June 19, 2013

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HB 13-1324: Adding Two Members of the General Assembly to the State Internet Portal Authority Board of Directors

May 8, 2013 by Leave a Comment

On April 29, 2013, Rep. Carole Murray and Sen. Jeanne Nicholson introduced HB 13-1324 - Concerning the Addition of Members of the General Assembly to the Board of Directors of the Statewide Internet Portal Authority. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill enlarges the board of directors of the statewide Internet portal authority from 13 to 15 members by adding a member who is appointed by the minority leader in the Senate and a member who is appointed by the minority leader in the House of Representatives. The bill also specifies when the appointments are to be made and when the terms of the new board members begin and end.

The bill was introduced in the House on April 29 and passed out of the Business, Labor, Economic, & Workforce Development Committee on May 2. The House approved the bill on 2nd Reading May 2 and 3rd Reading on May 3. The bill was then introduced in the Senate on May 3 and passed out of the Judiciary Committee and is now on the 2nd Reading Consent calendar in the Senate.

Since this summary, the bill passed Second Reading in the Senate, unamended, and also passed Third Reading in the Senate.

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Social Media Policies: Permissible Employer Regulation

March 8, 2013 by Leave a Comment

Joel Jacobson_pictureBy Joel Jacobson

Social media use is rapidly increasing and has become central to the workforce. Employers recognize that public information posted online is useful for monitoring employee activity and the portrayal of the company. However, new technologies result in unintended, legal consequences. Recently, an Applebee’s waitress was terminated after posting a customer’s receipt on reddit and the SEC warned Netflix’s CEO that his Facebook post might trigger securities regulations. Colorado attorneys should pay attention to legal developments within the social media context because the appropriate level of employer regulation of employee social media use remains unsettled.

Many laws are potentially implicated when an employer improperly regulates or misuses information from social networking sites. Notably, Anti-Discrimination laws (ADA, Title VII, ADEA), Stored Communications Act, National Labor Relations Act (protecting concerted activities for the purpose of collective bargaining or other mutual aid or protection), Lawful Off-Duty Conduct, and common law privacy claims should be considered. Recent decisions have targeted social media policies that are wide sweeping and impinge on protected employee action. In fact, rulings by the NLRB led large, publicly traded companies including GM, Target, and Costco to rewrite their social media policies.

The chairman of the NLRB explains that social media is the “new water cooler” and that current government regulation results from “applying traditional rules to new technology.” Application of the traditional rules takes place on a case-by-case basis and the NLRB found it permissible to terminate a single employee whose internet posts harmed the company and had no relation to protected activity. Workers have the right to talk with each other for the goal of improving pay, benefits, and working conditions. As such, social media policies should be revisited to determine whether they are too restrictive. Courts will look to company policies, procedures, and conduct so it is essential that Colorado attorneys help draft guidelines tailored to accomplish a specific, lawful end.

Employers will continue to turn to lawyers for guidance in this developing area of law. To this end, Colorado lawyers should know that employers must not access employee, online information by deceitful means. Also, common law privacy claims can be addressed with a written policy that defeats an employee’s reasonable expectation of privacy. Finally, a savings clause in a social media policy can explicitly state that the policy is not meant to prevent employees from engaging in protected, concerted activity.

Joel Jacobson is a Contracts and Operations Associate with H.B. Stubbs Company, LCC – a national design and fabrication firm headquartered near Detroit, MI for exhibits displayed by technology and automotive companies. He focuses on contracts, employment law, and a variety of non-legal business issues. Joel serves on the Executive Council of the Denver Bar Association Young Lawyers Division and has an interest in topics impacting start-up companies in the Denver entrepreneurial community. He can be reached by email at jmjacobson1@gmail.com or on Twitter @J_m_Jacobson.

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.

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HB 13-1079: Creation of the Joint Technology Committee in the House and Senate

February 22, 2013 by Leave a Comment

On January 14, 2013, Rep. Max Tyler and Sen. Linda Newell introduced HB 13-1079 - Concerning the Creation of the Joint Technology Committee of the Senate and House of Representatives. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill creates the joint technology committee of the Senate and House of Representatives, which functions during legislative session and during the interim.

The joint technology committee will have oversight over and may review:

  • The office of information technology;
  • The chief information security officer and his or her duties related to information security;
  • Any telecommunications coordination within state government that the chief information officer performs pursuant to state law;
  • The general government computer center;
  • The government data advisory board and any of its subcommittees;
  • The actions of the statewide internet portal authority;
  • Any information technology purchased or implemented by a state agency that is not being managed through the office of information technology;
  • Any information technology that a state agency has purchased or implemented that does not follow the standards as set by the office of information technology;
  • Any information technology that a state agency has purchased or implemented that will have the same function as information technology that the office of information technology has already created, purchased, or implemented.

The bill also requires the legislative and judicial department, the department of law, the department of state, and the department of the treasury to each submit a written report to the committee that details all information technology that such department purchased or implemented. Assigned to the State, Veterans, & Military Affairs Committee and is scheduled for committee review on Wednesday, February 20 upon morning adjournment.

Since this summary, the House State, Veterans, & Military Affairs Committee amended the bill and sent it to the Appropriations Committee.

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Tenth Circuit: Defendant Needs No Knowledge of Distribution Capability of File Sharing Program He is Using to View Child Pornography for Sentence Enhancement to Apply

November 8, 2012 by Leave a Comment

The Tenth Circuit issued its opinion in United States v. Ray on Tuesday, November 6, 2012.

In August 2011, Defendant Ray pleaded guilty to the knowing, intentional, and unlawful receipt of child pornography. In its presentence investigation report (PSR), the probation office assigned defendant, among other sentence enhancements, a two-level enhancement because defendant’s offense involved the distribution of child pornography. Defendant objected to the enhancement on the ground that the government had offered no evidence that defendant had distributed any child pornography or that any of the files downloaded had later been shared with another computer. Defendant further argued that even if such sharing had occurred, such sharing had been unintentional.

This appeal presents the question whether the district court could properly apply the two-level sentencing enhancement for the distribution of child pornography when the record indicated only that defendant used a peer-to-peer file-sharing software and that its sharing function was enabled, but not that defendant actually knew his software was capable of sharing files.

The Tenth Circuit held that § 2G2.2(b)(3)(F) does not require that a defendant know about the distribution capability of the program he is using to view child pornography. The Court noted it had repeatedly held that when the plain language of a guideline, in contrast to a criminal statute, does not include a mens rea element, the court should not interpret the guideline as containing such an element. The sentence enhancement was therefore properly applied.

The Tenth Circuit also rejected defendant’s claims that the district court unconstitutionally made findings for sentencing enhancements under a preponderance-of-the-evidence standard, that the court erred procedurally at sentencing, and that the sentence was substantively unreasonable. Accordingly, defendant’s sentence was AFFIRMED.

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Colorado Court of Appeals: Taxation Appropriate on Download of Computer Software Even Without Transfer of Ownership of Software

September 18, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in Ball Aerospace & Technologies Corp. v. City of Boulder on September 13, 2012.

Use Tax—Downloaded Software—Online Data Services.

In this use tax assessment dispute, the City of Boulder (City) appealed the trial court’s summary judgment for plaintiff, Ball Aerospace & Technologies Corporation (Ball), reversing a hearing officer’s determination that Ball owed use tax on its acquisition of downloaded computer software and access to online data services. The judgment was reversed and the case was remanded.

The City conducted an audit of Ball and assessed use tax on both downloaded software and online data services. Ball paid the amount owing under the assessment, but protested the City’s application of its use tax to these items. The hearing officer upheld the assessment as to the downloaded software and online data services, and the trial court reversed that decision.

The City argued that the trial court misconstrued the City Code and erred in concluding that neither the downloaded software nor the online data services are subject to City’s use tax. Use tax is levied on the privilege of storing, using, or consuming tangible personal property purchased at retail. The City Code defines “use” as “the exercise, for any length of time, by any person within the City of any right, power, dominion, or control over . . . taxable services when leased or purchased at retail from any person inside or outside the City.” By its plain language the City Code levies the use tax on computer software (1) leased or purchased at retail; (2) contained on an enumerated form or other machine-readable or human-readable form; and (3) over which the buyer has any right, power, dominion, or control. Further, the City Code does not require the transfer of ownership before the use of software is taxable. By paying to access the online data services, Ball purchased the right to use, from a remote location, the computer software contained on the service providers’ servers; therefore, the trial court erred in holding that downloaded software and remote access to the online service providers’ software are not taxable use of computer software under the City Code.

Summary and full case available here.

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ABA House of Delegates’ Ethics 20/20 Commission Approves Changes to the Model Rules of Professional Conduct

September 6, 2012 by Leave a Comment

The dawn of the information age has changed life as we know it. Our personal lives and businesses have been affected, and the practice of law is no exception. The ABA House of Delegates’ Ethics 20/20 Commission met in August to decide how best to advise attorneys of their ethical obligations in the global marketplace. The top ten issues addressed by the House of Delegates were:

  1. Protecting client information in electronic communications;
  2. Cloud storage and properly safeguarding protected client information;
  3. How to set up an ethical screen for a new attorney with a shared electronic network;
  4. The importance of competency in a multi-jurisdictional practice;
  5. How attorneys who frequently change jurisdictions can practice law without undergoing rigorous admittance procedures;
  6. Outsourcing to other lawyers and non-lawyers, and potential hazards;
  7. What types of online behaviors could potentially create an attorney-client relationship (including social media, communications on law firm websites, etc.);
  8. The ethical propriety of advertising on the internet, and whether pay-per-click ads constitute improper referral services;
  9. The importance of competency in technology, including some understanding of electronically stored information; and
  10. Advising clients on technology, such as maintaining electronically stored information.

The American Bar Association Model Rules of Professional Conduct are intended to provide guidance to the states, and to encourage adoption of a standard procedure throughout the country for attorney regulation and discipline. However, although resolutions on the above topics were passed by the ABA, they are not binding on Colorado attorneys absent amendments to the Colorado Rules of Professional Conduct.

Join us at CBA-CLE on Wednesday, September 12, for a breakfast seminar where Troy Rackham, a representative of the House of Delegates, and Alec Rothrock, from the Colorado Rules of Professional Conduct committee, will present on the changes adopted by the ABA and what this means for attorneys in Colorado.

CLE Program: Competency and Confidentiality in Lawyers’ Use of Technology – New Changes to Model Rules of Professional Conduct

This CLE presentation will take place on Wednesday, September 12, at 8:30 a.m. 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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Coach’s Corner: Be a Lawyer and a Teacher

August 23, 2012 by Leave a Comment

Rebecca Mieliwocki of Burbank, Calif., was recently named 2012 Teacher of the Year and honored by President Obama at a White House ceremony.

Among other impressive achievements in her career, she went to law school. This transition is not peculiar. Lawyers are, after all, teachers. They tell stories to instruct jurors and judges for the benefit of their clients.

But lawyers may not realize that they can use teaching techniques in many other ways to make the business of law more successful.

Consider just a few examples and ask yourself how good a teacher you are.

Justify your fees

Value is ultimately determined by the client, not the attorney. But it’s the attorney who must educate the client about the value of his services.

Most clients recognize the importance of and are willing to pay a fair fee for value. What they do not want is to pay for inefficiencies, duplications or unnecessary services.

To avoid fee disputes, lawyers must regularly demonstrate that their skills and the way in which services are delivered to the client coincide with what the client wants and needs.

Blog to inform

Lawyers often know a great deal about industry and economic issues that are important to clients, and can educate their clients about trends and developments using blog posts.

A blog combines the lawyer’s observations on breaking legal or regulatory issues with specialized content and research and can offer the option to comment and ask specific questions. This defines a teaching relationship — and also often serves as the beginning of a client relationship.

Educate your staff

In the current law firm world, lawyers and staff are affected by the ongoing transformation of client expectations and legal service delivery. Lawyers must take the lead in helping all staff members understand this change.

More than the continuing sluggish economy alone, firms are contending with upheaval in the way law is practiced. Secretarial assistants, technology specialists, project managers, any staff — they all need a better understanding of the forces reshaping law firms, and the lawyers who employ them should provide that understanding.

Emphasize the value of beyond-the-case effort

Young lawyers too often view themselves as being at the mercy of the firm’s partners when undergoing annual reviews. They can enhance their situations by educating the partners on what the lawyer has actually done in a key area, such as business development.

Attending lunch or bar association functions, posting blogs and client updates, writing articles in trade or legal publications are all valid marketing activities. The young lawyer who engages in them can make a convincing argument at review time: “This is what I’ve done to promote myself and promote the firm.”

Don’t assume these efforts are well-known tactics. Teach those who matter about the value of the effort.

Education is all about communication. It is essential that those with whom a lawyer interacts knows what the lawyer is doing and understands why it is being done. As lawyers, our job is to help others. Constantly conveying how and why you are doing this is an excellent way to derive greater personal satisfaction from your practice.

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 June 20, 2012.
Filed Under: Practice Management Tagged With: , , , , , , ,

Colorado Revised Statutes Now an eBook for Mobile Devices

August 22, 2012 by Leave a Comment

We are excited to announce that Circuit Media, in partnership with CBA-CLE, has developed a 3-volume, digital version of the Colorado Revised Statutes (C.R.S.). An essential part of any attorney’s work day, the C.R.S. eBook will be available for purchase and download on any eReader (this includes your iPad, iPhone, Droid, and Kindle) for research on the go.

Benefits of using the C.R.S. eBook:

  1. Officially sanctioned version using the official text of the C.R.S. – ensuring accuracy and integrity
  2. Access anywhere, any time – no Internet connection needed
  3. Provides you with productivity tools to make your work easier including highlighting, copy and paste, bookmark and note creation
  4. Keyword and text search capabilities
  5. All 43 Titles accessible at your fingertips without the headache (and backache!)

The C.R.S. eBook will be utilized by thousands of attorneys daily. Looking for attorney referrals to increase your brand awareness or your business? Advertising within the C.R.S. eBook is an easy and cost-effective way to expand your net.

For all the details, email info@circuitmedia.com.

The complete eBook information guide and advertising order form can be read below, or click here to download or print it.

Colorado Revised Statutes Now an eBook

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New Healthcare Law Resource for Attorneys and Business Leaders

August 17, 2012 by Leave a Comment

According to Law Week Colorado, attorneys and business leaders trying to chop through the healthcare industry thicket have a new resource.

The Missouri offices of Husch Blackwell have created an online resource, Healthcare Law Insights, that offers information about legislative, legal, and administrative issues that affect the current healthcare industry. The blog features articles and commentary from healthcare attorneys who monitor the reforms, laws, and emerging trends.

“We launched (the site) to equip healthcare executives, compliance officers, owners, and managers with relevant legal information to keep up to date with the constantly changing health law environment,” said Curt Chase, chair of the firm’s healthcare department.

Visitors to the site can search by keyword, select posts about a specific category, access additional industry resources, and subscribe to ongoing updates by RSS feed or email.

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Is Solo Practice a Good Fit for You?

August 15, 2012 by Leave a Comment

Today’s economy can lead seasoned attorneys, mid-career laterals and even freshly minted law grads into solo practice. But is solo practice a good fit for you? No matter the stage of your career, there are questions to ask yourself and options to examine to determine whether this is your best choice before you launch a solo practice.

How Many Hats Can I Wear?

Opening a solo practice means wearing many hats to handle all the functions in the firm—in addition to practicing law. A lawyer stepping out of a larger firm may find herself a bit ill-equipped to manage all the details required in running a law office, even a solo one. That realization—sometimes a difficult one—may lead to the need for extra support, either outsourced or in-house, to cover everything from bookkeeping and billing to marketing and technology support, plus other administrative duties. Acknowledge your strengths and interests, and then plan ways to cover the rest so you can balance both the administrative and the legal side of running the practice.

What Is My Vision of Solo Practice?

Do you view solo practice as a temporary or long-range option? Will you focus on one practice niche or several areas? Do you anticipate a need for support through a paralegal, legal assistant or other? Will you need the involvement of other lawyers? Many solo lawyers network and solidify of counsel relationships with their peers to plug into particular client matters as the need arises. Being prepared in advance is key to ensuring solid legal services and handling client expectations.

Who Would Be My Best Client?

Think about the areas of practice you want to concentrate in. Consider your background and experience—what types of client matters do you enjoy? Describe your best client and explore why that’s the case. Developing key areas of practice where you have both experience and interest to grow and develop will lead you on a path to a satisfying and successful practice.

What Is My Ideal Practice Setting?

The location of your office depends on the type of clients you want to serve. Are your clients businesses or consumers? How will the physical office affect attracting clients? Will clients need to visit you often or only occasionally? Endless technology options can support your law practice wherever it is, but you still need to decide what setting works best for you. Do you enjoy tossing around a legal issue or argument among a group of other legal minds? If so, consider renting within a suite of other lawyers. Or if you desire a strong presence, explore leasing or owning your own space. While working from home may seem like paradise, it is not always wise to bring clients to your home. You might consider a virtual office with a professional business address and renting a conference room for meeting with clients on confidential matters.

How Will I Find Clients?

To build your business, you must have a strong strategic plan that makes marketing and business development a high priority. Concentrate on marketing a few key areas of your practice. Reach out and network—you can learn and gain valuable insights by getting active in your local bar or other specialty law groups. Develop your writing and speaking skills so you can share your knowledge with potential clients. Weave your interests and experience into your online presence through your website and social media as you develop your place in a niche.

Remember, too, that in a solo setting, you may no longer be perceived as competition by your peers. This is a good thing. Communicate how you can be of value to them by helping when conflicts arise in their own firms. Their good feelings about you can result in a stream of solid referrals.

Ellyn Caruso is principal of CarusoPR, a group that combines strategy, creativity and technology. Ellyn is passionate about delivering persuasive marketing and public relations programs to help attorneys, businesses and organizations. She brings more than 25 years of public relations experience serving national and international clients. She also contributes to the Attorney at Work blog, where this post originally appeared on August 14, 2012.

CLE Program: Hanging Your Shingle

This CLE presentation will take place from Thursday, August 16 through Saturday, August 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 three formats: video on-demand, mp3 download, and audio CD. The course materials will also be available.
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The Perils of the Video-Conference Deposition

August 1, 2012 by Leave a Comment

The video-conference deposition itself sounds like a great idea. After all, we were supposed to have flying cars and robot maids by now.  However, the reality of video-conference deposition reveals many, many challenges.

The first and most obvious challenge is the technology. Through trial and error, I would always suggest using a court reporter’s office, which should be properly equipped to handle the video feed. The onus is therefore on the hired court reporting firm to have working equipment. Otherwise, should you use your own conference room and your Internet goes out, everyone looks at you.

The second challenge is the materials. Some fact witness depositions sail through without any marked exhibits.  Most expert and party depositions contain many marked exhibits. Therefore, the video-conference deposition requires some advanced planning. This challenge is magnified in video-conference depositions of expert witnesses. Essentially, you have to scan and copy your expert’s entire file the week prior to the deposition and mail (or cloud upload) copies in advance. Not only is the manual labor extensive, but often your experts do not have everything prepared a week in advance of the deposition.

The third challenge is the deposition itself. We can get to the moon, but we cannot figure out how to eliminate a delay on a video-conference. Therefore, you have to adjust your rhythm of asking questions. Slow down.

The fourth challenge is the lack of the interpersonal contact. There is something more commanding about being present in the room in front of your deponent. Video can cloud body language and, more concerning, can hide attorney assistance.

In my humble opinion, I think the technology is still a few years away. In the interim, video-conference depositions can be useful for lower-level fact witnesses. If you are deposing a party or an expert, I recommend being in the room.

Chad Lieberman served as lead trial attorney for a commercial litigation firm located in Chicago from 2005 through late 2010. He handled lawsuits involving contract disputes, personal injury, insurance related issues, product liability matters, construction defects, and real estate. Since moving to Colorado in 2010, he practices in state and federal courts throughout Illinois and Colorado, primarily in product liability and commercial litigation. He is also the new editor/promoter-in-chief of the SOLO in COLO blog, where this post originally appeared on July 20, 2012.
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Trisha Harris: Preparing for Owner Inspection of HOA Emails

August 1, 2012 by 1 Comment

In today’s electronic age, many boards have flurries of e-mails flying back and forth about a wide range of association-related topics. As we have discussed in previous blogs and articles, when HB 12-1237 goes in to effect on January 1, 2013, owners will be entitled to inspect board e-mails that relate directly to decisions made by the board outside of a meeting, whether by e-mail, written resolution, phone, etc. This raises the practical questions of how boards should determine which e-mails to save, how to retain such e-mails, and other related issues. The following are some practical pointers to help your board to comply:

  • If your association has a manager, one option is to copy your manager on all such e-mails and have your manager save them electronically or print them out and keep them in a physical file. This may not be something that is currently addressed in your management company contract. In such case, the board and the management company may need to re-negotiate the contract to include this service. If your manager does undertake this role, your records retention policy will need to be revised to reflect that responsibility for the manager. If your association does not have a manager, this retention role can be filled by your secretary.
  • Set up a Google or Yahoo group for the board to use to communicate. This will keep e-mails centralized in one place, allow for storage of the e-mails, and allow for group members to change as board members change.
  • Have board members set up a separate e-mail account for board business, which is separate from their regular personal or business e-mail address. The e-mail addresses could be tied to certain positions, such as president@abchoa.com, which could then be transferred to new board members as board members change. By doing so, owners will always have a consistent and stable list of e-mail addresses, which will reduce confusion and lost communication when there are changes on the board. Having designated board member e-mail addresses separate from individual board member’s personal or business e-mail addresses will also help to protect attorney-client privileged communications to the board.  Often, a board member will share a personal e-mail address with his or her spouse. E-mails that go to that address may be viewed by non-board members, so having a designated board-business e-mail address can help to keep such communications confidential with just board members. Also, if a board member is served with a subpoena for his or her e-mails, not only will the e-mails related to board business be subject to it, but all other e-mails sent and received from that account could also be discoverable.
  • Keep decisions outside of a meeting to a minimum. As much business as possible should be done in open meetings. Limit decisions outside of a meeting to urgent situations where the board cannot call a special meeting nor wait until the next board meeting to discuss the issue.
Trisha K. Harris is a partner at HindmanSanchez and is inspired by the impact that community association law has on so many people. Her philosophy in representing associations is to help them by giving them tools to make good decisions and promoting the positive aspects of association living by blending the social and business aspects together to produce strong communities. She contributes to her firm’s blog, where this post originally appeared on July 26, 2012.
Filed Under: Legislation Tagged With: , , , ,
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