April 18, 2019

Archives for March 5, 2014

Winds of Change (Part 4): Future Shock and the Business of Law

rhodesAlvin Toffler defined Future Shock as “too much change in too short a period of time.” The book came out almost 45 years ago, the concept took awhile to gain momentum, but there’s no doubt it’s now in high gear. And a lot of people think the business of law is on the short list of industries likely to go the way of video cartridges and cassette tapes.

In a two part ABA “Legal Rebel” series last fall 2013 (here and here), business lawyer Edwin Reeser posited that the law business is still in the throes of the Great Recession, leaving many of us not thinking clearly (i.e., in a state of Future Shock), and causing law firms to seek solutions in all the wrong places:

The problem has been a lack of courage and discipline to create and deliver what clients in every industry ask for: a better-quality product and service for a better price—to provide increased value. Firms stopped investing in people and the future of the enterprise as an institution, and they did it long before the onset of the Great Recession. We would still be facing this problem in the future, but the Great Recession accelerated and compressed it into a shorter period of time.

Not everyone is so afflicted. A stunning array of new practice models and new lawyer career paths has sprung up overnight. Here’s a list of a few of them from a recent Clio webinar (with a couple local additions). Another list appears at the end of an October 2013 ABA Journal article entitled Who’s Eating Law Firm’s Lunch. There are some duplicates on the two lists, but not many.

In fact, most of these newcomers aren’t law firms at all, and many go way past Legal Zoom and Rocket Lawyer – two already big, big businesses providing non-traditional legal services. Instead, they live and thrive in the world of new business startups. A Valentine’s Day 2014 Tech Cocktail post reported that funding for legal service startups rose from $66 million in 2012 to $458 million in 2013, and predicted that 2014 could be bigger. Check the math: that’s nearly half a billion. And this year could be even bigger? Whoa.

Innovative as they are, those startups aren’t even all the way out there on the fringe. For that, you need to check out ReInvent Law, Lex Redux, and the Forum on Legal Evolution. We’re not just talking tech trade shows like LegalTech here; this the wild and wooly land of the earliest of early adopters. Their approach has two key features – technological innovation and a blunt commitment to customer service – and they go after both with a rage that isn’t for the thin-skinned. As one member of the Blawgosphere said about ReInvent Law NYC:

[None of the speakers] “disagreed that the law was in crisis, change was about to destroy life as we know it, and lawyers are greedy, selfish misanthropes who brought misery to society and destruction to themselves,”

Or, as another Blawgger wrote:

[Many presenters] “dismiss[ed] the legal profession (or trade, as FMC Technologies GC [Jeffrey] Carr explained, who stated that he couldn’t care less about hiring people engaged in the crime of the Unlawful Practice of Law) as stupid and venal because lawyers have yet to recognize the one true god, technology, that will make the world a wonderful place.”

Okay then.

One online comment to Who’s Eating Law Firm’s Lunch pretty well sums up the Future Shock impact of these developments: “Unauthorized practice of law. What Novus law is doing is illegal. None of the idiots at the ABA Journal could figure this out?”

Oh, they could figure it out, all right. But try to hold it back? Good luck with that. One commentator likened traditional law business to John Henry and his hammer picking a fight with a steam shovel. Like them or not, agree with them or not, call them illegal or unethical or not, these new bad boys are playing for keeps, and over half a billion dollars is a lot of fuel to keep them running.

To be continued.

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.

Tenth Circuit: Unpublished Opinions, 3/4/2014

On Tuesday, March 4, 2014, the Tenth Circuit Court of Appeals issued no published opinions and six unpublished opinions.

Simms v. State Farm Employees

Jiron v. Davidson

Jiron v. Thorson

Valdovinos-Blanco v. Holder

Coats v. State of Utah 

Lester v. United States

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

SB 14-145: Creating Incentives for Water Conservation

On Thursday, February 13, 2014, Sen. Mary Hodge introduced SB 14-145 – Concerning Incentives for the Conservation of Water. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill requires certain local governments to consider whether tap fees should be reduced if a developer commits to the implementation of water efficiency and conservation measures with regard to irrigated landscapes, including open space and residential lawns, within the subdivision. The bill applies to counties and cities differently. The bill also applies to special districts that supply water. The bill also prohibits county and municipal subdivision regulations from mandating a minimum percentage of a subdivision that must consist of irrigated vegetation or requiring the irrigation of medians.

The bill directs the Colorado water conservation board, in its awards of incentive grants for the design and implementation of water efficiency and conservation measures, to give priority to public agencies that require new subdivisions to implement water efficiency and conservation measures with regard to irrigated landscapes, including open space and residential lawns.

The bill has been assigned to the Agriculture, Natural Resources, & Energy Committee.

SB 14-144: Extending Commission on Family Medicine’s Support for the Development of Family Medicine Residency Programs in Underserved Areas

On Thursday, February 13, 2014, Sen. Irene Aguilar introduced SB 14-144 – Concerning Extending the Commission on Family Medicine’s Support for the Development of Family Medicine Residency Programs in
Underserved Areas of the State. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill extends the commission on family medicine’s (commission) support of the development of family medicine residency programs in rural and other underserved areas of the state and removes the 2016 repeal date for this commission duty. Further, the bill requires the commission to report annually to the office of state planning and budgeting and the department of health care policy and financing concerning its duty regarding family medicine residency programs and to present its report at the annual meeting of the joint budget committee.

In addition, the bill requires the commission to complete a study, or to contract for the completion of a study, concerning family medicine residency programs in rural and other underserved areas of the state. The bill includes several issues that must be evaluated as part of the study, including issues relating to family medicine residency programs, specifically, and graduate medical education programs, in general. The study must also include an evaluation and recommendations concerning the use of medicaid graduate medical education funding to support family medicine residency programs in the state. The completed study must be submitted to certain committees of the general assembly.

On Feb. 27, the Health & Human Services Committee amended the bill and referred it to the Appropriations Committee for consideration of the fiscal impact to the state.

SB 14-142: Exempting Certain Water System Facilities from Inspection by the Commissioner of Agriculture

On Friday, February 7, 2014, Sen. Gail Schwartz introduced SB 14-142 – Concerning an Exception for Certain Water System Facilities from the Facilities that the Commissioner of Agriculture has a Duty to Inspect Regarding Pesticide Storage. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The commissioner of agriculture regulates the use of agricultural chemicals in Colorado. As part of that duty, the commissioner inspects all facilities in Colorado that store pesticides, including public water systems and domestic wastewater treatment works; however, public water systems and domestic wastewater treatment works are also inspected by the water quality control division in the Colorado department of public health and environment to facilitate the water quality control commission’s regulation of water quality throughout the state. The bill eliminates these facilities from the commissioner’s regulation requirements.

The bill passed out of the Senate on Feb. 26; on that same day, the bill was introduced in the House and assigned to the Agriculture, Livestock, & Natural Resources Committee.

SB 14-140: Requiring HOAs to be Subject to Entire Colorado Common Interest Community Act in Order to Foreclose Lien for Assessments

On Monday, January 27, 2014, Sen. Owen Hill introduced SB 14-140 – Concerning a Prohibition on the Exercise of Lien Rights Under the “Colorado Common Interest Ownership Act” by Unit Owners’ Associations that Do Not Elect to be Covered by the Entire Act. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill requires that, in order to establish or foreclose a lien for assessments, a homeowners’ association must be subject to the entire “Colorado Common Interest Ownership Act.”

On Feb. 17, the State, Veterans, & Military Affairs Committee heard testimony and considered the bill for committee discussion only; the bill will be put back on the calendar for action in the near future.

Since this summary, the State, Veterans, & Military Affairs Committee postponed the bill indefinitely.

SB 14-138: Providing Limited Immunity for Volunteer Firefighters

On Monday, January 27, 2014, Sen. John Kefalas introduced SB 14-138 – Concerning Civil Immunity for Community Volunteers Assisting at an Emergency. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Current law provides limited immunity for volunteer firefighters who provide services at the scene of an emergency. As amended in the Senate, the bill extends the immunity to volunteers performing services for nonprofit corporations and nonprofit organizations.

The bill passed out of the Senate on February 17; on that same day, the bill was introduced in the House and assigned to the Local Government Committee.

The New Public Benefit Corporations Act — Unique Features of the Colorado Act

In 2013, the Colorado General Assembly passed HB 13-1138 – Concerning Benefit Corporations, and, In Connection Therewith, Making an Appropriation. Governor Hickenlooper signed the bill into law on May 5, 2013, to be effective April 1, 2014. The bill creates a new category of business operation in Colorado – benefit corporations are designed as for-profit corporations that can elect to pursue a humanitarian interest without contraventing the shareholders’ stake in maximizing profits.

The Public Benefit Corporation Act (PBC Act) details requirements for corporations wishing to be considered “benefit corporations.” As defined in the PBC Act, “‘Public benefit’ means one or more positive effects or reduction of negative effects on one or more categories of persons, entities, communities, or interests other than shareholders in their capacities as shareholders, including effects of an artistic, charitable, cultural, economic, educational, environmental, literary, medical, religious, scientific, or technological nature.” This broad definition allows corporations much leeway in determining the public benefits they will offer.

A feature of Colorado’s PBC Act that is not mirrored in most other states allowing benefit corporations is that the Colorado Public Benefit Corporation must state its public purpose with specificity. In the clip below, J. William Callison of Faegre Baker Daniels explains some of the requirements of the PBC Act, with an example of a specific benefit outlined. Also appearing in the video are Herrick K. Lidstone, Jr., of Burns Figa & Will, and Carla Hoke of the Colorado Secretary of State’s office.

Click here to view online

The Colorado Public Benefit Corporation Act is legislation that every Colorado business law practitioner should become familiar with before its effective date of April 1, 2014. Click the links below to order the full homestudy.

CLE Homestudy: Public Benefit Corporation Act, Effective April 1, 2014

This CLE presentation took place on February 12, 2014. Click here to order the Video On Demand and watch the entire presentation online, click here for the MP3 Audio Download homestudy, click here for the CD homestudy, or call (303) 860-0608 to order by phone.

 

Colorado Supreme Court: Reformation Not Necessary for Commercial Option Entered Into Prior to Enactment of Statutory Rule Against Perpetuities Act

The Colorado Supreme Court issued its opinion in Atlantic Richfield Co. v. Whiting Oil & Gas Corp. on Monday, March 3, 2014.

Equity Oil Company—Reformation of Future Interests in Property—Statutory Rule Against Perpetuities Act—Common Law Rule Against Perpetuities—Nondonative Transfers

In this case, the Supreme Court considered whether a nondonative, commercial option entered into before the passage of the Statutory Rule Against Perpetuities Act is subject to reformation under CRS § 15-11-1106(2). As a threshold matter, the Court examined whether the option violated the common law rule against perpetuities, and concluded that it does not. Because the commercial option negotiated by the parties was fully revocable, it posed no practical restraint on alienation, and did not violate the common law rule against perpetuities as that rule was construed in Supreme Court case law before passage of the Statutory Rule Against Perpetuities Act.

The Court held that because the option did not violate the common law rule against perpetuities, no reformation was necessary. Accordingly, the Supreme Court affirmed the judgment of the court of appeals on different grounds, and did not reach the questions of whether § 15-11-1106(2) provides for reformation of nondonative, commercial instruments, or whether the lower courts’ application of that section to the option here was unconstitutionally retrospective.

Summary and full case available here.

Colorado Supreme Court: City & County of Denver Has Authority to Unilaterally Draft Disciplinary Rules

The Colorado Supreme Court issued its opinion in City & County of Denver v. Denver Firefighters Local No. 858 on Monday, March 3, 2014.

Firefighters—Departmental Rules of Conduct—Firefighter Right to Organize and Bargain Collectively—Denver City Charter.

In this case, which involved an issue of first impression, the Supreme Court held that the City and County of Denver has authority to unilaterally draft and implement disciplinary rules. This authority is not limited by the Denver firefighters’ right to engage in collective bargaining. Accordingly, the Court reversed the judgment of the court of appeals because the court of appeals erroneously concluded that discipline is a term and condition of employment that is subject to collective bargaining. The case was remanded to the trial court.

Summary and full case available here.

Tenth Circuit: Unpublished Opinions, 3/3/2014

On Monday, March 3, 2014, the Tenth Circuit Court of Appeals issued two published opinions and two unpublished opinions.

United States v. Pettit

United States v. Dang

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

HB 14-1193: Limiting the Amount of Fees Allowed Under Colorado Open Records Act

On January 30, 2014, Rep. Joe Salazar and Sen. John Kefalas introduced HB 14-1193 – Concerning Requirements Governing the Imposition of a Fee for the Research and Retrieval of Public Records under the “Colorado Open Records Act.” This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill allows a custodian of public records under the “Colorado Open Records Act” to impose a fee in response to a request for the research and retrieval of such records only if the custodian has, prior to the date of receiving the request, either posted on the custodian’s web site or otherwise published a written policy that specifies the applicable conditions concerning the research and retrieval of public records by the custodian. The bill prohibits the custodian under any circumstances from charging an hourly fee for the research and retrieval of public records that exceeds four times the state minimum wage.

The bill passed out of the House on Feb. 24 and has been assigned to the State, Veterans, & Military Affairs Committee in the Senate.