October 22, 2014

Metro Volunteer Lawyers: The Government Lawyer and Pro Bono: How Can I Help?

Editor’s Note: This post originally appeared on the Metro Volunteer Lawyers blog on October 3, 2014.

MVLBy Nate Lucero, MVL Board Member

I’ve been practicing law for over 12 years now and I’ve spent my entire career in the public sector.  Why do I work for the government?  Because I, like many of my colleagues, have a genuine interest in public service.  What I’ve noticed throughout my career is that often times, public law offices are the biggest firms within their respective jurisdiction.

I’m sure that’s not news to anyone, especially those of us who work in the public sector.  So, why do I mention it?  Because, this means that our government law offices have some of the biggest pools of lawyers that can provide pro bono services within our respective jurisdictions and elsewhere.  I have heard many government lawyers give reasons for not participating in providing pro bono services.  Among those reasons, ironically, is the very reason we work for the government in the first place – i.e. “I meet my obligation every day since my daily practice involves public interest issues.”

The Colorado Rules of Professional Conduct (the “rules”) provide that every lawyer has a professional responsibility to provide legal services for those unable to pay.  That said, government lawyers may face a number of limitations including conflict of interest restrictions, limitations on the use of office resources and statutory restrictions.  Never fear, the rules provide some guidance by encouraging us to fulfill our pro bono public responsibility by delivering legal services at no fee or a substantially reduced fee to, among others, individuals, charitable, religious, civic, or educational organizations in furtherance of their organizational purposes, where the payment of legal fees would deplete the organizations resources or be otherwise inappropriate; delivering legal services at a substantially reduced fee to persons of limited means; or participating in activities for improving the law, legal system or the legal profession.

There are many ways in which we, as government lawyers, may fulfill our professional responsibility. Operating under the assumption that you, as a government lawyer, fulfill your obligation every day by simply going to work is a false assumption.  In fact, the comments to the rules indicate that this does not constitute compliance with the rule.  You would be surprised at the number of areas in which you may be able to lend your expertise to MVL, such as family law, landlord-tenant disputes, or probate to name a few.

I’m not trying to guilt anyone into providing pro bono services. I merely want to encourage you to consider it, and remember the reason you are a public sector attorney in the first place.  Of course, you will need to check with your employer to see what your office’s specific limitations are.  Once you’ve done this (and assuming you get a thumbs-up), consider helping with MVL’s Family Law Court Program, or having your office sponsor a Post-Decree Clinic coordinated and managed by MVL.  Working through MVL may address malpractice insurance concerns you have.  If you feel that you don’t have the expertise to handle a particular matter, no worries, MVL has a mentoring program for that.

I guess what I’m saying is be like Mikey and try it, you might like it.

Please see the article at http://www.cobar.org/tcl/tcl_articles.cfm?articleid=823 for the CBA’s policy for voluntary pro bono public service by government attorneys for guidance in establishing a policy for your public law office.

Nathan “Nate” Lucero is a Metro Volunteer Lawyers Board Member. With a dedication to public service, Nathan has made his career in the public sector, spending over ten years as an Assistant County Attorney in Adams County, Colorado prior to joining the Denver City Attorney’s office in 2014.  With Adams County, Nathan worked in human services for several years and spent the better part of his tenure with Adams County focusing on Land Use/Zoning, Prosecution of Code Violations, and Assessment Appeals.  Since working for the City and County of Denver, Nathan continues to focus on Land Use/Zoning and is expanding his repertoire to include Parks and Recreation and Environmental Law.

HB 12-1244: Requiring the Department of Local Affairs to Develop an Inventory of Local Governments

On February 7, 2012, Rep. Ray Scott and Sen. Joyce Foster introduced HB 12-1244 – Concerning an Inventory of Local Governmental Entities Maintained by the Department of Local Affairs and, in Connection Therewith, Requiring the Inclusion of Certain Information in the Inventory. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill requires the department of local affairs to update its on-line inventory of local governmental entities with certain information, including information about local governmental entity agents authorized to receive notices of claims under the “Colorado Governmental Immunity Act.”

Filing a notice of a claim arising under the act with a person listed as an agent in the inventory is deemed to satisfy requirements for filing such notice. Service to the most recently listed registered agent is deemed valid if the local governmental entity failed to timely update its registered agent information. The bill passed out of the House on February 28 and is assigned to the Local Government Committee. Committee review is scheduled for Tuesday, March 20 at 2 p.m.

Summaries of other featured bills can be found here.

Tenth Circuit: Statute of Limitations for Government Easement Tolled Well in Advance of Plaintiff’s Lawsuit

The Tenth Circuit Court of Appeals published its opinion in George v. United States on Monday, March 5, 2012.

Plaintiff Ann George wanted to build a fence across her property, but the fence blocked a federal easement road accessing the Gila National Forest. The government objected to the fence based on federal regulations. In 2009, Ms. George filed a quiet title action to build the fence. The District Court ruled in favor of the government, holding that the statute of limitations had run on plaintiff’s claim. Plaintiff appealed.

A quiet title action has a statute of limitations of 12 years, and begins to run when “the plaintiff or his predecessor in interest knew or should have known of the claim of the United States.” 28 U.S.C. § 2409a(g). The Secretary of Agriculture published regulations in the Federal Register in 1977 prohibiting anyone from “placing . . . [a] fence . . . without a permit” anywhere in the “National Forest System” or on its “[f]orest development road[s] or trail[s].” 36 C.F.R. §§ 261.10(a); 261.1(a) (1977). Publishing a regulation in the Federal Register must be considered “sufficient to give notice of [its] contents” to “a person subject to or affected by it.” 44 U.S.C. § 1507.

The undisputed facts established that Mr. Hamilton, plaintiff’s predecessor in interest, reached an agreement with the federal government in 1979, in part establishing the easement road across which plaintiff wished to build a fence. Therefore, the statute of limitations began to run in 1979, when Mr. Hamilton “knew or should have known” about the regulations that had been published in 1977 prohibiting the construction of a fence on a forest road. Therefore, in 2009, plaintiff brought her claim 18 years too late.

The case was not decided on the merits. The court’s ruling had only to do with the statute of limitations. The judgment was affirmed.