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Introducing the New Commission and Proclaiming October 2012 Legal Professionalism Month

April 25, 2012 by Leave a Comment

When I became Chief Justice in December 2010, I wanted to bring together the three major groups of the legal profession—the bar, the judiciary, and the legal academy—to better address the needs of the community in which we all serve. In the hopes of achieving this vision, in February 2011, I formed the Chief Justice’s Commission on the Legal Profession (Commission) to focus on four primary goals:

  1. improving the training of law students to help them better appreciate the vital role that attorneys play in our society;
  2. increasing the training of and providing more support for new lawyers;
  3. facilitating communication and cooperation between and among judges and attorneys; and
  4. encouraging the entire bar to recognize the broad legal needs of our community and improving public attitudes toward the profession through a renewed dedication to pro bono service.

Ultimately, I hope the Commission will serve as a forum for judges, attorneys, and legal educators to develop ideas that might eventually lead to legislation, rules, or substantive changes in law school curricula to better address the needs of the legal profession and our community as a whole.

The Commission, which meets quarterly, is comprised of practicing lawyers from various specialties, the deans of the University of Denver Sturm College of Law (DU) and University of Colorado Law School (CU), and appellate and trial judges from across the state. From this group, we formed four working groups to focus on each of the goals set forth above.

Working Group A: Legal Education

For the past year, Working Group A has sought to address the development of professional identity, social responsibility, and practice skills in law students and to increase the involvement of judges and bar leadership within our two law schools. To this end, it has worked closely with CU and DU to develop an annual event that will introduce law students to the concepts of professionalism and social responsibility.

We are excited to announce that the inaugural event—entitled “For This We Stand”—will take place on September 22, 2012. This two-part event will bring firstyear law students together in Denver from both Colorado law schools. The students will congregate in the Denver Athletic Club’s Grand Ballroom for remarks about the profession of law and the importance of practicing with professionalism. Sharing with me the honor of addressing the students will be U.S. District Court Judge Marcia Krieger, Colorado Court of Appeals Judge Russell Carparelli, and CBA 2012–13 President Mark Fogg.

Following the presentations, the students will break into smaller groups and go to the Denver City and County Building, where they will meet in a courtroom with a judge, a lawyer, and a former client. There, they will hear stories about the positive impact the profession can have on the lives of clients and society.

The conclusion of the event will be interactive. The students will participate in discussions about the vital role that reputation and relationships play in achieving a successful and fulfilling career.

Working Group B: Newly Admitted Attorneys

When the Commission first met, it identified the mentoring of new lawyers as the most pressing need in the legal community. Working Group B, in partnership with the CBA and Denver Bar Association (DBA), have been addressing the development of professional identity and social responsibility for newly admitted attorneys through mentoring programs.

Statewide Mentoring Program

A pilot study was initiated and a model for a prospective statewide program was developed by the CBA to assist several local bar associations, the law schools, the Yasui Inn of Court, the Colorado Hispanic Bar Association, and the Adams County District Attorney’s Office. Mentors and mentees earn fifteen CLE credits, including two ethics credits, for participating in the one-year program. The CBA has provided necessary staffing for the program.

The DBA’s mentoring program, which began more than two years ago and has more than seventy mentor and mentee pairings, has provided valuable background information for the pilot study. CU has a unique program that matches a mentor attorney, a mentee attorney, and a law student to jointly handle a pro bono case.

Working Group B and the mentor program standing committee will make recommendations to the Commission about funding and the hiring of an executive director. It is looking into expanding the program statewide.

Colorado Lawyers for Colorado Veterans

Working Group B, again in partnership with the CBA and local bar associations, also has worked to increase community outreach and opportunities for new and seasoned attorneys to engage in community service. The creation of Colorado Lawyers for Colorado Veterans, which the CBA has been instrumental in coordinating, is an outcome of this effort.

Colorado Lawyers for Colorado Veterans kicked off its efforts on Veterans Day 2011 with pro bono clinics in Denver, Colorado Springs, and Fort Collins. At its Veterans Day event, the Denver clinic accepted fifty-five cases. It has taken nearly 100 additional cases since then. As a result of the success of the first event and the continued demand within the community, the Denver clinic has begun to hold an event on the second Tuesday of each month and plans to continue the tradition of holding a larger annual event on Veterans Day. Colorado Lawyers for Colorado Veterans also is planning to conduct clinics in Pueblo, Alamosa, Colorado Springs, and Fort Collins, and at CU’s Boulder campus.

Finally, the group hopes to expand its efforts so it can provide monthly clinics at DU, as well as in Grand Junction and Durango. I am especially excited about this program, which provides our veteran heroes vital pro bono services while also increasing the opportunities for attorneys to engage with our community. If you are interested in supporting or participating in Colorado Lawyers for Colorado Veterans, please contact John Vaught at vaught@wtotrial.com or Ben Currier at benc@m-s-lawyers.com.

Working Group C: Bench and Bar Cooperation

The goal of Working Group C is to identify and implement strategies to facilitate communication and professionalism between and among judges and lawyers. Working Group C members have met with leaders of our many bar organizations and Inns of Court to explore ways to foster professional relationships and promote a collaborative culture of civility and respect.

As a result of this input, Working Group C has determined that one way to bring increased awareness to these vital issues is to establish an annual Legal Professionalism Month. Accordingly, 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.

As explained in the Proclamation (which appears at the end of this article), October 2012 will be a month for attorneys and judges to rededicate themselves to the importance of public service and community outreach. There will be professionalism events and pro bono activities throughout the month.

Legal Professionalism Month will culminate in “The Assembly of Lawyers” on the afternoon of October 29, 2012, at the Boettcher Concert Hall. This event, which will immediately precede the swearing-in ceremony for new attorneys, is intended to bring together lawyers from across the state to reflect on the importance of service in our profession. Although this event is still in the planning stages, we intend to grant CLE credit for attendance and expect to include an influential speaker on the subject of legal professionalism. Afterward, the assembled attorneys in Boettcher Hall will be joined by the newly admitted attorneys for a special session of the Colorado Supreme Court to administer the Attorney’s Oath. By their presence, the assembled lawyers will make visible the fact that we welcome the new attorneys into our great profession.

Working Group D: Outreach to the Community

Working Group D has focused its efforts on supporting the profession’s culture of service and increasing access to justice. To this end, Working Group D has reached out to and begun to collaborate with organizations such as the Colorado Access to Justice Commission, Colorado Legal Services, and Make History Colorado. This group has recognized that pro bono opportunities serve to benefit the community at large and provide fertile training ground for new lawyers to obtain trial experience. Collaboration in pro bono activities also could serve as a way to bond mentors and mentees through joint participation and representation.

Consistent with the recommendations of the Colorado Access to Justice Commission, Working Group D has focused on encouraging members of the private bar, government attorneys, in-house counsel, and newly licensed lawyers to increase their participation in pro bono representation. The members of this group plan to meet with the managing partners of metro area law firms to discuss how to remove existing barriers to pro bono service and to explore the viability of collecting pro bono data as an incentive to increase participation. Additionally, Working Group D will continue to publicize and advance the efforts of Make History Colorado and to collaborate with the CBA on its work with pro bono and unbundled legal services. Finally, following the successful model of the Adams County pro se Self-Help Center,1 Working Group D plans to identify additional sources of funding to establish self-help centers across the state.

Galvanizing Professionalism

After a productive and inspiring inaugural year, several prominent themes have emerged from the Commission’s work. I believe our profession has been and continues to be a positive force for society. However, at times—in the face of economic and professional pressures, for example—we have lost our way.

Accordingly, 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.

Note

1. The Self Help Resource Center at the Adams County Justice Center is available at www.courts.state.co.us/Courts/District/Custom.cfm?District_ID=17&Page_ID=335. See also “Online Pro Se Resources” at www.courts.state.co.us./Self_Help/proSeResources.cfm.
Proclamation: Declaring October 2012 Legal Professionalism Month In the State of Colorado

The Colorado Lawyer, the official publication of the Colorado Bar Association, serves as an informational and educational resource to improve the practice of law. When you see the logo, you’re reading an article from The Colorado Lawyer. CBA members can also still read the full issue online at cobar.org/tcl.

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Paper Shredding and Electronics Recycling Day Coming in June

April 23, 2012 by 1 Comment

Join the Denver Bar Association for their annual paper shredding and electronic recycling day on June 6, 2012, from 3:30 – 5:30 pm. Dispose of your sensitive client and case information at this free event in the parking lot east of the DBA offices, located at 1900 Grant Street in Denver.

A donation of one food item or $2.00 is requested per box or electronic item. All contributions benefit Metro CareRing, a hunger relief organization that operates one of the largest food pantries in Denver.

There is a limit of 20 boxes (no 3-ring binders) and five electronic items per vehicle. Click here for more information on acceptable items for recycling. Make sure all hard drives are wiped clean before you recycle them.

Click here for more information.

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Regulation Counsel Says Law Students Need More Exposure to Professionalism

April 18, 2012 by Leave a Comment

This post originally appeared on the Educating Tomorrow’s Lawyers blog. Educating Tomorrow’s Lawyers is an initiative of the Institute for the Advancement of the American Legal System (IAALS) that leverages the Carnegie Model and the work of law schools and professors committed to legal education reform to align legal education with the needs of an evolving profession by providing a supported platform for shared learning, experimentation, ongoing measurement and collective implementation.

We recently sat down to talk with John Gleason. As Regulation Counsel for the Colorado Supreme Court, he directs the office of the Court responsible for lawyer admissions, registration, regulation, and client protection. In 2010, Gleason was appointed by the Arizona Supreme Court to investigate and prosecute Andrew Thomas, the former Maricopa County Attorney—a prosecution that last week ended in the disbarment of Thomas and one of his lieutenants, and the suspension of another attorney in Thomas’ office.

Gleason often meets lawyers when they are at their most vulnerable—under investigation for misconduct—and he believes new lawyers need more guidance on professional issues. Recent graduates, he says, are often referred to his office for minor misconduct issues. “There are an enormous number of issues that are not covered in law school. In fact, probably most issues related to professionalism are not covered in law school.”

Hear more from John Gleason below or click here to view the rest of his interview.

Alli Gerkman is Online Content Manager for IAALS, where she manages, edits, and creates content for IAALS and Educating Tomorrow’s Lawyers.
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Coach’s Corner: Do Your Due Diligence on New Clients

February 15, 2012 by Leave a Comment

Under Rule of Professional Conduct 1.16, a lawyer may withdraw from representing a client if “the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client.”

However, withdrawing from a representation already begun is extremely difficult, as much of the rest of Rule 1.16 attests. An attempt to withdraw without adequate communication about and careful records of the difficulty that the client has caused — whether for nonpayment of fees, lack of cooperation or some other failing — may bring a state bar disciplinary action requiring future work without pay to fulfill ethical obligations toward the client.

Withdrawal cannot be done without reasonable notice to the client, allowing time for employment of other counsel, surrendering the client’s papers and property and refunding any advance payment of fees that have not been earned.

The simple fact is that no lawyer needs to contend with such headaches. The antidote to withdrawal is to undertake full due diligence before entering into a formal engagement agreement with the client. At the time of engagement, a lawyer must determine whether the goals of the client are understood and can be met. This also requires determining whether the client will facilitate achieving those goals. And facilitation, as Rule 1.16 suggests, means paying the bill and cooperating with the lawyer.

Due diligence on the client’s willingness and ability to pay should be documented in the initial engagement agreement. This investigation is a step that too many lawyers neglect, though it can be as simple as requesting a credit report from one of the consumer credit agencies or from a business credit reporter such as Dun & Bradstreet.

Once it is clear that prospective clients can pay, a signed engagement stating the terms and responsibilities for payment attests that they will pay. Clients who cannot or will not sign a fee agreement or pay a retainer, or who want to start now and pay later, should be considered suspect.

Cooperation is a similar issue. Avoid a client with unrealistic expectations or demands. Discussing engagement terms will frequently uncover the client who will in the future express irritation with delay, chronically complain about everything, demand constant or instant attention or expect unrealistic or abnormal hand-holding. Telltale signs are when prospective clients:

  • insist that their matter is “life and death”; such clients will often be future sources of last minute emergencies that at best are irritating and at worst can result in errors under pressures;
  • use pressure tactics to urge that their matter be handled immediately.
  • demonstrate a bad attitude toward lawyers and the judicial system, or suggest that they know better than the lawyer what needs to be done; and/or
  • cannot articulate what they want their lawyer to achieve.

Due diligence is a business essential. When you determine that a client will perceive what you do as being worthwhile and valuable, you are more likely to have successful engagements and a financially successful firm. Conversely, rejecting potential problem clients before representation will enhance that success by eliminating fee-collection difficulties and possible malpractice claims.

Ed Poll is a nationally recognized coach, law firm management consultant, and author who has coached and consulted with lawyers and law firms in strategic planning, profitability analysis, and practice development for over twenty years. Ed has practiced law on all sides of the table and he now helps attorneys and law firms increase their profitability and peace of mind. He writes a syndicated legal column, Coach’s Corner, where this post originally appeared on January 23, 2012.
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Candid Microphone: Surreptitious Recording and Legal Ethics

December 16, 2011 by Leave a Comment

We’ve all seen TV shows and movies where a secretly recorded conversation exposed some villainy—a love affair, confessions to embezzlement, perhaps an admission that testimony was fraudulent. On some of these shows, it might have been an attorney secretly recording the conversation. If the conversation was recorded by an attorney in Colorado, that attorney could face sanctions for surreptitious recording.

The Colorado Bar Association Ethics Committee adopted Formal Opinion 112 on July 19, 2003. The opinion asserts that it is generally improper for an attorney to secretly record a conversation, even if the recording is allowable under state law, because the conduct necessarily involves an element of deceit or trickery. In addition to Opinion 112, there are Rules of Professional Conduct that apply to surreptitious recording. Colo. RPC 8.4(c) bans conduct involving dishonesty, fraud, deceit, or misrepresentation. Is it possible to secretly record a conversation without violating Rule 8.4(c)?

Opinion 112 states two exceptions to the general prohibition on surreptitious recording. First, it makes an exception for criminal law, where “surreptitious recordings . . . have long been commonplace.” Next, and most controversially, an exception is provided for conduct that occurs strictly in the lawyer’s personal life.

Perhaps an attorney suspects spousal infidelity, and wishes to record a conversation that may implicate that spouse in an extramarital tryst. Perhaps that secretly recorded conversation will be used in the attorney’s divorce proceeding. Perhaps that attorney is self-represented. Would the recording then become fodder for a disciplinary proceeding, since the recording was used in the practice of law?

These questions are difficult to answer with certainty, but case law points to a conclusion on the permissibility of surreptitious recording in a lawyer’s personal life. That case law will be discussed by Jack Tanner and Jerry Pratt on December 20, 2011, in their one-hour lunch time CLE program, “Candid Microphone: Surreptitious Recording and Legal Ethics.” Registration information below.

CLE Program: You’re On Candid Microphone! Surreptitious Recording and Legal Ethics

This CLE presentation will take place on Tuesday, December 20. 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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Guardians ad Litem and the Attorney-Client Privilege: The Aftermath of the Gabriesheski Decision

November 1, 2011 by Leave a Comment

On October 24, 2011, the Colorado Supreme Court issued its long-awaited opinion in People v. Gabriesheski. The Court held that because a child in a dependency and neglect proceeding is not the client of a court-appointed guardian ad litem (GAL), the attorney-client privilege and confidentiality do not strictly apply. In reaching its decision, the Court noted that the role of the GAL is to represent the interests of the child, not the child himself or herself. The full case summary can be read below.

What will this mean for guardians ad litem and the children whose interests they represent? The decision raises many questions for family and juvenile law practitioners, including how to handle the ethical challenges of the case moving forward. Attorneys Sheri Danz and Linda Weinerman from the Office of the Child’s Representative, amicus curiae in Gabriesheski, will discuss the far-reaching ramifications of this important decision, issued only last week. This CLE program will be held on Monday, November 7, and will provide 1 General CLE credit and 1 Ethics credit.

Don’t miss this excellent opportunity to stay on the cutting edge of family and juvenile law developments in Colorado and learn how this very recent Colorado Supreme Court decision will affect your practice. Registration information is provided below.

People v. Gabriesheski

Dependency and Neglect Proceeding—Attorney–Client Privilege—Confidentiality of Communications—Guardian ad Litem—Social Worker—Witnesses.

The People sought review of the court of appeals’ judgment affirming two in limine evidentiary rulings of the district court in a prosecution for sexual assault on a child by one in a position of trust in People v. Gabriesheski, 205 P.3d 441 (Colo. App. 2008). Following the district court’s exclusion of testimony concerning the recantation of the defendant’s step­daughter, the alleged child-sexual-assault victim, the prosecutor conceded her inability to go forward, and the case was dismissed. The court of appeals concluded that section 16- 12-102(1), C.R.S. (2010), gave it jurisdiction to entertain the People’s appeal, but it affirmed both of the trial court’s evidentiary rulings.

With regard to the exclusion of testimony by the guardian ad litem appointed in a parallel dependency and neglect proceeding, the court of appeals held that the child’s communications with the guardian fell within the attorney-client privilege, as set out at section 13-90-107(1)(b), C.R.S. (2010). With regard to the exclusion of testimony by a social worker also involved in the dependency and neglect proceeding, the court found her to be both a professional who could not be examined in a criminal case without the consent of the parent-respondent, as dictated by section 19-3-207, C.R.S. (2010), and a licensed professional who could not be examined without the consent of her client, according to section 13-90-107(1)(g), C.R.S. (2010).

The Colorado Supreme Court affirms in part and reverses in part, holding that the court of appeals did have jurisdiction to entertain the People’s appeal, but disapproved of its conclusions with regard to both of the trial court’s evidentiary rulings. The supreme court finds that because a child who is the subject of a dependency and neglect proceeding is not the client of a court-appointed guardian ad litem, neither the statutory attorney-client privilege nor ethical rules governing an attorney’s obligations of confidentiality to a client strictly apply to communications by the child. Further, the supreme court finds that because the trial court apparently understood section 19-3-207 to bar the examination of the social worker in the defendant’s criminal case as long as she qualified as a professional involved in the dependency and neglect proceeding, it failed to make sufficient findings to satisfy the additional statutory requirement that the statements at issue be ones made in compliance with court treatment orders, or to demonstrate the applicability of section 13-90-107, which is limited by its own terms to communications made by a client in the course of professional employment or psychotherapy.

CLE Program: Guardians Ad Litem and the Attorney-Client Privilege – The Aftermath of the Gabriesheski Decision

This CLE presentation will take place on Monday, November 7. 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 Ethics Opinion: Candor to the Tribunal and Remedial Measures in Civil Proceedings

October 17, 2011 by Leave a Comment

In case you missed it last month, CBA-CLE held a program entitled Lawyers’ Duty of Candor to the Tribunal and Remedial Measures in Civil Actions and Proceedings on September 20, 2011. The program addressed the prohibition against offering false evidence, the duty to take remedial measures, and the duty to correct false statements by the lawyer set forth in Rule 3.3 of the Colorado Rules of Professional Conduct. The program also looked at the knowledge and materiality elements of the Rules, the duration of the lawyer’s duties under the Rule, and the steps that the lawyer must take when confronted with this problem of material false evidence.

Overall, the program was a great way for lawyers to make sure they are in compliance with the ethical rules and to learn how to face these tough ethical dilemmas that are bound to arise at some point in your practice.

And, the program couldn’t have been more timely. After it concluded, the the CBA Ethics Committee released its final, edited version of Formal Opinion 123, “Candor to the Tribunal and Remedial Measures in Civil Proceedings.” It will be published in the December 2011 issue of The Colorado Lawyer, but you can read it here now first. The opinion provides a detailed analysis of the issues, followed by four illustrations designed to provide more practical guidance to lawyers facing these situations.

The homestudy covering these issues is now available as well, in two formats: video on-demand and mp3 download.

Formal Opinion 123 – Candor to the Tribunal and Remedial Measures in Civil Proceedings

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Joe Lusk: Explore New Practice Areas with Co-Counseling Agreements

September 12, 2011 by Leave a Comment

A co-counseling arrangement can allow a solo or small firm lawyer to explore new and complex areas of law.  Co-counseling agreements may also allow a lawyer to take on matters that he or she might not otherwise feel comfortable taking on.  The co-counseling arrangement does all of this, while significantly reducing the danger of committing malpractice. Consider the following situations:

  1. You are an experienced civil litigator and would like to branch out into criminal defense work.  A potential client who has been charged with a serious felony approaches you and you don’t feel comfortable taking this on alone as your first criminal case.
  2. You are an experienced criminal defense lawyer, but have never taken on a divorce matter.  A potential client approaches you with a new matter involving complex issues concerning the children and division of assets.  There are child abuse allegations on both sides, and the husband owns his own business that is worth several million dollars.
  3. You are an experienced civil litigator, who is approached with a multimillion dollar medical malpractice case.  Although you have litigated many personal injury cases, you have never even seen a medical malpractice case, and you have no medical background.

In the above scenarios, would you be inclined to take on these cases?  Would you have reservations about your ability to effectively represent your client?  If your answer to both of these questions is yes, you may want to consider a co-counseling arrangement with another lawyer who has experience in the areas of concern.  In fact, you may be required to do so – see Goff v. People, 35 P.3d 487 (Colo. O.P.D.J. 2000).

The two important written documents for the co-counseling arrangements are your fee agreement, which must authorize a co-counseling arrangement, and a co-counseling agreement with your co-counsel.

The fee agreement with the client should include not only your client’s authorization to hire co-counsel but also an authorization concerning the critical terms of the co-counseling agreement, including, perhaps most importantly, the fees for each of the lawyers.

The co-counseling agreement should be specific as to each lawyer’s role in the matter.  Specifically, the co-counseling agreement should identify which lawyer is the lead counsel (especially in the event of litigation); the fee arrangement for each lawyer; who is responsible for collecting fees; and the procedure for lawyers consulting with each other.  It is important to note that before entering into any co-counseling arrangement, both lawyers should have malpractice insurance in effect.  The representation of the same party should be reflected in the written co-counseling agreement.

In any type of litigation, the co-counseling agreement should identify whether each lawyer should review the pleadings for final approval before they are filed.

A co-counseling agreement can add variety to your practice, increase your number of colleagues, and allow you to see whether you might want to delve more into a new practice area.

Joe Lusk is an attorney with Boatright & Ripp, LLC in Wheat Ridge, Colorado. His practice includes emphases in personal injury and criminal defense. Joe chairs the Solo/Small Firm Section of the Colorado Bar Association and contributes to the CBA’s SOLO in COLO blog, where this post originally appeared on August 30, 2011.
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Legal Affairs: Attorney Accolades, September 2011

September 7, 2011 by Leave a Comment

Christopher J. Neumann, a shareholder in the Denver office of Greenberg Traurig, LLP, has received Colorado State Senate confirmation for his appointment to the Colorado Solid and Hazardous Waste Commission by Gov. John Hickenlooper.

Kara C. Martin, former district and county court magistrate in the 18th Judicial District, joins the Rocky Mountain Children’s Law Center as Domestic Violence Program Director. Martin has an extensive background in domestic violence matters and child advocacy, handling protection order cases for approximately four years as a magistrate in the 18th Judicial District.

John W. Grund, a partner in the Denver-based defense firm, Grund Dagner, P.C., has been recognized by The Roller Skating Association International for his exemplary and innovative assistance to the association. Grund’s practice focuses on recreational liability along with the defense of complex and multidistrict litigation, product liability, common-carrier and general aviation law, hospitality law, malpractice, and insurance law.

David Asarch, corporate counsel for affordable property management firm, Monroe Group, and its real estate development partner, Steele Properties, has joined the Board of Directors of Jewish Family Service of Colorado. Asarch has served on the organization’s Development Committee for the past year, and will continue to support its services in four key areas: mental health counseling, senior services, disability and employment services, and family safety net services regardless of faith or economic status.

The First Judicial District Bar Association and First District Judicial District Access to Justice Committee recently awarded Denver trademark/copyright attorney David A. Weinstein a certificate of appreciation for his outstanding contributions and services regarding pro bono mediation.

 

Deana Dagner, a partner in the Denver-based defense firm, Grund Dagner, P.C., has been designated a state chair for the Council on Litigation Management.

 
Wheeler Trigg O’Donnell congratulates partner Mark Clouatre on his completion of the Ironman 70.3 Hawai’i. He finished the race in 6:04 and placed among the top third of participants. Cloutre’s national litigation practice focuses on commercial, franchise, product liability, and general tort cases.

 

Perkins Coie has earned a Gold Standard Certification from The Women in Law Empowerment Forum (WILEF). The Gold Standard Certification seeks to certify, publicly recognize, and broadly publicize law firms that have integrated women into the highest leadership positions in the firm.

Derek Blass released his debut novel, “Enemy in Blue,” in June. The novel follows a young lawyer who is drawn into a case involving the murder of an illegal immigrant caught on video and an allegedly racist cop.

Faegre & Benson partner David Stark has been appointed by Colorado Chief Justice Michael Bender to the newly formed Commission on the Legal Profession.

 

The Docket eFile brings features from your favorite Denver Bar Association publication to you digitally. When you see the logo, you’re reading an article from The Docket. You’ll also still be able to read the full issue online at denbar.org/docket.

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Division of Real Estate Proposes New Rule Regarding Broker Competency

September 7, 2011 by Leave a Comment

The DORA Division of Real Estate has proposed a new rule to regulate and enforce real estate broker competency. Real estate brokers are required to perform the terms of their real estate transaction agreements with clients, but they also must exercise reasonable skill and care and have a duty to promote the interests of their clients “with the utmost good faith, loyalty, and fidelity.” It is a violation of the real estate license law if a licensee demonstrates unworthiness or incompetency to act as a real estate broker by conducting business in such a manner as to endanger the interest of the public.

The purpose of this rule is to ensure that licensed real estate brokers do not agree to perform brokerage activities in a transaction where they lack the necessary training, experience, or education to fulfill the terms of the brokerage practice agreement, unless the licensed broker is assisted by another licensed real estate broker possessing the necessary competency.

The new rule, E-47 Competency, is also accompanied by an enforcement provision.

A hearing on the new rule will be held on Tuesday, October 4, 2011 at 1560 Broadway, Suite 1250-C, Denver, Colorado 80202, beginning at 9:00 am.

Full text of the proposed rule can be found here. Further information about the rule and hearing can be found here.

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Ethics and Professionalism: Civility in the Practice of Law

September 6, 2011 by Leave a Comment

This is the annual Ethics Program that brings you interactive legal theater for your CLE experience. You will not find a more stimulating, thought-provoking, or enjoyable morning of ethics anywhere. You will be entertained and engaged by our distinguished panel through a carefully crafted series of interactive vignettes that encompass each of the ethical and professional dilemmas that you are bound to face in your day-to-day practice.

Your morning begins with a brief introduction and history of professionalism so that you will realize the impact it has on your legal practice. Then begins the series of everyday scenarios in the typical life of a lawyer, demonstrating the trials and tribulations involved in your handling of ethical and professional dilemmas. The most common and most difficult problem areas are covered, including:

  • The interaction between lawyers, clients, and opposing counsel
  • Bias issues
  • Mentoring
  • Client and counsel communication

And, of course:

  • Courtroom decorum

To wrap-up your morning, you will be shown how professionalism and ethics are distinct concepts and also where they are inextricably intertwined. The complete package will certainly raise the bar for your practice!

The program is the culmination of several years of creative work, undertaken on your behalf, by the Professionalism Committee of the Colorado Bar Association (CBA). This program will truly inspire debate and discussions that will result in a more gratifying and rewarding legal practice.

Don’t miss out on this unique CLE experience and the chance to knock out the majority of your required ethics credits in one morning – click here to register!

CLE Program: Ethics and Professionalism – Civility in the Practice of Law

This CLE presentation will take place on Friday, October 7. 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 three formats: video on-demand, mp3 download, and audio CD recordings. The course materials will also be available.
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Ben Aisenberg: Reasonableness of a Contingent Fee – A Prospective or Retrospective Approach

September 2, 2011 by Leave a Comment

In assessing the reasonableness of a contingent fee on completion of the contingency, must the reasonableness of the fee be judged as of the time the contingency fee agreement was entered into, pursuant to ABA Formal Opinion 94-389, or does the attorney have the obligation to take a retrospective approach to determine whether the fee is reasonable?  See ABA Formal Opinion 94-389 and Contingent Fee Agreements, Bennett S. Aisenberg, Colorado Lawyer, July, 1996 at pg. 65.

In what would appear to be the most definitive appellate declaration to date as to whether the reasonableness of a contingent fee should be determined prospectively or retrospectively, the Colorado Court of Appeals in Berra v. Springer & Steinberg, 251 P.3d 567 (Colo. App. 2010) held that it is incumbent for a reviewing Court to scrutinize a contingent fee agreement to determine its enforceability.  The Appellate Court found that the reasonableness of a contingent fee agreement is subject to a retrospective approach, i.e. it must be assessed not only in light of the circumstances which existed at the time the agreement was entered into, but also retrospectively as to whether the services were reasonably worth the percentage amount set forth in the agreement, in effect, a quantum meruit approach using the factors set out in Colo. RPC 1.5(a).  The approach followed by the Court in affirming the trial court was to multiply the number of hours plaintiff’s counsel reasonably spent, times his hourly rate, and then multiply that figure by, in this case, 2.5, pursuant to Colo. RPC 1.5(a)(8), the fact that it was a contingency and the potential risk this involved.  The multiplier approach is consistent with Brody v. Hellman, 167 P.3d 192 (Colo. App. 2007) (multiplier of 2.3 times lodestar amount permitted in a common fund case).

It is noteworthy that the trial court and the Appellate Court only considered counsel’s contemporaneously documented hours and rejected some 50 to 100 additional hours to which plaintiff’s counsel testified, but which were not documented.  The final result was the contingent fee was cut by more than half.  The Supreme Court denied certiorari.  If there is a message to be learned from Berra v. Springer & Steinberg, it is to keep contemporaneous timesheets.

Berra was essentially a collection case which went on for six years.  In 2006, when the judgment debtor discovered he had terminal cancer, he decided to sell all his assets and pay his debts.  The Court of Appeals further held that it was this fortuitous circumstance that brought about the payment of the judgment to the exclusion of Springer & Steinberg’s efforts to collect it.  Query, will the holding in Berra open a floodgate of litigation whereby a contingent fee pursuant to a settlement is contested, based on the fact that other circumstances played into the defendant’s decision to settle the case?  Does this put the contingent fee attorney in a situation similar to a real estate broker, where the broker must be the “procuring cause” of the transaction?

Bennett S. Aisenberg practices law in Denver. He has served as a member of the Colorado Bar Association Ethics Committee since 1986. In 2003, he received the Denver Bar Association Award of Merit. Ben is a past president of the Colorado Bar Association, the Denver Bar Association, and the Colorado Trial Lawyers Association. He blogs at coloradoethics, where this post originally appeared on August 22, 2011.
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2013-05-23 09:36:25