June 16, 2019

Archives for March 14, 2013

Citizen Lawyer John T. Baker Heads New CAMP Program

BakerJohnOn February 5, 2013, the Colorado State Judicial Branch named John T. Baker the first director of the newly-developed Colorado Attorney Mentoring Program (CAMP). I had the pleasure of interviewing Mr. Baker about his new role for CBA-CLE Legal Connection; our conversation is here.

Congratulations on being named director of the new Colorado Attorney Mentoring Program! 

Thank you, it’s really an honor. When I first heard about the program, I thought it sounded like something I would like to do, and I was delighted that they selected me as the first director. I am strongly committed to public service and this is my first time working for the public, so it’s a great opportunity.

How long have you been interested in mentoring? What inspired you to become a mentor?

I was mentored myself as a young lawyer. I had several mentors, including the senior attorneys at the firm where I worked and also including opposing counsel on my civil case at times. I spent 40 years as a plaintiff’s personal injury attorney, and I modeled my practice after the good attorneys on both sides of those cases.

From my mentors, I discovered the importance of learning the ropes—the things you don’t learn in law school, the practical aspects of practicing law. For example, when you go into the courthouse, the judges are very important and nearly every attorney is respectful to the judge. However, the clerks and the rest of the staff are important too, and they should all be treated with respect. Another example: when I receive the first pleading from an opposing counsel I don’t know, I arrange a social meeting—we have a cup of coffee together—so that we can get to know each other as people instead of as adversaries. I am hoping that, through CAMP, I can enable some young lawyers to learn these sorts of practical things also.

What is CAMP?

CAMP is a program that will be housed in the Attorney Regulation System, along with the other judicial department offices of Attorney Registration, Attorney Admission, and Continuing Legal & Judicial Education.  In addition to supporting existing mentoring programs, CAMP will  promote development of new mentoring programs where needed in each of Colorado’s 22 judicial districts for young attorneys or attorneys transitioning into private practice. The CAMP office will develop model  curricula for the mentors and mentees, certify  mentor candidates, and oversee the awarding of continuing legal education credits for the mentoring programs. These CAMP programs will be run by bar associations, inns of court, and other legal organizations. CAMP will collaborate where possible with the existing mentoring programs at CU Law and the Sturm COL at DU to avoid duplication of efforts and help provide a continuum of mentoring from law school into practice.

How did CAMP come about?

The CAMP concept has been in development for at least five years. Originally, then-DBA President Mark Fogg and Nancy Cohen, chair of the DBA mentoring committee, crystallized the idea of a state-wide mentoring program. Chief Justice Michael Bender, through his Commission on the Legal Profession, formalized the funding and structure of the statewide CAMP office. During the last two years, the Denver Bar Association, the Minori Yasui Inn of Court, and the 17th Judicial District Attorney’s Office all developed pilot project mentoring programs.

Can you paint a picture of how CAMP will work?

We are still working on the details, but we are planning to develop a curriculum for mentoring that can be utilized by law-related entities in each of Colorado’s 22 judicial districts. The bar associations and other legal organizations in the judicial districts will take charge of recruiting mentors and mentees for their own programs, and the CAMP office will evaluate the mentor candidates and make sure they are appropriate role models for new attorneys. The mentors must meet certain criteria—they must have been in practice for at least five years, have a good knowledge base, and have no history of discipline, for example.

The CAMP role is to provide guidance and structure while allowing the organizations in the individual judicial districts to do the mentor-mentee pairing. The individual organizations will do everything except certify the programs and mentors; that will be CAMP’s role. CAMP will also provide support to the individual organizations.

We would like to include materials for the mentors and mentees so that they will complete tasks together and move beyond a purely social relationship. We have been studying the existing mentoring programs—in fact, my first calls as director were to the mentoring programs at the CU and DU law schools—and we would like to see what has worked for the existing programs, what could be improved, and how we can incorporate mentor/mentee activities involving pro bono work, bar association committee involvement, or other community service activities  to act as the “glue” to cement a lasting mentoring relationship.

What are your goals as director of CAMP?

My primary goal is to have a mentoring opportunity available to all new lawyers or lawyers who are transitioning to private practice from public service in each of Colorado’s 22 judicial districts. I hope to see these programs develop so that the new lawyers can have someone to talk to and from whom they can learn the things they didn’t learn in law school.

In an article you wrote for the September 2009 issue of The Colorado Lawyer, you discuss the “citizen lawyer” concept. Can you explain that and tell us how it fits into the mentoring program?

Citizen lawyers are lawyers who are active and involved in community service and who use their legal skills to help people in their communities. This could be working on boards of directors for nonprofits, doing pro bono work, or even coaching their kids’ teams. The goal is to let the world see the good in lawyers, see lawyers as the compassionate and caring human beings we are.

When I was a new lawyer, I was encouraged and rewarded for such civic service. Today I think that it’s gotten harder for  lawyers to do this. Law practice is more demanding of the professional now. There is not as much time for new lawyers to  be community-oriented. Despite this I would like to instill the “giving back” part of being a lawyer into the new lawyers because it is often the most satisfying part of practicing law.

How will you further the citizen lawyer concept as CAMP director?

I would like to include a pro bono component, perhaps have the mentor and mentee work together on a community service project, and I would like to encourage the citizen lawyers of the community to become mentors.

How can attorneys become involved in CAMP, either as mentors or as mentees?

Anyone interested in becoming a mentor or a mentee can contact the CAMP office, or they can email me directly. Also, the individual judicial districts will publicize their mentoring programs, and it will be publicized by the bar associations and inns of court. We are also working on establishing a web presence—we will soon have our own webpage and blog, and we will also be on social media, such as Facebook, LinkedIn, and Twitter.

John T. Baker is the director of the Colorado Attorney Mentoring Program in the Attorney Regulation System of the Colorado Judicial Department . Prior to that, he served as the Executive Director of NITA, and was an attorney in private practice for 40 years. He is very active in his community and in the Denver and Colorado bar associations, and he received the DBA Award of Merit in 2007 for his outstanding service.

Tenth Circuit: Allegedly Fraudulently Transferred Property is Not Part of the Bankruptcy Estate Until Recovered

The Tenth Circuit issued its opinion in Rajala v. Gardner on Tuesday, March 12, 2013.

Plaintiff-Appellant Eric Rajala, Trustee of the bankruptcy estate of Generation Resources Holding Company, LLC (GRHC), appeals from the district court’s order granting motions to distribute approximately $9 million held in escrow. This amount represents part of the purchase price of a wind power project allegedly developed by GRHC. In a nutshell, the Trustee claims that the Debtor, GRHC, has been left with $5 million in debt while the individual Defendants-Appellees and their affiliated entities received some $13 million in proceeds from the sale of several wind power projects, unburdened by the debt.

At issue was what constitutes property of the bankruptcy estate and whether allegedly fraudulently transferred property is subject to the Bankruptcy Code’s automatic stay before a trustee recovers the property through an avoidance action. The district court held that allegedly fraudulently transferred property is not part of the bankruptcy estate until recovered and therefore is beyond the reach of the automatic stay. The Trustee appealed.

Under 11 U.S.C. § 362(a)(3), the filing of a Chapter 7 bankruptcy petition automatically stays “any act to obtain possession of property of the estate . . . or to exercise control over property of the estate.” Section 541(a)(1) defines property of the estate to include “all legal or equitable interests of the debtor in property as of the commencement of the case,” and § 541(a)(3) also includes in the estate “[a]ny interest in property that the trustee recovers under section . . . 550.” Under § 550, a trustee may recover transferred property, “to the extent that a transfer is avoided under section . . . 548.” In turn, § 548 enables the trustee to avoid fraudulent transfers.

After reviewing a split among the circuits on this issue, the plain meaning of the statute led the Tenth Circuit to conclude that the bankruptcy estate does not include fraudulently transferred property until that property is recovered. Interpreting § 541(a)(1) to include fraudulently transferred property would render § 541(a)(3) meaningless with respect to property recovered in a fraudulent transfer action.

The Tenth Circuit held that fraudulently transferred property is not part of the bankruptcy estate until recovered.

AFFIRMED.

Tenth Circuit: Court Lacked Jurisdiction in Case About Leasing of Federal Land Under the Administrative-Remand Rule

The Tenth Circuit issued its opinion in Western Energy Alliance v. Salazar on Friday, March 8, 2013.

This litigation concerned whether the Mineral Leasing Act (“the Act” or “MLA”) requires the Secretary of the Interior (“the Secretary”) to issue leases for parcels of land to the highest bidding energy company within sixty days of payment to the Bureau of Land Management (“BLM”). Appellants (collectively “Energy Companies”) brought suit seeking to compel the Secretary to issue 118 pending leases on which they were the high bidders and more than sixty days had passed since they had paid BLM in full. The district court construed 30 U.S.C. § 266(b)(1)(A) as imposing a mandate on the Secretary to decide whether to issue such pending oil and gas leases within sixty days of payment, and ordered BLM to make such decisions regarding the still pending leases of Energy Companies within thirty days. Energy Companies appeal the district court’s order and continue to assert that § 266(b)(1)(A) requires the Secretary to issue such pending leases within sixty days rather than merely make a decision on whether the leases will be issued.

In addition to the merits, Intervenors (Conservation Groups) asserted that the administrative-remand rule barred jurisdiction over Energy Companies’ appeal. The Tenth Circuit agreed.

It is well settled law that a remand by a district court to an administrative agency for further proceedings is ordinarily not appealable because it is not a final decision. This general principle has been called the “administrative-remand rule.” The Tenth Circuit concluded that issuing specific leases like the leases in this case fell into the category of quasi-adjudicative agency action. In short, this case fell under the administrative-remand rule.

The Tenth Circuit held that the district court’s order was not a final decision for purposes of 28 U.S.C. § 1291. Under the administrative-remand rule, the Tenth Circuit held it lacked jurisdiction and DISMISSED the appeal.

Tenth Circuit: Unpublished Opinions, 3/13/13

On Wednesday, March 13, 2013, the Tenth Circuit Court of Appeals issued no published opinions and three unpublished opinions.

United States v. Nedelcu 

Sullivan v. Colvin

United States v. Montoya

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

Tenth Circuit: Unpublished Opinions, 3/12/13

On Tuesday, March 12, 2013, the Tenth Circuit Court of Appeals issued two published opinions and ten unpublished opinions.

Brown v. Sedgwick County Sheriffs Office

Lundgren v. Colvin

Layton v. The Board of County Commissioners of Oklahoma County

Danielson-Holland v. Standley and Associates

Wilson v. Jara

United States v. Chon

United States v. Combs

United States v. McKneely

Brown v. State of Kansas

Overton v. United States

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

HB 13-1157: Adopting Amendments of the Uniform Commercial Code Regarding Electronic Transactions

On January 29, 2013, Rep. Frank McNulty and Sen. Angela Giron introduced HB 13-1157 – Concerning Adoption of the 2012 “Uniform Commercial Code” Article 4.5 AmendmentsThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Colorado Commission on Uniform State Laws

Current state law governing funds transfers applies only to commercial transfers and does not apply to a funds transfer any part of which is governed by the federal “Electronic Fund Transfer Act of 1978” (federal act), which originally governed only consumer transfers. Federal law has been amended, effective in February 2013, to apply to remittance transfers, which are a transfer of money by a foreign worker to his or her home country, regardless of whether the transfer is a funds transfer otherwise covered by the federal act. Remittance transfers can be either commercial or consumer transfers. If state law is not amended, neither federal nor state law will apply to some aspects of remittance transfers.

The bill specifies that state law does apply to a remittance transfer that is not an electronic funds transfer under the federal act. On Feb. 19, the House approved the bill on 3rd Reading; the bill has been introduced in the Senate and has been assigned o the Business, Labor & Technology Committee.

Since this summary, the Senate Business, Labor & Technology Committee referred the bill unamended to the Senate Committee of the Whole.

HB 13-1154: Creating New Article in Criminal Code for Crimes Against Pregnant Women

On January 28, 2013, Rep. Mike Foote and Sen. Pat Steadman introduced HB 13-1154 – Concerning Crimes Against Pregnant Women. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill creates a new article for offenses against pregnant women. The new offenses are unlawful termination of a pregnancy in the first degree, unlawful termination of a pregnancy in the second degree, unlawful termination of a pregnancy in the third degree, unlawful termination of a pregnancy in the fourth degree, vehicular unlawful termination of a pregnancy, aggravated vehicular unlawful termination of a pregnancy, and careless driving resulting in unlawful termination of a pregnancy. The bill makes it clear that a court can impose consecutive sentences for a violation of this act and other associated convictions. The bill excludes from prosecution medical care for which the mother provided consent. The bill does not confer the status of “person” upon a human embryo, fetus, or unborn child at any stage of development prior to live birth.

The bill repeals the criminal abortion statutes. The bill makes conforming amendments. On March 8, the Appropriations Committee amended the bill and sent it to the full House for consideration on 2nd Reading.

Since this summary, the bill was laid over for Second Reading.