August 19, 2018

Archives for February 17, 2014

WINDS OF CHANGE (Part 1): Attorney Wellness Leaders

rhodesGoogle “law school wellness programs” and count the hits. Of course you’ll get U of California at Berkeley (Boalt) and  U of San Francisco, but hey, that’s California, you’d expect that. But how about Duke, Harvard, U of Chicago… and closer to home, DU Sturm College of Law.

Lawyer assistance programs organizations like the Colorado Lawyers Assistance Program (COLAP) have changed their mission statements to adopt a far-reaching wellness orientation. They’re also reaching out to law schools, with the idea of helping new lawyers integrate personal and professional well-being into their careers from the get-go.

Beginning January 1st, the Ohio Bar amended its CLE requirements to require classes in “alcoholism, substance abuse, or mental health issues, which shall include instruction on any of their causes, prevention, detection, and treatment alternatives, as applicable.” Also required are classes in ethics that include consideration of “the Lawyer’s Creed and A Lawyer’s Aspirational Ideals.”

Why am I telling you all this? Because it would be too depressing to start by telling you that CNN ran a story last month about how lawyers now rank 4th among all professions in suicide rate. The story also cited the all-too-familiar statistics about how lawyers lead the way in substance abuse, depression, and other mental disorders. Just another tiresome “lawyers are unhappy” story that won’t change anything? Let’s hope not – not if the law schools and LAP’s and CLE Boards I’ve mentioned have anything to say about it.

The “Lawyer’s Creed” and “Aspirational Ideals” aren’t about rules and whether somebody is technically over the ethics line. They’re about ideals, about how to make the world of law safer and happier, more productive and rewarding, and ultimately more competently and justly administered for lawyers, clients, judges, and everybody else involved in the legal process.

Aspirational ideals, wellness education, and assistance programs go way beyond the vague notion we picked up in our mandatory pre-graduation ethics class that somehow we’re supposed to let the authorities know when somebody is struggling so much we can’t ignore their behavior anymore. Instead, they’re introducing a major paradigm shift so radical that it’s hard to get your head around if you’ve bought the conventional “aspirational means optional” point of view.

Among other things, that paradigm shift is based on the stunning idea that the law can be a life-enhancing career. No, this isn’t about holding hands in a circle and singing Kumbaya. It’s about enlightened self-interest, about deciding that it’s not okay anymore that we allow our profession to run us down, stress us out, and sometimes even kill us. It’s about embracing radical notions such as the one on COLAP’s webpage that says, “Problems are not a sign of failure but an opportunity for growth.” That’s not a surprising phrase to see on one of those motivational plaques, but as applied to high-achieving, competitive, alpha-controlling lawyers? Truly stunning.

Can you imagine personal wellness resources being part of normal life when you went to law school? I can’t either. Thankfully, the winds of change are blowing.

Kevin Rhodes is a lawyer in private practice and a registered mentor with the Colorado Supreme Court’s CAMP program. He offers career coaching for lawyers and 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.

Colorado Court of Appeals: Avalanche is Inherent Risk of Skiing Under Ski Safety Act

The Colorado Court of Appeals issued its opinion in Fleury v. IntraWest Winter Park Operations Corp. on Thursday, February 13, 2014.

Ski Resort—Avalanche—Wrongful Death—Negligence—Inherent Risk—Ski Safety Act.

This case arose from the death of Christopher Norris, who was killed by an avalanche while skiing on a run known as Trestle Trees/Topher’s Trees (Trestle Trees) at Winter Park Resort, which is operated by IntraWest Winter Park Operations Corporation(IntraWest). Norris’s wife, Salynda E. Fleury, individually and on behalf of her minor children, asserted claims for negligence and wrongful death. The district court granted IntraWest’s motion for determination of law and judgment on the pleadings, ruling that an avalanche is an inherent danger or risk of skiing under the Ski Safety Act (Act) and therefore IntraWest was not liable for Christopher Norris’s death.

On appeal, Fleury contended that the district court erred in determining that the avalanche was an inherent risk of skiing under the Act. The Act provides examples in defining the inherent dangers and risks of skiing; however, this list in not exclusive. Giving effect to the plain meanings of the words in the Act, an avalanche fits the definition of inherent dangers and risks of skiing.

Fleury also argued that IntraWest was liable for her husband’s death because it failed to close Trestle Trees and failed to warn skiers about the avalanche danger on the day he was killed. The Act enumerates specific sign requirements and does not require ski area operators to warn skiers of possible avalanches or to close slopes with avalanche danger. Therefore, IntraWest was under no duty to post a warning sign at Trestle Trees or to close it on the day in question. Therefore, the district court properly dismissed Fleury’s claims against IntraWest, and the judgment was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Period In Which Competency Evaluation Being Completed Excluded from Speedy Trial Timeline

The Colorado Court of Appeals issued its opinion in People v. Naqi on Thursday, February 13, 2014.

Violation of Right to Speedy Trial—Competency Evaluation—Crime of Violence—Sentencing.

On January 10, 2011, while represented by the public defender, defendant pleaded not guilty to the charge of sexual assault on his stepdaughter while in a position of trust–pattern of abuse. In March 2011, defendant filed a pro semotion seeking to obtain a different attorney, which was denied. On June 1, 2011, the original defense counsel filed a motion to continue the case; defendant objected. The court gave defendant the option of proceeding pro se or waiving the speedy trial date and proceeding with either the original defense counsel or alternate defense counsel. Defendant chose to proceed pro se and was found competent to proceed after a court-ordered competency evaluation. A jury convicted him as charged.

On appeal, defendant contended that his right to a speedy trial was violated because the competency evaluation was unfounded and, therefore, the period during which his competency was being evaluated should not have been excluded from the six-month speedy trial period. A defendant must be brought to trial within six months of entering a not-guilty plea. However, any period during which a defendant is under examination with respect to his or her competency is excluded from the six-month period. Here, the record supports the conclusion that defendant might not have been competent to proceed to trial. Therefore, the court did not abuse its discretion in ordering a competency evaluation, and the period of time to complete the evaluation was properly excluded from the speedy trial period.

Defendant also contended that the trial court erred by aggravating the applicable sentencing range in accordance with the crime of violence and extraordinary risk crime statutes. Defendant was subject to crime of violence sentencing because the offense of which he was convicted is a per se crime of violence. Therefore, the prosecution was not required to prove a crime of violence to aggravate the sentencing range in accordance with the crime of violence statute. Although the sentencing range should not have been aggravated as an extraordinary risk crime, the sentence fell within the corrected sentencing range. Therefore, the judgment and sentence were affirmed.

Summary and full case available here.

Tenth Circuit: Unpublished Opinions, 2/14/2014

On Friday, February 14, 2014, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

Kenfield v. Colorado Dept. of Public Health & Environment

United States v. Anderson

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Unpublished Opinions, 2/13/2014

On Thursday, February 13, 2014, the Tenth Circuit Court of Appeals issued no published opinion and eight unpublished opinions.

United States v. Whatcott

United States v. Bragg

Richardson v. Daniels

Kaysville City v. Federal Deposit Insurance Corp.

Nationwide Mutual Insurance Co. v. Briggs

Thompson v. Bigelow

United States v. Chaidez

Garza v. Correct Care Solutions

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.