August 19, 2018

Archives for April 27, 2012

CBA Ethics Committee Updates Formal Opinion 68, “Conflicts of Interest; Propriety of Multiple Representation”

The Colorado Bar Association Ethics Committee has been working on updating their Formal Ethics Opinions in order to reflect changes in the law, including the 2008 revision to the Colorado Rules of Professional Conduct. As part of that effort, the Ethics Committee released an updated version of Formal Opinion 68, “Conflicts of Interest; Propriety of Multiple Representation” in December 2011, and it was published in the March 2012 issue of The Colorado Lawyer.

Formal Opinion 68 addresses four specific conflict situations:

1) representation of both a husband and wife in negotiating a property settlement before dissolution proceedings commence;
2) representation of both the buyer and seller in a residential real estate transaction;
3) representation of both the buyer and seller of a business; and
4) representation of individuals in drafting an entity agreement, and representation of solely an entity in its formation.

The Ethics Committee opines that, in the first scenario, the dual representation would be impermissible under the Colorado Rules of Professional Conduct (Colo. RPC or Rules) because even if the divorce settlement agreement is uncontested, it must be approved by the court, and counsel cannot represent two parties whose interests are adverse under Colo. RPC 1.7.

In the second, third, and fourth scenarios, which are all transactional, the Ethics Committee declines to issue a blanket prohibition on representing both parties to the proposed transactions, but rather notes that each individual situation will require a thorough analysis of the propriety of the representation.

Opinion 68 provides a thoughtful and detailed evaluation of Colo. RPC 1.7 and its comments. It thoroughly examines informed consent, including when and whether it is appropriate, what can be consented to, how to obtain informed consent, the need to obtain new consent when there are situational changes, and confirmation in writing. Each scenario listed above is explored in depth, and the propriety of dual representation is examined for all for sample scenarios. The message of the Ethics Committee is clear: an attorney must examine the specific scenario involving a concurrent conflict of interest with the utmost scrutiny and caution prior to undertaking representation of conflicting parties.

The Ethics Committee develops its formal opinions as a means for providing Colorado attorneys with guidance. However, they issue the following caveat:

Formal Ethics Opinions are issued for advisory purposes only and are not in any way binding on the Colorado Supreme Court, the Presiding Disciplinary Judge, the Attorney Regulation Committee, or the Office of Attorney Regulation Counsel, and do not provide protection against disciplinary actions.

Colorado Court of Appeals: Announcement Sheet, 4/26/12

On Thursday, the Colorado Court of Appeals issued eleven published opinions and fifty unpublished opinions.

Published

People v. Green

In re the Marriage of Leverett

Davis v. GuideOne Mutual Ins. Co.

In re the Marriage of Beatty and Turner

Saint John’s Church in the Wilderness v. Scott

Berumen v. Department of Human Services, Wheat Ridge Regional Center

Rost v. Atkinson

People in the Interest of C.F., a Child

Gleason v. Judicial Watch, Inc.

SW v. Towers Boat Club, Inc.

Zerba v. Dillon Companies, Inc.

Summaries of published cases are forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Unpublished Opinions, 4/26/12

On Thursday, April 26, 2012, the Tenth Circuit Court of Appeals issued no published opinions and four unpublished opinions.

Unpublished

Jordan v. Wiley

Rouse v. Darr

United States v. Browner

Barnes, Jr. v. Allred

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

Governor Hickenlooper Signs Several Groups of Bills Into Law

Governor Hickenlooper has continued to sign legislation into law over the past several days and weeks. He has signed 155 bills into law so far this legislative session.

Fourteen bills were signed on Friday, April 13, 2012. Five of them are highlighted below:

  • HB 12-1323: Concerning the Associate County Judge for Montrose County.
    Sponsored by Rep. Don Coram and Sen. Ellen Roberts. This bill changes the residency requirements for the associate county judge for Montrose County. The judge must now reside within Montrose County and maintain chambers within the boundaries of the Southwestern Water Conservation District.
  • SB 12-022: Concerning Maintaining Child Care Assistance for Working Families.
    Sponsored by Sen. Suzanne Williams and Rep. Tom Massey. The bill creates a pilot program in the Department of Human Services to allow a county to continue providing public benefits to a family that has recently exceeded the income limits for the program and requires the family to pay an increasing portion of the costs for the program.
  • SB 12-092: Concerning the Use of a Video Display in a Motor Vehicle That is Being Operated on a Roadway.
    Sponsored by Sen. Cheri Jahn and Rep. Larry Liston. The bill allows the use of video displays anywhere in a moving vehicle as long as the display is not visible to the driver.
  • SB 12-095: Concerning Requirements for the Valid Transfer of Title to a Motor Vehicle.
    Sponsored by Sen. Kevin Lundberg and Rep. Mark Barker. The bill clarifies that title applicants possessing a notarized bill of sale (within two years) and a certified vehicle identification number inspection document may obtain title, regardless of the age of the vehicle.
  • SB 12-131: Concerning the Responsibilities of a Fiduciary with Regard to the Estate of a Person Who May Have Executed a Designated Beneficiary Agreement.
    Sponsored by Sen. Lucia Guzman and Rep. Dan Pabon. The bill relieves the Personal Representative (PR) of an estate from liability for distributing the estate contrary to the wishes of the decedent regarding an executed Designated Beneficiary Agreement (DBA), if the PR had no actual knowledge of the executed DBA after searching every county in which the PR knew the decedent lived for the three years prior to death.

Governor Hickenlooper signed eight bills on Monday, April 16, 2012. Three of them are highlighted below.

  • SB 12-057: Concerning Native American Language Instruction.
    Sponsored by Sen. Suzanne Williams and Rep. J. Paul Brown. The bill allows certified instructors to teach Native American language and culture in schools, as long as the instructor is certified in the language he or she is teaching.
  • SB 12-091: Concerning Modifications to Provisions Governing the Practice of Nursing Home Administration, and, in Connection Therewith, Modifying the Criteria for Nursing Home Administrators to Qualify to Serve on the Board of Examiners of Nursing Home Administratore, Modifying the Experience Requirements for Persons Applying to Take the Nursing Home Administrator Licensure Examination or to Participate in the Administrator-in-Training Program, and Permitting a Nursing Home Administrator who has Passed a National Examination and an Examination in Another State to Sit for the Colorado Licensure Examination.
    Sponsored by Sen. Lois Tochtrop and Rep. Laura Bradford. The bill makes changes to the Board of Examiners of Nursing Home Administrators and the licensing process for Nursing Home Administrators.
  • HB 12-1009: Concerning a Report Related to the Federal Moneys Received By the Executive Branch.
    Sponsored by Rep. Cheri Gerou and Sen. Kent Lambert. The bill requires certain information to be added to the annual Report of Federal Assistance for all state agencies in order to increase transparency in government.

On Wednesday, April 18, 2012, the Governor journeyed to the newly renamed Metropolitan State University of Denver in order to ceremoniously sign two bills into law, both of which are highlighted below.

  • SB 12-045: Concerning Granting Associate Degrees to Students who Transfer from a Two-Year Institution.
    Sponsored by Sens. Evie Hudak and Keith King and Reps. Tom Massey and Rhonda Fields. The bill specifies that students who meet certain requirements may be eligible for associate degrees from two-year institutions.
  • SB 12-148: Concerning Changing the Name of Metropolitan State College of Denver to Metropolitan State University of Denver.
    Sponsored by Sen. Lucia Guzman and Rep. Crisanta Duran. The bill changes the name of Metropolitan State College of Denver to Metropolitan State University of Denver.

Governor Hickenlooper also ceremoniously signed a bill in Colorado Springs on Thursday, April 19, 2012 at the Colorado Space Industry Luncheon. The bill is summarized here.

  • SB 12-035: Concerning Limited Liability for Spaceflight Activities.
    Sponsored by Sen. Mary Hodge and Rep. Bob Gardner. The bill creates a statutory limitation of liability for FAA-licensed entities who conduct spaceflight activities.

On Friday, April 20, 2012, Governor Hickenlooper signed two bills relating to direct filing (charging juveniles as adults for criminal acts) and electronic recycling. These two bills are summarized below.

  • HB 12-1271: Concerning Charging Juveniles by Direct File of Information or Indictment in District Court.
    Sponsored by Reps. B.J. Nikkel and Beth McCann and Sens. Angela Giron and Tim Neville. The bill raises the minimum age for direct filing from 14 to 16, and limits the offenses for which a juvenile may be tried as an adult.
  • SB 12-133: Concerning the Diversion of Electronic Devices from Landfills.
    Sponsored by Sen. Gail Schwartz and Rep. Don Coram. The bill prohibits landfill disposal for certain electronic devices, excepting residents of counties that do not have at least two electronic waste recycling events per year.

Finally, on Monday, April 23, 2012, Governor Hickenlooper signed three more bills into law, which are summarized below.

  • HB 12-1228: Concerning Criminal Background Checks for Neighborhood Youth Organizations Seeking to Obtain a License.
    Sponsored by Rep. Brian DelGrosso and Sen. Pat Steadman. The bill changes the requirements for background checks for employees and volunteers of a neighborhood youth organization, but continues to mandate that any person found to have been convicted of felony child abuse or any felony involving unlawful sexual behavior be prohibited from working at a neighborhood youth organization.
  • HB 12-1318: Concerning the Development of Guidelines Regarding the Eligibility of Controlled Maintenance Funding for State Facilities.
    Sponsored by Rep. J. Paul Brown and Sen. Gail Schwartz. The bill codifies existing practice regarding controlled maintenance funding.
  • SB 12-067: Concerning Requirements Pertaining to the Corporate Status of Charter Schools.
    Sponsored by Sen. Evie Hudak and Rep. Chris Holbert. The bill requires that all Colorado charter schools be organized as nonprofit corporations and prohibits a board of a charter school from authorizing a charter with a for-profit entity.
  • SB 12-127: Concerning the Participation of Providers of Long-Term Care in Medicaid Care Coordination Programs.
    Sponsored by Sen. Linda Newell and Rep. Ken Summers. The bill requires the Department of Health Care Policy and Financing to allow long-term care providers to participate if it develops a program of health homes for persons with chronic conditions.

A complete list of Governor Hickenlooper’s 2012 legislative decisions is available here.

HB 12-1349: Appropriating Moneys From the Species Conservation Trust Fund for Programs Designed to Preserve Threatened or Endangered Native Species

On April 19, 2012, Rep. Randy Baumgardner and Sen. Gail Schwartz introduced HB 12-1349 – Concerning the Species Conservation Trust Fund. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill appropriates money from the species conservation trust fund for programs submitted by the executive director of the department of natural resources that are designed to conserve native species that have been listed as threatened or endangered under state or federal law, or are candidate species or are likely to become candidate species as determined by the United States fish and wildlife service.

The bill combines the operation and maintenance account and the capital account of the trust fund. Assigned to the Agriculture, Livestock, & Natural Resources Committee; the bill is not listed on the printed calendar.

Summaries of other featured bills can be found here.

HB 12-1347: Eliminating the Limit on Amount of Beer a Brew Pub Can Produce Annually if it Does Not Sell Beer Wholesale to Retailers

On April 17, 2012, Rep. Jim Kerr and Sen. Cheri Jahn introduced HB 12-1347 – Concerning the Limitation on the Amount of Beer a Brew Pub Licensed Under the “Colorado Liquor Code” Can Produce Annually. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under the “Colorado Liquor Code,” a brew pub is defined as a retail establishment that manufactures no more than 1,860,000 gallons of full-strength and 3.2% beer on its licensed premises each year. The bill permits a licensed brew pub to manufacture an amount of beer in excess of the limitation if the brew pub does not sell beer at wholesale to licensed retailers. On April 19 the Finance Committee amended the bill and moved it to the floor of the House for consideration on 2nd Reading.

Since this summary, the House Second Reading was laid over daily.

Summaries of other featured bills can be found here.

HB 12-1346: Establishing Registration Requirements for Sex Offenders Who Do Not Have a Fixed Residence

On April 13, 2012, Rep. Bob Gardner introduced HB 12-1346 – Concerning Sex Offender Registration. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under current law, sex offenders must register based on their residence. The bill would create a registration system for offenders who lack a fixed residence. An offender who registers under “lacks a fixed residence,” which the bill defines, must verify his or her registration with the registering agency every three months or every month, depending on the offender’s registration requirements. Failure to do so is an unclassified misdemeanor. Law enforcement agencies that receive registrations that include a lack of a fixed residence must report semi-annually the number of such registrations to the department of public safety for two years. The department of public safety must assess the effectiveness of the program after two years.

The bill clarifies the calculation for the timing of sex offender quarterly registration. Assigned to the Judiciary Committee; the bill is set for committee review on Tuesday, April 24 at 1:30 p.m.

Since this summary, the bill was amended by the Judiciary Committee and referred to the House Committee of the Whole. Second reading in the House was laid over until April 27.

Summaries of other featured bills can be found here.

HB 12-1345: Adjusting Funding for Public Schools to Account for Inflation

On April 5, 2012, Rep. Tom Massey and Sen. Bob Bacon introduced HB 12-1345 – Concerning the Financing of Public Schools, and, In Connection Therewith, Making and Reducing Appropriations. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill amends the “Public School Finance Act of 1994” to modify the funding for public schools from kindergarten through the twelfth grade for the 2012–13 budget year and, in some circumstances, for budget years thereafter. The bill has passed out of the Education and Appropriations Committees respectively; it awaits action on 2nd Reading on the House Floor.

Since this summary, the bill passed out of the House with amendments and was introduced to the Senate Education Committee.

Summaries of other featured bills can be found here.