June 26, 2019

Archives for January 15, 2015

The Future of Law (Part One): Beyond the Borg

rhodesWe finished last year talking about the law profession’s cultural ethos, and how new practice models and wellness initiatives are liberating lawyers from its harmful aspects (the Legal Borg). An earlier 2014 series also looked at alternative practice models. Another considered how the law’s cultural ethos can cause stress-induced cognitive impairment and how mindfulness practice can help.

These developments may have sneaked in unnoticed, but now they’ve become the elephant in the room, and it’s time to deal with them. They’re causing a seismic shift in the profession’s ethos, and a new ethos requires a new ethic: i.e., new standards for how to enter the profession and how to behave once you’re in it.

The ABA Journal published a piece on that very topic on New Year’s Day, entitled “Does The UK Know Something We Don’t About Alternative Business Structures?” The article begins as follows:

For two nations sharing a language and legal history, the contrast in the visions at play in the legal systems of the United States and United Kingdom is more than striking. It’s revolutionary.

The debates in the U.S. go on: Should ethics rules blocking nonlawyer ownership of law firms be lifted? Is the current definition of unlicensed law practice harming rather than protecting clients? What about the restrictions on multidisciplinary practices?

And those debates are by no means ending: Witness the newly created ABA Commission on the Future of Legal Services. Though ABA President William C. Hubbard does not mention ethics rule changes in the commission’s primary task of identifying the most innovative practices being used in the U.S. to deliver legal services, some of those practices have been questioned as possible ethical breaches. Meanwhile, the rules and restrictions stay in place. The situation in the United Kingdom couldn’t be more different: Such restrictions have largely been lifted, and under the Legal Services Act the creation of new ways of providing legal services—including through alternative business structures—is more than simply permitted; it is actively encouraged.

Nonlawyer ownership of law firms, unlicensed practice, multidisciplinary practice… those are big issues. We’ll let the ABA tackle them. If you’ve been following these issues for awhile, you’ll remember the ABA did just that at their summer convention 17 years ago, and again the following year.

This blog won’t try to keep pace with the pros on that debate’s current version. We will, however, do some guessing of our own about how current trends in law practice and lawyer wellbeing might change not just lawyers and law practice, but our very stock and trade: the law itself. A new cultural ethos in the law will do precisely that. It is already. We’re going to talk about that, and speculate about what it might look like going forward.

According to Wikipedia, futurology is an “attempt to systematically explore predictions and possibilities about the future and how they can emerge from the present.” We’re not going to be systematic here. Instead, we’ll engage in some moderately-well-informed-but-we-don’t-know-what-the-insiders-know curiosity.

Should be fun. So draw the shades and polish up your crystal ball (maybe you prefer this kind, or maybe that) and let’s take a look!

Kevin Rhodes has been a lawyer for nearly 30 years, in firms large and small, and in solo practice. Years ago he left his law practice to start a creative venture, and his reflections on exiting the law practice appeared in an article in the August 2014 issue of The Colorado Lawyer. His free ebook, Life Beyond Reason: A Memoir of Mania, chronicles his misadventures in leaving the law, and the lessons he learned about personal growth and transformation, which are the foundation of much of what he writes about here.

A collection of Kevin’s blog posts, Enlightenment, Apocalypse, and Other States of Mind, is now available as an ebook. Click the book title to sample and download it from the distributor’s webpage. It’s also available on from Barnes & Noble, iTunes, Amazon, and Scribd. The collection includes Forewords from Debra Austin, author of the Killing Them Softly law journal article which has been featured here, and from Ron Sandgrund, author of The Colorado Lawyer article mentioned above.

You can email Kevin at kevin@rhodeslaw.com.

Rules from Chapters 18 and 20 of Colorado Rules for Civil Procedure Amended

On January 14, 2015, the Colorado Supreme Court adopted Rule Change 2015(02), amending Rules 205.3, 205.5, 205.6, 224, and 227 of Chapter 18 of the Colorado Rules of Civil Procedure, and amending Rules 251.1, 260.2, and 260.6 of Chapter 20 of the Colorado Rules of Civil Procedure.

The change to Rule 205.3, “Pro Hac Vice Authority Before State Courts — Out-of-State Attorney,” updated the reference in subparagraph (7) to Colo. RPC 1.15A through E. Rules 205.5, “Pro Hac Vice – Foreign Attorney,” and 205.6, “Practice Pending Admission,” were similarly updated to cite to Colo. RPC 1.15A through E. The updates to Rule 227 were also minor, changing the reference in subparagraph (2)(a)(4) to Colo. RPC 1.15B and updating citations in the Comment to the “Regstration Fee of Non-Attorney Judges” section of the rule.

In Rule 224, “Provision of Legal Services Following Determination of a Major Disaster,” subparagraphs (2) and (3) were amended to change citations from C.R.C.P. 220(1)(a) and (b) to C.R.C.P. 205.1(a) and (b), and from C.R.C.P. 220 to C.R.C.P. 205.1; citations in subparagraphs (5)(a) and (b) were updated from C.R.C.P. 221 and 221.1 to C.R.C.P. 205.3 and 205.4; and subparagraph (6) was amended to change the citation from C.R.C.P. 220(3) to 205.1(3) and add a citation to Colo. RPC 8.5.

Citations were also updated in Rules 251.1, 260.2, and 260.6. Rule 251.1, “Discipline and Disability; Policy — Jurisdiction,” was changed to reference Rules 204 and 205 instead of Rules 220, 221, and 222. Subsection (4) of Rule 260.2, “CLE Requirements,” was amended to clarify that the subsection was repealed and replaced by C.R.C.P. 203.2(6), 203.3(4), and 203.4(6). Citations in subsections (5)(a) and (6) of Rule 260.6, “Compliance,” were also amended, updating references from Rule 201.14 to Rules 203.2(6), 203.3(4), and 203.4(6).

Click here for the Colorado Supreme Court’s 2015 rules changes.

Tenth Circuit: Federal Arbitration Act Provides Interlocutory Jurisdiction in Limited Circumstances

The Tenth Circuit Court of Appeals issued its opinion in International Brotherhood of Electrical Workers v. Public Service Company of Colorado on Tuesday, December 9, 2014.

In 2009, the International Brotherhood of Electrical Workers (Union) and Public Service Co. entered into a Collective Bargaining Agreement covering Union members who were Public Service employees. Public Service unilaterally amended the agreement approximately two years later, affecting prescription drug prices for retirees. The Union followed dispute procedures and eventually demanded that the issue be submitted to arbitration. Public Service refused, so the Union sued the company and asked the district court to stay the proceedings and compel arbitration. The district court denied the Union’s motion, and it appealed.

The Tenth Circuit first questioned its jurisdiction to hear the interlocutory appeal. The Tenth Circuit found that the instant appeal fell within one of the FAA’s exceptions providing for interlocutory appeals pursuant to Tenth Circuit case law and Supreme Court precedent in Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001).

Addressing arbitrability of the issue at suit, the Tenth Circuit determined that the Collective Bargaining Agreement did not cover disputes related to retired workers, only to current employees. The Union argued the district court failed to apply the presumption in favor of arbitrability, but the Tenth Circuit disagreed, finding instead that the court evaluated the presumption and held it inapplicable. The Union also argued that the district court erred by addressing the underlying merits of the dispute, but the Tenth Circuit examined the record and found no evidence of merit review.

The Tenth Circuit affirmed the district court’s order denying arbitration. Judge Hartz concurred with the finding of jurisdiction but dissented with the panel’s finding that the dispute was not arbitrable.

Tenth Circuit: Company Entitled to Sell Trademark Rights Post-Termination Continued to Own Rights Until Completion of Sale

The Tenth Circuit Court of Appeals issued its opinion in Derma Pen LLC v. 4EverYoung Limited on Tuesday, December 9, 2014.

Derma Pen, LLC and 4EverYoung Ltd. entered into a sales distribution agreement for a micro-needling device: Derma Pen would sell the device in the United States and 4EverYoung would sell it in the rest of the world. Their contract provided that upon termination, Derma Pen would offer to sell its rights to 4EverYoung. Derma Pen eventually terminated the agreement and 4EverYoung attempted to purchase Derma Pen’s trademark rights, but the parties reached an impasse and no sale occurred. Despite its lack of trademark rights, 4EverYoung started using Derma Pen’s trademark to sell the device in the United States. Derma Pen sued 4EverYoung and associated entities on over 15 claims, including trademark infringement and unfair competition under the Lanham Act. Derma Pen also moved for a preliminary injunction to prevent 4EverYoung from using the trademark in the United States. The district court denied the motion, finding that Derma Pen was unlikely to succeed on the merits, and Derma Pen appealed.

The Tenth Circuit reversed. Upon review of the existing record, the Tenth Circuit found that Derma Pen likely still owned the U.S. trademark rights until they were sold, and no sale had taken place. 4EverYoung argued that the agreement’s termination dissolved Derma Pen’s ownership rights, but the Tenth Circuit disagreed. Because the contract contemplated Derma Pen’s ability to sell its ownership rights post-termination, the Tenth Circuit found that Derma Pen likely still owned the trademark rights, and would be likely to succeed on the merits on this issue.

The district court’s denial of Derma Pen’s injunction was reversed, and the case was remanded for further proceedings.

Tenth Circuit: Unpublished Opinions, 1/14/2015

On Thursday, January 14, 2015, the Tenth Circuit Court of Appeals issued no published opinion and one unpublished opinion.

United States v. Vasquez-Garcia

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