July 22, 2018

Archives for September 19, 2013

Free Legal Assistance Available for Storm & Flood Survivors — Partnership between the Colorado Bar Association, ABA and FEMA

floodColorado lawyers are among those ready to lend a hand to the survivors of Colorado’s recent storms and flooding. The Colorado Bar Association Disaster Relief Program is gearing up to offer no-cost, disaster-related legal advice to those impacted in Adams, Boulder, Clear Creek, El Paso, Jefferson, Larimer, and Weld Counties. The CBA and its Young Lawyers Division, Colorado Legal Services, Colorado Trial Lawyers Association, Colorado Criminal Defense Bar, and several local bar associations are partnering in this effort with FEMA and the ABA Young Lawyers Division.

“I’m proud to see attorneys from across the state stepping up to lend a hand to their fellow Coloradans and hope we can offer some assistance during these tragic events,” said Colorado Bar Association President Terry Ruckriegle.

Victims seeking legal advice can visit www.ColoFloodLegalRelief.org to complete a legal assistance form or call the toll-free helpline at 855-424-5347 24 hours a day. Those seeking assistance are asked to provide as many details about their situations in the online form or message as possible.  Applications of victims seeking help will be reviewed to determine the areas in which they need assistance and then paired with a volunteer attorney who has experience in those areas of the law.  This free service begins immediately.

The type of legal assistance available includes:

  • Assistance with securing FEMA and other government benefits available to disaster survivors
  • Assistance with life, medical and property insurance claims
  • Help with home repair contracts and contractors
  • Replacement of wills and other important legal documents destroyed in the disaster
  • Assisting in consumer protection matters, remedies and procedures
  • Counseling on mortgage-foreclosure problems
  • Counseling on landlord/tenant problems

Attorneys wishing to help should complete the online form at ColoFloodLegalRelief.org/volunteer. Attorneys are needed to provide assistance in many areas of the law, and volunteer opportunities are available in person in several counties or by phone.

Tenth Circuit: Removal Requirements Under the Class Action Fairness Act of 2005

The Tenth Circuit Court of Appeals published its denial of Petition for Rehearing En Banc and dissent in Dart Cherokee Basin Operating Co., LLC v. Owens on Tuesday, September 17, 2013.

This opinion is a four judge dissent from denial of the petitioners’ Petition for Rehearing En Banc. The denial was a result of an evenly divided vote. The Petitioners removed the case to federal court under the Class Action Fairness Act of 2005 (CAFA) and alleged the amount in controversy to be $8 million. After the Respondent, Owens, moved to remand the case to state court, Petitioners submitted undisputed proof that the amount in controversy exceeded $14 million but the district court granted Owens’s motion. It did so only because the notice of removal itself had failed to provide evidentiary support, “such as an economic analysis . . . or settlement estimates” for the $8 million figure. An divided Tenth Circuit panel denied the Petitioner’s request to appeal. The author of the dissent discusses the procedural requirements for removal in diversity cases under CAFA.

Tenth Circuit: Attorney Fee Award in Bankruptcy Case Reversed

The Tenth Circuit Court of Appeals published its opinion in Market Center East Retail Prop. v. Lurie on Thursday, September 19, 2013.

Debtor-Appellant Market Center East Retail Property, Inc. (“Market Center”) appealed from the Bankruptcy Appellate Panel (“BAP”), which affirmed the bankruptcy court’s award of attorney fees to Appellees Barak Lurie and his firm, Lurie & Park (collectively “Lurie”). Lurie was Market Center’s attorney in completing the sale of a retail shopping center to Lowe’s Home Center (“Lowe’s”). The bankruptcy court awarded Lurie $350,752.06 in attorney’s fees. The BAP affirmed.

Market Center raised three issues on appeal: 1) whether the bankruptcy court’s and the BAP’s construction of 11 U.S.C. § 330 to permit the bankruptcy court, in its discretion, to award a contingent fee, rather than determining a fee based on the lodestar, is consistent with the language and intent of 11 U.S.C. § 330 and with the case law construing 11 U.S.C. § 330; 2) whether both the bankruptcy court and the BAP erred as a matter of law in concluding that the factors listed in 11 U.S.C. § 330(a)(3) for determining a reasonable attorney’s fee in a bankruptcy proceeding are a “non-exclusive list” of factors which the bankruptcy court is free to consider, or not consider, in its discretion; and 3) whether Congress intended that 11 U.S.C. § 330(a)(3) be construed consistently with the case law for determining a “reasonable attorney’s fee” under the federal fee-shifting statutes such as 42 U.S.C. § 1988.

In the Tenth Circuit, the adjusted lodestar approach is used to calculate reasonable attorney fees under 11 U.S.C. § 330(a). “The lodestar analysis takes into account each of the factors specifically mentioned in § 330(a)(3) plus additional relevant factors,” including the twelve Johnson factors. The court held that “in determining reasonable attorney’s fees pursuant to § 330, the lodestar amount may be enhanced or adjusted downward based on the § 330 factors and the Johnson factors.”

The court also held that the bankruptcy court erred in assuming that it had discretion to disregard or to look outside the § 330(a)(3)/Johnson factors to evaluate the reasonableness of any attorney’s fee. It found that the bankruptcy court clearly erred in its analysis of the § 330(a)(3) factors and reversed the award of fees to Lurie and remanded for further proceedings.

Tenth Circuit: Unpublished Opinions, 9/18/13

On Wednesday, September 18, 2013, the Tenth Circuit Court of Appeals issued no published opinions and two unpublished opinions.

Young v. Berkebile

Johnson v. Vaughn

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

The 2013 Colorado Lawyer Satisfaction And Salary Survey — Part 2: “Lawyers are Stressed, Deal With It”

rhodes(The above headline appeared over one of the Law Week Colorado articles reporting on the 2013 Lawyer Salary & Satisfaction Survey. Click here to read the online summary.)

The Survey’s sample size was 1,000 respondents out of a potential 35,000. Did that sample accurately represent the larger population? We can theorize about the Survey’s methodology, but odds are the respondents spoke for more than just themselves. As Meg Satrom, Law Week Colorado editor, put it, the results “provide a good baseline on what it’s like to practice law in the state.”

That said, how about we shift gears and, instead of focusing on what the survey results tell us about Colorado lawyers, we ask what they tell us about Colorado clients?

If you’re a client of the 1,000 respondents, and probably a larger number of Colorado lawyers, there’s a good chance your lawyer:

  • Is suffering the effects of long-term, chronic stress. 94% of respondents said the law is stressful sometimes (48%), often (37%), or always (9%).
  • Didn’t sleep well last night. Just shy of 2/3’s sometimes (38%) or often (24%) don’t get a good night’s sleep, while 5% never does.
  • Might be sacrificing a personal commitment to make time for you. Roughly 2/3’s said work sometimes (45%) or often (18%) interferes with family.
  • Wouldn’t recommend his or her job to someone else. 61% of respondents would not recommend that somebody go to law school.
  • Feels financially constrained from seeking more satisfying work. 39% said law school debt has a significant effect (32%) or controls (7%) their career choices.

How’s that working for you if you’re that client? Or what if you live with that lawyer? Or what if he or she’s a partner in your firm? Or what if you’re opposing counsel, wondering whatever happened to civility?

True, not all stress is bad: in measured bursts, it energizes us to achieve, drives us to perform. It’s widely accepted, however, that long-term, unabated stress is hard on us – physically, mentally, emotionally, relationally, vocationally, socially.

So what do we do about it? As noted above, one of the Law Week Colorado articles carried the headline, “Lawyers are Stressed, Deal With it.” Okay, so we’re dealing with it. We tough it out, treat it as a badge of honor that we can run full blast without all cylinders firing. Besides, we feel like we’re getting by okay – a little gastro-intestinal distress notwithstanding – which probably explains why 67% of respondents don’t get help with stress reduction/ management at work. Who’s got time for that? It’s not that we’re uncaring, we’re just busy people, and good for us because we’re beating the odds.

Until we aren’t. That’s when lawyers’ job stress isn’t just a personal problem. When our profession stresses us to the point where a majority can’t recommend our own jobs, we and the ones who depend on us are in harm’s way.

And the first ones to take the hit are our clients.

To be continued.

Kevin Rhodes is a lawyer in private practice who’s on a mission to help people love their work and their lives. He leads workshops for a variety of audiences, including the CBA’s Solo and Small Firm Section and the Job Search and Career Transitions Support Group. You can email Kevin at kevin@rhodeslaw.com.

Tenth Circuit: Federal Arson and Using Fire to Commit a Felony Conviction and Sentence Affirmed

The Tenth Circuit Court of Appeals published its opinion in United States v. Tolliver on Tuesday, September 17, 2013.

Michael Tolliver was convicted of two counts of using fire to commit a felony, in violation of 18 U.S.C. § 844(h)(1), and two counts of arson, in violation of 18 U.S.C. § 844(i). He was sentenced to 430 months’ imprisonment and ordered to pay restitution. Tolliver was a real estate investor who owned properties in Oklahoma, four of which had fires that were all intentionally set. Tolliver submitted insurance claims after each fire. Tolliver appealed his conviction and sentence.

Tolliver argued (1) there was insufficient evidence to support his convictions, (2) the district court erred in denying his post-trial motion to dismiss the § 844(h)(1) charges for lack of jurisdiction, (3) the district court erred in denying his post-trial motion for a new trial based on allegedly improper questions by the government, (4) the district court erred in denying his post-trial motion for a new trial based on newly discovered evidence, (5) the district court erred in sentencing him to the statutory minimum of 20 years for his second conviction under § 844(h)(1) because both convictions under that section arose in the same case, (6) the district court erred in sentencing him to consecutive sentences for his convictions under § 844(h)(1) and (i) because the charges arose from the same conduct, (7) his 430-month sentence violated the Eighth Amendment’s prohibition against cruel and unusual punishment, and (8) the district court erred in entering the criminal forfeiture money judgment in addition to ordering him to pay restitution.

The Tenth Circuit rejected all of Tolliver’s arguments and affirmed the conviction and sentence.

Tenth Circuit: Government Has Duty to Provide Mineral Royalties Trust Accounting to Individual Tribal Members

The Tenth Circuit Court of Appeals published its opinion in Fletcher v. United States on Tuesday, September 17, 2013.

In 1906, Congress severed the mineral estate underlying Osage Nation lands from the surface estate, placed the mineral estate in trust, directed the Secretary of Interior to collect royalties, and told the Secretary to distribute the royalties (along with interest income) every quarter on a pro rata basis to individual members of the tribe. In 2002, William Fletcher and Charles Pratt, two Osage tribal members who receive payments under the 1906 Act, charged the federal government with breaching its trust responsibilities. After a number of proceedings, the district court granted the government’s latest motion to dismiss and plaintiffs filed this appeal.

The district court ruled Osage tribal member headright holders do not possess the legal right to demand an accounting from the Secretary of the Interior. The Tenth Circuit disagreed and held that the plain language of 25 U.S.C. § 4011 imposes a duty on the government to provide an accounting of trust funds to individual tribal members, as well as to the tribe. This duty is not limited by 25 U.S.C. § 162a(a), which delineates the Secretary’s investment options. The court found no ambiguity, but stated that even if it had, it would reach the same conclusion because “statutory ambiguities in the field of trust relations must be construed for, not against, Native Americans.”

Given the lengthy, hard-fought history of the case, the court decided to provide some guidance to the parties and district court as to what the government must do to satisfy its duty to provide an accounting. It pointed out that under traditional equitable trust law remedies, the district court should use its discretion to mold the nature and scope of the required accounting to information reasonably necessary for the plaintiffs to enforce their rights under the trust. The district court’s dismissal was reversed.

Tenth Circuit: Unpublished Opinions, 9/17/13

On Tuesday, September 17, 2013, the Tenth Circuit Court of Appeals issued four published opinions and six unpublished opinions.

United States v. Lujan

Society of Prof’l Eng’g. v. Spirit Aerosystem

Kozlowicz v. Jewell

Robinson v. United States

Coleman v. Colvin

Dale K. Barker Co., P.C. v. Sumrall

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