August 24, 2019

Archives for August 23, 2011

Finalists Selected to Fill Judgeship in Twentieth Judicial District

The Twentieth Judicial District Nominating Commission has nominated three candidates for a district court judgeship created by the retirement of the Honorable Lael Montgomery, effective October 1, 2011.

The nominees for the bench are Geraldine Brimmer, of Boulder, and Patrick Butler and Bruce Langer, both of Superior. All were selected by the commission on August 22.

Under the Colorado Constitution, Governor Hickenlooper has until September 7 to appoint one of the nominees as district court judge for the Twentieth Judicial District, which serves Boulder County.

Comments regarding any of the nominees can be emailed to the Governor’s Office.

Chad Johnson: Is There a Conflict of Interest When a Construction Defect Defense Attorney Becomes Coverage Counsel Post-Litigation?

In Weitz Co., LLC v. Ohio Cas. Ins. Co., the U.S. District Court for the District of Colorado was asked to rule on a motion to disqualify counsel in an insurance coverage action. 11-CV-00694-REB-BNB, 2011 WL 2535040 (D. Colo. June 27, 2011). Motions to disqualify counsel are viewed with suspicion, as courts “must guard against the possibility that disqualification is sought to ‘secure a tactical advantage in the proceedings.’” Id. at *2 (citing Religious Technology Center v. F.A.C.T. Net, Inc., 945 F. Supp. 1470, 1473 (D. Colo. 1996).

Weitz Company, LLC (“Weitz”) is a general contractor and defendant in an underlying construction defect suit which had concluded before the action bringing rise to this order. In the underlying action, Weitz made third-party claims against subcontractors, including NPW Contracting (“NPW”). Weitz was listed as an additional insured under NPW’s policies with both Ohio Casualty Insurance Company and Mountain States Mutual Casualty Company (collectively “the Carriers”). The Carriers accepted Weitz’s tender of defense under a reservation of rights. However, neither insurance carrier actually contributed to Weitz’s defense costs in the underlying action. At the conclusion of the construction defect action, the parties unsuccessfully attempted to apportion the attorney’s fees and costs. Eventually, Weitz brought suit against the recalcitrant carriers. The Lottner firm, which had previously represented Weitz in the underlying construction defect action, continued to represent Weitz in this coverage action. The Carriers moved to disqualify the Lottner firm, alleging the firm had a conflict of interest and that the attorneys were necessary witnesses.

Conflict of Interest Claim

As the basis for its conflict of interest claims, the Carriers claimed that the Lottner firm had violated Rule 1.7 of the Colorado Rules of Professional Conduct (“RPC”). Rule 1.7 addresses concurrent conflicts of interest. The Carriers first argued that the Lottner firm had an attorney-client relationship not only with the Weitz, but also with the Carriers. The court was not persuaded. Citing Colorado Ethics Opinions 91 and 43, and other Colorado courts’ interpretations of them, the Weitz Court held that there is no attorney-client relationship with the insurance carrier, only the insured.

The Carriers also argued that the Lottner firm could not represent Weitz in both the underlying construction defect action and this coverage action because of Colorado Ethics Opinion 91 states:

One area where significant problems may arise is when a lawyer is asked to both render a coverage opinion and to defend an insured in the tort case. The lawyer cannot ethically perform both services at the same time, since the insured’s representation may be materially limited by the lawyer’s responsibility to the carrier.

Again, the court was not persuaded. Whether a coverage question creates a conflict of interest creates a conflict of interest depends on an assessment of the facts of each particular case.” Id. at *5 (citing Colorado Ethics Opinion 91). The court explained that although it is not permissible for a lawyer to analyze coverage and simultaneously or later defend an insured in a tort case; that is not the same situation here. Because the Lottner firm had defended the construction defect action before analyzing coverage, and had not acted to “exploit the attorney-client privilege in order to build a case for non-coverage,” the firm had no conflict of interest. Id.

Necessary Witness Claim

The Carriers’ last argument for disqualification of the Lottner firm was that the lawyers of the firm were necessary witnesses at trial. Colorado Rule of Professional Conduct 3.7 (“Rule 3.7”) prohibits a lawyer from serving as both advocate and witness. To be called at trial, the calling party has the burden to prove that the proposed attorney testimony is “necessary” at trial. “A lawyer is likely to be necessary where the proposed testimony is relevant, material, not merely cumulative, and unobtainable elsewhere.” Id. at *6 (quoting World Youth Day, Inc. v. Famous Artists Merchandising Exchange, Inc., 866 F. Supp. 1297, 1302 (D. Colo. 1994). The Carriers argued that all lawyers at the Lottner firm were necessary because they “are the only fact witnesses who can testify regarding [Weitz’s] demands for coverage, their pursuit of coverage, and Mountain States’ and Ohio Casualty’s response to such demands and pursuit.”

The court was not persuaded that other fact witnesses could not testify regarding the proposed testimony. The court found that the Lottner firm’s associate counsel, the Carriers, and the Carriers’ coverage counsel could testify to Weitz’s demands. Therefore, at the time of the order, the attorneys at the Lottner firm were not necessary witnesses. The court then added:

Of course, the continued participation of the Lottner firm in this action as trial counsel precludes its later participation as witnesses. Thus, although I find the Lottner firm lawyers are not necessary witnesses, if there is any possibility that Weitz will call them to testify, they must step aside now as trial counsel.

Although not an issue here, unfortunately, several Colorado attorneys have sought to improperly call themselves as factual or expert witnesses for which they are also acting trial counsel in recent years. The underlying reasons that gave rise to Rule 3.7’s bar on this type of testimony are numerous and beyond the scope of this blog post.[1] Hopefully this recent case further clarifies this issue.

Chad Johnson is an associate at Higgins, Hopkins, McLain & Roswell who focuses his practice on construction litigation. He contributes to the firm’s Colorado Construction Litigation Blog, where this post originally appeared on August 19, 2011.

34th Annual Colorado Real Estate Practice Course

The Fundamental Course & Texts in Colorado Real Estate!

The Colorado Real Estate Practice course has been offered annually since 1977, and is recognized as the best basic skills course in the Colorado real property law area. If you are a recent law school graduate or bar admittee, an experienced practitioner desiring a comprehensive refresher, a real estate professional, or a legal assistant working in real estate, this is a course you don’t want to miss!

The course will cover all of the fundamentals that practitioners and professionals need to know about Colorado real estate law, including:

  • Overview of real estate practice and malpractice, recognized areas of liability, and specialization
  • Deeds and conveyancing, surveys, and land descriptions
  • Title insurance, purchase and sale contracts, commercial and residential, and closings
  • Financing
  • Public trustee and judicial foreclosures, and quiet title actions

The course is presented by Willis Carpenter, Esq., who has been teaching it for the last 34 years. He is a frequent lecturer in continuing legal education programs, a past president of the Denver Bar Association, and has previously chaired the Real Estate Section Council of the Colorado Bar Association.

Participants will also receive three great texts to guide your practice in real estate after the course concludes:

  • Colorado Real Estate Practice (2011 Revised Edition) (Two Volumes)
  • Colorado Title Insurance Practice, 4th Edition
  • The Land Measurement Manual

The 10-week course has been submitted for 18 General CLE Credits, including 4 Ethics Credits. Additionally, 18 Real Estate Credits have been submitted, under C.R.S. § 12-61-100.5(3).

Don’t miss out on this opportunity to learn everything you need to know about Real Estate Practice in just 90 minutes a week! Register today and mark your calendars!

CLE Program: Colorado Real Estate Practice

This CLE presentation will take place over ten weeks, beginning Tuesday, September 13 and concluding Tuesday, November 22. Participants may attend live in our classroom or watch the live webcast.

Classes meet every Tuesday from 5:30-7:00 pm, except no class will be held on October 11.

State Board of Human Services Amends Anti-Discrimination Policy in Child Welfare Rules

The Colorado State Board of Human Services has amended the anti-discrimination policy within its Child Welfare rules. The proposed amendments are seen as necessary because the Federal Office of Civil Rights notified the Department of Human Services that their policy was inaccurate and needed to be updated in order to meet federal requirements.

The rules will align county anti-discrimination rules with Federal regulations by:

  • Correctly stating federal cites;
  • Adding “creed” and “method of payment” as areas that may not be a basis for discrimination;
  • Clarifying requirements to assist persons with limited English; and,
  • Adding the requirement for county departments to post signs that notify that auxiliary aids and services are available on request to persons with mental or physical disabilities.

A hearing on the amended rules will be held on Friday, October 7, 2011 at the Colorado Department of Human Services, Conference Room 4A/B, 1575 Sherman Street, Denver, Colorado 80203, beginning at 10:00 am.

Full text of the proposed changes and line edits to the rules can be found here. Further information about the rules and hearing can be found here.

Tenth Circuit: Unpublished Opinions, 8/22/11

On Monday, August 22, 2011, the Tenth Circuit Court of Appeals issued no published opinions and seven unpublished opinions.


United States v. Carmona-Moreno

Lauer v. Thelin

McMurray v. McCelmoore

Ficken v. IRS

Kirby v. New Mexico Attorney General

United States v. Simpson

Brodzki v. Topeka Police Dep’t

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