June 16, 2019

Archives for March 31, 2016

Professional Paradigms New and Old (Part 2): You Had Me At The Creds

rhodesI met a friend for a beer last Thursday, and told him about my blog post that day about the future (actually the end) of the professions.

“I’ve got a story for you about that,” he said. “I thought now that I’m retired, I should get my affairs in order.”

I practiced estate planning, so my ears perked up. He told me about all the useful information, forms, and software he’d found online, also about the estate planning seminars he’d attended and the presenting lawyers’ “don’t try this at home” pitches. And his incredulous response to their fee quotes “for things I could do myself.”

He’s newly retired from an illustrious teaching career — an Ivy League grad, six published books, awards and accolades everywhere. He has a huge and healthy respect for the professions and professionalism. And he had more to say.

“In education, it’s gotten to the point where it’s, why even bother to go to school? It’s all available online. You can learn what you want, your own way.”

Then he paused. “But I still wouldn’t go to a surgeon who didn’t have the credentials.”

Ah, the credentials. Is that why people still go to law school, med school, get a CPA, a teaching certificate?

Yes, in part, but the world of professional credentials is changing. I talked about this in a post last March called Strange Bedfellows: Commercial Law and Legal Ethics. Here’s an excerpt:

Peer-to-peer is what’s driving the new sharing economy. Consider this from a recent article in Time Magazine:

The key to [the sharing economy] was the discovery that while we totally distrust strangers, we totally trust people — significantly more than we trust corporations or governments. Many sharing-company founders have one thing in common: they worked at eBay and, in bits and pieces, recreated that company’s trust and safety division. Rather than rely on insurance and background checks, its innovation was getting both the provider and the user to rate each other, usually with one to five stars. That eliminates the few bad actors who made everyone too nervous to deal with strangers.

In that post, I made these two predictions (among others):

  • The peer-to-peer dynamic will prevail in significant economic sectors — including the professional service sector of which the legal profession is a part.
  • The resulting consumer satisfaction data will have a curious side effect as a new kind of legal ethics watchdog.

As for the latter, I said this:

Peer-to-peer is the ultimate in self-policing, which makes its extension to legal ethics unlikely but logical. Rule 8.3 — the duty to report unethical behavior among our peers — has long been a part of the Model Rules of Professional Conduct, but has been more honored in the breach than the observance. The new, democratized marketplace will take this matter into its own hands.

In other words, the professional paradigm will shift — in fact, is already shifting — to include peer-to-peer review as an alternative form of professional credentialing.

True, the typical consumer still wants law school and bar admittance credentials for the legal equivalent of surgery, but for the rest, we’re seeing a major shift in consumer attitudes toward my friend’s — to the point where the consumer is more likely to buy from someone (lawyer or not, which is its own topic) who gets 20 five-star ratings for estate planning offered at a reasonable price (which my buddy gave as 10 percent of what the seminar lawyers were charging). They’ve got the creds the consumer wants… just a different kind.

Like it or not, it’s happening out there in the New Economy marketplace, and we’ll see more of it in our house. We’re not all the way to lawyers posting client ratings on a five-star scale yet, but one day… I’ll bet it happens. I also bet that day will come way sooner than most lawyers would care to predict.

 

For Bill Gates’ take on the value of a college education credentials, check out his post yesterday on LinkedIn Pulse.

And for a toe dip into the New Economy, take a look here and here.

Rhodes_4Check out this collection of last year’s Future of Law blog posts. It’s a FREE download. Also included is the Culture of Law series from the second half of 2015. Click this link or the cover for downloading details.

Colorado Court of Appeals: Trial Court Not Required to Order Accounting at Request of Interested Person

The Colorado Court of Appeals issued its opinion in Sidman v. Sidman on Thursday, March 24, 2016.

Legal Guardian—Motion for Accounting—Discretion.

In 2002 Michael and Renee Sidman were appointed as legal guardians for their nephew, who was born in 1999. The parents paid child support and filed a motion for an accounting. The trial court denied the motion, and the parents appealed.

The guardians filed a motion to dismiss the appeal, arguing that (1) the order denying the motion for an accounting was not a final, appealable order because a motion to modify child support was pending and the order did not resolve all pending matters, and (2) the court should have followed the law of the case and not reached the merits of the motion, based on its two previous orders denying similar requests for accountings. Even if the order was not final at the time the appeal was filed, the jurisdictional defect was cured when the motion to modify child support was resolved in November 2014. Furthermore, the trial court was not compelled by the law of the case to refrain from considering the parents’ motion; the decision was a matter in the court’s discretion.

The parents contended on appeal that the trial court abused its discretion in denying their motion for accounting. The Court of Appeals determined that CRS § 15-14-207(2)(e) did not require the court to order the guardians to provide an accounting. Instead, the parents’ motion triggered the court’s duty to exercise its discretion as to whether to order an accounting and the extent of any such accounting. The court properly exercised its discretion.

The order was affirmed.

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

Colorado Court of Appeals: Constitutional Claim Requires Inquiry into Reasonableness of Statutory Ammunition Limits

The Colorado Court of Appeals issued its opinion in Rocky Mountain Gun Owners v. Hickenlooper on Thursday, March 24, 2016.

HB 12-1224—HB 13-1229—Firearms—Colorado Constitution—Right to Bear Arms—Police Power—Legislative Powers—Executive Powers—Due Process Clause.

In 2013, the Colorado General Assembly passed House Bills 13-1224 and 13-1229, which banned the sale, possession, and transfer of “large capacity ammunition magazines,” and expanded mandatory background checks to recipients of firearms in some private transfers. Plaintiffs Rocky Mountain Gun Owners, National Association for Gun Rights, Inc., John A. Sternberg, and DV-S, LLC (collectively, plaintiffs) filed a complaint challenging the constitutionality of both bills. The district court analyzed the bills under a “reasonable exercise of police powers” test rather than an intermediate or strict scrutiny test and dismissed the complaint for failure to state a claim under CRCP 12(b)(5).

On appeal, plaintiffs contended that the district court erred in dismissing their claim that HB 13-1224 violated the Colorado Constitution’s right to bear arms clause. Because this case presented a challenge based on the Colorado Constitution, the district court did not err in using the “reasonable exercise of police power” test to assess the validity of HB 13-1224. However, the district court erred in its application of that test to this case. At a minimum, the claim asserts that the magazine limits violate the constitutional right to bear arms, which requires a factual inquiry into the reasonableness of the limits. When viewed in the light most favorable to plaintiffs, the allegations state a claim for relief, and plaintiffs are entitled to present evidence of the basis for their claim.

Plaintiffs contended that HB 13-1229 is unconstitutional because it (1) infringes on individuals’ rights to keep and bear arms; (2) delegates legislative and executive licensure powers to nongovernmental agents; and (3) violates the Due Process Clause, because licensed gun dealers will refuse to facilitate background checks, and they have discretion to impose criminal liability and punishments.

As to the first argument, HB 13-1229 imposes the same mandatory background check requirements on some firearm transfers between private parties as those required for retail sales and sales at gun shows. Thus it does not prevent the sale of firearms but merely creates an additional step for those sales not taking place through a licensed gun dealer. Furthermore, HB 13-1229 does not implicate a fundamental right and does not infringe on individuals’ rights to keep and bear arms for a lawful purpose; both Colorado and federal law bar certain individuals from possessing firearms.

Second, HB 13-1229 does not unconstitutionally delegate legislative or executive powers. Licensed gun dealers do not have the power to make rules regarding mandatory background checks; they are required to follow the same procedures in place for retail firearm transactions. The fact that they are not legally obligated to facilitate sales between private parties is not a delegation of legislative authority. Similarly, HB 13-1229 does not unconstitutionally delegate executive powers. Again, the process for these transfers is no different than that for retail firearm transactions and gun show sales. Licensed gun dealers are not agents of state law enforcement charged with keeping firearms away from criminals; they are only required to initiate a background check.

Third, plaintiffs presented no facts that licensed firearm dealers will refuse to facilitate background checks, thus depriving parties of a right to firearms sales. Additionally, licensed firearms dealers merely collect information; they do not have the discretion to impose criminal liability and punishments. Thus HB 13-1229 does not violate the Due Process Clause.

Therefore, the district court correctly concluded that plaintiffs failed to state a claim for relief on HB 13-1229.

As to HB 13-1224, the case was reversed and remanded. Other aspects of the court’s decision were affirmed.

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

Colorado Court of Appeals: Failure to File Timely Response to Summary Judgment Motion Precludes Reversal

The Colorado Court of Appeals issued its opinion in People v. Wunder on Thursday, March 24, 2016.

Colorado Consumer Protection Act—Injunctive Relief—Civil Penalties—Restitution—Subject Matter Jurisdiction—Victim’sResidences—Summary Judgment—Vague—Overly Broad—C.R.C.P. 65—Evidentiary Hearing.

Wunder operated Sea to Ski, LLC, a Colorado-based vacation and travel club. The Attorney General (AG) sued Wunder and related parties under the Colorado Consumer Protection Act (CCPA). The trial court granted the AG’s motion for summary judgment on whether Wunder had violated the CCPA. On motion of the AG and without holding a hearing, the court thereafter ordered injunctive relief, civil penalties, and restitution.

On appeal, Wunder contended that the money judgments and injunction were void because the district court lacked subject matter jurisdiction over CCPA violations committed against those Sea to Ski members who were nonresidents of Colorado. The CCPA itself does not limit the court’s jurisdiction based on the residency of the victims of deceptive trade practices, thus the court had subject matter jurisdiction.

Wunder also asserted that the district court erred when it granted summary judgment against him. The record established that the AG and district court complied with C.R.C.P. 56 and the AG was entitled to judgment as a matter of law, and Wunder did not timely respond to the AG’s motion. Therefore, the district court did not err in granting the motion.

Wunder further argued that because the initial injunction was defective, the court was prohibited from correcting the error and entering a later injunction conforming to C.R.C.P. 65. This was not a jurisdictional defect, and the corrected injunction complies with C.R.C.P. 65. Wunder also attacked the substance of the district court’s revised injunction, claiming that it is vague and overly broad. Paragraph 5 of the injunction does not define the term “vacation or travel related services or products,” thus it is vague and overly broad. The case was remanded for the trial court to reformulate that portion of the injunction.

Lastly, Wunder argued that the district court improperly calculated the civil penalty and restitution amounts. Because an evidentiary hearing was required before imposing civil penalties and restitution and the trial court failed to hold a hearing, the judgments were reversed and the case remanded for a hearing.

The judgment was affirmed in part and reversed in part, and the case was remanded.

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

Tenth Circuit: Unpublished Opinions, 3/30/2016

On Wednesday, March 30, 2016, the Tenth Circuit Court of Appeals issued no published opinions and eight unpublished opinions.

Miller v. Johnson

United States v. Gandara-Delgado

Dune Citizens Against Ruining the Environment v. United States Office of Surface Mining Reclamation & Enforcement

United States v. Mewhinny

United States v. Mendoza

Sweesy v. Sun Life Assurance Co. of Canada

Sullivan v. Rios

Galindo v. Gentry

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