March 23, 2019

Archives for September 6, 2012

ABA House of Delegates’ Ethics 20/20 Commission Approves Changes to the Model Rules of Professional Conduct

The dawn of the information age has changed life as we know it. Our personal lives and businesses have been affected, and the practice of law is no exception. The ABA House of Delegates’ Ethics 20/20 Commission met in August to decide how best to advise attorneys of their ethical obligations in the global marketplace. The top ten issues addressed by the House of Delegates were:

  1. Protecting client information in electronic communications;
  2. Cloud storage and properly safeguarding protected client information;
  3. How to set up an ethical screen for a new attorney with a shared electronic network;
  4. The importance of competency in a multi-jurisdictional practice;
  5. How attorneys who frequently change jurisdictions can practice law without undergoing rigorous admittance procedures;
  6. Outsourcing to other lawyers and non-lawyers, and potential hazards;
  7. What types of online behaviors could potentially create an attorney-client relationship (including social media, communications on law firm websites, etc.);
  8. The ethical propriety of advertising on the internet, and whether pay-per-click ads constitute improper referral services;
  9. The importance of competency in technology, including some understanding of electronically stored information; and
  10. Advising clients on technology, such as maintaining electronically stored information.

The American Bar Association Model Rules of Professional Conduct are intended to provide guidance to the states, and to encourage adoption of a standard procedure throughout the country for attorney regulation and discipline. However, although resolutions on the above topics were passed by the ABA, they are not binding on Colorado attorneys absent amendments to the Colorado Rules of Professional Conduct.

Join us at CBA-CLE on Wednesday, September 12, for a breakfast seminar where Troy Rackham, a representative of the House of Delegates, and Alec Rothrock, from the Colorado Rules of Professional Conduct committee, will present on the changes adopted by the ABA and what this means for attorneys in Colorado.

CLE Program: Competency and Confidentiality in Lawyers’ Use of Technology – New Changes to Model Rules of Professional Conduct

This CLE presentation will take place on Wednesday, September 12, at 8:30 a.m. 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 two formats: video on-demand and mp3 download.

Colorado Court of Appeals: Week of September 2, 2012 (No Published Opinions)

The Colorado Court of Appeals issued no published opinions and twenty unpublished opinions for the week of September 2, 2012.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. Case announcements are available here.

Colorado Court of Appeals: Payments Made to Union President for Services Performed to Union Constituted “Wages” for Purposes of Unemployment Compensation

The Colorado Court of Appeals issued its opinion in Communications Workers of America 7717 v. Industrial Claim Appeals Office on August 30, 2012.

Unemployment Compensation Benefits—“Wages.”

Communications Workers of America 7717 (employer) sought review of a final order of the Industrial Claim Appeals Office (Panel) affirming a hearing officer’s decision determining that claimant was entitled to an award of unemployment compensation benefits. The order was affirmed.

From 2003 until February 2011, claimant worked part-time for employer, serving as union president. He was supervised by employer’s executive board. He also worked full-time for another employer (Qwest).

The hearing officer found that when the union wanted claimant to work on union business during times that he would be working for Qwest, employer paid him the equivalent wage he would have received from Qwest. The officer found employee was separated from this employment when employer merged with another local union chapter. The officer found no reason that claimant should be disqualified from receiving benefits based on the reason for the separation, and no reason that employer should be exempt from paying them.

On review to the Panel, employer argued the money it paid to employee did not constitute “wages” under the statute and that employee still had his full-time job with Qwest and therefore suffered no wage loss. The Panel held the nature of the payments made did not exempt employer from paying benefits and that the issue of ongoing work for Qwest was not properly before it. The hearing officer’s decision was affirmed by the Panel.

On appeal, employer renewed its argument that it did not pay “wages” to employee. CRS § 8-70-141(1)(a) defines “wages” as “[a]ll remuneration for personal services.” The undisputed evidence established that claimant provided personal services to employer by performing work as its president and was remunerated by employer with payments. The Court of Appeals saw no error in the finding that claimant was paid “wages” under the statutory scheme.

Employer also argued that claimant suffered no wage loss because he was still employed by Qwest. The Court agreed with the Panel that this was not properly before it for review. The judgment was affirmed.

Summary and full case available here.

Legal Writing Pro: The Apple of Our Eye – Scoring the Apple v. Samsung Openings

One of the greatest patent cases of all time, Apple v. Samsung, just won Apple a stunning billion-dollar verdict.

But did Apple prevail on the writing front as well? Let’s see how many points each party racked up in the opening paragraph of its trial brief.

Apple’s Opening Paragraph

Samsung is on trial because it made a deliberate decision to copy Apple’s iPhone and iPad. Apple’s innovations in product design and user interface technology resulted in strong intellectual property rights that Samsung has infringed. Try as it might, Samsung cannot deflect attention from its own copying by the patents it has asserted against Apple. To the contrary, the trial will expose how Samsung deceived the international body responsible for creating the UMTS wireless standards to slip its patents into the standard and illegally monopolize technology markets. [Apple’s brief]

Points for Apple

  • The first sentence is short and thematic: Samsung is at once lazy and scheming.
  • The client, associated with “innovations,” is portrayed favorably.
  • “Innovation” is backed up by mentions of product design and interface technology.
  • The opponent, associated with “deception,” is portrayed unfavorably.
  • “Deception” is backed up by mentions of slipping patents into standards and monopolizing markets.

Half-Point Deductions

  • The syntax of the third sentence doesn’t work: You’d deflect attention “by” asserting patents or “through” the patents asserted. But you wouldn’t deflect attention “by” the patents themselves.
  • The final sentence tries to do too much at once, and it doesn’t contrast clearly enough with the preceding sentence to justify “to the contrary.”

Samsung’s Opening Paragraph

In this lawsuit, Apple seeks to stifle legitimate competition and limit consumer choice to maintain its historically exorbitant profits. Android phones manufactured by Samsung and other companies — all of which Apple has also serially sued in numerous forums worldwide — offer consumers a more flexible, open operating system with greater product choices at a variety of price points as an alternative to Apple’s single, expensive and closed-system devices. [Samsung’s brief]

Points for Samsung

  • The first sentence is thematic: Apple is at once greedy and anti-consumer. The Gordon Gekko of technology, it would appear.
  • Apple, with its “serial suits,” is also portrayed as an aggressor, and Samsung as its latest victim.
  • Samsung, by contrast, is portrayed as consumer-friendly (“More Choices, More Price Points”—not quite “Great
    Taste . . . Less Filling!” but effective all the same).
  • Samsung sets up a clean and even memorable contrast (“flexible and open” versus “single, expensive, and closed”).
  • Samsung subtly sounds its legal theme: that the products are much less similar than their outward appearance suggests.

Half-Point Deductions

  • The “to maintain” in the first sentence is confusing. Avoid having “to” twice in the same clause if one “to” means “in order to.” Here, for example, it sounds as if “to maintain” belongs with “stifle.” Maybe we should cut the self-evident “in this lawsuit” and move “to maintain” to the front: “To maintain its historically exorbitant profits, Apple seeks to stifle legitimate competition and limit consumer choice.”
  • The second sentence contains a common typo: the two hyphens after “worldwide” are meant to be a dash. (Hint: When you want to make a dash by typing two hyphens, you need to hit the space bar after the word that follows.)

You Win

Despite Apple’s victory on the merits, then, I’ll call this writing fight a draw. The real winner could be you, however. After all, few attorneys score any points at all in their opening paragraphs, let alone the five we’ve seen for each party here. So whether you prefer an iPhone or a Droid, see how many of these five points you can score in your next opening:

  1. A short, thematic first sentence.
  2. A sense of what the dispute involves.
  3. A key fact that puts your client in a positive light.
  4. A key fact that puts your opponent in a negative light.
  5. A clear and even memorable contrast that you can return to throughout your brief—what former Third Circuit Chief Judge Ruggero Aldisert calls the “flashpoint of controversy.”

Ross Guberman is the founder and president of Legal Writing Pro, an advanced legal-writing training and consulting firm. He has conducted more than a thousand programs on three continents for many of the largest and most prestigious law firms and for dozens of state and federal agencies and bar associations. Ross is also a Professorial Lecturer in Law at The George Washington University Law School, where he teaches an advanced seminar on drafting and writing strategy. When you see the logo, you’re reading an article from Legal Writing Pro, where the article originally appeared.

Governor Hickenlooper Appoints New Member to Supreme Court Nominating Commission

On Wednesday, September 5, 2012, Governor John Hickenlooper announced several Boards and Commissions appointments, including one to the Supreme Court Nominating Commission.

The Supreme Court Nominating Commission recommends candidates to serve as judges for the Supreme Court and the Court of Appeals. The chief justice of the Supreme Court chairs the commission and is a non-voting member. This commission includes one citizen admitted to practice law in Colorado and one citizen not admitted to practice law residing in each of the state’s seven congressional districts, and one additional citizen not admitted to practice law in Colorado.

Kim Brian Childs of Hotchkiss was appointed to serve as an attorney and as an Unaffiliated member from the Third Congressional District, with a term to expire December 31, 2017.

Tenth Circuit: 11 U.S.C. § 1322 May Allow Unsecured Lien to be Voided in Chapter 13 Bankruptcy

The Tenth Circuit Court of Appeals published its opinion in In re Woolsey on Tuesday, September 4, 2012.

Kenneth and Stephanie Woolsey filed for Chapter 13 bankruptcy. They had a first and second mortgage on their home and, as part of their proposed repayment plan, sought to void the second mortgage’s lien because the house was worth less than the first mortgage alone. The bankruptcy court rejected the repayment plan, the Woolseys took an interlocutory appeal to the district court, which also rejected the plan and the Woolseys then appealed to the Tenth Circuit. While the appeal was pending, the bankruptcy court approved an amended plan.

The Tenth Circuit discussed whether it had jurisdiction to hear the appeal and found that it did under 28 U.S.C. § 158(d)(1), which gives courts of appeal jurisdiction of appeals from “all final decisions” in bankruptcy matters. “As applied to this case, the district court’s ‘final decision’ rejecting the Woolseys’ initial plan is enough to afford us jurisdiction: the finality of the bankruptcy court’s proceedings is immaterial.”

While the plain language of 11 U.S.C. § 506(d) allows a wholly unsecured lien to be declared void, the Supreme Court in Dewsnup v. Timm held to the contrary. Dewsnup was a Chapter 7 case and many courts have found it does not apply to Chapter 13 cases. Because the Woolseys specifically rejected the argument accepted by other circuits that 11 U.S.C. § 1322 would allow the wholly unsecured lien to be voided, the Tenth Circuit refused to consider it and decided against them based on their § 506(d) argument.

Tenth Circuit: Dismissal for Failure to Exhaust Administrative Remedies Not Abuse of Discretion

The Tenth Circuit Court of Appeals published its opinion in Gilmore v. Weatherford on Tuesday, September 4, 2012.

Mine tailings piles known as “chat” have value as fill and gravel. Two piles at issue in this case consist of comingled property because they are owned partially by unrestricted owners and partially by “restricted” owners. The restricted owners are descendants of Quapaw Tribe members who were deemed incompetent and so are unable to freely alienate their property under federal law. Three restricted owners sued Bingham Sand and Gravel for conversion and an accounting for allegedly removing chat without compensating the restricted owners, and Weatherford, as representative of an estate that allegedly sold chat to Bingham. The plaintiffs claimed Bureau of Indian Affairs (BIA) approval was required for any sale or removal of chat from the piles. The plaintiffs also sued the Secretary of the Interior and BIA officials under the Administrative Procedure Act (APA) seeking to compel agency action, and sought an accounting from the BIA.

The district court dismissed the claims against the federal defendants for failure to exhaust administrative remedies. Although the accounting claim was not governed by the APA, the district court exercised its judicial discretion to require exhaustion of that claim as well. The Tenth Circuit held that was not an abuse of discretion.

Once the district court dismissed the claims against the federal defendants, it dismissed the claims against the private defendants for lack of subject matter jurisdiction. The plaintiffs claimed that the removal of the restricted chat required approval of the Secretary of the Interior. The Tenth Circuit reversed the dismissal of all claims regarding the private defendants because the “conversion claim presents a substantial and disputed question of federal law sufficient to confer federal question jurisdiction under 28 U.S.C. § 1331.” With the federal question conversion claim reinstated, the district court could properly exercise supplemental jurisdiction over the accounting claim.

 

Tenth Circuit: Unpublished Opinions, 9/4/12

On Tuesday, September 4, 2012, the Tenth Circuit Court of Appeals issued two published opinions and three unpublished opinions.

United States v. Gieswein

Hassan v. State of Colorado

Paden v. Keeling

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