The Court of Appeals disagreed. Specifically, the Court found that all of the elements of claim preclusion had been met: (1) finality of the first judgment, (2) identity of subject matter, (3) identity of claims for relief, and (4) identity or privity between parties to the actions.

Foster and Plock both requested attorney fees. The Court denied Foster’s request, but agreed that Plock was entitled to a mandatory award of attorney fees and costs on appeal under CRS §§ 13-17-201 and 13-16-113(2).

The judgment was affirmed and the case was remanded for a determination of reasonable attorney fees to be awarded to Plock.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Use of Strawman Purchasers Not Fraudulent

The Colorado Court of Appeals issued its opinion in Rocky Mountain Exploration, Inc. v. Davis Graham & Stubbs, LLP on Thursday, March 10, 2016.

Rocky Mountain Exploration (RMEI) owned oil and gas interests in leaseholds in North Dakota. In 2006, it sold 80% of its leasehold interest to Tracker. In 2009, Tracker attempted to purchase RMEI’s remaining 20% interest, but it was unsuccessful and relations between Tracker and RMEI became strained. Tracker then agreed to purchase the interest together with Lario, with Lario acting as Tracker’s agent in the purchase so that RMEI would not refuse to deal with Tracker.

Davis Graham & Stubbs (DGS) represented Tracker in the deal but refused to represent Lario due to a conflict of interest. However, DGS handled the negotiations for Lario and Tracker because of its representation of Tracker. Lario variously referred to DGS as its attorney, and DGS made no attempt to correct Lario’s mistake.

After the sale closed and RMEI discovered Tracker’s interest, RMEI sued Lario and Tracker, their officers individually, and DGS. All parties except DGS settled. RMEI asserted fraud and civil conspiracy claims against DGS based on the use of Lario as a “strawman” purchaser in the transaction. DGS moved for summary judgment, contending that RMEI could not establish a duty owed by DGS to support the fraud claims, and that RMEI had failed to establish that Tracker owed RMEI fiduciary duties. The district court agreed with DGS and granted its motion, also ruling that the use of a strawman purchaser is not fraudulent.

The Colorado Court of Appeals affirmed, noting that agents are frequently used in business transactions and there is nothing fraudulent about using a strawman purchaser. The court of appeals noted that RMEI’s situation did not fit the narrow circumstances allowing a third party to avoid a contract, and that RMEI could have insisted on a contractual prohibition on assignment of interests.

The court of appeals affirmed the district court’s grant of summary judgment to DGS.

Colorado Court of Appeals: Political Party Can Establish Expenditure Committee Not Subject to Contribution Limits

The Colorado Court of Appeals issued its opinion in Colorado Republican Party v. Williams on Thursday, February 25, 2016.

Independent Expenditure Committee—Political Party—Contributions—Constitutional Limits—Campaign and Political Finance Amendment—Fair Campaign Practices Act.

The Colorado Republican Party (Party) is a Colorado unincorporated nonprofit association. The Party created an Independent Expenditure Committee (IEC) to make independent expenditures and raise funds through donations and otherwise in any amount from any permissible source to fund that committee. The Party filed the current lawsuit seeking declaratory relief to confirm its actions. The district court granted summary judgment, concluding that the current constitutional and statutory scheme allows a political party to create an IEC and that such a committee is not subject to any contribution limits applicable to political parties under the Campaign and Political Finance Amendment and the Fair Campaign Practices Act.

On appeal, intervenor Colorado Ethics Watch, a nonprofit organization authorized to do business in Colorado, contended that the district court erred when it interpreted the Fair Campaign Practices Act to allow a political party to establish an IEC not subject to the source and contribution limits set forth in the Colorado Constitution, article XXVIII (the Campaign and Political Finance Amendment) and CRS §§ 1-45-101 to -118 (the Fair Campaign Practices Act). The current legislative scheme and pertinent case law, however, provide no barrier to the Party’s establishment of the IEC.

Ethics Watch also asked the Court of Appeals to conclude as a matter of law, based on federal precedent, that any IEC established by a political party is per se incapable of independence in that it is always controlled by or coordinated with the party, therefore subjecting the committee to source and contribution limits. The Court declined to “read an exception to the law that is not there.”

The order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Judicial Ethics Advisory Opinion 2016-01 Released

On Wednesday, February 24, 2016, the Colorado Judicial Ethics Advisory Board issued C.J.E.A.B. Opinion 2016-01. This opinion addresses whether it is appropriate for a judge sitting on a nonprofit board to personally write or call donors to thank them for their contributions. The requesting judge asked the Advisory Board to consider if such communication would be considered fundraising in violation of the Colorado Code of Judicial Conduct.

The Advisory Board considered applicable provisions of the Code of Judicial Conduct and determined that, in cases where the judge is not soliciting further donations, implicitly or explicitly, it is acceptable for the judge to personally thank donors for their contributions in her role as board member of the nonprofit organization.

The Colorado Judicial Ethics Advisory Board is a committee of the Colorado Supreme Court consisting of judges and non-judges who provide ethical advice to judicial officers who request an opinion on prospective conduct. There are seven committee members: four judges, one lawyer, one non-lawyer citizen, and one law professor. Any Colorado judicial officer may request an opinion. Requests may be submitted to any member of the Advisory Board or to Christine Markman, staff attorney to the Colorado Supreme Court. Requests may be submitted on the Advisory Board’s form, JDF 2.

The full text of C.J.E.A.B. 2016-01 is available here. All of the C.J.E.A.B. opinions are available here.

Preventing Legal Malpractice: Preservation and Spoliation of Evidence

At what point in litigation does a duty arise to preserve evidence? If your client deletes electronic files, can you be held responsible? What sanctions arise from failure to preserve evidence? These questions and more are addressed in the Colorado CLE handbook, Lawyers’ Professional Liability in Colorado: Preventing Legal Malpractice and Disciplinary Actions. Anna Martinez, a litigation attorney at Franklin D. Azar & Associates, PC, is the author of Chapter 29, “Preservation and Spoliation of Evidence”:

Learn about preservation issues and more at the Colorado CLE program, “Preventing Legal Malpractice 2016.” Two half-day programs will be offered for Preventing Legal Malpractice. On March 11, 2016, in Denver, CLE will host “Staying Above the Line,” where topics to be discussed will include Top Ten Ethics Complaints, Trends in Legal Malpractice, Intra-Firm Privilege, and Preservation and Spoliation of Evidence. Register here or call (303) 860-0608. On March 17, 2016, in Colorado Springs, CLE will present “Managing Risks.” Topics to be addressed at “Managing Risks” include Avoiding an Accidental Attorney-Client Relationship, Tech Traps, Trends in Legal Malpractice, and the Top Ten Ethics Complaints. Register here or call (303) 860-0608.

As an extra incentive, ALPS offers up to a 10% premium credit for each attorney in a firm who receives 3 CLE credits annually in the areas of ethics, risk management, loss prevention, or office management. ALPS is a lawyers’ malpractice carrier endorsed by the CBA. Learn more at try.alpsnet.com/Colorado. Additionally, HUB International is the endorsed broker for the CBA. HUB can help attorneys secure professional liability insurance in order to run a successful practice.

 

CLE Program: Preventing Legal Malpractice 2016 — Staying Above the Line and Managing Risks

Staying Above the Line — This CLE presentation will take place Friday, March 11, 2016, in the CLE Large Classroom in Denver. Register here for the live program and here for the webcast, or call (303) 860-0608 to register. Can’t make the live program? Order the homestudy here: CDMP3 AudioVideo OnDemand.

Managing Risks — This CLE presentation will take place Thursday, March 17, 2016, at the Double Tree Hotel in Colorado Springs. Register here for the live program and here for the webcast, or call (303) 860-0608 to register. Can’t make the live program? Order the homestudy here: CDMP3 audioVideo OnDemand.

Data Privacy & Information Security: Meeting the Challenges of this Complex and Evolving Area of the Law

The breakneck speed at which technology is advancing presents both extraordinary opportunity and unprecedented risk to you and your clients. As data breaches and cyber attacks increase, so do the costs associated with preventing and dealing with them when — not if — they happen.

This practical seminar provides guidance on the state of the law on data security and privacy, as well as sound practices on how to minimize risk of a breach. Learn about data security and privacy issues with the European Union and Changes to the Safe Harbor Act, as well as the status of negotiations over the General Data Protection Regulations. Learn the reasonable measures to take in case of a breach, as well as best practices for advising your board and executives. Discover the latest challenges in employment law, as well as ethical dilemmas.

 

CLE Program: Data Privacy & Information Security — Meeting the Challenges of this Complex and Evolving Area of the Law

This CLE presentation will take place Friday, January 22, 2016, in the CLE Large Classroom. Click here to register for the live program and click here to register for the webcast, or call (303) 860-0608.

Can’t make the live program? Order the homestudy here: CDMP3 audioVideo OnDemand.

Colorado Supreme Court: Strict Privity Rule Bars Claims from Dissatisfied Beneficiaries Against Drafting Attorneys

The Colorado Supreme Court issued its opinion in Baker v. Wood, Ris & Hames, P.C. on Tuesday, January 19, 2016.

Floyd Baker, father of petitioners Baker and Kunda, retained Wood, Ris & Hames, Donald Cook, and Barbara Brundin (collectively, attorneys) to draft an estate plan. Floyd’s will specified that at his death, each of the four children (Baker and Kunda plus his stepchildren, Roosa and Brown) would receive $10,000, his condo would go to his wife, Betty, and the remainder of his estate would be divided between a marital trust and a family trust. On Betty’s death, the remaining estate assets would be divided equally between the four children. Floyd died in 2003 and his estate plan was carried out as specified in his will. Betty subsequently retained Cook to draft her estate plan, where she devised the condo to Roosa and specified that the remaining assets be divided equally between the three surviving children – Roosa, Baker, and Kunda. Betty died in February 2009.

Because of the bequest of the condo to Roosa, Baker and Kunda each received approximately 15% of the value of Betty’s estate while Roosa received approximately 70%. Baker and Kunda subsequently sued attorneys, asserting claims for breach of contract – third-party beneficiary; professional negligence; and fraudulent misrepresentation. Baker and Kunda alleged that the attorneys’ negligence allowed Betty to override Floyd’s estate plan after his death; the attorneys drafted an estate plan for Betty that controverted Floyd’s plan; and that Baker and Kunda, as intended beneficiaries of Floyd’s will, suffered damages as a result of the attorneys’ actions and inactions. The attorneys moved to dismiss for failure to state a claim on which relief could be granted, asserting Baker and Kunda lacked standing to sue them and that even if they had standing, Floyd’s testamentary intent had to be gleaned from the will itself, and the will was unambiguous and did not evince the intent alleged by Baker and Kunda. Attorneys also argued the claims were time-barred.

The district court ultimately granted the attorneys’ motion, concluding Baker and Kunda had not shown that any of the allegedly concealed facts had actually been concealed, or that the attorneys had intended Baker and Kunda to rely on the allegedly misrepresented circumstances. As for the negligent misrepresentation claim, the court noted that under Allen v. Steele, such claim required a business transaction, which was not present. Finally, as to the legal malpractice claim, the court concluded Baker and Kunda failed to show the attorneys owed them a duty of care. Baker and Kunda appealed, requesting that the court of appeals find an exception to the strict privity rule for third-party beneficiaries of a will, but the court of appeals declined to do so and affirmed the district court. Baker and Kunda appealed to the Colorado Supreme Court, contending the district court erred in dismissing their claims because as intended third-party beneficiaries of Floyd’s estate, they had standing to sue for breach of contract and legal malpractice, and also contending the court of appeals misconstrued their fraudulent concealment claims. Baker and Kunda urged the supreme court to abandon the strict privity rule in determining whether a non-client can sue an attorney. The supreme court declined to do so.

The supreme court found that because of the special trust and confidence arising from the attorney-client relationship, sound policy considerations supported the strict privity rule. Limiting an attorney’s liability to his or her clients protects the attorney’s duty of loyalty to and effective advocacy for the client, whereas expanding an attorney’s liability to non-clients could result in adversarial relationships between attorneys and clients and thus give rise to conflicting duties on the part of the attorney, and could require the attorney to reveal client confidences that the client did not want revealed. Further, extending the attorney’s duty of care to non-clients could result in the attorney being liable to an unforeseen and unlimited number of people. For these reasons, the supreme court declined to adopt an exception to the strict privity rule for dissatisfied beneficiaries. The court also recognized that the Colorado Probate Code allows dissatisfied beneficiaries to seek reformation of the will, thereby negating the need for an exception to the strict privity rule.

Addressing Baker and Kunda’s contentions that the supreme court should apply the “California rule” or “Florida-Iowa rule” to find exceptions to strict privity, the supreme court disagreed, finding that its stated policy considerations precluded adoption of either the California or Florida-Iowa rule and that even if it applied those rules, they would not support Baker and Kunda’s claims. The supreme court also rejected Baker and Kunda’s contentions that allowing only third-party beneficiaries to bring claims against attorneys would sufficiently limit the potential class of non-clients who could sue attorneys, noting that anyone could come forward and say they were intended beneficiaries. The supreme court also found no error in the district court’s rejection of Baker and Kunda’s fraudulent concealment claims, finding the district court appropriately applied C.R.C.P. 9(b)’s heightened pleading standard to those claims.

The supreme court affirmed the court of appeals.

Top Ten Law Practice Management Programs and Homestudies

The year is almost over, and with it the compliance period is ending for many Colorado attorneys. As we draw to a close with our review of the Top Ten Programs and Homestudies in several substantive practice areas, we wanted to include something important to practitioners across all fields of law—law practice management and legal writing. Colorado CLE offers law practice management and legal writing programs throughout the year, including classes on how to use Adobe Acrobat in a law practice, analyzing financial statements, conducting online research, and much more. Read on for the Top Ten Law Practice Management Programs and Homestudies.

10. Essential Legal Research Methods and Resources for Colorado Lawyers. Legal research in a university setting often involves analyzing a long-standing legal issue with well-established outcomes. Research in practice, however, can focus on cutting edge and messy legal issues where the law is only starting to emerge, with conflicting and ethical issues. This program provides advanced techniques for finding and analyzing primary and secondary law sources, free legal research, and more. Three general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

9. Drafting Complex Legal Documents with Microsoft Word. This program, taught by nationally renowned speaker Barron Henley, features tips and tricks to create, share, automate, and manage electronic documents. Learn about Word’s style features, simple automation techniques, file organization, keeping documents secure while allowing comments, and more. Seven general credits, including one ethics credit; available as DVD homestudy and Video OnDemand.

8. Legal Writing in the Smartphone Age. Gone are the long, flowing emails messages with pretty graphics and lots of attachments. Today’s communication — almost 100% electronic — is immediate, brief, clear, and powerful. Designed to boost your instant or near-instant message-drafting skills, this practical half-day program will teach you how to draft clearer and more effective emails, court documents, and memoranda. Three general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

7. Accounting and How to Understand and Analyze Financial Statements. There are financial issues involved with every type of law practice and it is your duty to possess the skills and knowledge necessary to handle those issues effectively.  This detailed program will provide you with the financial literacy required to protect yourself and your clients through your understanding of accounting concepts, terminology, and financial statements. Six general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

6. iPad for Legal Professionals — Basics and Advanced. These two half-day programs provide useful tips for using iPads in a law practice. The first half covers “must-have” apps that should be on every lawyer’s iPad and tackle important security settings and how-to’s on loading documents and printing. The second half answers more advanced questions, like “How can you do legal research on the iPad? How do you give a presentation on the iPad? Do you need to buy a keyboard or stylus?” Four general credits each; available as DVD homestudy (Basics/Advanced) or Video OnDemand (Basics/Advanced).

5. Better Motion Practice — How to Argue, Present, and Write Motions More Effectively. This program is designed for lawyers who want to sharpen their skills. It provides a practical overview of various kinds of motions likely encountered in pre-trial civil practice. Specific techniques, skills, and methods for persuading the court and decision-makers are covered. The program will generally reference state and federal rules of procedure and evidence. Seven general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

4. The Art of Communication. Being a lawyer means being an effective communicator. Yet, in an increasingly electronic age, what is effective communication and how do we measure our own effectiveness in keeping our clients informed as to complex issues, guiding them in making difficult decisions, and speaking on their behalf to others? This half-day interactive seminar is designed to explore in depth the art of strategic communication by introducing participants to theories and specific practice tips concerning improved written and electronic communications. Four general credits; available as MP3 audio download and Video OnDemand.

3. How to Become Your Own Cybersleuth: Conducting Effective Internet Investigative and Background Research. In this fast-paced investigative research seminar, you will learn to create more effective Internet searches to locate information crucial to your matters, which you might otherwise miss. We will reveal hidden Google search features and shortcuts to speed up your research. You will also learn to use free public record sites and sites with free “publicly available” information (including social media sites), for discovery, trial preparation, background checks, and for locating missing persons. Discover the advantages (and limitations) of data broker databases. Each homestudy comes with a copy of the book, The Cybersleuth’s Guide to the InternetSeven general credits; available as live Video Replay in Denver on January 5, 2016, or as CD homestudy.

2. Hanging Your Shingle 2015: Hardware. Software. Anywhere You Go. In this intensive two and a half day course, you will get the tools, information and building blocks you need to confidently open the doors to your new firm. If you believe you can’t afford to venture out on your own, is it time to ask yourself if you can afford not to? Eighteen general credits, including 7.9 ethics credits; available as CD homestudy, MP3 audio download, and Video OnDemand. NOTE: This program is repeated annually. Click here for the 2014 program and click here for the 2013 program.

1. Preventing Legal Malpractice. Each year, CLE presents two Preventing Legal Malpractice programs: one directed at transactional attorneys, one directed at litigation attorneys. In addition to the printed materials, each attendee receives a copy of CLE’s book, Lawyers’ Professional Liability in Colorado. For 2016, there will be Preventing Legal Malpractice programs in Denver on March 11 and in Colorado Springs on March 17. Registration is not yet open, but save the dateFour general credits, including four ethics credits. NOTE: This program is repeated annually. Click here for the 2015 programs (transactional/litigation) and click here for the 2014 programs (transactional/litigation).