August 20, 2019

Archives for April 3, 2014

The Practice of Life (Part 1): The Ethics of Happiness

rhodesI’ve written before about the ethics of unhappiness (here and here), describing how stressed-out lawyers pose ethical risks, especially when their unhappiness reaches the point of depression and other stress-related disorders. Today, let’s look at the positive side – brought to us, appropriately, by the principles of Positive Psychology.

As a teaching fellow, Shawn Achor helped to create the famed Harvard “happiness course.” Now he’s a globe-trotting consultant, taking Positive Psychology principles to companies worldwide. In his book The Happiness Advantage, he makes the case for happiness in the marketplace, starting with an upside-down look at the topic:

If you observe people around you, you’ll find most individuals follow a formula that has been subtly or not so subtly taught to them by their schools, their company, their parents, or society. That is: If you work hard, you will become successful, and once you become successful, then you’ll be happy. This pattern of belief explains what most often motivates us in life.

The only problem is that this formula is broken.

[N]ew research in psychology and neuroscience shows that it works the other way around. We become more successful when we are happier.

When we are happy – when our mindset and mood are positive – we are smarter, more motivated, and thus more successful.

It turns out that our brains are literally hardwired to perform at their best not when they are negative or even neutral, but when they are positive. (emphasis in original)

This isn’t Pollyannaish theory; it’s backed up with psychological research, neuroscience, and real-world business experience:

Data abounds showing that happy workers have higher levels of productivity, produce higher sales, perform better in leadership positions, and receive higher performance ratings and higher pay. They also enjoy more job security and are less likely to take sick days, to quit, or to become burned out. Happy CEOs are more likely to lead teams of employees who are both happy and healthy, and who find their work climate conducive to high performance. The list of benefits of happiness in the workplace goes on and on.

What this means for the legal profession is that happy lawyers are more likely to deliver the best of the competence, communication, timeliness, and sound judgment we’re ethically obligated to provide. It also means that the best-performing law firms – the firms that will also make the “best places to work” lists – could be founded on a single guiding principle: promote lawyer happiness.

Think about it.

For most of us, happiness is a learned skill. Again, as Achor says:

The Happiness Advantage . . . is about learning how to cultivate the mindset and behaviors that have been empirically proven to fuel greater success and fulfillment. It is a work ethic.

I.e., it’s a practice. We can practice happiness like we practice law, except that if we put lawyer happiness at the core, we’ll likely create a practice of law unlike anything we’ve seen before.

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

Tenth Circuit: Barring Retrial as Habeas Remedy in Ineffective Assistance of Counsel Case Requires Powerful Justification

The Tenth Circuit Court of Appeals published its opinion in United States v. Bergman on Friday, March 28, 2014.

Gwen Bergman was convicted of hiring a person she thought was a hit man to kill her husband. After her trial, she eventually learned the man who represented her at trial was not an actual lawyer. She pursued a habeas motion under 28 U.S.C. § 2255 alleging a violation of her Sixth Amendment right to effective assistance of counsel at trial. The district court vacated her conviction and discharged her from supervised release. Assuming the court’s decision to vacate the conviction it won at Bergman’s first trial was without prejudice to a new trial with a (real) defense lawyer, the government asked the court to set a date. But the district court refused, stating that its discharge order “implicitly” forbade any effort to secure a valid conviction at a second trial. The government appealed that ruling.

First, the Tenth Circuit had to determine if it had jurisdiction to hear the appeal. Pursuant to 18 U.S.C. § 3731, the court may hear an appeal by the government from any “decision, judgment, or order of a district court dismissing an indictment.” The district court denied the government’s new trial request and entered an order saying so in both the civil habeas and the underlying criminal case but did not dismiss the indictment. The Tenth Circuit held that district court actions and orders having the practical effect of dismissing an indictment are subject to appeal under § 3731 even if they do not formally “dismiss” an indictment or happen to be labeled that way.

Bergman argued that the Double Jeopardy Clause prohibited further prosecution of her so the court could not hear the appeal. The court disagreed because, as in this case, “the Supreme Court has long held that the Double Jeopardy Clause does not prohibit the government from seeking a new trial when the defendant’s conviction is reversed because of a trial error unrelated to the question of guilt or innocence.”

The court rejected the government’s argument that it had an absolute right to retry a defendant absent a double jeopardy bar as other reasons may violate the legal rights of the defendant. However, it agreed that a § 2255 remedy must be tailored to the injury suffered from the Sixth Amendment violation and prohibiting a new trial in this case was not sufficiently tailored. The presumptively appropriate remedy for ineffective assistance is a new trail with an effective lawyer, barring problems that would render effective representation impossible. No evidence in the discharge order was sufficient to justify a discharge with prejudice. The court vacated the district court’s order and remanded. 

Tenth Circuit: Unpublished Opinions, 4/2/2014

On Wednesday, April 2, 2014, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

Turner v. National Council of State Boards of Nursing, Inc.

United States v. Tuakalau

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

Colorado Court of Appeals: Announcement Sheet, 4/3/2014

On Thursday, April 3, 2014, the Colorado Court of Appeals issued no published opinion and 32 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

SB 14-164: Authorizing the Division of Fire Prevention and Control to Make Certain Provisions for Aerial Firefighting

On March 21, 2014, Sen. Morgan Carroll introduced SB 14-164 – Concerning Aerial Firefighting. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Senate Bill 13-245 created the Colorado firefighting air corps (C-FAC) under the division of fire prevention and control (division) in the department of public safety and empowered the division to acquire firefighting aircraft for the C-FAC. Currently, the division has no such aircraft.

  • For use during the 2014 fire season, the bill authorizes the division to purchase, lease, or contract for the use and operation of up to 3 firefighting helicopters.
  • For use in the 2015 fire season and beyond, the bill authorizes the division to purchase, lease, or contract for the use of up to 4 large aircraft from the federal government or other sources. The division is further permitted to contract for the retrofitting, maintenance, storage, and operation of these planes. In awarding any such contract, the division is directed to consider certain specified factors, including whether bidders will perform the airplane modifications in Colorado or employ veterans.

The bill also allows the division to establish a center of excellence for advanced technology aerial firefighting and specifies the functions that the center must perform, if so established.

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

SB 14-163: Revising Statutes Related to Sentencing of Persons Convicted of Drug Crimes to Conform to SB 13-250

On March 20, 2014, Sen. Pat Steadman introduced SB 14-163 – Concerning Clarifying Changes to Provisions Related to the Sentencing of Persons Convicted of Drug Crimes. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

In 2013, the general assembly adopted SB 13-250, which created a new sentencing structure for drug crimes. The bill makes clarifying and conforming changes to the statutes based on last year’s legislation.

On March 26, the Judiciary Committee approved the bill and moved it to the Senate Consent Calendar for consideration on 2nd Reading.

Since this summary, the bill passed the Senate on second and third readings, with amendments on second reading. The bill was introduced in the House and assigned to the Judiciary Committee.

SB 14-162: Establishing Mandatory Components for Quality Management Programs for EMS Providers Providing Prehospital Care

On March 18, 2014, Sen. Jeanne Nicholson introduced SB 14-162 – Concerning Quality Management Programs for Emergency Medical Service Providers Providing Care in the Prehospital Setting. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill specifies the mandatory components of a quality management program established by an emergency medical services organization, the purpose of which is to conduct assessments of prehospital care provided by emergency medical service (EMS) providers.

Information collected and maintained pursuant to a quality management program that contains the required components is confidential, and persons who participate in a quality management program cannot be compelled to testify in a civil or administrative proceeding. The confidentiality protections do not apply to factual testimony about which a person has personal knowledge. Persons participating in a quality management program in good faith are not liable for any damages resulting from the proceedings.

The bill is assigned to the Health & Human Services Committee.