March 20, 2019

Archives for September 6, 2011

Ethics and Professionalism: Civility in the Practice of Law

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

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

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

And, of course:

  • Courtroom decorum

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

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

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

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

This CLE presentation will take place on Friday, October 7. Participants may attend live in our classroom or watch the live webcast.

If you can’t make the live program or webcast, the program will also be available as a homestudy in three formats: video on-demand, mp3 download, and audio CD recordings. The course materials will also be available.

Finalists Selected to Fill Judgeship in Teller County Court

The Fourth Judicial District Nominating Commission has nominated three candidates for a Teller County Court judgeship created by the retirement of the Honorable Jackson L. Peters, Jr., effective October 1, 2011.

The nominees for the bench are Linda Margaret Billings-Vela, Theresa L. Kilgore, and Michael A. Kirtland. All finalists are from Woodland Park and were selected by the commission on September 2, 2011.

Under the Colorado Constitution, Governor Hickenlooper has until September 21, 2011 to appoint one of the nominees as county court judge for Teller County.

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

State Judicial Issues New Form to Request Reduced Payment for Dispute Resolution Services

The Colorado State Judicial Branch has issued a new form that allows a party to request a reduced payment for services provided by the Office of Dispute Resolution. Practitioners should begin using the new form immediately.

All forms are available in Adobe Acrobat (PDF) and Microsoft Word formats. Many are also available as Word templates; download the new forms from State Judicial’s individual forms pages, or below.

Filing Fees

  • JDF 211 – “Request To Reduce Payment for ODR Services and Supporting Financial Affidavit” (8/11)

Vivian Manning: LinkedIn Jobs – If You Post It, They Will Come

I just hired a great new employee using LinkedIn Jobs. It turned out to be an incredibly easy and effective way to identify good candidates and fill the position with a minimum of effort. Deciding between candidates was the only tough part of the process! How did it work? Here are the basics of conducting a LinkedIn search for a new employee.

Searching for a New Hire

Not knowing what to expect, I headed straight to Post a Job in LinkedIn’s Jobs section, and found that the process couldn’t have been easier. I also found that the monthly price for posting a job was very reasonable at $195 for a month—less than the local newspaper want ads, and the reach was wider. Compared to other online services, the price was more reasonable and the reach more focused, too.

  • Build a firm profile. Since job postings are tied into LinkedIn company profiles, you will need to set up your firm profile right away if you don’t already have one. Go to the LinkedIn Learning Center’s Company Pages if you need assistance. It’s free and you’ll use it for other things in the future.
  • Post your opening. Actually, posting the job is simply a “follow the steps” routine, but if you want you can review the process at the LinkedIn Learning Center’s Post a Job link. It’s good to know, for example, that if you make an error in the posting, you can go back and edit it. When you’ve completed the job details and are ready to post, just whip out your credit card and pay online. Applicants reviewing the job posting will not see your email address, so you have no worries about being inundated with emails and phone calls. In fact, all of your personal information is hidden.
  • Watch the applications roll in. People applying for the job are asked to upload their resume, cover letter and references as part of their application. Once someone applies, LinkedIn Jobs will send you an email with a summary of the applicant’s LinkedIn Profile, along with all the documents the applicant submitted. You have the ability to click through to their full profile. Also, each email includes a link to view all of the candidates applying for the job to date. You’ll use that!
  • Schedule the interviews. That’s the end of the LinkedIn involvement. Once you receive the emails with profiles and resumes, you can proceed as usual to contact applicants and arrange interviews.

My recent LinkedIn job posting triggered 21 responses, every one qualified for the position. In a small city with a population of about 150,000 that’s an amazing response. Given the ease and low cost of the posting, and the high quality of the applications, I will use LinkedIn Jobs in the future, without hesitation.

Oh, and if you’re on the other end of the job search process, seeking that perfect job, I encourage you to set up a full LinkedIn profile and set about reviewing the Job postings regularly. LinkedIn’s Learning Center has a great help page to get you started at Job Seekers.

Vivian Manning is the IT Manager at Burgar Rowe PC in Barrie, Bracebridge and Cookstown, Ontario. Prior to moving into IT, Vivian practiced law at Burgar Rowe primarily in the area of Municipal Land Development, with a total of 17 years in private practice. She currently indulges her love of teaching tech through her blog Small City Law Firm Tech, where she provides “tips of the day.” She also contributes to the Attorney at Work blog, where this post originally appeared on August 29, 2011.

James Johnson: Colorado Restricts Private Transfer Fees

In May, Governor Hickenlooper signed into law Senate Bill 11-234 – Concerning Residential Real Property Transfer Fee Covenants.  The bill is targeted at prohibiting fees payable upon the transfer of residential real property to individuals and entities where such fees do not touch and concern the real property.  The common law likely already prohibited such fees.  Nevertheless, the bill became effective immediately, the General Assembly having determined that such was necessary “for the immediate preservation of the public peace, health and safety.”  Apparently, the General Assembly identified a rising popularity trend for such fees, and it wanted to thwart their growth in Colorado.

The bill does essentially four things.  First, it prospectively prohibits fees payable upon the conveyance of residential real property, except for transfer fees that touch and concern residential real property, including payments to lenders, brokers, lessors, governmental and quasi-governmental entities, homeowner’s associations, and certain non-profit entities.  Second, it narrows the circumstances under which prohibited fees established prior to the effective date of the bill are payable.  Third, it provides penalties for recording documents requiring the payment of such fees.  And fourth, under certain circumstances, it provides a quick mechanism for removing covenants requiring the payment of such fees.

Here’s how it works. The bill contains a number of definitions that identify what constitutes a (1) conveyance of residential real property, (2) transfer fee, (3) transfer fee covenant, and (4) fee excluded from the definition of prohibited transfer fee covenants. Conveyance is defined to include sales, gifts, assignments, inheritance and any other transfer of an interest in residential real property. Residential real property means real property containing residential improvements and real property upon which construction of residential improvements has commenced. A transfer fee is a fee required to be paid either partially or fully upon conveyance of residential real property. A transfer fee covenant is a provision in a recorded or unrecorded document that requires payment of a transfer fee, but not including the excluded fees. Excluded fees essentially include those transfer fees that touch and concern residential real property, including payments to lenders, brokers, lessors, governmental and quasi-governmental entities, homeowners’ associations, and certain non-profit entities.

Having set forth the relevant terms, the bill makes any transfer fee covenant recorded on or after May 23, 2011, unenforceable. Any person who records a transfer fee covenant on or after May 23, 2011, and fails to release the covenant when requested to do so, is liable for all damages resulting from the transfer fee covenant, including the amount of the transfer fee, reasonable attorney fees related to recovering the transfer fee, quiet title actions, and show cause matters.

For those transfer fee covenants pre-dating May 23, 2011, the bill requires that the person or entity entitled to receive payment record a specified notice against the residential real property in question. If such notice is not recorded on or before October 1, 2011, then the transfer fee covenant is unenforceable. Where the notice is timely recorded, the owner of the residential real property subject to the transfer covenant may send a written request to the beneficiary of the payment identified in the notice inquiring about the amount of the payment due upon transfer. If the beneficiary does not timely respond to the inquiry, upon the recording of an affidavit by the owner indicating the lack of a response, the transfer fee covenant becomes unenforceable.

Any individuals or entities that have either considered or implemented a transfer fee should be aware of the enforceability issues raised by this bill.

James Johnson is a Shareholder in Otten Johnson’s land use, real estate, and litigation groups. He represents clients in all aspects of real estate development and related issues, including disputes regarding entitlement approvals and eminent domain. He contributes to the firm’s Rocky Mountain Real Estate Law blog, where this post (and a client alert) originally appeared on August 17, 2011.

CU Law Dean Phil Weiser to Speak on Reflections as White House Technology Advisor

On Wednesday, September 7, 2011, the new Dean of the University of Colorado Law School, Phil Weiser, will give a talk on his “Reflections on Technology Policy While Serving as the Senior Advisor for Technology and Innovation at the White House” for the past two years. Following the presentation, Brad Feld will moderate a question and answer session and welcome questions from the audience.

The event will be held at the CU Law School Wolf Law Building’s Wittemyer Courtroom, from 6:30-7:30 pm. A networking reception will follow.

Click here for more information about the presentation, and click here to register.

Phil Weiser is the Dean and Thompson Professor at the University of Colorado Law School. Prior to re-joining Colorado Law, he served as the Senior Advisor for Technology and Innovation to the National Economic Council Director at the White House. Previously, he served as the Deputy Assistant Attorney General for International, Policy, and Appellate Matters in the United States Justice Department’s Antitrust Division. Before joining the Obama Administration, Weiser was a professor of law and telecommunications at the University of Colorado, where he also served as an Associate Dean. At CU, Weiser established a national center of excellence in telecommunications and technology law, founding the Journal on Telecommunications & High Technology Law and the Silicon Flatirons Center for Law, Technology, and Entrepreneurship. Over the last decade, Weiser has written and taught in the areas of technology, innovation, and competition policy.

Colorado Supreme Court: Week of September 4, 2011 (No Opinions)

The Colorado Supreme Court issued no opinions for the week of September 4, 2011.

Colorado Court of Appeals: Good Cause Shown for Failure to Attend Hearing; Left on Trip after Appeal Deadline without Notice of Appeal

The Colorado Court of Appeals issued its opinion in Norman v. Industrial Claim Appeals Office on September 1, 2011.

Unemployment Compensation Benefits—Appeal—Notice—Hearing—Good Cause.

In this unemployment compensation benefits case, claimant sought review of a final order of the Industrial Claim Appeals Office (Panel) denying his request for a new hearing. The order was set aside and the case was remanded.

On January 10, 2011, claimant was awarded unemployment compensation benefits in a deputy’s decision based on his separation from employment with GMRI, Inc. (employer). Employer timely appealed the deputy’s decision to the Division of Employment (Division) on January 25, 2011. Employer’s appeal was not served on claimant.

The first notice sent to claimant that employer had appealed the deputy’s decision was the Division’s notice of hearing sent to him on February 3, 2011. This notice informed claimant that the hearing on employer’s appeal was set for February 15, 2011. Because claimant was on vacation from February 1, 2011 through February 17, 2011, he was unaware of the hearing until it had already taken place. He requested a new hearing as soon as he received the hearing officer’s decision disqualifying him from benefits. The Panel denied claimant’s request for a new hearing, ruling that good cause had not been shown to excuse his absence from the February 15 hearing.

Claimant argued that the Panel abused its discretion in denying his request for a new hearing. The Court of Appeals agreed. Claimant showed good cause for his failure to attend the hearing. He left on his trip after employer’s appeal deadline had expired and without awareness of employer’s notice of appeal. Further, the notice of appeal rights would not give a reasonable and prudent person any reason to expect a hearing to be set and held within days of that deadline. Therefore, the Panel abused its discretion in denying claimant’s request for a new hearing under these circumstances.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on September 1, 2011, can be found here.

Colorado Court of Appeals: Husband’s Loss of Consortium and Negligent Infliction of Emotional Distress Claims Are Not Barred by Injured Wife’s Settlement

The Colorado Court of Appeals issued its opinion in Draper v. DeFrenchi-Gordineer on September 1, 2011.

Personal Injury—Loss of Consortium—Derivative Claim—Settlement Release—Negligent Infliction of Emotional Distress—Statute of Limitations—Negligent Entrustment.

Plaintiff Robert Draper (husband) appealed the summary judgment dismissing the tort claims he filed on behalf of his wife, Jean Draper (wife), who was seriously injured in a car accident. The judgment was reversed and the case was remanded.

After wife was severely injured in a car accident, husband and wife signed a settlement agreement releasing wife’s claims against the parents who owned the vehicle that struck wife; the son who borrowed the car that struck wife; and the friend who, without a license, drove the vehicle that struck wife. Husband subsequently filed suit naming all four as defendants, alleging claims of loss of consortium, negligent infliction of emotional distress, and negligent entrustment. The trial court granted summary judgment in favor of defendants on all of husband’s claims.

Husband argued that the trial court erred in finding that his claim for loss of consortium was derivative of wife’s personal injury claim and thus was barred. A claim for loss of consortium is a derivative claim, but it also is a separate claim that creates a distinct cause of action. Further, an agreement settling an injured person’s personal injury claims does not necessarily bar the spouse’s loss of consortium claim. Here, the settlement agreement resolving wife’s claims against defendants, signed by both wife and husband, did not expressly release defendants from liability for any claims in husband’s lawsuit. Additionally, the settlement agreement awarded wife compensation for her injuries. Because husband’s separate derivative claim for loss of consortium depends on wife’s right to recover, and because wife didrecover, husband’s loss of consortium claim was not barred by the settlement agreement.

Husband also contended that the trial court erred when it granted summary judgment to defendants on his claim for negligent infliction of emotional distress on the ground that it was derivative of wife’s previously settled personal injury claims. The claim of negligent infliction of emotional distress is an independent claim, not a derivative claim. Thus, an agreement settling the claims of an injured person does not necessarily bar the spouse’s claim for negligent infliction of emotional distress. Accordingly, this was not a proper ground for summary judgment.

Husband contended that the trial court erred by ruling that his claim for bodily injury was barred by the statute of limitations. Husband’s complaint was filed one day less than three years after the collision. Fourteen months later, the trial court allowed husband to amend his complaint to add the claim for bodily injury. Husband’s alleged bodily injury arose from the same conduct set forth in the original complaint. The parties were the same, and the same negligence was pleaded as the proximate cause of husband’s injuries. Therefore, the amendment related back to the date of the original pleading. Thus, the trial court erred by dismissing that claim as time-barred.

Husband further argued that the trial court erred by granting summary judgment in favor of defendants as to his claim of negligent entrustment. Because there was a disputed question of material fact concerning whether the parents and the son knew, or should have known, that the friend was an unsafe driver, the trial court’s order granting summary judgment on this claim was reversed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on September 1, 2011, can be found here.

Colorado Court of Appeals: Internet Luring and Obscenity Statutes Not Unconstitutional; Not Overbroad as Applied to Defendant’s Explicit Sexual Communications

The Colorado Court of Appeals issued its opinion in People v. Boles on September 1, 2011.

Internet Sexual Exploitation of a Child—Internet Luring of a Child—Obscenity—Constitutional—Dormant Commerce Clause—Evidence.

Defendant appealed the judgments of conviction entered on jury verdicts finding him guilty of criminal attempt to commit Internet sexual exploitation of a child, Internet luring of a child, and obscenity. The judgments were affirmed.

Defendant was arrested and convicted after defendant, while online in an adult Internet chat room and using a screen name, initiated a conversation with an undercover detective posing as a 14-year-old girl named Trista. For over a month, defendant and “Trista” had numerous online, phone, and text conversations, the majority of which were sexual in nature. Defendant also asked “Trista” whether she wanted to meet him in person, at which point they discussed how she would travel from her supposed home in Denver to Colorado Springs, where defendant lived.

Defendant contended that the Internet luring and obscenity statutes under which he was convicted are unconstitutional. CRS § 18-3-306 is not overbroad because it is not content neutral and applies only if a communication describes “explicit sexual conduct.” The definition of “explicit conduct,” while narrow, is broader than the definition of obscenity as an exception to constitutionally protected speech. Further, the statute was not overbroad as applied to defendant’s explicit sexual and obscene communications. Finally, because a person of common intelligence would comprehend what conduct is prohibited by the statute, it is not unconstitutionally vague.

Defendant argued that the luring statute violates the dormant Commerce Clause. CRS § 18-3-306 does not discriminate against or unduly burden interstate commerce because it regulates the conduct of individuals who, through sexually explicit communications sent over the Internet, endanger the welfare of minors. Therefore, it does not violate the dormant Commerce Clause.

Defendant also contended that Colorado’s obscenity statute, CRS § 18-7-102(2.5)(a)(I), is unconstitutionally vague. However, a person of common intelligence would comprehend what conduct is prohibited by the statute. Therefore, it is not unconstitutionally vague.

Finally, defendant contended that there was insufficient evidence presented to prove that he took a substantial step toward the commission of Internet sexual exploitation of a child. “Trista” told defendant several times that she was 14 years old, defendant acknowledged her age, and defendant instructed “Trista” to touch her intimate parts. Therefore, there was sufficient evidence for a jury to convict defendant of this crime.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on September 1, 2011, can be found here.

Colorado Court of Appeals: Articles of Incorporation and Bylaws Did Not Contain Enforceable Agreement for Continued Purchasing of Goods and Services

The Colorado Court of Appeals issued its opinion in Arnold v. Anton Cooperative Ass’n on September 1, 2011.

Discrimination—Colorado Civil Rights Act—Jurisdiction—Breach of Contract.

April Arnold appealed the trial court’s judgment against her and in favor of defendants Anton Cooperative Association (Association), Chester Kenney, and Louanne Kenney. Arnold also appealed the orders awarding costs and fees to defendants. The orders were affirmed in part and reversed in part, and the case was remanded with directions.

Arnold was a member of the Association, which operates a general store. Chester Kenney is the Manager of the Association, and Louanne Kenney is his wife and an employee of the Association. The Association sent Arnold a notice that she was no longer permitted to enter or purchase from the Association’s store. Arnold then brought this action, alleging discrimination based on gender and disability, breach of the membership contract, and intentional interference with contract.

Arnold argued that the trial court erred in dismissing her claim for discrimination in a place of public accommodation under part 6 of the Colorado Civil Rights Act (CRA). The trial court concluded that only the county courts have jurisdiction to hear public accommodation claims under the CRA. However, district courts and county courts have concurrent jurisdiction over claims brought under part 6 of the CRA. Therefore, the trial court erred in dismissing Arnold’s CRA claim.

Arnold also argued that the trial court erred in dismissing her breach of contract claim. Specifically, she argued that the Association’s articles of incorporation and bylaws, when read together with the Cooperatives Act, provide her with an express right to purchase goods and services from the Association’s store. However, these documents do not contain an enforceable promise that Arnold will be permitted to continue purchasing goods and services from the Association’s store. Therefore, the trial court did not err in granting the Association’s motion for summary judgment regarding her breach of contract claim.

Arnold further contended that, as an alternative to her express contract claim, the trial court should have implied terms into the contract or proceeded under a quasi-contract theory to find that she had a right to purchase goods and services from the Association’s store. Arnold, however, did not preserve this issue for appeal. Further, Arnold’s argument would require the court to rewrite her contract with the Association, which it is not permitted to do.

Finally, because Arnold’s interference with contract claim was wholly dependent on her claim for breach of express contract, and the latter claim could not be sustained, the trial court did not err in granting the Association’s motion for summary judgment as to Arnold’s interference claim. The judgment dismissing Arnold’s claim under the CRA was reversed, and the case was remanded for further proceedings on that claim. In all other respects, the judgment was affirmed. The trial court’s order awarding costs to defendants was reversed given the resolution of the issues presented on appeal, and the order awarding attorney fees was affirmed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on September 1, 2011, can be found here.

Tenth Circuit: No Opinions, 9/2/11

On Friday, September 2, 2011, the Tenth Circuit Court of Appeals issued no published opinions and no unpublished opinions.