July 17, 2019

Archives for February 24, 2016

Preventing Legal Malpractice: Preservation and Spoliation of Evidence

At what point in litigation does a duty arise to preserve evidence? If your client deletes electronic files, can you be held responsible? What sanctions arise from failure to preserve evidence? These questions and more are addressed in the Colorado CLE handbook, Lawyers’ Professional Liability in Colorado: Preventing Legal Malpractice and Disciplinary Actions. Anna Martinez, a litigation attorney at Franklin D. Azar & Associates, PC, is the author of Chapter 29, “Preservation and Spoliation of Evidence”:

Learn about preservation issues and more at the Colorado CLE program, “Preventing Legal Malpractice 2016.” Two half-day programs will be offered for Preventing Legal Malpractice. On March 11, 2016, in Denver, CLE will host “Staying Above the Line,” where topics to be discussed will include Top Ten Ethics Complaints, Trends in Legal Malpractice, Intra-Firm Privilege, and Preservation and Spoliation of Evidence. Register here or call (303) 860-0608. On March 17, 2016, in Colorado Springs, CLE will present “Managing Risks.” Topics to be addressed at “Managing Risks” include Avoiding an Accidental Attorney-Client Relationship, Tech Traps, Trends in Legal Malpractice, and the Top Ten Ethics Complaints. Register here or call (303) 860-0608.

As an extra incentive, ALPS offers up to a 10% premium credit for each attorney in a firm who receives 3 CLE credits annually in the areas of ethics, risk management, loss prevention, or office management. ALPS is a lawyers’ malpractice carrier endorsed by the CBA. Learn more at try.alpsnet.com/Colorado. Additionally, HUB International is the endorsed broker for the CBA. HUB can help attorneys secure professional liability insurance in order to run a successful practice.

 

CLE Program: Preventing Legal Malpractice 2016 — Staying Above the Line and Managing Risks

Staying Above the Line — This CLE presentation will take place Friday, March 11, 2016, in the CLE Large Classroom in Denver. Register here for the live program and here for the webcast, or call (303) 860-0608 to register. Can’t make the live program? Order the homestudy here: CDMP3 AudioVideo OnDemand.

Managing Risks — This CLE presentation will take place Thursday, March 17, 2016, at the Double Tree Hotel in Colorado Springs. Register here for the live program and here for the webcast, or call (303) 860-0608 to register. Can’t make the live program? Order the homestudy here: CDMP3 audioVideo OnDemand.

Colorado Supreme Court: Contracting Jail Nurse Not “Compensated Employee” of Law Enforcement Agency

The Colorado Supreme Court issued its opinion in Mulberger v. People on Monday, February 22, 2016.

Criminal Case Jury Selection—Challenges for Cause.

The Supreme Court held that, under the plain language of the challenge for cause statute, CRS § 16-10-103(1)(k), a “compensated employee of a public law enforcement agency” is a person who provides labor and services to, is paid by, and receives direction from a public law enforcement agency. The potential juror in this case contracted with and received compensation from a private agency for work she performed as a nurse at a county jail. That potential juror therefore was not a “compensated employee” of the county jail because she was not paid by the county jail, and the record does not contain any evidence that she was subject to the jail personnel’s direction and control. Accordingly, the trial court did not err in denying defendant’s challenge for cause. Because the trial court did not err, the Court did not address the issue concerning the proper remedy for a trial court’s erroneous ruling on a challenge for cause.

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

Colorado Supreme Court: Privately Owned Prison Not “Law Enforcement Agency” for Jury Selection Purposes

The Colorado Supreme Court issued its opinion in People v. Bonvicini on Monday, February 22, 2016.

Criminal Case Jury Selection—Challenges for Cause.

The Supreme Court held that, under the plain language of the challenge for cause statute, CRS § 16-10-103(1)(k), a “public law enforcement agency” is a division or subdivision of state or federal government that has the authority to investigate crimes and to arrest, prosecute, or detain suspected criminals. The potential juror in this case worked at a prison owned and operated by a private company that housed inmates from Alaska. The Court concluded that the private company operating the prison is not a “public law enforcement agency” under the statute because it is not an official governmental entity. Therefore, the trial court appropriately denied defendant’s challenge for cause to the potential juror who worked at the private prison. Because the trial court did not err, the Court did not address the issue concerning the proper remedy for a trial court’s erroneous ruling on a challenge for cause.

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

Colorado Court of Appeals: Treatment Plan Must Be Appropriate to Rehabilitate Parent

The Colorado Court of Appeals issued its opinion in People in Interest of K.B. on Thursday, February 11, 2016.

In March 2013, the Mesa County Department of Human Services opened a dependency and neglect case concerning 16-year-old K.S., 13-year-old Mi.B., 11-year-old K.B., and 9-year-old Ma.B. The Department alleged that Mother and Father fought frequently; Father yelled at the children, called them names, and physically abused them; Mi.B. had threatened one of his sisters with a knife after an argument; and K.S., who had cerebral palsy, was not receiving physical therapy she needed. Treatment plans were adopted for both Mother and Father, who was the father to the three older children. The parents’ treatment plans were amended from time to time, including requiring both parents to actively participate in individual therapy.

In August 2013, the children were removed from the parents’ home due to renewed concerns about domestic violence, and in October 2013 the deferred adjudication was converted to an order of adjudication. In December 2014, the Department filed a motion to terminate the parent-child relationships between each of the parents and the two younger children. In July 2015, after a hearing, the court granted the motion to terminate parental rights, and both parents appealed.

On appeal, Mother contended the treatment plan was not appropriate because although domestic violence was a feature of her relationship with Father from the beginning, no domestic violence counseling or treatment was ever offered to her, and she was not told to separate from Father. The court of appeals concluded further findings were required on the issue. The court noted that in order to be appropriate, a treatment plan must relate to the child’s needs and provide treatment objectives that are reasonably calculated to render a parent fit to provide adequate parenting within a reasonable time. The court noted that the fact that a treatment plan was not successful does not mean that it was not appropriate.

Both Mother and Father had expressly stipulated that their treatment plans were appropriate, and the court found that the standard for preserving a challenge to the appropriateness of a treatment plan is not clear. Mother contended that her treatment plan was inappropriate because it failed to address the domestic violence concerns. The trial court concluded Mother could not challenge the treatment plan’s appropriateness for the first time at the termination hearing, but she could challenge the reasonableness of the efforts to rehabilitate her. The trial court found that Mother’s treatment plan failed because she did not actively participate in therapy, but it did not make explicit findings as to whether the Department fulfilled its obligation to show by clear and convincing evidence that it had provided Mother with a treatment plan that was reasonably calculated to render her fit to provide adequate parenting within a reasonable time, and whether the services were appropriate to support Mother’s treatment plan but were unsuccessful in accomplishing the plan’s purpose. The court of appeals remanded for explicit findings about the reasonableness of the treatment plan and whether the services were appropriate.

The court of appeals addressed Mother’s remaining contentions on appeal because the trial court may conclude on remand that the services were appropriate. Mother contended the record did not support the trial court’s finding that she did not comply with her treatment plan. The court of appeals disagreed. Department case managers testified that Mother did not have adequate housing for her family at the end of the case, she did not progress beyond supervised visitation, and her attendance at individual therapy was very poor. The Department employees also testified that a significant concern about Mother’s sexual boundaries with the children was supposed to be addressed at individual therapy, but Mother’s attendance at therapy was “almost nonexistent.” The court of appeals noted that these findings were more than sufficient to support the trial court’s order. Mother also contended the findings were inadequate to support the trial court’s finding that she is unfit. The court of appeals again disagreed. The current case manager testified that Mother was unfit due to her poor sexual boundaries and failure to attend individual therapy, and she was unlikely to become fit due to her poor progress with the treatment plan. The court of appeals found this testimony adequate to support the trial court’s findings of unfitness, and noted that if the court finds on appeal that the treatment plan was adequate, it may reinstate the termination order.

Both parents argued the trial court failed to evaluate less drastic alternatives to termination. The court of appeals disagreed. The Department had investigated the possibility of placing Ma.B. with her paternal grandparents in Florida, but she was frightened to be separated from the rest of her family, and the grandparents never completed the screening process. No other family members were found who were willing and able placements for Ma.B. or K.B. The trial court further found that because permanency was important to both Ma.B. and K.B., continued foster care was not a viable less drastic alternative to adoption. The court of appeals found no error in the trial court’s findings. Mother also argued that termination was not in the children’s best interests, and that instead she should be given more time to comply with her treatment plan. The trial court concluded that the benefits of termination outweighed the risks, and the court of appeals found no error in this conclusion.

The court of appeals next evaluated Father’s appeal. Father contended that the Department failed to make reasonable efforts to reunite him with Ma.B. or that his treatment plan was reasonable. He argued that the trial court erred in suspending his visitations in March 2015 and in relying on that suspension to terminate his parental rights. The court of appeals disagreed. The trial court found that Father, like Mother, had only complied in part with the treatment plan but had failed to comply with the plan’s substantive requirements. Father’s parenting time with Ma.B. had been suspended due to his angry outbursts and their effect on Ma.B. He was told he needed to resume individual therapy for his visits to continue, and he did not do so. The court found the evidence sufficient to support that the Department made reasonable efforts to reunite Father and Ma.B.

The court of appeals remanded for further findings as to whether Mother’s treatment plan was adequately crafted to render her a fit parent within a reasonable time. The court affirmed on all other points.

Tenth Circuit: Unpublished Opinions, 2/23/2016

On Tuesday, February 23, 2016, the Tenth Circuit Court of Appeals issued one published opinion and four unpublished opinions.

Gandy v. Barber

United States v. Hernandez-Martinez

United States v. Gan

Morones-Quinonez v. Lynch

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