August 22, 2017

But Isn’t Legal Work Essential?

“The most common complaint expressed within the legal profession
is a lack of meaning or sense of fulfillment from work.”

The above quote is from an article published by the Lawyers Assistance Program of British Columbia. But how can anyone think their work in the law lacks meaning? I mean, the law is essential to the functioning of society, isn’t it? Yes, but apparently essential doesn’t count for much in the pursuit of meaning.

Andrew Russel, Dean and Professor in the College of Arts & Sciences at SUNY Polytechnic Institute in Utica, New York, says this in his Aeon Magazine article, “Hail the Maintainers: Capitalism excels at innovation but is failing at maintenance, and for most lives it is maintenance that matters more” (April 7, 2016):

Innovation is a dominant ideology of our era . . . As the pursuit of innovation has inspired technologists and capitalists, it has also provoked critics who suspect that the peddlers of innovation radically overvalue innovation. What happens after innovation, they argue, is more important. Maintenance and repair, the building of infrastructures, the mundane labour that goes into sustaining functioning and efficient infrastructures, simply has more impact on people’s daily lives than the vast majority of technological innovations.

Maybe so, but the maintainers themselves aren’t buying their own importance. This Huffington Post article from May 11, 2017, reported a study by Britain’s Office of National Statistics that found that workers in “maintainer” jobs — manual labor, construction, building trades, processing plants, factories, agriculture — had the highest rates of suicide in the U.K. A 2016 Center for Disease Control and Prevention study reported similar results in the U.S., with rates highest among lumberjacks, farmworkers, fishermen, carpenters, miners, electricians, construction trades, factory and production workers, and others who build, install, maintain, and repair things.

Other noteworthy findings of both studies were that suicide rates were three times higher among men than women; the highest female suicide rate was among police, firefighters and corrections officers; the second highest female suicide rate was in the legal profession; and among the professions, lawyer suicides were in third place after doctors and dentists.

The CDC study speculated that the principle causes behind these statistics include job-related isolation and demands, stressful work environments, and work-home imbalance, all of which are endemic in the legal profession. The British Columbia LAP piece quoted above states flatly that:

From a health perspective it is unhealthy to do meaningless, unchallenging, uncreative work, especially for those that are intelligent and well trained.

The article reports that a sense of meaningless is expressed differently by older vs. younger lawyers:

[A sense of meaningless about their work] is stated more directly by older practitioners as boredom, lack of job satisfaction, just getting through each day, turning out work without time to contemplate, turning out product for clients like a machine, and lack of connection to clients, which is often expressed as lack of client loyalty. Legal professionalism has been eroded by the need for volume, speed and uniformity of work product.

The younger practitioners . . . ask, “What good am I doing?” They express a lack of control over work or life. They worry about the demands of clients, and that there is little opportunity for them to utilize creative thinking. They also ask if they can have a life and practice law. . . . [T]hey do not get a sense of fulfillment from practicing law. They do not get a sense of meaning from it and it seems to be valueless.

We’ve been looking at books, articles, surveys, and academic research from business, academia, the professional world, and even the United Nations. All agree that meaningless malaise in the workplace is worldwide and afflicts both men and women across a full range of occupations from the “maintainers” to professionals. Money doesn’t help, neither does living in a “happy,” first world country. Striving after wealth and income growth only makes things worse. Meanwhile, rates of self-destruction are alarmingly on the rise, especially in this century.

More next time.

 

Kevin Rhodes is on a mission to bring professional excellence and personal wellbeing to the people who learn, teach, and practice the law. His past blog posts for the CBA have been collected in two volumes — click the book covers for more information.

Richard Cory and How the Other Half Lives

Does anybody else remember that early Simon & Garfunkel song “Richard Cory”? (I just heard somebody ask, “Who’s Simon & Garfunkel?” Somebody else is looking them up in Martindale. <Sigh> I feel old.) Check out this video: two guys in jackets and ties, one mic, one guitar… and that raw 60’s revolutionary edge. Here are the lyrics:

They say that Richard Cory owns one half of this whole town,
With political connections to spread his wealth around.
Born into society, a banker’s only child,
He had everything a man could want: power, grace, and style.

Chorus:
But I work in his factory
And I curse the life I’m living
And I curse my poverty
And I wish that I could be,
Oh, I wish that I could be,
Oh, I wish that I could be
Richard Cory.

The papers print his picture almost everywhere he goes:
Richard Cory at the opera, Richard Cory at a show.
And the rumor of his parties and the orgies on his yacht!
Oh, he surely must be happy with everything he’s got.

Chorus

He freely gave to charity, he had the common touch,
And they were grateful for his patronage and thanked him very much,
So my mind was filled with wonder when the evening headlines read:
“Richard Cory went home last night and put a bullet through his head.”

Chorus

The song was inspired by a poem of the same name, by Edwin Arlington Robinson, himself the son of a wealthy New England businessman:

Whenever Richard Cory went down town,
We people on the pavement looked at him:
He was a gentleman from sole to crown,
Clean favored, and imperially slim.

And he was always quietly arrayed,
And he was always human when he talked;
But still he fluttered pulses when he said,
“Good-morning,” and he glittered when he walked.

And he was rich — yes, richer than a king —
And admirably schooled in every grace:
In fine, we thought that he was everything
To make us wish that we were in his place.

So on we worked, and waited for the light,
And went without the meat, and cursed the bread;
And Richard Cory, one calm summer night,
Went home and put a bullet through his head.

“How the other half lives.” My dad used to say that when he encountered someone who was, by his standards, rich. He would have said that if he had ever met Richard Cory.

The song and poem drip with irony. Irony is an educated, acquired taste — something someone like Miuccia Prada might appreciate — yes that Prada, the kind the Devil wears. My dad didn’t qualify for irony, I guess. If he had, he would have noticed the irony in how he used the phrase.

This is from Wikipedia:

“How the Other Half Lives: Studies among the Tenements of New York (1890) was an early publication of photojournalism by Jacob Riis, documenting squalid living conditions in New York City slums in the 1880s. It served as a basis for future “muckraking” journalism by exposing the slums to New York City’s upper and middle classes. This work inspired many reforms of working-class housing, both immediately after publication as well as making a lasting impact in today’s society.”

Yet another irony is that Paul Simon and Art Garfunkel probably went on to become wealthier than Richard Cory was himself.

And here’s one last irony for us all:  After all those UVA and Gallup and United Nations surveys I’ve been writing about, plus all those opinions and analyses of eminent economists like Adam Smith, Richard Easterlin, and Angus Deaton, and all those quotes by rich and famous people about money and happiness… most of us would still side with the factory workers and townspeople — we would still trade places with Richard Cory, given half a chance.

What is up with that?

Something Rotten in Denmark

“Something is rotten in the state of Denmark”
-Marcellus, Hamlet, Act I, Scene 4

Last time, we considered some of the findings of a huge international survey of money, happiness, wealth, and meaning conducted by Gallup and a couple University of Virginia professors. Digging deeper:

One of the most disturbing findings involved suicide rates. Wealthier nations, it turns out, had significantly higher suicide rates than poorer ones. For example, the suicide rate of Japan, where per-capita GDP was $34,000, was more than twice as high as that of Sierra Leone, where per-capita GDP was $400.

The strange relationship between happiness and suicide has been confirmed in other research, too. Happy countries like Denmark and Finland also have high rates of suicide.

[The survey authors revealed] a striking trend: happiness and unhappiness did not predict suicide. The variable that did, they found, was meaning—or, more precisely, the lack of it. The countries with the lowest rates of meaning, like Japan, also had some of the highest suicide rates.”

From The Power of Meaning: Crafting a Life That Matters, Emily Esfahani Smith (2017)

The Power of Meaning cites further data showing that:

Suicide rates are generally higher in wealthier countries than in poorer ones.

According to the World Health Organization, global suicide rates have increased 60% since World War II.

In 2016, worldwide suicide rates were the highest in 30 years.

In the U.S., suicide among 15-24 year-olds tripled from 1950-2000.

Among the middle-aged, suicide rates have increased by over 40% since the turn of the 21st century.

The lack of belief that our lives are meaningful is spiking suicide rates — especially in wealthy First World countries whose citizens say they’re generally happy with their lives. The 2017 World Happiness Report confirmed these findings:  Denmark ranked #2 in the list of happiest countries, and Finland was #5, yet both countries had high rates of suicide.

The World Happiness Report is no lightweight exercise in psychobabble — it is generated on the highest level of worldwide policy making. This is how it describes its origins:

The first World Happiness Report was published in April, 2012, in support of the UN High Level Meeting on happiness and well-being. Since then the world has come a long way. Increasingly, happiness is considered to be the proper measure of social progress and the goal of public policy. In June 2016 the OECD committed itself “to redefine the growth narrative to put people’s well-being at the center of governments’ efforts.” In February 2017, the United Arab Emirates held a full-day World Happiness meeting, as part of the World Government Summit. Now on World Happiness Day, March 20th, we launch the World Happiness Report 2017, once again back at the United Nations, again published by the Sustainable Development Solutions Network, and now supported by a generous three-year grant from the Ernesto Illy Foundation.

The Report is long and packed with statistical analysis, tables, graphs, and other data-nerd content, but if you’re game for it, it makes for fascinating reading.

Both the UVA/Gallup survey and the World Happiness Report revealed that dissatisfaction with work is a key contributor to the feeling that life lacks meaning, and to the escalating suicide rate.

Imagine how different the legal profession would be if it sought to promote not just the happiness of its members (that would be radical enough!) but also a sense of meaningfulness about working in the law.

We’ll be talking more about that.

 

For a summary of the UVA/Gallup study, see ScienceDaily, 18 December 2013:  “Residents of poorer nations find greater meaning in life.” For the original study, see S. Oishi, E. Diener, “Residents of Poor Nations Have a Greater Sense of Meaning in Life Than Residents of Wealthy Nations,” Psychological Science, 2013. You can request a reprint here.

Kevin Rhodes is on a mission to bring professional excellence and personal wellbeing to the people who learn, teach, and practice the law. His past blog posts for the CBA have been collected in two volumes — click the book covers for more information.

Money, Happiness, Wealth, and Meaning

One reason money doesn’t make us happy is the stress of making it. The following is from Plutocrats: The Rise of the new Global Super Rich and the Fall of Everyone Else, Chrystia Freeland (2012):

Until a few years ago, the reigning theory about money and happiness was the Easterlin paradox, the 1974 finding by Richard Easterlin that, beyond a relatively low threshold more money didn’t make you happier.

But across countries, what millions of immigrants have always known to be true really is: the people of rich countries are generally happier than the people of poor countries.

The latest contrarian finding, however, is that moving to that state of greater wealth and greater happiness is decidedly unpleasant. As Angus Deaton, in a review of the 2006 Gallup World Poll, concluded, “Surprisingly, at any given level of income, economic growth is associated with lower reported levels of life satisfaction.”

Freeland also cites Angus Deaton for showing that “the richer you are, the more covetous you become” — not a likely prescription for happiness.

A 2014 U of Virginia/Gallup study weighed in with similar findings — Emily Esfahani Smith discussed them in The Power of Meaning: Crafting a Life That Matters, (2017):

Though the study was enormous, involving nearly 140,000 people across 132 countries, it was also straightforward. A few years earlier, researchers from Gallup had asked respondents whether they were satisfied with their lives, and whether they felt their lives had an important purpose or meaning. [Prof. Shigehiro Oishi of the University of Virginia and Ed Diener of Gallup] analyzed that data by country, correlating the levels of happiness and meaning with variables like wealth, rates of suicides, and other social factors.

Their findings were surprising. People in wealthier regions, like Scandinavia, reported being happier than those in poorer ones, like sub-Saharan Africa. But when it came to meaning, it was a different story. Wealthy places like France and Hong Kong had some of the lowest levels of meaning, while the poor nations of Togo and Niger had among the highest, even though people living there were some of the unhappiest in the study.

I.e., the ultimate wellbeing culprit is neither money nor the pursuit of it, but whether or not you believe your life has meaning and purpose. And according to this vast, worldwide survey, the residents of wealthy countries rate their lives as less meaningful than those in poor countries.

Analogizing from these findings to the legal profession, we would expect that, because the legal profession runs on the higher side of financial wellbeing, lawyers would report higher levels of happiness than less well-paid workers, but would also suffer from meaning malaise. And, since one of the wellbeing factors used in the survey was rates of suicide, we would also expect lawyers to have a correspondingly higher rate of suicide.

The high lawyer suicide rate (third highest among professionals, after doctors and dentists) has been well documented, and as we’ve been seeing, lawyers as a whole aren’t generally happy with their lives either, despite their profession’s higher rate of wealth.

We’ll look more into the meaning part of the equation next time.

Richard Easterlin is a professor of economics at USC. Sir Angus Stewart Deaton, FBA, is a British American economist and professor at Princeton. In 2015, he was awarded the Nobel Memorial Prize in Economic Sciences for his analysis of consumption, poverty, and welfare.

For a summary of the UVA/Gallup study, see ScienceDaily, 18 December 2013: “Residents of poorer nations find greater meaning in life.” For the original study, see S. Oishi, E. Diener, “Residents of Poor Nations Have a Greater Sense of Meaning in Life Than Residents of Wealthy Nations,” Psychological Science, 2013.

Kevin Rhodes is on a mission to bring professional excellence and personal wellbeing to the people who learn, teach, and practice the law. His past blog posts for the CBA have been collected in two volumes — click the book covers for more information.

Can Money Buy Lawyer Happiness?

I thought the answer might be yes. Why? Because a few years back I blogged about the 2013 Colorado Supreme Court Lawyer Satisfaction and Salary Survey, which showed that, although 2/3’s of Colorado lawyers didn’t like their jobs enough to recommend them to someone else, at least they liked the money. And because a widely-cited study published the following year found that people in wealthier countries are happier than people in poorer countries. Put those two together, and maybe lawyers might say they’re happy overall, despite their job dissatisfaction.

I was wrong. I went several pages into the results of several Google searches and found nothing about happy lawyers or what makes them so. Happiness isn’t bad news, so maybe it doesn’t get reported, but still… why the long faces? More Google searches turned up a LegalCheek.com poll conducted in Great Britain the day after Theresa May gave the required notice of Great Britain’s withdrawal from the European Union. It reported that 70% of British lawyers weren’t happy about Brexit. But that doesn’t really count, does it?

The Happy Lawyer: Making a Good Life in the Law (2010) by law professors Nancy Levit and Douglas O. Linder had a promising title, but then, after an extensive review of the literature on lawyer happiness, the authors concluded that “[M]oney is the root of virtually everything that lawyers don’t like about their profession: the long hours, the commercialization, the tremendous pressure to attract and retain clients the fiercely competitive marketplace, the lack of collegiality and loyalty among partners, the poor public image of the profession, and even the lack of civility.”

So… money doesn’t just fail to make lawyers happy, it actually makes them unhappy. Hmmm.

Money certainly doesn’t make associates happy, even though 2016 saw associate salaries leap to new heights – at least in the world of BigLaw. In fact, the position of associate attorney came in rock bottom in a 2013 CareerBliss survey of not just lawyers, but 65,000 employees of all kinds. Forbes, “The Happiest And Unhappiest Jobs In America,” March 22, 2013. (Here’s Above the Law’s take on that story.)

A couple years after the CareerBliss poll, the Dean of Pepperdine Law School countered that well, there at least some happy associates. Go ahead — guess who they were — answer below.

If money doesn’t make lawyers happy, then what does? Earlier this year, Global Financial (“Financing Justice”) reported survey results by Robert Half Legal that a business casual dress policy helps lawyers deal with stress. Not quite the same as making lawyers happy.

Seriously? Business casual is the best we can do?

An August 2016 Above the Law article had a promising title — Why Are Lawyers So Happy? — but it turned out to be a tongue-in-cheek response to an earlier article by Jeena Cho, author of The Anxious Lawyer, all-around great person and reigning Goddess of Mindfulness in the Marketplace. (I’ve met Jeena, and she would be horrified at me giving her that title, but I do it with a smile, and besides, I think it’s true.) Both articles were written in response to a survey conducted by the ABA and the Betty Ford Foundation, which Forbes reported in an article whose title tells you everything you need to know:  “Study Indicates Lawyers Struggling With Substance Use And Other Mental Health Issues,” July 30, 2016.

No, money doesn’t buy lawyer happiness — according to pollsters anyway. Of course some lawyers are happy — with the money, their work, and maybe even life in general. I hope that’s you, and I hope you know lots of people like you. As for the rest, it’s hard to be happy about much of anything when you don’t like your work.

We’ll keep following the thread of money and happiness next time, to see what else we can learn from it. In the meantime, here’s your answer: Who are the happiest associates?  Tax lawyers.

Kevin Rhodes left a successful long-term law practice to scratch a creative itch and lived to tell about it… barely. Since then, he has been on a mission to bring professional excellence and personal wellbeing to the people who learn, teach, and practice the law. He has also blogged extensively and written several books about his unique journey to wellness, including how he deals with primary progressive MS through an aggressive regime of exercise, diet, and mental conditioning.

Can Money Buy Happiness?

Let’s ask some more famous people:

“Happiness resides not in possessions, and not in gold, happiness dwells in the soul.” –Unknown

“By desiring little, a poor man makes himself rich.” -Democritus

“Money has never made man happy, nor will it, there is nothing in its nature to produce happiness. The more of it one has, the more one wants.” –Benjamin Franklin

“It is my opinion that a man’s soul may be buried and perish under a dung-heap, or in a furrow field, just as well as under a pile of money.” –Nathaniel Hawthorne

“When I was young I thought that money was the most important thing in life; now that I am old, I know that it is.” -Oscar Wilde

“Wealth is the ability to truly experience life.” –Henry David Thoreau

“He who loses money, loses much; he who loses a friend, loses much more; he who loses faith, loses all.” -Eleanor Roosevelt

“Happiness is not in the mere possession of money; it lies in the joy of achievement, in the thrill of creative effort.” -Franklin D. Roosevelt

“It’s a kind of spiritual snobbery that makes people think they can be happy without money.” –Albert Camus

“I am opposed to millionaires, but it would be dangerous to offer me the position.” -Mark Twain

“I’d like to live as a poor man with lots of money.” -Pablo Picasso

“Money is better than poverty, if only for financial reasons.” –Woody Allen

“There are people who have money, and there are people who are rich.” –Coco Chanel

Thanks to Aol.finance for those quotes. They’re inconclusive, I’d say, although they do tell us that money brings out the inner philosopher and humorist in famous people. Maybe we should have asked Adam Smith:

As I am reminded every year by my students, those who encounter Smith’s writings for the first time are usually quite surprised to learn that he associated happiness with tranquility—a lack of internal discord—and insisted not only that money can’t buy happiness but also that the pursuit of riches generally detracts from one’s happiness. He speaks, for instance, of “all that leisure, all that ease, all that careless security, which are forfeited forever” when one attains great wealth, and of “all that toil, all that anxiety, all those mortifications which must be undergone” in the pursuit of it. Happiness consists largely of tranquility, and there is little tranquility to be found in a life of toiling and striving to keep up with the Joneses.

The Problem With Inequality, According to Adam Smith, The Atlantic, June 6, 2016, Dennis C. Rasmussen, professor of political science at Tufts University.

According to the “invisible hand” man himself, both pursuing and possessing wealth make you unhappy. Maybe, but most of us are with Clare Booth Luce, Oscar Wilde, Albert Camus, Mark Twain, and Woody Allen — or with Tevye in his exchange with Perchik the Bolshevik:

Perchik: Money is the world’s curse.

Tevye: May the Lord smite me with it! And may I never recover!

I mean, all these famous (and mostly rich) people are entitled to their opinion,  but we’d like to find out for ourselves if money could make us happy — we’re pretty sure we could handle it.

And for purposes of this blog, what we’d really like to know is whether money can buy lawyer happiness.

We’ll talk more about that next time.

 

Kevin Rhodes left a successful long-term law practice to scratch a creative itch and lived to tell about it… barely. Since then, he has been on a mission to bring professional excellence and personal wellbeing to the people who learn, teach, and practice the law. He has also blogged extensively and written several books about his unique journey to wellness, including how he deals with primary progressive MS through an aggressive regime of exercise, diet, and mental conditioning.

Tenth Circuit: No Sixth Amendment Violation where Court Disallowed Questioning Regarding Victim’s Mental Health

The Tenth Circuit Court of Appeals issued its opinion in United States v. John on February 27, 2017.

Defendant and the victim were related. At trial, the victim testified to the following facts: The victim was in the shower when Defendant showed up at her house. He started undressing in front of the shower door while the victim was still in the shower. Defendant moved towards the victim and the victim struggled to get away. Defendant pulled the towel away from the victim and pushed her head toward his “private parts.” The victim was able to get away from Defendant and grabbed a blanket before running outside. When outside, the victim called the police. Officers arrived after Defendant had left. The officers found the shower door tilted and the bathroom trashcan turned over. No forensic testing occurred. Defendant was convicted after a jury trial of one count of attempted aggravated sexual abuse in Indian country and one count of abusive sexual contact in Indian county.

At trial, Defendant wanted to cross-examine the victim about an incident that occurred in Phoenix. The district court did not allow the line of questioning and the Defendant challenged the courts ruling on appeal claiming it violated his Confrontation Clause rights under the Sixth Amendment and his right to present a complete defense under the Fifth and Sixth Amendments.

The Tenth Circuit summarized the facts of the Phoenix incident that it obtained from police reports. The victim had visited her sister in Phoenix. She alleged that her sister pressured her to drink. After the two argued, the victim tried to cut her writs. She was then taken to the hospital where she was transferred to an inpatient behavioral-health unit after telling the staff that she had been having suicidal thoughts for two years. During intake, she denied using any illicit substances, even though she told emergency staff that she used marijuana. The intake staff determined she had a mood disorder, but she was discharged without any medication needed. The victim’s sister denied to police that she gave the victim alcohol or coerced her to drink. Because the police could not determine how the victim got the alcohol, they closed the case.

On appeal, the Defendant argued that the Phoenix incident showed that the victim would falsely accuse him of sexual assault given her poorly controlled behavior and drug use revealed by the incident. It also would show her propensity to lie and accuse family members. These facts could have led the jury to draw “vital inferences” in his favor.

The Tenth Circuit held that because the Defendant only argued at trial that the Phoenix incident would show that the victim had an impaired ability to perceive events, and not the reasons given on appeal, Defendant was precluded from arguing such reasons on appeal. In fact, the Tenth Circuit points to the fact that Defendant’s counsel rejected the possibility of using the Phoenix incident for the reasons stated on appeal, which the Tenth Circuit held was an “intentional relinquishment or abandonment of a known right.”

The Tenth Circuit held that Defendant’s Sixth Amendment right to confrontation was not violated because that right is not unlimited. The Supreme Court has held that trial judges retain wide latitude to impose reasonable limits on cross-examination based on concerns about harassment, prejudice, and confusion of the issues. The Tenth Circuit held that the Phoenix incident was not even marginally relevant to the victim’s ability to remember or relate the shower incident. It would not show that the victim was on drugs at the time of the shower incident. Therefore, the Tenth Circuit held that no lay person could draw those inferences.

Next, the Tenth Circuit addressed the Defendant’s challenges to three jury instructs concerning the assessment of evidence.

The first challenged instruction stated: “The testimony of the complaining witness need not be corroborated if the jury believes the complaining witness beyond a reasonable doubt.” Defendant argued that the instruction did no accurately reflect the government’s burden of proving each element of the charged offenses beyond a reasonable doubt. The Tenth Circuit held that the district court did not abuse its discretion by giving this instruction because it properly informed the jury that it could convict on the basis of the testimony of a single witness, only if they believed that witness. Further, another instruction told the jurors that they could not convict unless they found each element of each offense beyond reasonable doubt.

The second challenged instruction stated: “ An attorney has the right to interview a witness for the purpose of learning what testimony the witness will give. The fact that a witness has talked to an attorney does not reflect adversely to the truth of such testimony.” Defendant argued that this instruction insulated from the jury’s scrutiny the cross-examination of the victim about being improperly influenced by the prosecutor. The Tenth Circuit held that the district court did not abuse its discretion by giving this instruction because it did not prevent defense counsel from making a commonsense suggestion that inappropriate coaching influenced the witness, which the counsel actually made.

The final challenged instruction stated: “You may infer, but you are certainly not required to infer, that a person intends the natural and probably consequences of acts knowingly done or knowingly omitted.” Defendant argues that this instruction was ambiguous, because it was not stated which element the instruction was meant to modify, and that it was confusing because it created uncertainty as to the requisite level of intent. The Tenth Circuit held that the district court did not abuse its discretion by issuing this instruction because the court made clear to the jury that the burden was on the government to prove the requisite intent beyond a reasonable doubt.

Finally, the Tenth Circuit held that the district court did not err in declining to instruct the jury that it could consider the lesser-included charge of simple assault, rather than just the charges of attempted aggravated sexual abuse and abusive sexual contact. The district court held that there was no evidence that the encounter was anything but sexual. The Tent Circuit affirmed this decision holding that the jury could reasonably have found that the alleged incident did not occur, but that there was no reasonable grounds for believing that Defendant assaulted the victim but with no sexual intent.

The Tenth Circuit affirmed the district court’s judgment.

Bills Closing Torrens Title, Allowing Electronic Preservation of Plats by Clerk & Recorder, Adopting Revised Uniform Notorial Acts Law, and More Signed

Although the legislative session is over, the governor continues to sign bills. This week, he signed one bill on Monday, May 15; four bills on Wednesday, May 17; and 13 bills on Thursday, May 18. To date, he has signed 231 bills and vetoed one bill this legislative session. The bills signed this week are summarized here.

Monday, May 15

  • HB 17-1204“Concerning Juvenile Delinquency Record Expungement, and, in Connection Therewith, Making an Appropriation,” by Rep. Pete Lee and Sen. John Cooke. The bill restricts access to juvenile delinquency records by making certain records public only after a court orders that a child be charged as an adult, consistent with recent changes to the direct file statute, and by eliminating the requirement that the prosecuting attorney notify the school principal of minor offenses.

Wednesday, May 17

  • HB 17-1248“Concerning the Funding of Colorado Water Conservation Board Projects, and, in Connection Therewith, Making Appropriations,” by Rep. Jeni Arndt and Sens. John Cooke & Jerry Sonnenberg. The bill makes certain appropriations from the Colorado Water Conservation Board (CWCB) construction fund to the CWCB or the Division of Water Resources.
  • HB 17-1301“Concerning Protecting Colorado Citizens who are Engaged in an Act that is Protected by the Colorado Constitution from Outside Agencies,” by Rep. Steve Lebsock and Sen. Tim Neville. The bill prohibits a state agency from aiding or assisting a federal agency or agency of another state in arresting a Colorado citizen for committing an act that is a Colorado constitutional right; or violating a Colorado citizen’s Colorado constitutional right.
  • SB 17-129“Concerning the Electronic Preservation of a Plat Recorded by a County Clerk and Recorder,” by Sen. Jerry Sonnenberg and Reps. Jon Becker & Jeni Arndt. The bill permits a county clerk and recorder to preserve an original plat in an electronic format. If an electronic filing system is established, then the board of county commissioners is authorized to provide additional funding and space suitable for a county surveyor or any other appropriate local government official to store original mylar, paper, or polyester sheets of subdivision plats and land survey plats.
  • SB 17-140“Concerning the Torrens Title Registration System,” by Sen. Jerry Sonnenberg and Reps. Jon Becker & Jeni Arndt. The bill closes the Torrens title registration system to new applications to register land title in this state, effective January 1, 2018.

Thursday, May 18

  • HB 17-1162“Concerning Action that can be Taken Against an Individual Based on the Individual’s Failure to Pay for a Traffic Violation, and, in Connection Therewith, Making an Appropriation,” by Rep. Matt Gray and Sen. Bob Gardner. The bill decreases the penalty for driving under restraint to a class A traffic infraction if the basis of the restraint is an outstanding judgment.
  • HB 17-1201“Concerning Authorization for Granting a High School Diploma Endorsement in the Combined Disciplines of Science, Technology, Engineering, and Mathematics,” by Rep. James Coleman and Sens. Kevin Priola & Rachel Zenzinger. The bill authorizes a school district, board of cooperative services, district charter high school, or institute charter high school to grant a high school diploma endorsement in science, technology, engineering, and mathematics (STEM) to students who demonstrate mastery in STEM. To obtain the endorsement, a student must complete the high school graduation requirements at a high level of proficiency, successfully complete 4 STEM courses selected by the local education provider in addition to the high school graduation requirements in these subjects, achieve a minimum score specified in the bill on one of several specified mathematics assessments, and successfully complete a final capstone project.
  • HB 17-1211“Concerning Professional Development for Educators Regarding Disciplinary Strategies for Young Students,” by Rep. James Coleman and Sen. Kevin Priola. The bill creates the discipline strategies pilot program to provide money to school districts, boards of cooperative services, and charter schools for professional development for educators in the use of culturally responsive methods of student discipline for students enrolled in preschool through third grade and developmentally appropriate responses to the behavioral issues of students enrolled in preschool through third grade.
  • HB 17-1214“Concerning Efforts to Encourage Employee Ownership of the State’s Existing Small Businesses,” by Rep. James Coleman and Sen. Jack Tate. The bill requires the Colorado Office of Economic Development to engage the services of a local nonprofit organization that supports and promotes the employee-owned business model to educate the staff at the office on the forms and merits of employee ownership in order for the office to promote employee ownership as part of its small business assistance center.
  • HB 17-1227“Concerning an Extension of Demand-Side Management Goals for Investor-Owned Utilities as Set by the Public Utilities Commission,” by Reps. Faith Winter & Polly Lawrence and Sens. Stephen Fenberg & Kevin Priola. The bill extends programs establishing electricity goals for investor-owned utilities until 2028.
  • HB 17-1246“Concerning Implementation of the STEMI Task Force Recommendations Relating to Reporting Confirmed Heart Attack Incidents in the State,” by Rep. Tracy Kraft-Tharp and Sens. Leroy Garcia & Jack Tate. The bill implements recommendations of the STEMI task force regarding hospital reporting of heart attacks.
  • HB 17-1266“Concerning Allowing Persons who were Convicted of Misdemeanors for Marijuana-Related Behaviors that are No Longer Illegal to Petition for the Sealing of Criminal Records Relating to Such Convictions,” by Reps. Edie Hooten & Jovan Melton and Sens. Vicki Marble & Stephen Fenberg. The bill allows persons who were convicted of misdemeanors for the use or possession of marijuana to petition for the sealing of criminal records relating to such convictions if their behavior would not have been a criminal offense if the behavior had occurred on or after December 10, 2012.
  • HB 17-1354“Concerning the Collection of Delinquent Taxes on Certain Mobile Homes,” by Rep. KC Becker and Sens. Kevin Priola & John Kefalas. The bill makes the process to enforce the collection of delinquent taxes on mobile or manufactured homes that are not affixed to the ground permissive, and therefore gives the county treasurer more flexibility to enter into partial payment agreements with the owners of such mobile or manufactured homes. The bill authorizes the county treasurer to declare tax liens on mobile or manufactured homes that are not affixed to the ground as county-held to address title deficiencies in conjunction with the collection of taxes.
  • SB 17-132“Concerning Enactment of the ‘Revised Uniform Law on Notarial Acts’ as Amended,” by Sen. Bob Gardner and Reps. Jovan Melton & Cole Wist. The bill enacts the Revised Uniform Law on Notarial Acts, and creates a working group to study and make recommendations by December 1, 2017, regarding electronic remote notarization. The Secretary of State must promulgate rules regarding electronic remote notarization, after which notaries may perform a notarial act by electronic remote notarization in compliance with the rules.
  • SB 17-193“Concerning the Establishment of the ‘Center for Research into Substance Use Disorder Prevention, Treatment, and Recovery Support Strategies’ at the University of Colorado Health Sciences Center, and, in Connection Therewith, Making an Appropriation,” by Sens. Kevin Lundberg & Cheri Jahn and Reps. Bob Rankin & Brittany Pettersen. The bill establishes the Center for Research into Substance Use Disorder Prevention, Treatment, and Recovery Support Strategies at the University of Colorado Health Sciences Center.
  • SB 17-207“Concerning Strengthening Colorado’s Statewide Response to Behavioral Health Crises, and, in Connection Therewith, Making an Appropriation,” by Sens. John Cooke & Daniel Kagan and Reps. Lang Sias & Joseph Salazar. The bill clarifies the intent of the General Assembly for establishing a coordinated behavioral health crisis response system. The crisis system is intended to be a comprehensive, appropriate, and preferred response to behavioral health crises in Colorado. By clarifying the role of the crisis system and making necessary enhancements, the bill puts systems in place to help Colorado end the use of jails and correctional facilities as placement options for individuals placed on emergency mental health holds if they have not also been charged with a crime and enhances the ability of emergency departments to serve individuals who are experiencing a behavioral health crisis.
  • SB 17-297“Concerning Revising Higher Education Performance Requirements,” by Sen. Kent Lambert and Rep. Millie Hamner. The bill repeals a performance-based funding plan for institutions of higher education that was included in the master plan for Colorado postsecondary education. The performance-based funding plan was not implemented.
  • SB 17-305“Concerning Modifications to Select Statutory Provisions Affecting Primary Elections Enacted by Voters at the 2016 Statewide General Election to Facilitate the Effective Implementation of the State’s Election Laws, and, in Connection Therewith, Making an Appropriation,” by Sens. Stephen Fenberg & Kevin Lundberg and Reps. Patrick Neville & Mike Foote. At the 2016 general election, the voters of the state approved 2 initiated measures affecting primary elections: Proposition 107, which restored a presidential primary election, and Proposition 108, which allows participation by unaffiliated voters in primary elections. The bill makes several modifications to some of the statutory provisions that were affected by Propositions 107 and 108 for the purpose of facilitating the effective implementation of the state’s election laws.

For a complete list of the governor’s 2017 legislative actions, click here.

Bills Limiting Evidence in Groundwater Appeals, Expanding Juvenile Court Jurisdiction, and More Signed

On Tuesday, April 18, 2017, Governor Hickenlooper signed 11 bills into law. To date, he has signed 158 bills this legislative session. The bills signed Tuesday include a bill limiting the evidence that may be submitted in appeals from groundwater decisions, a bill expanding the exception for possession of sexually exploitative material to prosecutors and others involved in investigations, a bill giving the juvenile court jurisdiction to decide parental responsibilities issues in juvenile issues, and more. The bills signed Tuesday are summarized here.

  • HB 17-1012“Concerning the Creation of a Pueblo Chile License Plate,” by Rep. Daneya Esgar and Sen. Leroy Garcia. The bill creates the Pueblo chile special license plate. In addition to the standard motor vehicle fees, the plate requires 2 one-time fees of $25.
  • HB 17-1110“Concerning Juvenile Court Jurisdiction Regarding Matters Related to Parental Responsibilities in a Juvenile Delinquency Case,” by Rep. Susan Beckman and Sen. Nancy Todd. The bill allows the juvenile court to take jurisdiction involving a juvenile in a juvenile delinquency case and subsequently enter orders addressing parental responsibilities and parenting time and child support in certain circumstances.
  • HB 17-1138“Concerning the Reporting of Hate Crimes by Law Enforcement Agencies,” by Rep. Joseph Salazar and Sen. Angela Williams. The bill requires the Department of Public Safety to include in its annual hearing information concerning reports submitted by law enforcement agencies about crimes committed in the state during the previous year, including but not limited to information concerning reports of bias-motivated crimes.
  • HB 17-1174“Concerning the Establishment of an Exception for Rural Counties from the Limitations on the Establishment of a Local Improvement District to Fund the Construction of a Telecommunications Service Improvement for Advanced Service,” by Rep. James Wilson and Sens. Lucia Guzman & Larry Crowder. The bill allows a rural county with a population of fewer than 50,000 inhabitants to establish a local improvement district to fund an advanced service improvement in an unserved area of the county.
  • HB 17-1193“Concerning the Installation of Small Wireless Service Infrastructure within a Local Government’s Jurisdiction, and, in Connection Therewith, Clarifying that an Expedited Permitting Process Applies to Small Cell Facilities and Small Cell Networks and that the Rights-of-Way Access Afforded Telecommunications Providers Extends to Broadband Providers and to Small Cell Facilities and Small Cell Networks,” by Reps. Tracy Kraft-Tharp & Jon Becker and Sens. Andy Kerr & Jack Tate. The bill clarifies that the expedited permitting process established for broadband facilities applies to small cell facilities and small cell networks, and that the rights-of-way access afforded to telecommunications providers for the construction, maintenance, and operation of telecommunications and broadband facilities extend to broadband providers as well as small cell facilities and small cell networks.
  • SB 17-036“Concerning Groundwater,” by Sens. Don Coram & Ray Scott and Reps. Jon Becker & Jeni Arndt. The bill limits the evidence that a district court may consider, when reviewing a decision or action of the commission or state engineer on appeal, to the evidence presented to the commission or state engineer.
  • SB 17-068“Concerning Early Support for Student Success Through Access to School Counselors, and, in Connection Therewith, Serving All Grades Through the Behavioral Health Care Professional Matching Grant Program and the School Counselor Corps Grant Program,” by Sen. Nancy Todd and Rep. Jonathan Singer. The bill adds elementary schools to the list of public schools eligible to receive a grant through the behavioral health care professional matching grant program.
  • SB 17-088“Concerning the Criteria Used by a Health Insurer to Select Health Care Providers to Participate in the Insurer’s Network of Providers, and, in Connection Therewith, Making an Appropriation,” by Sens. Angela Williams & Chris Holbert and Reps. Kevin Van Winkle & Edie Hooten. The bill requires health insurers to develop and use standards for selecting participating providers for its network and tiering providers if the insurer carries a tiered network.
  • SB 17-112: “Concerning a Clarification of the Effect of Statutes of Limitations on the Dispute Resolution Process when a Taxpayer Owes Sales or Use Tax to One Local Government but has Erroneously Paid the Disputed Tax to Another Local Government,” by Sen. Tim Neville and Rep. Dan Pabon. The bill seeks to clarify the General Assembly’s intent when it enacted a dispute resolution process in 1985 to address a situation when a taxpayer paid a sales and use tax to one local government when it should have instead paid that disputed amount to a different local government.
  • SB 17-115“Concerning Possession of Sexually Exploitative Material by Persons Involved in Sexually Exploitative Material Cases,” by Sen. John Cooke and Reps. Mike Foote & Yeulin Willett. Under current law there is an exception to the crime of possession of sexually exploitative material for peace officers while in the performance of their duties. The bill expands the exception to a prosecutor, criminal investigator, crime analyst, or other individual who is employed by a law enforcement agency or district attorney’s office and performs or assists in investigative duties.
  • SB 17-137“Concerning the Continuation of the Colorado Health Service Corps Advisory Council,” by Sens. Nancy Todd & Michael Merrifield and Rep. Dominique Jackson. The bill continues the Colorado Health Service Corps Advisory Council indefinitely.

For a list of all of Governor Hickenlooper’s 2017 legislative decisions, click here.

HB 17-1156: Prohibiting “Conversion Therapy” by Licensed Mental Health Care Providers

On February 6, 2017, Rep. Paul Rosenthal and Sen. Stephen Fenberg introduced HB 17-1156, “Concerning a Prohibition on Conversion Therapy by a Licensed Mental Health Care Provider.”

The bill prohibits a licensed physician specializing in psychiatry or a licensed or registered mental health care provider from engaging in conversion therapy with a patient under 18 years of age. A licensee who engages in these efforts is subject to disciplinary action by the appropriate licensing board. ‘Conversion therapy’ means efforts that seek to change an individual’s sexual orientation, including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex.

The bill was introduced in the House and assigned to the Public Health Care & Human Services Committee.

SB 17-021: Establishing a Program for Support of Mentally Ill Persons when Released from Department of Corrections

On January 11, 2017, Sen. Beth Humenik and Rep. Jonathan Singer introduced SB 17-021, “Concerning Reentry Services for Persons with Mental Illness in the Criminal Justice System, and, in Connection Therewith, Making an Appropriation.”

Legislative Oversight Committee Concerning the Treatment of Persons with Mental Illness in the Criminal and Juvenile Justice Systems.

The bill directs the division of housing in the department of local affairs to establish a program to provide vouchers and supportive services to persons with a mental illness who are being released from the department of corrections (DOC) or jails. The program is funded by general fund appropriations and from money unspent by the division of criminal justice (CDPS) for community corrections programs in the previous fiscal year.

The bill directs the behavioral health unit in the department of human services, in conjunction with the DOC, to implement reentry programs to assist persons with a mental illness who are transitioning from incarceration. If necessary, the programs may receive money from the community corrections appropriation to CDPS.

The bill appropriates $2.7 million to the department of local affairs.

The bill was introduced in the Senate and assigned to the Judiciary Committee. It is scheduled for hearing in committee on February 15 at 1:30 p.m.

The Addicted Lawyer: Is Alcoholics Anonymous For You?

Editor’s Note: This article originally appeared on Above the Law on October 14, 2016. Reprinted with permission.

If you or someone you know is struggling with addiction, please get help. The Colorado Lawyer Assistance Program provides confidential assistance — call (303) 986-3345 or visit coloradolap.org

briancuban-e1473974781722By Brian Cuban, Esq.

April 2007. I walk up to the door of the building where area Alcoholics Anonymous (AA) meetings are held. My family is pushing hard for in-patient treatment but I refuse. My psychiatrist feels that a trip here is the first step to long-term sobriety. Lucky for me, the building is right next to his office. If it hadn’t been convenient, I might have just made excuses to not go at all. For an addict, excuses are often more plentiful than reasons for recovery. The present is more important than the future — the present of the high.

After pacing around outside the doorway for a long time, I finally peer down the long hallway into the room where people are gathering. I’m afraid of being recognized. My ego is still paramount in my worries. “I’m a lawyer. There are no lawyers in in AA or treatment. My one client left needs me!”

My mind flashes back to one of my favorite childhood movies, Willy Wonka & the Chocolate Factory. I suddenly imagine that as soon as I enter the meeting room, I’ll be carried away by a team of chanting Oompa Loompas determined to punish me for my bad habits. I have no desire to meet the Oompa Loompas on the other side of that door.

I finally walk down the hall into the meeting room, and I can smell the fumes of stale cigarette smoke and day-old coffee. My eyes lock onto the 1950s tile floor, ingrained with the dirt of countless feet. There are other people milling around in room. Are these the people with whom I was supposed to share my darkest secrets? Would I be made fun of, teased, or insulted? Who are these people? Skid row bums? That’s my perception of AA. I think of Nick Cage’s character, Ben, living in the sleazy “no-tell motel” as he drinks himself to death in Leaving Las Vegas. Dick Van Dyke’s character, Charlie, drunk, alone on the beach with no future in The Morning After.

Deep breath. Don’t look around. Eyes down at the floor. That fixed point. Watch the feet move forward. One baby step at a time to a waiting chair. It’s the way I’m able to accomplish things in life. It’s how I was able to finish eight marathons. Facing any difficult task, my best self is that part of me that can place one foot in front of the other until a goal is accomplished. Don’t look left. Don’t look right. Don’t think about the finish line. I sit down. I listen. I cry. At the end of the meeting, I take a desire chip. The most important journey in my life begins.

As you have probably figured out, I got sober in Alcoholics Anonymous. I know I am irritating some who believe we should not talk publicly about being in AA. I believe we should be empowered to share all aspects of our personal journey if we choose to. I find it perplexing that we as attorneys in recovery, who spend our lives engaged in critical thought and using data, will exclude AA from that process as if there is some magical healing power to not discussing both its benefits and flaws when there is no empirical data to support the notion that talking publicly about being in AA, then relapsing publicly, will cause someone to not enter the program.

Certain aspects of AA have worked for me to date. I completely disregard other aspects. The sober connections I found in group were, and are, important to me. The people. The stories that tell me I am not alone. I, however, have never been as keen on the spiritual aspects and certain rituals of the program. That’s just me. You may like that. You may need that. Those issues however, have never been a deterrent to me in my program like they are for some who reject AA as their mode of recovery.

In speaking to law students and other lawyers about recovery, while some embrace the program, some would rather find others ways to long-term sobriety and have. Through their church. Through non-12-step-based programs such as Smart Recovery. Through both 12-step-based and non-12-step-based residential treatment. Through collegiate recovery programs. Through informal local attorney support groups. I know a few lawyers who have gotten sober on their own, although I would never recommend that path to start. There are many paths to recovery available today that were not available in 1935 when AA was founded.  AA has also not been my only mode of therapy. I have been seeing a psychiatrist for over a decade. I take anti-depressant medication daily. Cognitive Behavioral Therapy (CBT) and Acceptance and Commitment Therapy (ACT) have been important in my recovery. Let’s not lose sight of the goal: To be a person in long-term recovery regardless of the path chosen. The most important decision of your life should be one of reflection and critical thought. It’s your journey. If it’s AA, that’s great. If it’s another path, get on it. Recovery awaits.

  1. http://www.americanbar.org/groups/lawyer_assistance.html
  2. http://collegiaterecovery.org/programs/
  3. http://www.aa.org/
  4. http://www.smartrecovery.org/
  5. http://www.celebraterecovery.com/

 

Brian Cuban (@bcuban) is The Addicted Lawyer. A graduate of the University of Pittsburgh School of Law, he somehow made it through as an alcoholic then added cocaine to his résumé as a practicing attorney. He went into recovery April 8, 2007. He left the practice of law and now writes and speaks on recovery topics, not only for the legal profession, but on recovery in general. He can be reached at brian@addictedlawyer.com.

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.