May 25, 2013

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Citizen Lawyer John T. Baker Heads New CAMP Program

March 14, 2013 by Leave a Comment

BakerJohnOn February 5, 2013, the Colorado State Judicial Branch named John T. Baker the first director of the newly-developed Colorado Attorney Mentoring Program (CAMP). I had the pleasure of interviewing Mr. Baker about his new role for CBA-CLE Legal Connection; our conversation is here.

Congratulations on being named director of the new Colorado Attorney Mentoring Program! 

Thank you, it’s really an honor. When I first heard about the program, I thought it sounded like something I would like to do, and I was delighted that they selected me as the first director. I am strongly committed to public service and this is my first time working for the public, so it’s a great opportunity.

How long have you been interested in mentoring? What inspired you to become a mentor?

I was mentored myself as a young lawyer. I had several mentors, including the senior attorneys at the firm where I worked and also including opposing counsel on my civil case at times. I spent 40 years as a plaintiff’s personal injury attorney, and I modeled my practice after the good attorneys on both sides of those cases.

From my mentors, I discovered the importance of learning the ropes—the things you don’t learn in law school, the practical aspects of practicing law. For example, when you go into the courthouse, the judges are very important and nearly every attorney is respectful to the judge. However, the clerks and the rest of the staff are important too, and they should all be treated with respect. Another example: when I receive the first pleading from an opposing counsel I don’t know, I arrange a social meeting—we have a cup of coffee together—so that we can get to know each other as people instead of as adversaries. I am hoping that, through CAMP, I can enable some young lawyers to learn these sorts of practical things also.

What is CAMP?

CAMP is a program that will be housed in the Attorney Regulation System, along with the other judicial department offices of Attorney Registration, Attorney Admission, and Continuing Legal & Judicial Education.  In addition to supporting existing mentoring programs, CAMP will  promote development of new mentoring programs where needed in each of Colorado’s 22 judicial districts for young attorneys or attorneys transitioning into private practice. The CAMP office will develop model  curricula for the mentors and mentees, certify  mentor candidates, and oversee the awarding of continuing legal education credits for the mentoring programs. These CAMP programs will be run by bar associations, inns of court, and other legal organizations. CAMP will collaborate where possible with the existing mentoring programs at CU Law and the Sturm COL at DU to avoid duplication of efforts and help provide a continuum of mentoring from law school into practice.

How did CAMP come about?

The CAMP concept has been in development for at least five years. Originally, then-DBA President Mark Fogg and Nancy Cohen, chair of the DBA mentoring committee, crystallized the idea of a state-wide mentoring program. Chief Justice Michael Bender, through his Commission on the Legal Profession, formalized the funding and structure of the statewide CAMP office. During the last two years, the Denver Bar Association, the Minori Yasui Inn of Court, and the 17th Judicial District Attorney’s Office all developed pilot project mentoring programs.

Can you paint a picture of how CAMP will work?

We are still working on the details, but we are planning to develop a curriculum for mentoring that can be utilized by law-related entities in each of Colorado’s 22 judicial districts. The bar associations and other legal organizations in the judicial districts will take charge of recruiting mentors and mentees for their own programs, and the CAMP office will evaluate the mentor candidates and make sure they are appropriate role models for new attorneys. The mentors must meet certain criteria—they must have been in practice for at least five years, have a good knowledge base, and have no history of discipline, for example.

The CAMP role is to provide guidance and structure while allowing the organizations in the individual judicial districts to do the mentor-mentee pairing. The individual organizations will do everything except certify the programs and mentors; that will be CAMP’s role. CAMP will also provide support to the individual organizations.

We would like to include materials for the mentors and mentees so that they will complete tasks together and move beyond a purely social relationship. We have been studying the existing mentoring programs—in fact, my first calls as director were to the mentoring programs at the CU and DU law schools—and we would like to see what has worked for the existing programs, what could be improved, and how we can incorporate mentor/mentee activities involving pro bono work, bar association committee involvement, or other community service activities  to act as the “glue” to cement a lasting mentoring relationship.

What are your goals as director of CAMP?

My primary goal is to have a mentoring opportunity available to all new lawyers or lawyers who are transitioning to private practice from public service in each of Colorado’s 22 judicial districts. I hope to see these programs develop so that the new lawyers can have someone to talk to and from whom they can learn the things they didn’t learn in law school.

In an article you wrote for the September 2009 issue of The Colorado Lawyer, you discuss the “citizen lawyer” concept. Can you explain that and tell us how it fits into the mentoring program?

Citizen lawyers are lawyers who are active and involved in community service and who use their legal skills to help people in their communities. This could be working on boards of directors for nonprofits, doing pro bono work, or even coaching their kids’ teams. The goal is to let the world see the good in lawyers, see lawyers as the compassionate and caring human beings we are.

When I was a new lawyer, I was encouraged and rewarded for such civic service. Today I think that it’s gotten harder for  lawyers to do this. Law practice is more demanding of the professional now. There is not as much time for new lawyers to  be community-oriented. Despite this I would like to instill the “giving back” part of being a lawyer into the new lawyers because it is often the most satisfying part of practicing law.

How will you further the citizen lawyer concept as CAMP director?

I would like to include a pro bono component, perhaps have the mentor and mentee work together on a community service project, and I would like to encourage the citizen lawyers of the community to become mentors.

How can attorneys become involved in CAMP, either as mentors or as mentees?

Anyone interested in becoming a mentor or a mentee can contact the CAMP office, or they can email me directly. Also, the individual judicial districts will publicize their mentoring programs, and it will be publicized by the bar associations and inns of court. We are also working on establishing a web presence—we will soon have our own webpage and blog, and we will also be on social media, such as Facebook, LinkedIn, and Twitter.

John T. Baker is the director of the Colorado Attorney Mentoring Program in the Attorney Regulation System of the Colorado Judicial Department . Prior to that, he served as the Executive Director of NITA, and was an attorney in private practice for 40 years. He is very active in his community and in the Denver and Colorado bar associations, and he received the DBA Award of Merit in 2007 for his outstanding service.

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Congratulations to John Gleason, 2013 Recipient of the ABA Michael Franck Professional Responsibility Award

March 12, 2013 by Leave a Comment

GleasonJohn Gleason, former Chief Regulation Counsel for the Colorado Office of Attorney Regulation Counsel, has been selected to be the 2013 recipient of the ABA Michael Franck Professional Responsibility Award. The award will be presented at the 39th National Conference on Professional Responsibility on May 30-31, 2013.

The Michael Franck Award is given annually to attorneys whose career commitments in areas such as legal ethics, disciplinary enforcement, and lawyer professionalism demonstrate the best accomplishments of lawyers. It is named in honor of Michael Franck, the former director of the State Bar of Michigan who embraced professional responsibility and worked to improve lawyer regulation in the public interest. He strove to turn intellectual honesty, compassion, and uncompromising ethics to every aspect of the practice of law.

Mr. Gleason is active nationally with the National Organization of Bar Counsel, the National Organization of Judicial Counsel, and the American Bar Association, and he is president of the Board of Directors of the National Client Protection Organization. In early 2013, he accepted a position as the Oregon State Bar’s Director of Regulatory Services, where he is now.

While at the Colorado Office of Attorney Regulation, he served as a member of the Colorado Supreme Court’s Judicial Council and Standing Committee on the Rules of Professional Conduct. Additionally, he was an adjunct professor of law at the University of Denver Sturm College of Law and adjunct faculty member at Columbia College-Denver. Mr. Gleason received national recognition recently for his work investigating and prosecuting Maricopa County Attorney Andrew Thomas in Arizona. He spoke about his experience for CLE in July 2012 (click here to order the homestudy). He also was interviewed for The Docket about the Arizona case.

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Colorado Court of Appeals: Land Planning Is Not a Profession that Is Held to an Independent Duty or Standard of Care

January 22, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Stan Clauson Associates, Inc. v. Coleman Brothers Construction, LLC on Thursday, January 17, 2013.

Summary Judgment—Negligence—Economic Loss Rule—Professional Standard of Care.

Defendants Coleman Brothers Construction, LLC and Coleman Ranch, LLC (collectively, Coleman) appealed the entry of summary judgment in favor of plaintiff Stan Clausen Associates Inc. (SCA) on their negligence counterclaims. The appeal was dismissed in part and the judgment was affirmed.

In a letter agreement dated August 21, 2006, SCA agreed to provide land planning and development services to Coleman regarding the Crown Mountain property. In early 2007, Coleman and SCA orally agreed that SCA would provide a development analysis for another property on Emma Road in Basalt. The district court concluded that the oral agreement contained the same terms as the 2006 letter agreement. This conclusion was not appealed.

In 2009, SCA sued Coleman for breach of the agreement regarding the Emma Road property. Coleman counterclaimed, alleging that SCA had negligently provided inaccurate advice about whether the Emma Road property could be subdivided and developed. The trial court granted SCA’s motion for summary judgment, concluding that the economic loss rule barred Coleman’s negligence counterclaims. The parties settled SCA’s claims against Coleman but stipulated that Coleman retained its negligence claims and could appeal the court’s dismissal.

Under the economic loss rule, “a party suffering only economic loss from the breach of an express or implied contractual duty may not assert a tort claim for such breach absent an independent duty of care under tort law.” [Town of Alma v. AZCO Constr., Inc., 10 P.3d 1256, 1264 (Colo. 2000).]Professionals are held to duties and standards of care independent of those established by contracts for their services. If a contract for professional services does not explicitly adopt the professional standard of care, fulfillment of that standard of care is a duty that is independent of the services agreement, and the economic loss rule will not bar a claim for breach of the professional duty. Coleman did not identify, and the Court could not find, a Colorado case holding a land planner to a professional standard of care.

Coleman argued that the agreement with SCA focused primarily on the financial relationship, billings, and payments, and not on SCA’s professional duty to Coleman. Therefore, Coleman contended that SCA had an independent duty to act without negligence in providing professional services. The trial court found no recognized common law duty of care owed by a land planner to anyone and found that SCA performed its tasks in good faith and to the best of its abilities.

The Court of Appeals concluded that SCA did not owe Coleman a duty independent of the agreement because land planning is not a profession that is held to an independent duty and standard of care under any Colorado statute or common law. The Court also found that the allegedly negligent actions of SCA provided a basis for a breach of contract claim and, therefore, there was no error in the trial court’s applying the economic loss rule to bar Coleman’s negligence counterclaims. The judgment was affirmed.

Summary and full case available here.

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John S. Gleason to Receive President’s Award from National Organization of Bar Counsel

January 21, 2013 by Leave a Comment

GleasonJohn S. Gleason, Chief Regulation Counsel for the Colorado Office of Attorney Regulation, will be honored by the National Organization of Bar Counsel in February. He has been selected to receive that organization’s highest honor, the President’s Award, for his adroit dedication to the legal profession and his many years of contributions in the areas of legal ethics, professional responsibility, and disciplinary enforcement.

Mr. Gleason is active locally and nationally with the National Organization of Bar Counsel, the National Organization of Judicial Counsel, the American Bar Association, and the Colorado Bar Association, and he is president of the Board of Directors of the National Client Protection Organization. He also serves as a member of the Colorado Supreme Court’s Judicial Council and Standing Committee on the Rules of Professional Conduct. Additionally, he is an adjunct professor of law at the University of Denver Sturm College of Law and adjunct faculty member at Columbia College-Denver.

Mr. Gleason received national recognition recently for his work investigating and prosecuting Maricopa County Attorney Andrew Thomas in Arizona. He spoke about his experience for CLE in July 2012 (click here to order the homestudy). He also was interviewed for The Docket about the Arizona case.

The National Organization of Bar Counsel will bestow the President’s Award on Mr. Gleason on February 6, 2013, at its mid-year meeting in Dallas.

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A New Take on the Top Ten Rules for Court and Professional Life

October 7, 2012 by Leave a Comment

By Mimi E. Tsankov and Jessica L. Grimes

This is part of an article written for the University of Denver Law Review. Cite as Mimi E. Tsankov & Jessica L. Grimes, “A New Take on the Top Ten Rules for Court and Professional Life,” 89 Denv. U. L. Rev. 369 (2012). Click here to read the article in its entirety.

INTRODUCTION

After the last brief is written, the final scrap of evidence considered, and the list of witnesses prepared, every litigator would be well-served to reflect on how his actions will impact him professionally and whether they will strengthen or lessen respect for our legal institutions. To be sure, the better nuanced his arguments and the more accurate his riposte, the greater the chance of a favorable outcome for his client. And while “favorable facts” and “favorable law” ultimately affect the success of a litigator’s case, what of the myriad exchanges which do not deal with the legal issues per se, but with more ambiguous concepts like respect and integrity? What function do an attorney’s choices in this area of form and procedure have on outcomes, if any, and what impact do they have on respect for the rule of law? How do the carefully choreographed interactions among the parties before and during the hearing influence our notion of a fair legal system of law whereby “justice” is served? What lingers beyond the particulars of the case at hand for the courtroom litigator who will be defined in part by his reputation as a guardian of the rule of law? Indeed, as the following discussion suggests, there is more than one way to successfully walk out of a courtroom.

This Article offers ten rules for court and professional life. Succinct, yet deceptive in their simplicity—the Article considers the hows and whys of their formulation. It explores these rules through both conventional and anecdotal research to examine the subtleties of courtroom relationships. While mastering these rules can take years, a concerted focus on some of the basic elements can assist a recently admitted attorney to command the focus of attention on the issues most advantageous to him and divert the focus away from unhelpful distractions. Moreover, adherence can build an enviable reputation for upholding the rule of law and thereby strengthen the American legal system.

Nine of these ten rules fall loosely into three general categories. The first group emphasizes the importance of respecting the rule of law, our legal institutions, and the specifics of how best to demonstrate that respect to all the parties involved in the legal process. This group of rules deals with the attorney’s role in our legal system and how his actions and the choices he makes influence whether the rule of law is upheld. They embody the philosophy that by upholding the rule of law, one shows respect for the court, one’s colleagues, and ultimately all of those that are subject to it. The rules focus on maintaining courtroom decorum, following ordinary court rules and procedures, and refraining from conduct that questions the authority of the judge. These rules challenge practitioners to self-reflect.

The second group of rules focuses on the importance of effective communication, both written and oral. These rules emphasize that honesty, candor, and precision are critical components of effective communication. They suggest that attorney statements should tend to earn the trust of those with whom one practices. They also indicate that compliance supports respect for the rule of law.

The third set of rules focuses on how practitioners can exhibit respect for the time and resources of all involved in the legal process. These edicts acknowledge the value of judicial economy and evince the practical realities that many involved in the court system are today being asked to do much more with much less.

The final maxim set forth in this Article explores how failure to abide by the previous nine rules can result in a loss of professional reputation. It emphasizes that loss of reputation can result in a diminution of a lawyer’s value in both professional stature and economic terms. It acknowledges that once lost, it is difficult, if not impossible, to regain one’s professional reputation.

And now a word about how this Article came to be. United States Magistrate Judge Kristen L. Mix sits on the bench of the District Court in Colorado. As those who appear before her know, she is respected for her competence, revered for her exacting standards, and admired for her cutting wit. She sets forth her expectations unabashedly and demands adherence to the high standards that she seeks to uphold. Judge Mix began her legal career in the mid-80s and has witnessed a time of great upheaval in the legal profession, including the recent financial crisis, which has drastically altered fundamental aspects of the legal profession. What led her to set out written expectations reflected a very real concern that the legal profession was undergoing a crisis, which manifests itself in very concrete ways every day in court.

This Article offers Judge Mix’s “Ten Rules” and explores each in the context of what it may reveal about a legal system in crisis. It raises threshold questions about whether the current crisis is really a new phenomenon, and if so, speculates as to how it might have come about. It examines professionalism challenges in a variety of court contexts—from federal district court and administrative hearings to state court matters and international court proceedings. The Article examines the rules in the context of bar self-policing enforcement actions and considers how some judges are able to institute measures that tend to increase civility and decrease intemperate remarks. The Article concludes that careful adherence to Judge Mix’s rules in all bar activities, including court appearances, will not only enhance an attorney’s effectiveness in representing his client and result in a greater and more effective impression on the triers of law and fact. It will also enhance respect for our legal system as a whole. By following the spirit of the Ten Rules, attorneys can develop and maintain a high level of professional integrity amongst both their colleagues and the general public. As Judge Mix says, “Keep your eye on the prize: achieving a just, efficient and appropriate result.” (Kristin L. Mix, U.S. Magistrate Judge, U.S. Dist. Court for the District of Colo., Presentation on Professionalism and Ethics at the Meeting of the Colorado Intellectual Property Inn of Court 1 (presentation on file with Denver University Law Review).)

For the full article, click here. For a list of activities celebrating Legal Professionalism Month, click here.

Mimi E. Tsankov is an Immigration Judge and Jessica Grimes is an Attorney Advisor with the Department of Justice (DOJ), Executive Office for Immigration Review (EOIR). They write in their personal capacities and the views expressed are not necessarily those of the Department of Justice. The authors wish to thank U.S. Magistrate Judge Kristen L. Mix for developing the rules and for permitting us to write about them. While we hope to have provided context for her succinct set of directives, we have likely overstepped in some respects, and wish to absolve her from our verbose and possibly imprecise efforts at elucidation. The thoughts expressed herein are not necessarily her views. The authors also wish to thank Judge Russell E. Carparelli, Colorado Court of Appeals, and Sarah M. Clark, Counsel to the Chief Justice, Colorado Supreme Court, for their valuable insights and edits.
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October is Legal Professionalism Month

October 1, 2012 by 1 Comment

Colorado Supreme Court Chief Justice Michael Bender issued a proclamation on May 1, 2012, declaring October 2012 Legal Professionalism Month in the State of Colorado. The intent of the proclamation is to inspire members of the legal profession to re-dedicate themselves to demonstrating the highest standards of professional integrity and to promote public confidence in the legal system.

Chief Justice Bender formed the Chief Justice’s Commission on the Legal Profession in February 2011 in order to improve the training of law students and help them appreciate the role of the legal profession, increase training and support for new lawyers, facilitate communication and cooperation between the bench and bar, and encourage the bar to recognize the legal needs of our community at large and provide more pro bono work.

The Commission has discovered several prominent themes throughout its first year of work, and Chief Justice Bender would like to encourage attorneys to preserve the profession’s positive force in society:

I believe that now is the time for each of us to renew our efforts to the legal profession through increased civility toward one another and by instilling these values in law students and new lawyers. Finally, we must rededicate ourselves to the service of society, including the most vulnerable among us. To galvanize and focus these efforts, CBA President David Masters, the Chief Justice’s Commission on the Legal Profession, and I proclaim the month of October 2012 to be Legal Professionalism Month.

More than 30 bar associations throughout the state are committed to promoting Legal Professionalism Month, and many will be holding events throughout October. The Colorado Supreme Court will hold an Assembly of Lawyers at Boettcher Concert Hall on October 29 to commemorate the month, and will welcome attorneys newly admitted to the practice with a special session of the court. Members of the legal profession are encouraged to participate in all of these events.

The Colorado Bar Association will be releasing several professionalism videos throughout the month of October. The first video, “Tips for Working With Clients to Keep Them Happy and Keep You Out of Trouble,” is available here.

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Professional Conduct Rules Revised Regarding Impartiality and Ex Parte Communications

July 12, 2012 by Leave a Comment

On Wednesday, July 11, 2012, the Colorado Supreme Court released amendments to two Colorado Rules of Professional Conduct. Amendments were made to the following rules:

  • CRPC 1.12 - “Former Judge, Arbitrator, Mediator or Other Third-Party Neutral”
    • References within Comment [1] were revised as well as language relating to the Colorado Code of Judicial Conduct requiring judges to disqualify themselves in certain proceedings with lawyer conflicts.
  • CRCP 3.5 - “Impartiality and Decorum of the Tribunal”
    • Subsection (b) was revised to read that an attorney shall not “communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order, or unless a judge initiates such a communication and the lawyer reasonably believes that the subject matter of the communication is within the scope of the judge’s authority under a rule of judicial conduct.
    • Comment [2] was also amended to clarify this revision about ex parte communications.

These amendments were adopted on July 11 and are effective immediately.

Click here to review the red line changes to these civil procedure rules, outlined as Rule Change 2012(12).

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Law Firms and Small Businesses: Protecting Security Interests (Part 2)

June 27, 2012 by 1 Comment

Editor’s Note: This is the second in a two-part series of cyber security articles. Part one can be found here.

Reasonable Contractual Expectations

One of my best contractual stories revolves around a conversation with the president of a local web site design firm – a good friend and one who feels comfortable with being candid with me. During one of his development projects, I offered to do a free security evaluation of the soon-to-be-released web application. His rejection of my offer came with the rationale that if the web application was ever compromised, he wanted to be able to honestly tell the client that, to the best of his knowledge, the delivered web site was secure.

I haven’t the faintest idea of the legality of my friend’s hope for plausible deniability, but it should be obvious that two very poor consequences come out of his approach to security. The first is that his client will end up with an unsecure web site, when they could just as easily have had a product that would have withstood all but the most experienced and persistent hackers.

The second eye-opening realization is that the client never asked about security, and the development contract never addressed security. In this case, the client (and potentially the law firm that reviewed the contract) never included security development and testing as one of the primary requirements of the relationship. A single section added to the development contract might have the effect of preventing a devastating security breach.

A favorite statement of mine goes as follows:

Businesses end up with a lack of security because they never, ever ask about it. 

Almost all web site development contracts include obvious legal details like payment schedules, software ownership, and product specifications. These terms protect the interest of the business as well as the development firm – standard boilerplate.

A well-written contract should also include a requirement that the contracted web site be developed under strict security guidelines (consider OWASP as a source of information) and that a comprehensive third-party security penetration test (Acunetix as one such test) be run and presented before product acceptance.

The additional cost for security-oriented development should be minimal, since a knowledgeable development firm should be adhering to these practices regardless of a request. The third-party security penetration test can be contracted for with one of many firms and should cost only a few thousand dollars.

Again, the role of a law firm in this environment should certainly be the crafting and approval of the basic development contract, but also making sure security validation is a well-defined requirement of the overall agreement.

How to Respond After a Breach

When a security breach does occur, businesses (and their counsel) need to be ready to react thoroughly and decisively. A few of my suggestions for the days, weeks, and months following a breach are:

  • Don’t panic. Carefully consider the nature of the breach, what data (if any) has been compromised and what the business’ next steps should be. A premature release of breach information may cause unnecessary customer panic or, even worse, make management look even more inept when they revise information sent out too hastily. Advise them to take the time to respond with dignity and thoughtfulness.
  • If required, inform the appropriate financial and legal entities as soon as possible. Depending on the industry, there may be strict requirements for reporting security breaches. Your client’s problem will only get worse if they are caught hiding information. Keep in mind that many security breaches become public knowledge as the compromised data is used or sold within the cyber underground, not as a result of company disclosure. As a side note, an embarrassingly large number of security breaches are never discovered by the company that was breached.
  • Inform users or clients and customers as soon as appropriate. There is a line between keeping a company viable and an ethical responsibility to customers. My thoughts on this line are to consider the damage that might be done to customers and think about how you would expect to be treated.
  • Call the insurance company. Depending of the nature of the breach, the business may be covered for some, if not all, of the expenses associated with recovery. Suggest that the business give their insurance company a call. They might also take the time to talk about cyber insurance with their agent – for the next time.

As a legal professional, you should easily be able to see the pitfalls inherent in panic-stricken businesses reacting to security breaches. Legal, financial, and professional stakes surrounding a security breach may be high enough to shut down the business. The correct reaction may be well outside of the expertise of the business, or, even worse, the business may naively attempt to react on their own.

Conclusion

Hopefully, I have provided food for thought on the security opportunities and responsibilities of law firms supporting small businesses and their own technological infrastructure. Obviously, I’ve brought up far more issues and concerns than solutions. My hope is that even a casual discussion of security problems will prepare you with far more knowledge than the majority of your clients.

It’s a mean world out there; cyber crime is an industry run by foreign nationals from countries where cyber criminals are not prosecuted. An industry-accepted statistic is that more than 70% of all Internet web sites contain critical security vulnerabilities. Many of your clients, and your own web sites, undoubtedly are on the wrong side of this depressing number.

One final note to add one more level of additional worry: Web application security awareness has only recently entered mainstream web site development. If your web site or your client’s is more than four years old, not only is it certainly open to a critical security attack, but it is probably a target for even the most amateurish hackers: script kiddies, young kids who hack web sites because doing so is more fun than playing a predictable Xbox game.

Alan Wlasuk is a managing partner of 403 Web Security, a full service, secure web application development company. A Bell Labs Fellow award-winner with 18+ years of experience building secure web applications, Wlasuk is an expert in web security – from evaluation to web development and remediation.

Learn More: Cyber Security/Privacy CLE Homestudy Programs

Is Your Sensitive Data Secure: Cyber Insurance for Your Firm and Your Clients (video on-demand and mp3 download)

Avoiding The Lawyer’s Digital Nightmare: How To Safeguard Your and Your Clients’ Sensitive Information And Survive The Inevitable (?) Security Breach (video on-demand, mp3 download, and audio CD)

Ethics in a Wild Wired World (video on-demand, mp3 download, and audio CD)

To Use and Protect: Privacy Basics for Business (video on-demand and mp3 download)
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Colorado Supreme Court: Attorney Did Not Owe Medical Providers the Duties of Fiduciary to Give Rise to Tort Liability for Failure to Disburse Money from COLTAF

June 26, 2012 by Leave a Comment

The Colorado Supreme Court issued its opinion in Accident and Injury Medical Specialists, P.C. v. Mintz on June 25, 2012.

Colo. RPC 1.15—Attorney’s Fiduciary Duties as Trustee of COLTAF Account.

The Supreme Court held that the medical providers in this case may not maintain a breach of fiduciary duty tort action against attorney David Mintz based on his obligations as trustee of a COLTAF account. Although Mintz may have had ethical or contractual obligations to disburse money his clients owed to the providers, Mintz did not owe the medical providers the duties of a fiduciary that give rise to tort liability. The judgment of the court of appeals was affirmed.

Summary and full case available here.

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Abuse of Power in Arizona: The Colorado Attorneys Who Successfully Prosecuted the Largest Attorney Ethics Case in History

June 26, 2012 by Leave a Comment

On July 18, 2012, Colorado Attorney Regulation Counsel John Gleason and Chief Deputy Jamie Sudler will be in the CBA-CLE classroom to share their experiences from their two-year investigation and prosecution in Maricopa County and what became the “most significant attorney discipline case to ever go to hearing.”

Their story begins with years of intimidation and retaliation by the former Maricopa County Attorney. His targets were sitting judges, County Supervisors, County administrators, and private lawyers. After years of prosecutorial misconduct, the Rule of Law in Maricopa County was fast disappearing. As the elected head of the fourth-largest county in the United States, his misuse of power led to the largest lawyer discipline prosecution in history (chronicled in a 33-count, 247-page opinion).

Over the course of their investigation and prosecution, Gleason and Sudler were subject to shocking levels of harassment and intimidation as they worked to bring down a web of abuses at the highest levels. This program will allow them to speak directly to attorneys so that their extensive investigation into the ethical abuses in Maricopa County can serve as a lesson about prosecutorial misconduct, the Rule of Law, and professional conduct. You won’t want to miss this opportunity to hear first-hand about their experience in Arizona and their attempt to return justice to Maricopa County.

Law Week Colorado recently ran a story, Into The Shadows, which documented Gleason’s and Sudler’s investigation. Read an except below, followed by registration information.

The Arizona Bar Association, which licenses and regulates attorneys, . . . asked the Supreme Court to appoint an independent investigator to look into possible ethical violations by [Andrew] Thomas and two subordinates — Lisa Aubuchon and Rachel Alexander. The court reached out to a trusted name, the person who’d just helped revamp the state’s attorney ethics system. Regulation counsel Gleason and his team would be paid by Arizona, set up shop in that state’s Supreme Court building and somehow still manage the Colorado office.

When the chief justice first called, Gleason was far from certain of a positive outcome.

Either way, he and Sudler knew from the beginning this was a career case. As Thomas’ own attorney put it in the weeks leading up to the decision, “This was the largest and most significant attorney discipline case to ever go to hearing.”

It would also be the toughest. In a sense, Gleason and Sudler carried on their backs the hopes of a legal community long frustrated with what Phoenix’s mayor termed a “reign of terror.” Numerous ethics complaints had been filed against Thomas in the past, but none came to fruition.

The case was a piñata waiting to burst open. And when it did, the two attorneys had to deal with more than the legal soap opera. They became targets themselves. As Sudler would later say, “I never thought we’d get through it.”

CLE Program: Prosecutors on Trial – The Rule of Law or Unfettered Discretion

This CLE presentation will take place on Wednesday, July 18. Participants may attend live in our classroom or watch the live webcast.

If you can’t make the live program or webcast, the program will also be available as a homestudy in two formats: video on-demand and mp3 download.
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New Colorado Principles of Professionalism Approved to Guide Attorney Conduct

June 13, 2012 by Leave a Comment

The hallmark of a civilized society is its ability to maintain a legal system that is fair, effective and efficient. As lawyers, we have a predominant role in assuring that the legal system fulfills these goals. Toward that end, starting in 2009, the CBA-DBA Professionalism Coordinating Council undertook a project to meld existing principles of professionalism into a single unified document to create a guide for statewide use. This product of that consolidation of principles is not intended to supersede local Bar association rules of professionalism.

The wisdom and practicality of these combined Principles of Professionalism lie in two key features. First, highly experienced attorneys from many different practice areas and numerous judicial officers who are members of the Professionalism Coordinating Council reviewed, discussed, and developed the combined practice principles as “real-world” attainable goals for professional behavior to which the profession should aspire to apply every day in practice. Second, the principles have no coercive enforcement mechanism except those that have existed in our profession since the days of the quill pen and powdered wig: the fundamental commitment of attorneys to conduct themselves and their practices professionally and with integrity. Adherence to these principles brings its own rewards through the admiration of one’s colleagues, and falling short of these high standards brings the opprobrium and condemnation of those same colleagues. The mark of a professional calling is that it aspires first and foremost to police itself.

For the achievement of integrity throughout the legal profession, each lawyer should aspire to adopt the following Principles of Professionalism and to perform in accordance with the Practical Considerations outlined in the document below, approved in May 2012 by the Board of Governors.

New CBA Principles of Professionalism

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CBA Ethics Committee Updates Formal Opinion 68, “Conflicts of Interest; Propriety of Multiple Representation”

April 27, 2012 by Leave a Comment

The Colorado Bar Association Ethics Committee has been working on updating their Formal Ethics Opinions in order to reflect changes in the law, including the 2008 revision to the Colorado Rules of Professional Conduct. As part of that effort, the Ethics Committee released an updated version of Formal Opinion 68, “Conflicts of Interest; Propriety of Multiple Representation” in December 2011, and it was published in the March 2012 issue of The Colorado Lawyer.

Formal Opinion 68 addresses four specific conflict situations:

1) representation of both a husband and wife in negotiating a property settlement before dissolution proceedings commence;
2) representation of both the buyer and seller in a residential real estate transaction;
3) representation of both the buyer and seller of a business; and
4) representation of individuals in drafting an entity agreement, and representation of solely an entity in its formation.

The Ethics Committee opines that, in the first scenario, the dual representation would be impermissible under the Colorado Rules of Professional Conduct (Colo. RPC or Rules) because even if the divorce settlement agreement is uncontested, it must be approved by the court, and counsel cannot represent two parties whose interests are adverse under Colo. RPC 1.7.

In the second, third, and fourth scenarios, which are all transactional, the Ethics Committee declines to issue a blanket prohibition on representing both parties to the proposed transactions, but rather notes that each individual situation will require a thorough analysis of the propriety of the representation.

Opinion 68 provides a thoughtful and detailed evaluation of Colo. RPC 1.7 and its comments. It thoroughly examines informed consent, including when and whether it is appropriate, what can be consented to, how to obtain informed consent, the need to obtain new consent when there are situational changes, and confirmation in writing. Each scenario listed above is explored in depth, and the propriety of dual representation is examined for all for sample scenarios. The message of the Ethics Committee is clear: an attorney must examine the specific scenario involving a concurrent conflict of interest with the utmost scrutiny and caution prior to undertaking representation of conflicting parties.

The Ethics Committee develops its formal opinions as a means for providing Colorado attorneys with guidance. However, they issue the following caveat:

Formal Ethics Opinions are issued for advisory purposes only and are not in any way binding on the Colorado Supreme Court, the Presiding Disciplinary Judge, the Attorney Regulation Committee, or the Office of Attorney Regulation Counsel, and do not provide protection against disciplinary actions.

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