July 20, 2019

Archives for September 25, 2013

The 2013 Colorado Lawyer Satisfaction And Salary Survey — Part 3: The Ethics of Unhappiness

rhodes(Click here for Law Week Colorado’s summary of the 2013 Lawyer Salary & Satisfaction Survey.)

Okay, so lots of lawyers are stressed and unhappy. Who cares?

If you believe what you read, apparently not lawyers.

Scholarly articles about lawyer (un)happiness often begin with something like “The law is essential to society, and law is a prestigious profession.” Once they’ve gotten that out of the way, they go on to lower the boom:  “But our research shows that the profession shoots its wounded and eats its young.” Ouch. And then they point out that lawyers themselves don’t seem to mind as long as they’re well paid. Ouch again.

We might wonder whether the Colorado survey results are saying the same thing. We are well paid, the respondents said, and at least we’re happy about that, even though two-thirds of us wouldn’t recommend our jobs to someone else.

Is trading stress and unhappiness for money just the deal you get when you’re a lawyer? Maybe so: it’s no secret that both leverage-based law firm economics and six-figure law school loans rely on lawyers’ willingness to make that trade.

Is it worth it? Not everybody thinks so. Lawyers have opted out in various ways, and there are reform movements in law schools and bar associations trying to shake up those deal terms as well. Plus, there are relief structures in place for individuals who aren’t dealing so well with their deal – such as the Colorado Lawyer Assistance Program.

All that is heartening, but self-help, reform initiatives, and relief programs all rely on a willingness to admit a problem and a commitment to change things. Trouble is – again, if you believe the research – the profession seems to have a systemic case of d-e-n-i-a-l. Plus, there are legal barriers that support a “deal with it” and “don’t ask don’t tell” professional culture around the topic of lawyer unhappiness. For example, a 2008 University of Louisville law review article entitled Law Students And Lawyers With Mental Health And Substance Abuse Problems: Protecting The Public And The Individual extensively digests all of the laws, rules, and other reasons why it can be illegal, unethical, or impolitic to ask too many questions about someone’s state of mind or behavior.

Then who cares? If lawyers don’t care, then maybe clients do. And if clients don’t, maybe they ought to. Consider, for example, the ethics of unhappiness. The syllogism goes something like this:

  • Clients are entitled to competence, communication, timeliness, and sound judgment from their lawyers. If we lawyers don’t deliver those things, we’re unethical. Period.
  • Lawyers are more prone to depression, substance abuse, anxiety disorders, and suicidal thoughts than our non-lawyer clients.
  • Conditions like that impair competence, communication, timeliness, and sound judgment.
  • Take those things out of the lawyer-client relationship, and things don’t bode well for either the client or the lawyer.

No, not every unhappy lawyer is an ethically impaired lawyer, but some might be, and any time a new survey reports high rates of lawyer job dissatisfaction, you have to wonder if it also signals the existence of levels of ethical risk as well.

Maybe the money’s good, but it doesn’t buy happiness… or guarantee ethical conduct.

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.

Mark D. Thompson Appointed Chief Judge of Fifth Judicial District Upon Retirement of R. Thomas Moorhead

On Tuesday, September 24, 2013, Chief Justice Michael Bender appointed Mark D. Thompson as the Chief Judge of the Fifth Judicial District. Judge Thompson will replace Hon. R. Thomas Moorhead, who will retire effective December 1, 2013.

Judge Moorhead has been the Chief Judge since 2010. He was appointed to the Fifth Judicial District Court bench in 2002, and prior to that he was the Eagle County Attorney. He was the town attorney for the Town of Vail from 1993 to 2001, and also spent a great deal of his career in Ohio. He received his J.D. from Salmon P. Chase College of Law in 1975.

Judge Thompson was appointed to the Fifth Judicial District Court bench in 2010. He is a graduate of the University of Denver School of Law, and was partner at a Denver firm before moving to the mountains and joining the Breckenridge firm of French, West & Brown, where he became partner in 1999.

For more information about the appointments, click here.

Tenth Circuit: Defendant Entitled to Reduction in Sentence Under USSG § 3E1.1(b)

The Tenth Circuit Court of Appeals published its opinion in United States v. Haggerty  on Tuesday, September 24, 2013.

Tyre S. Haggerty pled guilty to one count of possession with intent to distribute a controlled substance and one count of possession of a firearm by a previously convicted felon. He appealed his seventy-two-month sentence, claiming it was procedurally unreasonable because the district court failed to consider the criteria in United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) § 3E1.1(b) for a one-level reduction for acceptance of responsibility. The government supported the appeal. Both parties sought reversal and remand with directions for the district court to grant the reduction based on its consideration of § 3E1.1(b) and its commentary.

At the sentencing hearing, the district court denied the motion for a one-level reduction under U.S.S.G. § 3E1.1(b). As grounds for denying the reduction, the court explained it believed that what the Sentencing Commission had in mind for acceptance of responsibility was a true and sincere acceptance of responsibility, not simply the fact that a defendant was willing to plead guilty. The motion to grant the one-level decrease was based entirely on the fact that the defendant agreed to plead guilty, permitting the Government to avoid preparing for trial and permitting it and the court to allocate resources more efficiently. The district court did not think that saving the Government the task of preparing for trial was a benefit that was entitled to any weight.

The issue in this appeal was whether denial of the one-level reduction under § 3E1.1(b), which affected calculation of the Guidelines range, resulted in a procedurally unreasonable sentence. § 3E1.1(b), on which both parties relied, states:

If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, decrease the offense level by 1 additional level.

U.S.S.G. § 3E1.1(b) (emphasis added).

The Tenth Circuit agreed with the parties on appeal that the sentencing judge’s personal view that one should not be rewarded with a lesser sentence for pleading guilty was an impermissible reason for denying a § 3E1.1(b) reduction and constituted an abuse of discretion resulting in a procedurally unreasonable sentence.

REVERSED and REMANDED for resentencing.

Colorado Supreme Court: Several Crimes Perpetrated Over 24 Hour Period Not Considered Same Criminal Episode

The Colorado Supreme Court issued its opinion in Marquez v. People on Monday, September 23, 2013.

Concurrent and Consecutive Sentencing—CRS §§ 18-1.3-406 and 18-1-408(2).

Defendant sought review of the court of appeals’ judgment affirming the district court’s imposition of consecutive forty-eight-year sentences for two crime-of-violence convictions. After finding that both crimes of violence arose out of the same incident, the district court concluded that it was statutorily required to order defendant’s two crime-of-violence sentences to be served consecutively. The court of appeals affirmed.

The Supreme Court reversed the court of appeals’ judgment and remanded the case with directions to return the matter to the district court for resentencing. The Court held that the phrase “arising out of the same incident,” as it appears in CRS § 18-1.3-406, is a reference to, and has the same meaning as, the phrase “arising from the same criminal episode” in CRS § 18-1-408(2). Further, record established that the crimes of violence of which defendant was convicted were not “based on the same act or series of acts arising from the same criminal episode.”

Summary and full case available here.

Tenth Circuit: Unpublished Opinions, 9/24/13

On Tuesday, September 24, 2013, the Tenth Circuit Court of Appeals issued one published opinion and five unpublished opinions.

Sudduth v. Raemisch

United States v. Miller

Ellis v. Dowling

Webster v. Jones

Nunn v. Kastner

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

Michael Martinez Named to Succeed Robert S. Hyatt as Chief Judge of Denver District Court

On Monday, September 23, 2013, Chief Justice Michael Bender announced that Hon. Michael A. Martinez will replace Hon. Robert S. Hyatt as the Chief Judge in the Denver District Court. Judge Martinez’ appointment will be effective January 10, 2014, upon Chief Judge Hyatt’s retirement.

Robert S. Hyatt was appointed to the Denver District Court bench in November 1987. He also served on the Denver County Court bench from 1984 to 1987, and worked at the Colorado Attorney General’s Office prior to that. He has been a guest lecturer at the University of Denver and has judged moot court competitions. He received the Colorado Judicial Institute’s Judicial Excellence Award in 2012.

Michael A. Martinez has served on the Denver District Court bench since September 2000. He has worked in all divisions of the Denver District Court, and is currently the Civil Division’s Presiding Judge. He is active in his community, and has served on boards and commissions for several local entities, including the Rose Community Foundation, the Colorado Hispanic Bar Association, and the Denver Public Schools Special Education Advisory Committee. He is a frequent presenter on topics related to trial advocacy.

For more information about the appointment, click here.

Tenth Circuit: In Products Liability Case, Machine Tool That Crushed Worker’s Arm Held to be Not Unreasonably Dangerous

The Tenth Circuit Court of Appeals published its opinion in Braswell v. Cincinnati, Inc. on Monday, September 23, 2013.

Derek Braswell suffered a horrific workplace accident. While he was operating a press brake, a heavy machine tool, manufactured by Cincinnati, Inc., his right arm was crushed and eventually had to be amputated. Signs on the machine warned the operator not to reach into the die area, where a hydraulic powered ram descends to bend sheet metal. Despite these warnings, Braswell reached into the die area to remove a jammed piece of metal. While doing so, he accidentally stepped on a pedal triggering the ram’s descent. The machine’s safety equipment designed to prevent this type of accident had been removed or disabled sometime prior to the accident.

Braswell filed a suit against Cincinnati on theories of strict products liability and negligence.  Cincinnati filed a motion for summary judgment. The district court granted summary judgment for Cincinnati on the grounds that a subsequent owner had modified the press brake to create the danger and that the gated pedal on the original model made the press brake not unreasonably dangerous.

Braswell appealed the district court’s rulings on (1) the products liability claims, and (2) the negligence claim.

Products Liability Claims. Oklahoma, like most states, has adopted a strict liability regime for products that are defectively manufactured or designed. The Oklahoma Supreme Court has identified three elements to a products liability claim: the defect must have (1) caused the injury in question, (2) existed at the time it left the manufacturer’s control, and (3) made the product unreasonably dangerous. The Tenth Circuit agreed with the district court that the brake was not unreasonably dangerous: with its warnings and safety devices, the machine did not pose a danger beyond that which the ordinary operator of the machine would appreciate. The ordinary consumer (or user) of a press brake is a trained operator. That individual would be trained as to its proper operation and how to use any available safety features, and to safely remove pieces of metal that become jammed in the machine. Specifically, the ordinary user would be aware of the extreme danger and risk of reaching into the machine while having one’s foot remain anywhere near the footswitch without disengaging or blocking the ram. Braswell was not ignorant as to the particular danger he faced.

Negligence Claim. The court held that Braswell waived his negligence arguments below by failing to sufficiently plead them or raise them in response to Cincinnati’s motion for summary judgment.


Tenth Circuit: Microsoft’s Conduct Did Not Violate The Sherman Act

The Tenth Circuit Court of Appeals published its opinion in Novell v. Microsoft on Monday, September 23, 2013.

Long since found liable for a rich diversity of antitrust misdeeds in the 1990s, this case called on the Tenth Circuit to decide whether Microsoft committed still another, as-yet undetected antitrust violation — this time at Novell’s expense. Novell produced WordPerfect.

By the mid-1990s, Microsoft had become the leading provider of personal computer operating systems. Microsoft’s relationship with independent software vendors (ISVs) proved a complicated one. On one hand, Microsoft had some incentive to cooperate with ISVs. ISVs wrote applications for Microsoft’s operating system, thereby increasing the number of applications that could run on Microsoft’s operating system. This meant increasing the utility of the operating system for users, and that meant more sales for Microsoft. On the other hand, Microsoft also competed with ISVs in the development and sale of applications for use on its Windows operating system. This case concerned the tensions inherent in Microsoft’s relationship with ISVs and Novell in particular, and how those tensions played out in Microsoft’s development of the Windows 95 operating system.

As it was planning to roll out its Windows 95 operating system, Microsoft faced the questions whether and to what degree it should share its intellectual property with ISVs. Should it share a prerelease development version of the new operating system? The firm was torn. Doing so would help the marketing of Windows 95. At first, Microsoft opted to share. After first choosing to share so much of its intellectual property with ISVs in June 1994, in October, Microsoft reversed course, indicating to ISVs that they could no longer rely on the previously published APIs (application programming interfaces) and that Microsoft would not guarantee the operability of the previously published APIs in the final version of Windows 95.

When Microsoft withdrew access, Novell contended its business suffered. Novell filed suit, alleging that Microsoft’s withdrawal not only helped Microsoft in the applications arena, Novell also alleged that the move helped Microsoft maintain its monopoly in the market for operating systems.

Novell’s suit finally found its way to trial in 2011 but the jury did not reach a verdict. Reviewing the record, the district court found Microsoft’s conduct did not offend section 2 of the Sherman Act pursuant to Fed. R. Civ. P. 50. Novell appealed.

Novell complained that Microsoft refused to share its intellectual property with rivals after first promising to do so. To prevail on a Sherman Act section 2 claim, a plaintiff must show the defendant possessed sufficient market power to raise prices substantially above a competitive level without losing so much business that the gambit becomes unprofitable. Then the plaintiff must show that the defendant achieved or maintained that market power through the use of anticompetitive conduct. Finally, a private plaintiff must show that its injuries were caused by the defendant’s anticompetitive conduct.

As to the first point, Microsoft did not dispute that in the 1990s a nationwide product market existed for personal computer operating systems, as Novell alleges.

Turning to the second question: Did Microsoft engage in anticompetitive conduct in violation of section 2 when it withdrew access to from Novell and other ISVs? Or was this legally permissible competition? Novell sought to impose section 2 liability on Microsoft for refusing to deal with its rivals pursuant to Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 600-01 (1985). But the antitrust laws rarely impose on firms — even dominant firms like Microsost — a duty to deal with their rivals. With respect to Novell, the Tenth Circuit held that Microsoft did nothing unlawful. Novell presented no evidence from which a reasonable jury could infer that Microsoft’s discontinuation of the arrangement suggested a willingness to sacrifice short-term profits, let alone in a manner that was irrational but for its tendency to harm competition.

Finally, the court held that the conduct Novell complained about was divorced from the conduct that allegedly caused harm to it and to consumers. Even if Microsoft had behaved just as Novell says it should have, the court concluded it would not have helped Novell.

The Tenth Circuit held that Microsoft’s conduct did not qualify as anticompetitive behavior within the meaning of section 2 of the The Sherman Act.