August 20, 2019

Archives for August 10, 2011

Get Your Head in the Clouds: Cloud Computing for Solo Lawyers

Everyone at CBA-CLE is extremely excited that Larry Port is coming to Denver next week to present on cloud computing at our Hanging Your Shingle program – a comprehensive, three-day event designed to walk you through the process of going solo. Larry is an expert in the field and co-founder of Rocket Matter, a producer of legal productivity and practice management software. He also edits and writes for the Legal Productivity blog, providing a wealth of useful tips for all legal professionals.

Larry’s presentation for Hanging Your Shingle will introduce you to the cloud, describe the benefits (and some concerns) of cloud computing, and look forward to the future of legal technology and how it can best serve lawyers, especially those looking to start their own practice.

Larry has been kind enough to let us share with you a few teasers from his presentation – but don’t miss the real thing!

In the technology world, “the cloud” is an apt name for a murky topic with a hazy definition.  Originally a computer science term, technologists and non-technologists alike have used “cloud computing” loosely, casually, and confusingly.  Even among software experts, the exact definition of the cloud varies considerably.

Despite this confusion, cloud computing ultimately has a simple purpose: it allows people to leverage the Internet for application use, data storage, and other tools.  This capability is what most consumers think of when they use the word “cloud” and it permits us to come up with a reasonable definition:  A collection of utilities built on Internet technologies for on-demand services.

From the perspective of the small law firm, the cloud eliminates typical IT expenses, management, and headaches. “If I go to a cloud provider that has a Tier 1 data center, I get physical security, redundancy, and backup far better than I could do on my own,” said Dennis Kennedy, legal technology expert and author of The Lawyer’s Guide to Collaboration Tools and Technologies.

These are the early days of cloud adoption in typical law offices, though momentum is clearly heading in this direction.  Online backup services offer cost advantages over local storage and are already in use.  Software as a Service providers have tackled the problems of legal practice management, time and billing, and knowledge management, delivering zero-install applications over a web browser.  The ABA Legal Technology Resource Center and some state bar associations have advice for lawyers with questions about online services.

Even though we’ve come far with Internet-based computing, we’re only in the beginning phases of a massive movement towards increased usage.   Economics already drives this adoption, as more businesses, especially smaller ones, recognize that their bulky client-server networks, security and backup practices, and software licenses are better handled via Software as a Service companies or other Internet computing providers.  As familiarity and confidence increases with the emergent cloud, so too will adoption.  And data centers – those gigantic, windowless, modern fortresses – will power it all.

Larry has also compiled a useful list of Cloud Resources that attorneys may find particularly useful in developing their practices. Here’s a few from his much larger list:

  • Dropbox: Allows you to synch your files across multiple machines, including laptops, desktops, and mobile devices.
  • Evernote: Comprehensive note taking and digital organization system.  Works on laptops, desktops, and mobile devices.
  • MindMeister: Online mind mapping tools, great for brainstorming and organizing thoughts for complicated processes and cases.
  • Online virtual PBX (phone routing system).
  • MyFax: Online fax service which eliminates need for a fax machine.
  • Rocket Matter: Online client management, case management, billing, task management, calendaring, phone messaging, and other critical law office operational needs online.
  • FastCase and Casemaker: Online legal research – alternatives to Lexis and West with good case precedent visualization tools.
  • Square: Easily collect credit card payments with your mobile device.

There’s still time to register for this must-see program with Larry Port, which also features a keynote presentation by Carolyn Elefant, who has been a resource, an advocate, and an inspiration to lawyers around the country who are either currently solo or considering solo. Her blog, My Shingle, is one of the most popular resources for solo lawyers online.

Don’t miss this excellent opportunity to learn more about cloud computing and law practice management!

Larry Port is the Chief Software Architect of Rocket Matter, a cloud legal practice management software and time tracking solution as well as editor of the Legal Productivity blog. A speaker and award-winning writer at the crossroads of the legal profession and cutting edge technology, Larry frequently discusses marketing, efficiency, and quality techniques in the software industry that can be leveraged by law practitioners. He has been published extensively in legal publications, including Legal Management, Law Technology News, Law Practice Today, ILTA’s Peer to Peer, Lawyerist, FindLaw, Chicago Lawyer, and others.

DORA Releases Information Regarding New Transportation Rules Going into Effect Today

DORA issued a press release on Wednesday, August 10, 2011 regarding new Public Utilities Commission (PUC) transportation rules. The emergency rules implement two bills that were enacted by the Colorado Legislature earlier this year that became effective today.

The PUC adopted emergency rules last week that will remain in place for 210 days, or until permanent rules become effective, whichever period is shorter. Emergency rules were necessary to ensure that there was no lapse of regulations as a result of the recent statutory changes.

The new rules implement Senate Bill 11-180, which amended the authority of taxicabs to pick up passengers outside of their assigned geographic areas, and House Bill 11-1198, which reorganized the statutes governing motor carriers and made changes to regulatory authority granted to the PUC.

SB 11-180 permitted taxis operating in Colorado to pick up passengers at any point in the state when the taxi has dropped off passengers in close proximity to that point, except if that drop-off point is an airport. In the emergency rules, the PUC defined “close proximity” as within a 1-mile radius of the drop-off point, and within 20 minutes of the drop-off time.

HB 11-1198 repealed Articles 10, 11, 13, 14 and 16 of Title 40 of the Colorado Revised Statutes and created a new Article 10.1 in Title 40, organized into five parts covering the various types of transportation providers and services. In addition to reorganizing the statutes, the new law made certain substantive changes requiring emergency rule implementation, including:

  • Clarifying the services authorized under a children’s activity bus permit;
  • Transferring all safety jurisdiction over household goods movers from the PUC to the Colorado Department of Public Safety;
  • Standardizing provisions relating to the conduct of fingerprint-based criminal history record checks, both on initial issuance and resubmission, as a condition of continued qualification to drive for a motor carrier; and
  • Requiring towing carriers to maintain workers’ compensation insurance and post a $50,000 bond to ensure payment of any civil penalties assessed by the Commission.

The emergency rules can be viewed on the PUC website.

Tenth Circuit: Sufficient Evidence Presented in Murder-for-Hire Case; Indictment for Witness Tampering Did Not Charge Petitioner with More Than One Offense

The Tenth Circuit Court of Appeals issued its opinion in United States v. Washington on Tuesday, August 9, 2011.

The Tenth Circuit affirmed the district court’s conviction. Petitioner was convicted of one count of witness tampering and sentenced to 360 months in prison. The conviction stemmed from his alleged part in a murder-for-hire scheme wherein he was hired to kill a local law enforcement officer prior to that officer testifying in a drug case against the man who hired him. Petitioner now appeals his conviction, raising four claims: “(1) the indictment failed to charge a crime; (2) the indictment was duplicitous; (3) there was insufficient evidence introduced at trial to support his conviction; and (4) the district court abused its discretion in excluding the testimony of a defense witness who was present in the courtroom during trial in violation of the Rule of Sequestration.”

The Court rejected all of Petitioner’s challenges. First, Petitioner contends that the interplay between “attempt” and “conspiring” in the indictment resulted in the government’s failure to charge a cognizable federal offense; the Court found that although the indictment uses both terms, it did sufficiently charge the witness tampering crime. Second, the Court concluded that the indictment did not charge Petitioner with more than one offense (conspiracy and attempt) under the same count; consequently, the indictment was not duplicitous. Third, Petitioner’s claims that there was insufficient evidence to support his witness-tampering conviction were rejected because there were multiple, substantial steps taken toward the commission of the crime. Lastly, the Court affirmed the exclusion of the witness’ testimony as she was in the courtroom at a time in which the Court made clear that all other potential witnesses must leave; although Defense counsel claimed he was unaware of the government’s eventual line of questioning that would give rise to the witness’ inclusion in the proceedings, the Court refused to allow her testimony to be admitted.

Tenth Circuit: Charging an Amenity Fee to Visit Mount Evans is Not Beyond the Forest Service’s Authority

The Tenth Circuit Court of Appeals issued its opinion in Scherer v. United States Forest Service on Tuesday, August 9, 2011.

The Tenth Circuit affirmed the district court’s decision. Petitioner alleges that the Forest Service’s charge of an amenity fee to enter Mount Evans is facially inconsistent with Congress’s directions, and must be held null and void in application to the public and all those who seek to enter the park. The Court, however, disagreed and found that the fee is consistent with Congress’ mandates regarding national parks. The Legislature has said that the Forest Service may sometimes charge visitors to Mount Evans; as such, some lawful applications of the policy do exist and run counter to the broad, facial challenge brought by Petitioner.

The Recreation Enhancement Act (REA) “allows the Forest Service to impose ‘amenity fees’ in areas that ‘provide[] significant opportunities for outdoor recreation,’ where there are ‘substantial Federal investments’ and certain ‘amenities’ — amenities defined to include, among other things, interpretive exhibits, a permanent toilet, and security services.” However, “the statute prohibits the Service from ‘charg[ing] . . . [s]olely for parking, undesignated parking, or picnicking along roads or trailsides[,] . . . [f]or persons who are driving through, walking through, boating through, horseback riding through, or hiking through Federal recreational lands and waters without using the facilities and services[,] . . . [f]or camping at undeveloped sites[,] . . . [or] [f]or use of overlooks or scenic pullouts.'” Petitioner claims that the Mount Evans Implementation Plan disregards these legislative limits by sometimes charging people who seek to do only these things.

The Court disagreed because many visitors do take advantage of the amenities for which the Forest Service may charge the fee. “[T]he amenities come as a sort of package deal: paying the fee entitles a visitor to use them as much or as little as she chooses. So whether this results in the Forest Service charging for an activity that’s supposed to be free under § 6802(d)(1) depends on what a particular visitor chooses to do.” Therefore, it is not the case that every time the Forest Service collects the amenity fee it exceeds its statutory authority. “And given this, [Petitioner] can’t meet the burden of showing that there are no set of circumstances where the Implementation Plan’s fee is lawfully collected.” The Court does note that a more specific challenge to the fee, as applied to Petitioner or certain particular visitors, may be successful; the policy itself is not immune from attack.

Tenth Circuit: Traffic Stop Justified at Inception and Drug Sniff by Dog Both Reasonable and Reliable

The Tenth Circuit Court of Appeals issued its opinion in United States v. Kitchell on Tuesday, August 9, 2011.

The Tenth Circuit affirmed the district court’s conviction. Petitioners were arrested and charged with possessing firearms following a prior felony conviction after highway patrol officers stopped and searched their rental vehicle and found six firearms in the trunk. The district court denied Petitioners’ joint motion to suppress evidence seized during the stop, and they were convicted. On appeal, they challenge the district court’s denial of their motion to suppress on a number of grounds. Petitioners also challenge the district court’s application of a sentencing enhancement.

The Court disagreed with all of Petitioners’ contentions. First, the Court determined that the motion to suppress the evidence seized during the traffic stop was properly denied; the stop was justified at its inception, the ensuing detention was reasonably related in scope to the circumstances of the stop, the drug sniff constituted a “reasonable general search” in light of the widespread contamination of currency with cocaine residue, and drug-sniffing dog was a sufficiently reliable narcotics dog.

The Court also affirmed the district court’s sentence enhancement; “based on the significant evidence presented by the government that the money found in the vehicle’s trunk constituted either drug proceeds or funds to be used in a drug transaction, the district court did not clearly err in applying the enhancement.”

Tenth Circuit: No Evidence that Guilty Plea was Involuntary; Evidentiary Hearing Necessary to Determine Ineffective Assistance of Counsel Claim

The Tenth Circuit Court of Appeals issued its opinion in United States v. Weeks on Tuesday, August 9, 2011.

The Tenth Circuit affirmed in part and reversed in part the district court’s decision. Petitioner pled guilty to conspiracy to commit securities fraud. He now argues that his guilty plea was neither knowing nor voluntary and was the result of ineffective assistance of counsel. His appeal was consolidated with his appeal from the district court’s denial of his § 2255 petition asserting the ineffective assistance of counsel claim.

The Court affirmed Petitioner’s conviction on his direct appeal, but reversed the dismissal of his § 2255 petition. Petitioner “pled guilty to the conspiracy charge without any further claim that he did not knowingly violate the law. Furthermore, four years passed between [his] guilty plea and sentencing, during which time [he] raised no concerns about the validity of his guilty plea. Under these circumstances, [the Court found that] it is neither obvious nor plain that [Petitioner’s] plea was involuntary.”

Regarding the § 2255 issue, the Court concluded that the district court abused its discretion when it denied the claim that Petitioner’s attorney “had provided ineffective assistance of counsel in relation to the plea agreement without permitting further development of the record.” The Court determined nothing on the merits regarding the claim, but found that an evidentiary hearing is necessary to determine if Petitioner’s allegations are true.

Tenth Circuit: Leave to Proceed In Forma Pauperis Denied when Litigation History Includes at Least Three Cases that Failed to State a Claim

The Tenth Circuit Court of Appeals issued its opinion in Strope v. Cummings on Tuesday, August 9, 2011.

The Tenth Circuit vacated the district court’s grant of leave for Petitioner to proceed in forma pauperis (IFP) in his appeals. Petitioner is a prisoner of the State of Kansas appearing pro se and IFP. He has three civil appeals pending in the district court, each of them filed in October 2010; he has not paid the filing fees for any of these appeals.

The Court determined that Petitioner is barred under federal law from proceeding IFP in these appeals because of a litigation history that includes at least three lawsuits previously dismissed for failure to state a claim on which relief could be granted. As a result, Petitioner must prepay the filing fees for each appeal he would addressed on the merits; he is allowed thirty days to pay the fees or each appeal will be dismissed.

Tenth Circuit: Attorney Fees Awarded as Preliminary Injunction Made Petitioners ‘Prevailing Parties’ in Dispute that was Later Dismissed as Moot

The Tenth Circuit Court of Appeals issued its opinion in Kansas Judicial Watch v. Stout on Tuesday, August 9, 2011.

The Tenth Circuit reversed and remanded the district court’s decision. The case arises out of a challenge to Judicial Rules of Conduct. Kansas provides for the popular election of judges in almost half of its judicial districts, and from 1995 to 2009, the Kansas Code of Judicial Conduct prohibited judicial candidates from making certain kinds of pledges and commitments and from personally soliciting support for their campaigns. In 2006, these restrictions were challenged as being unconstitutional, violating the First and Fourteenth Amendments by infringing the rights of free speech and association. When the Rules were ultimately altered as this case was proceeding, the petitioners’ preliminary injunction was vacated and the case was dismissed as moot.

However, Petitioners claim they are entitled to attorney fees; “[t]hey argued that they qualified as ‘prevailing parties’ entitled to a fee award under 42 U.S.C. § 1988 because the preliminary injunction constituted a ‘judicially enforceable judgment that materially alter[ed] the legal relationship between the parties.'” The Court agreed. Petitioners “obtained a preliminary injunction that provided some of the relief sought in the complaint, represented an unambiguous indication of probable success on the merits, and was dissolved only after the actions of third parties mooted the case. Under these circumstances, [the Court] that [Petitioners] are ‘prevailing parties’ within the meaning of 42 U.S.C. § 1988.”

Tenth Circuit: Lawful Permanent Resident is Removable Because Felony Menacing Conviction is Crime of Violence

The Tenth Circuit Court of Appeals issued its opinion in Damaso-Mendoza v. Holder, Jr. on Tuesday, August 9, 2011.

The Tenth Circuit denied the petition for review. Petitioner, a citizen of Mexico and a lawful permanent resident of the United States, pled guilty in Colorado to felony menacing and misdemeanor assault. The Board of Immigration Appeals (BIA) determined that he was then removable; his felony conviction for menacing was a conviction of a crime of violence as defined by 18 U.S.C. § 16, and therefore an aggravated felony, making him removable under 8 U.S.C. § 1227(a)(2)(A)(iii).

The Court agreed with the BIA’s reasoning and decision. To determine whether a statute describes a crime of violence, the Court will ordinarily look only to the elements of the state law offense. The BIA “observed that under either subsection of § 18-3-206 the defendant must have ‘place[d] or attempt[ed] to place another person in fear of imminent serious bodily injury,’ Colo. Rev. Stat. § 18-3-206; and it then reasoned that placing another person in such fear, whether the defendant uses a real or simulated deadly weapon under § 206(1)(a) or represents that he has a deadly weapon under § 206(1)(b), ‘necessarily involves a threatened use of physical force.’ R. at 5. Because any crime that has the threatened use of physical force as an element is a crime of violence, see 18 U.S.C. § 16(a), the BIA concluded that a conviction under either subsection of the Colorado statute is a conviction of a crime of violence.”

Tenth Circuit: Unpublished Opinions, 8/9/11

On Tuesday, August 9, 2011, the Tenth Circuit Court of Appeals issued seven published opinions and four unpublished opinions.


Sandoval v. Martinez-Barnish

United States v. Garcia

United States v. Watson

ClearOne Communications, Inc. v. Chiang

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.