August 20, 2019

Archives for January 20, 2016

Data Privacy & Information Security: Meeting the Challenges of this Complex and Evolving Area of the Law

The breakneck speed at which technology is advancing presents both extraordinary opportunity and unprecedented risk to you and your clients. As data breaches and cyber attacks increase, so do the costs associated with preventing and dealing with them when — not if — they happen.

This practical seminar provides guidance on the state of the law on data security and privacy, as well as sound practices on how to minimize risk of a breach. Learn about data security and privacy issues with the European Union and Changes to the Safe Harbor Act, as well as the status of negotiations over the General Data Protection Regulations. Learn the reasonable measures to take in case of a breach, as well as best practices for advising your board and executives. Discover the latest challenges in employment law, as well as ethical dilemmas.


CLE Program: Data Privacy & Information Security — Meeting the Challenges of this Complex and Evolving Area of the Law

This CLE presentation will take place Friday, January 22, 2016, in the CLE Large Classroom. Click here to register for the live program and click here to register for the webcast, or call (303) 860-0608.

Can’t make the live program? Order the homestudy here: CDMP3 audioVideo OnDemand.

Colorado Supreme Court: Strict Privity Rule Bars Claims from Dissatisfied Beneficiaries Against Drafting Attorneys

The Colorado Supreme Court issued its opinion in Baker v. Wood, Ris & Hames, P.C. on Tuesday, January 19, 2016.

Floyd Baker, father of petitioners Baker and Kunda, retained Wood, Ris & Hames, Donald Cook, and Barbara Brundin (collectively, attorneys) to draft an estate plan. Floyd’s will specified that at his death, each of the four children (Baker and Kunda plus his stepchildren, Roosa and Brown) would receive $10,000, his condo would go to his wife, Betty, and the remainder of his estate would be divided between a marital trust and a family trust. On Betty’s death, the remaining estate assets would be divided equally between the four children. Floyd died in 2003 and his estate plan was carried out as specified in his will. Betty subsequently retained Cook to draft her estate plan, where she devised the condo to Roosa and specified that the remaining assets be divided equally between the three surviving children – Roosa, Baker, and Kunda. Betty died in February 2009.

Because of the bequest of the condo to Roosa, Baker and Kunda each received approximately 15% of the value of Betty’s estate while Roosa received approximately 70%. Baker and Kunda subsequently sued attorneys, asserting claims for breach of contract – third-party beneficiary; professional negligence; and fraudulent misrepresentation. Baker and Kunda alleged that the attorneys’ negligence allowed Betty to override Floyd’s estate plan after his death; the attorneys drafted an estate plan for Betty that controverted Floyd’s plan; and that Baker and Kunda, as intended beneficiaries of Floyd’s will, suffered damages as a result of the attorneys’ actions and inactions. The attorneys moved to dismiss for failure to state a claim on which relief could be granted, asserting Baker and Kunda lacked standing to sue them and that even if they had standing, Floyd’s testamentary intent had to be gleaned from the will itself, and the will was unambiguous and did not evince the intent alleged by Baker and Kunda. Attorneys also argued the claims were time-barred.

The district court ultimately granted the attorneys’ motion, concluding Baker and Kunda had not shown that any of the allegedly concealed facts had actually been concealed, or that the attorneys had intended Baker and Kunda to rely on the allegedly misrepresented circumstances. As for the negligent misrepresentation claim, the court noted that under Allen v. Steele, such claim required a business transaction, which was not present. Finally, as to the legal malpractice claim, the court concluded Baker and Kunda failed to show the attorneys owed them a duty of care. Baker and Kunda appealed, requesting that the court of appeals find an exception to the strict privity rule for third-party beneficiaries of a will, but the court of appeals declined to do so and affirmed the district court. Baker and Kunda appealed to the Colorado Supreme Court, contending the district court erred in dismissing their claims because as intended third-party beneficiaries of Floyd’s estate, they had standing to sue for breach of contract and legal malpractice, and also contending the court of appeals misconstrued their fraudulent concealment claims. Baker and Kunda urged the supreme court to abandon the strict privity rule in determining whether a non-client can sue an attorney. The supreme court declined to do so.

The supreme court found that because of the special trust and confidence arising from the attorney-client relationship, sound policy considerations supported the strict privity rule. Limiting an attorney’s liability to his or her clients protects the attorney’s duty of loyalty to and effective advocacy for the client, whereas expanding an attorney’s liability to non-clients could result in adversarial relationships between attorneys and clients and thus give rise to conflicting duties on the part of the attorney, and could require the attorney to reveal client confidences that the client did not want revealed. Further, extending the attorney’s duty of care to non-clients could result in the attorney being liable to an unforeseen and unlimited number of people. For these reasons, the supreme court declined to adopt an exception to the strict privity rule for dissatisfied beneficiaries. The court also recognized that the Colorado Probate Code allows dissatisfied beneficiaries to seek reformation of the will, thereby negating the need for an exception to the strict privity rule.

Addressing Baker and Kunda’s contentions that the supreme court should apply the “California rule” or “Florida-Iowa rule” to find exceptions to strict privity, the supreme court disagreed, finding that its stated policy considerations precluded adoption of either the California or Florida-Iowa rule and that even if it applied those rules, they would not support Baker and Kunda’s claims. The supreme court also rejected Baker and Kunda’s contentions that allowing only third-party beneficiaries to bring claims against attorneys would sufficiently limit the potential class of non-clients who could sue attorneys, noting that anyone could come forward and say they were intended beneficiaries. The supreme court also found no error in the district court’s rejection of Baker and Kunda’s fraudulent concealment claims, finding the district court appropriately applied C.R.C.P. 9(b)’s heightened pleading standard to those claims.

The supreme court affirmed the court of appeals.

Colorado Supreme Court: Showing of Deterioration of Condition Required for Involuntary Increase of Psychiatric Medication

The Colorado Supreme Court issued its opinion in People v. Marquardt on Tuesday, January 19, 2016.

Marquardt was committed to the Colorado Mental Health Institute in Pueblo after a plea of not guilty by reason of insanity. While there, he voluntarily took 10 mg per day of Saphris, an anti-psychotic medication that kept his mental condition stable, but refused to increase his dose because of concerns of potentially permanent side effects. The People petitioned the court to allow them to slowly increase Marquardt’s dose of Saphris to 20 mg, arguing that although he was stable on 10 mg, 20 mg could potentially allow him to return to society. The trial court applied the test articulated in People v. Medina, 705 P.2d 961, 973 (Colo. 1985), and determined that Marquardt’s failure to improve justified increasing the dose of Saphris.

On appeal, the Colorado Court of Appeals found the trial court had incorrectly applied the Medina test because the People had not shown that Marquardt’s mental condition was deteriorating. The court of appeals found that Medina permitted court-ordered medication increases to prevent deterioration but not solely for the purpose of expediting a patient’s treatment. The People appealed, and the Colorado Supreme Court agreed with the court of appeals, finding the Medina test was the proper analysis for determining whether a court should order forcible medication increases over a patient’s right to bodily integrity. In this case, the supreme court held the court of appeals correctly determined that the trial court had incorrectly applied the test where there was no deterioration of condition shown.

The supreme court affirmed the court of appeals.

Tenth Circuit: Unpublished Opinions, 1/19/2016

On Tuesday, January 19, 2016, the Tenth Circuit Court of Appeals issued two published opinions and one unpublished opinion.

Chase v. Lind

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