February 5, 2016

Five Cybersecurity Tech Tips: Worries to Give You the Willies

Editor’s Note: This post originally appeared on Attorney at Work on January 29, 2016. Reprinted with permission. See below for information about ordering Colorado CLE’s homestudy for our program, “Data Privacy & Information Security: Meeting the Challenges of this Complex and Evolving Area of the Law.”

By Sharon Nelson and John Simek

A keyboard with a red button - Privacy

A keyboard with a red button – Privacy

There are lots of cybersecurity worries to give you the willies in the wee hours of the morning, but we were asked to pick five. So here are some of the most common threats for lawyers to keep in mind.

1. Ransomware. We continue to see law firms struck by ransomware, which is a type of malware that encrypts your data (restricting your access to it) and then demands a ransom payment — usually in bitcoins — to get your data back. Training your employees not to click on suspicious attachments or links in email will help. They should stay away from suspicious sites as well since ransomware can be installed by just “driving by” an infected website.

Overwhelmingly, from a technological standpoint, you can defeat ransomware by having a backup that is immune to it. This can mean, particularly for solo lawyers, that you back up and then disconnect the backup from the network. For others, it means running an agent-based backup system rather than one that uses drive letters. Make sure your IT consultant has your backup engineered so that backups are protected — that way, even if you are attacked with ransomware, you can thumb your nose at the thief’s demands for money because you can restore your system from your backup. Of course, this means backups need to be made frequently to avoid any significant data loss.

2. Employees. Employees are by nature rogues. Every study made shows employees will ignore policies (assuming they exist) to do what they want to do. This often means people bring their own devices (BYOD) which may be infected when they connect to your network. They may also bring their own network (BYON) or bring their own cloud (BYOC). Certainly, your policies should disallow these practices (in our judgment) or, at least, manage the risks by controlling what it is done by implementing a combination of policies and technology.

Oh, and employees steal your data or leave it on flash drives or their home devices, too. This means you have “dark data” — data you don’t know about and over which you have no control. This means you may miss data required in discovery because you don’t know it exists. Your data may not be protected in compliance with federal or state laws and regulations. And you have no way to manage the data because you don’t know it is there. Once again, a combination of policies and technology should be in place to prevent these issues.

3. Targeted phishing. This is perhaps the greatest and most successful threat to law firm data. Someone has you in their sights — often they have done research on your law firm. They may know the cases you are involved in — and who your opponents are. They may know the managing partner’s nickname. Everything they know about you, they may use to get you to click on something (say, an email from an opponent referencing a specific case and saying “The next hearing in ___ case has been rescheduled as per the attachment). Many a lawyer has clicked on such attachments — or a link within an email.

The best solution to protect yourself from targeted phishing is training and more training — endlessly. One California firm was targeted by multiple phishing attacks but survived them because the lawyers and staff who received such emails questioned their authenticity.

Forget the loss of billable time. The loss of money, time and even clients due to a data breach can be far worse.

4. Interception of confidential information. Start with the proposition that everyone wants your data, including cybercriminals, hackers and nation states (including our own). Frankly, if they want your data and they have sophisticated tools, they will get it. So shame on you if you are not employing encryption (which is now cheap and easy) to protect confidential data transmitted and received via voice, text, and email. Encryption today is a law firm’s best friend. You may choose to use it always or in cases where it is warranted — but you surely should have the capability of encrypting.

5. Failure to use technology to enforce passwords policies. First, let us say that you should use multi-factor authentication where available and use it to protect sensitive data. But failing that, we recognize that passwords are still king in solo practices and small to midsize firms. Therefore, have your IT consultant assist you in setting up policies that can be enforced by technology, requiring that network passwords be changed every 30 days, not reused for an extended period of time — and mandating strong passwords (14 or more characters in length, utilizing upper- and lowercase letters, numbers and symbols). Passphrases are best. Iloveattorneyatwork2016! would do nicely.

There are many other “willies” out there, but address them one digestible chunk at a time!

Sharon D. Nelson (@SharonNelsonEsq) and John W. Simek (@SenseiEnt) are the President and Vice President of Sensei Enterprises, Inc., a digital forensics, legal technology and information security firm based in Fairfax, VA. Popular speakers and authors, they have written several books, including “The 2008-2015 Solo and Small Firm Legal Technology Guides” and “Encryption Made Simple for Lawyers.” Sharon blogs at Ride the Lightning and together they co-host of the Digital Detectives podcast.

 

CLE Homestudy: Data Privacy & Information Security — Meeting the Challenges of this Complex and Evolving Area of the Law

This CLE presentation took place Friday, January 22, 2016. Order the homestudy here: CDMP3 audioVideo OnDemand.

Probate, Name Change, and More JDF Forms Amended by State Judicial in January

In January 2016, the Colorado State Judicial Branch issued 13 new forms. Many of the forms are in the Probate category, specifically dealing with adult guardianships, and the rest of the forms include forms about name changes, request for payment of fees, and appointments of guardians ad litem. The forms are available here in PDF format and are available from the State Judicial forms page in Word or PDF.

PROBATE

  • JDF 895 – “Instructions to Register Out of State Guardianship or Conservatorship Orders for Adult in Colorado” (1/16)
  • JDF 797 – “Rights of Respondent in Appointment of Guardian/Conservator” (R01/16)
  • JDF 799 – “Information for Respondent in Appointment of Guardian” (R01/16)
  • JDF 805 – “Acceptance of Office” (R01/16)
  • JDF 854 – “Order for Termination of Guardianship” (R01/16)

NAME CHANGE

  • JDF 385 – “Instructions for Filing a Change of Name Following Conviction/Adjudication of a Felony” (R01/16)
  • JDF 388 – “Instructions for Filing a Change of Name for an Individual 70 Years of Age or Older” (R01/16)
  • JDF 432 – “Instructions for Filing a Change of Name (Adult)” (R01/16)
  • JDF 387 – “Final Decree for Change of Name to Obtain Identity Related Documents” (R01/16)
  • JDF 433 – “Petition for Change of Name (Adult)” (R01/16)

CRIMINAL

  • JDF 208 – “Application for Public Defender, Court-Appointed Counsel, or Guardian Ad Litem” (R01/16)

DOMESTIC

  • JDF 1318 – “Order Appointing Child and Family Investigator” (R01/16)

MISCELLANEOUS

  • JDF 207 – “Request and Authorization for Payment of Fees” (R01/16)

For all of State Judicial’s JDF forms, click here.

Colorado Supreme Court: Strict Privity Rule Bars Claims from Dissatisfied Beneficiaries Against Drafting Attorneys

The Colorado Supreme Court issued its opinion in Baker v. Wood, Ris & Hames, P.C. on Tuesday, January 19, 2016.

Floyd Baker, father of petitioners Baker and Kunda, retained Wood, Ris & Hames, Donald Cook, and Barbara Brundin (collectively, attorneys) to draft an estate plan. Floyd’s will specified that at his death, each of the four children (Baker and Kunda plus his stepchildren, Roosa and Brown) would receive $10,000, his condo would go to his wife, Betty, and the remainder of his estate would be divided between a marital trust and a family trust. On Betty’s death, the remaining estate assets would be divided equally between the four children. Floyd died in 2003 and his estate plan was carried out as specified in his will. Betty subsequently retained Cook to draft her estate plan, where she devised the condo to Roosa and specified that the remaining assets be divided equally between the three surviving children – Roosa, Baker, and Kunda. Betty died in February 2009.

Because of the bequest of the condo to Roosa, Baker and Kunda each received approximately 15% of the value of Betty’s estate while Roosa received approximately 70%. Baker and Kunda subsequently sued attorneys, asserting claims for breach of contract – third-party beneficiary; professional negligence; and fraudulent misrepresentation. Baker and Kunda alleged that the attorneys’ negligence allowed Betty to override Floyd’s estate plan after his death; the attorneys drafted an estate plan for Betty that controverted Floyd’s plan; and that Baker and Kunda, as intended beneficiaries of Floyd’s will, suffered damages as a result of the attorneys’ actions and inactions. The attorneys moved to dismiss for failure to state a claim on which relief could be granted, asserting Baker and Kunda lacked standing to sue them and that even if they had standing, Floyd’s testamentary intent had to be gleaned from the will itself, and the will was unambiguous and did not evince the intent alleged by Baker and Kunda. Attorneys also argued the claims were time-barred.

The district court ultimately granted the attorneys’ motion, concluding Baker and Kunda had not shown that any of the allegedly concealed facts had actually been concealed, or that the attorneys had intended Baker and Kunda to rely on the allegedly misrepresented circumstances. As for the negligent misrepresentation claim, the court noted that under Allen v. Steele, such claim required a business transaction, which was not present. Finally, as to the legal malpractice claim, the court concluded Baker and Kunda failed to show the attorneys owed them a duty of care. Baker and Kunda appealed, requesting that the court of appeals find an exception to the strict privity rule for third-party beneficiaries of a will, but the court of appeals declined to do so and affirmed the district court. Baker and Kunda appealed to the Colorado Supreme Court, contending the district court erred in dismissing their claims because as intended third-party beneficiaries of Floyd’s estate, they had standing to sue for breach of contract and legal malpractice, and also contending the court of appeals misconstrued their fraudulent concealment claims. Baker and Kunda urged the supreme court to abandon the strict privity rule in determining whether a non-client can sue an attorney. The supreme court declined to do so.

The supreme court found that because of the special trust and confidence arising from the attorney-client relationship, sound policy considerations supported the strict privity rule. Limiting an attorney’s liability to his or her clients protects the attorney’s duty of loyalty to and effective advocacy for the client, whereas expanding an attorney’s liability to non-clients could result in adversarial relationships between attorneys and clients and thus give rise to conflicting duties on the part of the attorney, and could require the attorney to reveal client confidences that the client did not want revealed. Further, extending the attorney’s duty of care to non-clients could result in the attorney being liable to an unforeseen and unlimited number of people. For these reasons, the supreme court declined to adopt an exception to the strict privity rule for dissatisfied beneficiaries. The court also recognized that the Colorado Probate Code allows dissatisfied beneficiaries to seek reformation of the will, thereby negating the need for an exception to the strict privity rule.

Addressing Baker and Kunda’s contentions that the supreme court should apply the “California rule” or “Florida-Iowa rule” to find exceptions to strict privity, the supreme court disagreed, finding that its stated policy considerations precluded adoption of either the California or Florida-Iowa rule and that even if it applied those rules, they would not support Baker and Kunda’s claims. The supreme court also rejected Baker and Kunda’s contentions that allowing only third-party beneficiaries to bring claims against attorneys would sufficiently limit the potential class of non-clients who could sue attorneys, noting that anyone could come forward and say they were intended beneficiaries. The supreme court also found no error in the district court’s rejection of Baker and Kunda’s fraudulent concealment claims, finding the district court appropriately applied C.R.C.P. 9(b)’s heightened pleading standard to those claims.

The supreme court affirmed the court of appeals.

Top Programs and Homestudies — Intellectual Property, Elder Law, Immigration, and More

Over the past few weeks, we have been featuring the Top Ten Programs and Homestudies in various practice areas. Previous posts include:

Although we addressed several substantive practice areas, we offer many more great programs not featured on the previous Top Ten lists. These are discussed today.

Intellectual Property The Annual Rocky Mountain Intellectual Property & Technology Institute is the region’s premier event for IP lawyers. The 2015 Institute featured four simultaneous tracks of sessions for attorneys, covering patents and patent litigation, trademarks/copyrights, licensing, and transactional/e-commerce. As a bonus, Odyssey Beerwerks in Arvada donated custom brews for the 2015 Institute. The 2016 IP Institute is scheduled for June 2 and 3, 2016, at the Westin Westminster. Click here for more information about the IP Institute and the 2016 conference agenda.

Elder Law Colorado CLE presents an annual mountain program for elder law practitioners, the Annual Elder Law Retreat. The 2015 Retreat, held in beautiful Snowmass, discussed social security issues, including maximizing benefits; trends in VA, including special programs and applications for long-term care; atypical beneficiary requests; financial exploitation of the elderly; long-term care planning; and much more. The dates for the 2016 Retreat have not yet been announced; stay tuned to cle.cobar.org/elder for details.

Immigration — In addition to the comprehensive reference book, Immigration Law for the Colorado Practitioner, Colorado CLE offers several great immigration programs each year. Most recently, the CBA Immigration Law Section co-sponsored the program, “Immigration Law — Asylum and Other Humanitarian Relief,” which covered U visas, T visas, VAWA, special immigrant juvenile status, asylum law, and more. Find this and other important immigration law programs here.

Alternative Dispute Resolution Colorado CLE offers many great ADR programs, but the flagstone event is the 40-hour Mediation Training. This five day live program, taught by renowned mediator Judy Mares-Dixon, presents an in-depth guide to mediation as well as several breakout sessions to practice mediation skills. The 40-hour Mediation Training will occur on January 18, 19, 20, 25, and 26, 2016. Space is limited so register today.

Workers’ Compensation — Each year, the CBA Workers’ Compensation Section co-sponsors two annual events: the Workers’ Compensation Fall Update and the Workers’ Compensation Spring Update. Topics vary from year to year but each program features case law updates and news from the Division. In addition, many times medical professionals will provide education on particular types of injuries, including psychological injuries. More information about CLE’s workers’ compensation offerings can be found here.

Health Law — Two years ago, Colorado CLE began offering an annual Health Law Symposium, co-sponsored by the CBA Health Law Section and the American Health Lawyers Association. This program offers an exceptional speaker lineup of nationally recognized health law experts focused on current issues in health law of interest and concern to practicing attorneys in the rocky mountain. Topics discussed at the 2015 Health Law Symposium include discussion of the Affordable Care Act, franchising in the health care industry, HIPAA and meaningful use, antitrust rules in the provider context, and more.

Juvenile Law Although many family law programs cover topics of interest to juvenile law practitioners, this important practice area also has its own programming. Each year, Colorado CLE presents a juvenile law update, co-sponsored by the CBA Juvenile Law Section. The 2016 Juvenile Law Program, “Ethics! Ethics! Ethics!,” is scheduled for April 1, 2016, with a focus on—you guessed it—ethics. Topics covered include implicit bias, social media, ethical challenges in juvenile defense, and more. Click here to register.

Solo/Small Firm — This technically is not a practice area, but there are myriad issues that solo practitioners face while running a law business that their biglaw counterparts do not. The Solo and Small Firm Section of the CBA puts on great programming throughout the year, including topical lunches, and hosts monthly networking meetings, the Solo in Colo blog, and much more. For information on joining the Solo and Small Firm Section, click here.

If you don’t see your practice area listed here or on the previous Top Ten posts, please let us know. If you are interested at speaking at an event in your practice area, we would love to hear from you. Contact us today!

Top Ten Marijuana Law Programs and Homestudies

Colorado is in the forefront of the marijuana industry, and as such the need for legal guidance regarding medical and recreational marijuana has exponentially increased. In fact, the CBA has a new Cannabis Law Committee to further the legal profession’s understanding of marijuana law. Today’s Top Ten Programs and Homestudies feature marijuana law. (In case you missed it, we previously featured ethics, family law, trust and estate law, real estate law, litigation,business law, employment law, criminal law, and construction/environmental/oil and gas/water law.) Grab a snack and read on for the Top Ten Marijuana Law Programs and Homestudies:

10. Ethics 7.0 2014. Although not strictly a marijuana law program, the 2014 Ethics 7.0 program featured a discussion by Chief Deputy Regulation Counsel James Sudler on hot topics in attorney regulation, including marijuana. As a bonus, this program fulfills an entire compliance period’s ethics credits requirements. Seven general credits, including seven ethics credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

9. Marijuana in Estate Planning and Administration. Even trust and estate attorneys encounter marijuana-related issues. The recent addition of recreational marijuana rights to the already-existing medical marijuana industry means that estate and probate attorneys are almost certain to encounter marijuana-related issues in both estate planning and probate. This is a must-attend session dealing with everything from a joint found with a decedent’s personal property to an estate-planning client who owns a thriving, licensed marijuana business. One general credit; available as MP3 audio download and Video OnDemand.

8. Criminal Law Fall Update 2013. Amendment 64 provides for the regulation of marijuana like alcohol, and allows for the lawful operation of marijuana-related facilities. Amendment 64 presented issues of first impression in Colorado and in the United States, as no other state except Washington State at that time had legalized marijuana for non-medical, adult use in the face of federal legal restrictions. What are the implications for the criminal law landscape on the state and federal levels? What does it mean from a behavioral health perspective? Get answers to these questions and more. Seven general credits, including one ethics credit; available as CD homestudy, MP3 audio download, and Video OnDemand.

7. Lending Compliance Update: Appraisals, Marijuana, and More. As the Colorado marijuana industry flourishes, banking issues related to marijuana become more and more important. This program discusses banking compliance and provides a CPA’s perspective on the marijuana business and compliance issues. One general credit; available as MP3 audio download and Video OnDemand.

6. New Colorado Rule of Professional Conduct 1.2: Marijuana Law Update. On March 24, 2014, the Colorado Supreme Court adopted a comment to Colorado Rules of Professional Conduct 1.2. According to the comment, a lawyer may counsel a client regarding the validity, scope and meaning of Colorado’s marijuana laws and may assist a client in conduct the lawyer believes is permitted under state law. It’s important to know not only what the comment said, but what it didn’t say—and possible consequences for Colorado attorneys. Two general credits, including two ethics credits; available as MP3 audio download and Video OnDemand.

5. Banking for Marijuana Businesses — An Update. Get up to speed on banking for marijuana businesses! Learn about the Justice Department’s efforts to craft guidance for banks that work with marijuana businesses and how banking views those efforts. Learn what bank regulators, who aren’t bound by Justice Department actions, are doing. Are banks still at risk of racketeering charges if they knowingly handle money made from the sale of marijuana? Hear obstacles, potential solutions and potential best practices. One general credit; available as MP3 audio download and Video OnDemand.

4. The Business of Marijuana. In November 2012, Colorado voters passed Amendment 64, which makes the personal, non-medical use, possession, and limited home-growing of marijuana legal under Colorado law for adults 21 years of age and older. Amendment 64 presented issues of first impression in Colorado and in the United States, as no other state except Washington State had legalized marijuana for non-medical, adult use in the face of federal legal restrictions at that time. This 2013 program discussed tax, accounting and legal implications for people involved in marijuana-related businesses in light of Amendment 64. Six general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

3. Marijuana — The Colorado Model. Colorado pulled in $2 million in taxes related to the sale of recreational marijuana… in January 2014 alone. Combined with taxes on sales from medicinal marijuana, Colorado pulled in nearly $3.5 million in pot-related tax revenue. This growing industry and resulting revenue has created a myriad of legal, financial and regulatory issues for the State of Colorado. Hear from some of the State’s top regulatory and legal experts on what’s going on in the ever-changing marijuana industry. Seven general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

2. Medicolegal Aspects of Marijuana in Criminal Law, Civil Regulations, and Forensic Science. The legalization of both medical and later recreational possession of marijuana in Colorado has brought an abundance of new legal issues in criminal, civil and regulatory law. With a focus on the new book Medicolegal Aspects of Marijuana (Lawyers and Judges Publishing, 2015), the faculty explores both the forensic and legal issues of running a dispensary, drug testing for confirmation in narcotics cases and THC levels for DUI-D cases. Topics covered include land use and HOA laws, federal controlled substance laws, licensing and regulation, business regulation, and more. Eight general credits; available as live Video Replay in Denver on January 6, 2016, and also available as CD homestudy, MP3 audio download, and Video OnDemand.

1. The Colorado Marijuana Industry — Legal and Accounting Advice and Compliance. Colorado marijuana stores sold a record amount of marijuana in June 2015, a huge leap over the previous record set in March 2015. Recreational marijuana sales topped $50 million for the first time. Medical marijuana also had its biggest month in more than a year. Some owners reported seeing more than 300 customers a day. At the halfway mark of 2015, Colorado stores had sold nearly half a billion dollars in marijuana and paid about $60 million in taxes to the state. Clearly, the marijuana business is thriving in Colorado. But we as attorneys, accountants, business valuators, regulators, bankers and citizens still have a lot to learn about this fledgling industry. Find out what you need to know about marijuana law in Colorado at this important program. Seven general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

Top Ten Trust & Estate Programs and Homestudies

We have been featuring the Top Ten Programs and Homestudies in several practice areas on Legal Connection—earlier this week, we featured the Top Ten Ethics Programs and Homestudies and the Top Ten Family Law Programs and Homestudies. We will continue to feature substantive areas of law through the rest of December so stay tuned. And now, for the Top Ten Trust & Estate Programs and Homestudies. Drumroll, please:

10. Trust and Estate Topical CLE Luncheons. Each month on the first Tuesday of the month, the CBA Trust and Estate Section presents a topical lunch program highlighting a particular area of trust and estate law. They feature great topics, including “Marijuana in Estate Planning and Administration,” “Gun Trusts,” “Estate Planning During Divorce,” “Special Needs Trusts,” “Medicaid Recovery,” and more. Typically one general credit each; available as MP3 audio download or Video OnDemand.

9. 30 Cases Every Trust & Estate Lawyer Should Know. Did you think of any cases when you saw this title? They were probably featured in this program. Spencer Crona explained the holdings and provided analysis and key insights for 30 important cases in trust and estate law. This is a great way to stock your legal toolkit. Two general credits; available as MP3 audio download and Video OnDemand.

8. Trusts in Divorce Property Divisions. This program, equally valuable to family law and trust and estate practitioners, considers important issues to evaluate when there is a trust in a divorce property division. Attendees receive an electronic copy of Marc Chorney’s book, Trusts in Divorce Property DivisionsTopics discussed at the program included valuation issues, whether beneficiary withdrawal rights are property, approaches to allocation, the dissipation doctrine and trust interests, and more. Seven general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

7. Gifts to Minors. There are many reasons people make gifts to minors, including setting up college savings accounts, reducing estates for tax purposes, or making gifts to children and grandchildren. These reasons and more are covered in “Gifts to Minors.” Learn from Laurie Hunter and Kaylynn Hemlock as they discuss the Colorado Uniform Transfers to Minors Act, 529 savings plans, Crummey trusts, § 2503(c) trusts, and more. Attendees receive an electronic copy of Laurie Hunter’s book, Gifts to Minors. Three general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

6. Wade/Parks: Colorado Law of Wills, Trusts, and Fiduciary Administration. Former probate judge James Wade presented this informative program about his book, Wade/Parks: Colorado Law of Wills, Trusts, and Fiduciary Administration, which is included with course materials in PDF format. Topics covered include standing to sue, federal court jurisdiction, the directed trustee statute, case law developments regarding spousal elective share, sham trusts, and much more. Attendees receive an electronic copy of the book. Four general credits, including one ethics credit; available as CD homestudy, MP3 audio download, and Video OnDemand.

5. Advanced Estate Planning Symposium with Ted Atlass. National speaker Ted Atlass returned to CLE to present this program on advanced topics in estate planning. Sessions included planning to minimize Colorado or other state income taxes on trusts, trusts as retirement plan beneficiaries, what to do when your client loses capacity, estate planning for non-traditional families, and estate planning issues with marital agreements. Seven general credits; available as CD homestudy, MP3 audio download, and Video OnDemand.

4. Estate Planning Basic Skills/Estate Administration Basic Skills. Each of these programs is held every other year to provide attorneys the fundamentals of estate planning and administration. Estate Planning Basic Skills, which will occur on February 26 and 27, 2016, will discuss the initial client interview, planning and drafting of documents, planning for disability, small estates, use of life insurance, traps to avoid, and much more. Estate Administration Basic Skills, which occurred on February 20, 2015,  covered rights of the surviving spouse and family, income tax issues, real estate matters, ethics and advising fiduciaries, creditors’ claims, and more. Estate Administration Basic Skills — seven general credits, including one ethics credit; available as CD homestudy, MP3 audio download, and Video OnDemand. Estate Planning Basic Skills — fourteen general credits, including one ethics credit; available as live program and webcast, and as CD homestudy, MP3 audio download, and Video OnDemand after the program.

3. Estate Planning with Retirement Assets — Trust & Estate Spring Update 2015. Retirement funds are a common asset considered in estate planning, and this program provided an overview of considerations for using retirement funds in estates. Topics covered include definitions of common terms, such as minimum required distributions and designated beneficiaries, designating trusts as beneficiaries of retirement assets, post-death planning, directed IRAs, and more. Six general credits; available as CD homestudy, MP3 audio download, and Video OnDemand

2. Understanding Benefits — Trust & Estate Fall Update 2015. Estate planning with consideration of benefit eligibility is an important tool for practitioners. This program discussed planning for Medicaid, Medicare, Social Security Income, and VA compensation, as well as implications for nursing home placement and planning for ethical implications. Six general credits, including one ethics credit; available as CD homestudy, MP3 audio download, and Video OnDemand. NOTE: The Trust & Estate Fall Update is repeated annually with different themes. Click here for the 2014 program and click here for the 2013 program.

1. 36th Annual Estate Planning Retreat. Each year, Colorado’s trust and estate attorneys gather for a fun weekend of CLE in a beautiful location. The 2016 Estate Planning Retreat will be June 9-11, 2016, in spectacular Snowmass. Highlights for the 2016 Retreat include discussions of international estate planning, case law and legislative updates, unconscious bias in estate planning, “bullet proof” will drafting, tax issues, and more. Registration is not yet open for the 2016 Retreat; visit http://cle.cobar.org/estateplanningretreat for updates.

Colorado Supreme Court: Pro Se Non-Attorney Trustee May Not Represent Trust’s Interest in Court

The Colorado Supreme Court issued its opinion in Tucker v. Town of Minturn on Monday, October 26, 2015.

Trustees—Pro Se Litigants.

In this appeal, the Supreme Court considered whether a non-attorney trustee of a trust may proceed pro se before the water court. Opposer-appellant appealed the water court’s order ruling that as trustee of a trust, he was not permitted to proceed pro sebecause he was representing the interests of others. He further appealed the water court’s order granting applicant-appellee’s application for a finding of reasonable diligence in connection with a conditional water right. He asserted that the water court erred in granting the application because its supporting verification was deficient. Addressing a matter of first impression in Colorado, the Court concluded that the water court correctly ruled that a non-attorney trustee cannot proceed pro se on behalf of a trust. In light of this determination, the Court declined to address opposer-appellant’s arguments regarding the sufficiency of the verification. Accordingly, the Court affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Comment Period Open for Proposed Changes to Colorado Rules of Probate Procedure

The Colorado State Judicial Branch announced the proposed repeal and reenactment of the Colorado Rules of Probate Procedure. The proposed changes involve reordering and renumbering of the rules, with several reserved spots for future rules.

A redline of the proposed changes is available here. Comments regarding the changes may be emailed to the clerk of the Colorado Supreme Court, Christopher Ryan, at christopher.ryan@judicial.state.co.us, or they may be mailed or delivered to the courthouse at 2 E. 14th Ave., Denver, CO 80203. The comment period will end at 5 p.m. on December 1, 2015. Written comments will be posted on the State Judicial website after the comment period closes.

For more information, visit the Adopted & Proposed Rule Changes page of the Colorado Supreme Court website.

Dignity to All Persons: CBA-CLE to Host LGBT Law Institute

LGBTOn June 26, 2015, the United States Supreme Court decided in the landmark case Obergefell v. Hodges that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. In reaching this conclusion, the majority relied on four principles and traditions that demonstrate marriage is a fundamental right under the Constitution, and applies with equal force to same-sex couples.

The first premise is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. The second principle in the Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. The third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation and education. Finally, the U.S. Supreme Court’s cases and our Nation’s traditions make clear that marriage is a keystone of the Nation’s social order. Writing for the majority, Justice Kennedy stated:

The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era. Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied. Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it disparages their choices and diminishes their personhood to deny them this right.

What is the case law, legislation and culture surrounding the Lesbian/Gay/Bisexual/Transgender journey to this holding? Attend the Colorado Bar Association CLE’s Lesbian/Gay/Bisexual/Transgender Law Institute on September 24-25, 2015, and hear not only from Colorado Supreme Court Justice Monica Marquez, but also from Colorado Senator Pat Steadman on the LGBT legal history and landscape in our State and our Nation. Learn about changes in government programs after the Windsor case, and about LGBT issues in both the employment law and immigration contexts. Also find out about how to reach out to the LGBT community and the logistics of navigating through such legal issues as changing one’s name and Social Security if you are a transgender person.

The Institute will showcase many points of view. On August 13, 2015, the Colorado Court of Appeals affirmed a finding from May 2014 from the Colorado Civil Rights Commission that the Masterpiece Cakeshop’s policy of turning away a same-sex couple’s request for a cake violates Colorado’s Anti-Discrimination Act. The speaker at the Institute will address the topic from the perspective of Masterpiece Cakeshop owner Jack Phillips, who refused to bake a wedding cake for a same-sex couple because of his religious beliefs. Learned legal scholars will also discuss the salient points from both the majority and dissenting opinions in the Obergefell case. Religious freedoms in connection with LGBT issues will also be discussed.

There are many more topics to be found when you register here. We’ll see you in the front row on September 24-25.

CLE Program: Lesbian/Gay/Bisexual/Transgender Law Institute

This CLE presentation will take place Thursday, September 24, and Friday, September 25, 2015 at the CLE offices. Click here to register for the live program or click here to register for the webcast.

Can’t make the live program? Order the homestudy here – CD • Video OnDemand • MP3

Probate and Domestic Relations JDFs Amended in August

The Colorado State Judicial Branch released four more updated JDF forms in August 2015: two probate forms and two domestic relations forms. The updated forms are available for download here in PDF format or from the State Judicial website in Word, Word template, and PDF format.

PROBATE

  • JDF 820 – “Instructions for Appointment of Guardian for Minor by Will or Other Signed Writing” (revised 8/15)
  • JDF 882 – “Conservator’s Financial Plan with Inventory and Motion for Approval” (revised 8/15)

DOMESTIC RELATIONS

  • JDF 1201 – “Affidavit for Decree Without Appearance of Parties (Marriage)” (revised 8/15)
  • JDF 1258 – “Affidavit for Decree Without Appearance of Parties (Civil Union)” (revised 8/15)

Click here for all State Judicial’s JDF forms.

Colorado Court of Appeals: Medical Evidence of Competency Not Required Under Conservatorship Statute

The Colorado Court of Appeals issued its opinion in In the Interest of Neher v. Neher on Thursday, July 30, 2015.

Special Conservator—Medical Expert—Stipulation—Witness Disclosure—Evidence.

After receiving several unsolicited e-mails asking for money, Galen Neher (father) sent almost $500,000 to anonymous offshore bank accounts. Suspecting fraud, Christopher Neher, his son, petitioned the court to appoint a special conservator over father’s financial affairs. Although there was no medical evidence to support the petition, the court appointed a conservator to oversee father’s financial affairs.

On appeal, father contended that the conservatorship statute requires medical evidence before a court can properly make a determination of whether an individual is impaired. Because the current statute does not include such a requirement and the prior statute was amended to remove language that might have suggested it, father’s argument was rejected.

Father also argued that the trial court committed reversible error by denying his motion to enforce an oral stipulation whereby father would retake control of his financial affairs but would be monitored by an accounting firm for a year. The parties later disagreed over the terms to be included in a written stipulation. Even assuming that the court should have found the oral stipulation enforceable, the court still proceeded consistent with that stipulation by holding a hearing on whether to make the conservatorship permanent. Therefore, the court did not err in denying father’s motion.

Father further contended that the trial court abused its discretion when it denied his motion for a new trial. The court did not deny father a fair trial when it stopped the proceedings and directed counsel into chambers for discussion without the parties present. Further, his son’s late disclosure of an expert witness did not require reversal because father’s counsel failed to request a continuance. Finally, his son presented clear and convincing evidence that father was unable to manage property and business affairs. The orders appointing a permanent conservator over father’s estate and denying his motion for a new trial were affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Secured Creditor With Disallowed Claim Against Estate Can Enforce Underlying Security

The Colorado Court of Appeals issued its opinion in Oldham v. Pedrie on Thursday, July 16, 2015.

Real Property—Promissory Note—Deed of Trust—Probate—Notice of Claim—Disallowance—Foreclosure—Novation.

This appeal involves a parcel of land in Teller County first purchased by Lorna Oldham in 1976 from Donald Pedrie in exchange for a promissory note. In 2005, Lorna Oldham signed a second promissory note to replace the first promissory note. In 2007, she died, and Pedrie filed a notice of claim against the Estate of Lorna Oldham for the amount owing on the promissory note. The personal representative disallowed a portion of Pedrie’s claim, Pedrie threatened foreclosure of the property, and the trial court allowed him to proceed with his foreclosure proceedings.

On appeal, the Oldhams and the Estate contended that the 1976 Deed of Trust was extinguished when Pedrie declined to contest the disallowance in the Michigan court. Under the Colorado and Michigan probate codes, the requirement to file a notice of claim in an estate proceeding does not affect or prevent the right of a secured creditor to enforce a mortgage or other liens on estate property. Further, a secured creditor is not required to pursue an unconditional claim that is disallowed. Therefore, a secured creditor’s lien on real property is not extinguished when the creditor presents an unconditional claim against a decedent’s estate but does not pursue a disallowed claim within sixty-three days. The secured creditor may still pursue a foreclosure action to enforce the lien. Therefore, the district court did not err when it found that Pedrie held a valid deed of trust on the Teller County property.

The Oldhams also contended that Pedrie’s 1976 lien on the Teller County property was extinguished under CRS § 38-39-207, either because Pedrie accepted a new promissory note in 2005 that was not secured by a deed of trust or because there was a novation. The record contains unrebutted testimony that the principal plus interest due on the first note was greater than the amount due on the 2005 promissory note. Under these circumstances, the 2005 promissory note did not constitute a novation and did not extinguish the 1976 Deed of Trust.

Finally, the Oldhams contended that the district court erred by not making a finding on the total amount owed on the debt secured by the deed of trust. Pursuant to CRCP 120, the district court was not required to determine the amount remaining on secured debt. The Trial Management Order (TMO), however, required the court to determine the payoff amount. Therefore, the district court erred in not complying with the TMO in this regard. The judgment was affirmed in part and reversed in part, and the case was remanded to the district court to determine the amount owed by the Oldhams on the 1976 Deed of Trust.

Summary and full case available here, courtesy of The Colorado Lawyer.