August 25, 2019

Archives for January 23, 2015

Colorado Supreme Court: Profit from Contingency Fee Case Pending During Law Firm’s Dissolution Must Be Shared

The Colorado Supreme Court issued its opinion in LaFond v. Sweeney on Tuesday, January 20, 2015.

Colorado’s Limited Liability Company Act—CRS § 7-8-404(a)(1)—Contingent Fee—Unfinished Business Rule—No-Compensation Rule.

The Supreme Court held that under the plain language of Colorado’s Limited Liability Company Act (LLC Act), CRS §§ 7-80-101 to -1101, any profit derived from a contingency fee case that is pending upon dissolution of the LLC belongs to the LLC and must be divided between members and managers according to their profit sharing agreement. Members and managers are not entitled to additional compensation for their post-dissolution work winding up the LLC business. This holding derives from (1) the principle that law firms do not end upon dissolution, but extend through the winding-up period; (2) the fiduciary duties of members and managers of an LLC; and (3) the absence of language in the LLC Act granting members and managers the right to additional compensation for their post-dissolution services. Accordingly, the Court affirmed the judgment of the court of appeals.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Abuse of Discretion Not to Dismiss Lawsuit Filed After Expiration of Statute of Limitations

The Colorado Supreme Court issued its opinion in In re Malm v. Villegas on Tuesday, January 20, 2015.

Civil Procedure—Time for Service of Process.

Villegas petitioned for relief pursuant to CAR 21 from an order of the district court granting Malm’s motion to reopen her personal injury lawsuit. The court denied Villegas’s motion to reconsider and dismiss the action for failure to prosecute, despite the passage of more than seven years between the filing and service of the complaint. Relying largely on Malm’s self-reported efforts to find and serve Villegas, as well as Villegas’s failure to demonstrate prejudice from the delay, the district court found that service was made within a reasonable time. The Supreme Court issued a rule to show cause why the district court had not abused its discretion in declining to dismiss for failure to prosecute.

The Court made its rule absolute and remanded the case with directions to dismiss the action. The delay between filing and service of the complaint extended beyond expiration of the applicable statute of limitations and there were no factual findings that the delay was the product of either wrongful conduct by the defendant or some formal impediment to service. Because the service was not made within a reasonable time, the district court abused its discretion in declining to dismiss the lawsuit for failure to prosecute.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Actual Conflict Requires Showing of Both Conflict of Interest and Adverse Effect

The Colorado Supreme Court issued its opinion in West v. People on Tuesday, January 20, 2015.

Conflicts of Interest—Post-Conviction and Extraordinary Relief—Ineffective Assistance of Counsel.

In these appeals, defendants alleged that their trial counsel labored under conflicts of interest because counsel concurrently or successively represented trial witnesses against them. The court of appeals remanded both cases to the trial courts to determine whether, under Cuyler v. Sullivan, 446 U.S. 335 (1980), defendants’ attorneys labored under an “actual conflict.” Defendants separately petitioned for review of the court of appeals’ judgments, asking the court to clarify whether the Sullivan standard requires a defendant to demonstrate, in addition to a conflict of interest, that an “adverse effect” arose from the conflict.

In People v. Castro, 657 P.2d 932 (Colo. 1983), the Supreme Court held that an adverse effect was inherent in a “real and substantial” conflict of interest and thus a separate showing was unnecessary. In this consolidated opinion, the Court overruled Castro because the U.S. Supreme Court recently held that an actual conflict, under the Sullivan standard, requires a defendant to show both a conflict of interest and an adverse effect on his or her attorney’s performance.

The Court held that to show an adverse effect, a defendant must (1) identify a plausible alternative defense strategy or tactic that trial counsel could have pursued; (2) show that the alternative strategy or tactic was objectively reasonable under the facts known to counsel at the time of the strategic decision; and (3) establish that counsel’s failure to pursue the strategy or tactic was linked to the actual conflict. The Court therefore affirmed the court of appeals’ judgments in part and instructed the trial courts to consider whether, under this framework, defendants received ineffective assistance of counsel by virtue of their attorneys’ alleged conflicts and are therefore entitled to new trials.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 1/22/2015

On Thursday, January 22, 2015, the Colorado Court of Appeals issued no published opinion and 40 unpublished opinions.

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

Tenth Circuit: Unpublished Opinions, 1/21/2015

On Wednesday, January 21, 2015, the Tenth Circuit Court of Appeals issued two published opinions and five unpublished opinions.

United States v. Woods

Hanover American Insurance Co. v. Balfour

United States v. Bell

United States v. Loman

United States v. Corrigan

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