July 20, 2019

Colorado Court of Appeals: Claim Preclusion Bars Suit Against Attorney for Disclosure of PRE Report

The Colorado Court of Appeals issued its opinion in Foster v. Plock on Thursday, March 10, 2016.

Claim Preclusion—Attorney Fees.

This case stemmed from Foster’s dissolution of marriage action but also involved related criminal and tort cases. Plock represented Foster’s wife (wife) in the dissolution action, but was not a named party in any of the other cases.

Wife filed to dissolve her marriage to Foster, and a temporary civil protection order was issued by the domestic relations court barring Foster from contacting wife.

The court ordered a Parental Responsibilities Evaluation (PRE), which reported that Foster had an extensive criminal history. The PRE recommended that the court grant wife sole decision-making authority for the minor child. Foster requested a second evaluator, who noted that it was questionable whether all the crimes in the first report had actually been committed by Foster, but made the same recommendation. Both PREs were confidential and not to be “made available for public inspection” without court order.

Two misdemeanor criminal cases arose against Foster from multiple violations of the domestic court’s temporary civil protection order. In May 2013, the district attorney in one of those cases contacted Plock and asked whether he had any information that would be helpful to the criminal court in sentencing if Foster was convicted. Plock emailed him both PREs without Foster’s knowledge or consent, and without a court order releasing the PREs. The PREs were used in sentencing and, on Foster’s motion, ordered to be sealed.

In November 2013, Plock filed a motion with the domestic relations court admitting that he had disclosed the PREs to the prosecuting attorney, and in July 2014 the court sanctioned Plock and ordered him to pay Foster’s attorney fees associated with responding to Plock’s motion in which he admitted disclosing the PREs to the prosecutor.

During this time period, Foster filed 11 separate lawsuits regarding the first PRE alleging libel, slander, and outrageous conduct. These cases were all consolidated and all defendants moved to dismiss. Foster then filed 11 amended complaints against wife and the first investigator alleging that each had caused the disclosure of the PREs to the prosecutor in the criminal case. Plock wasn’t named in any of these cases, but in the complaint against wife, it was alleged that she, through her attorney, caused the PREs to be disclosed. In May 2014 the district court dismissed all of Foster’s complaints. Foster appealed but then voluntarily dismissed the appeal.

Four months after the dismissal and 10 months after he learned that Plock had disclosed the PREs to the prosecutor, Foster filed this action against Plock alleging invasion of privacy, defamation, and outrageous conduct. The court granted Plock’s motion to dismiss based on both claim and issue preclusion.

On appeal, Foster argued that it was error to conclude that his claims were barred by claim preclusion because there was no identity of subject matter, claims, or parties. The Court of Appeals disagreed. Specifically, the Court found that all of the elements of claim preclusion had been met: (1) finality of the first judgment, (2) identity of subject matter, (3) identity of claims for relief, and (4) identity or privity between parties to the actions.

Foster and Plock both requested attorney fees. The Court denied Foster’s request, but agreed that Plock was entitled to a mandatory award of attorney fees and costs on appeal under CRS §§ 13-17-201 and 13-16-113(2).

The judgment was affirmed and the case was remanded for a determination of reasonable attorney fees to be awarded to Plock.

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

Colorado Court of Appeals: Parties to Dissolution Have Affirmative Duty to Disclose Information Under Rule 16.2

The Colorado Court of Appeals issued its opinion in In re Marriage of Hunt on Thursday, May 7, 2015.

Legal Separation—Business Valuation—CRCP 16.2(e)—Mandatory Disclosures—Reallocation.

In July 2012, wife petitioned for legal separation of the parties’ marriage. One month later, husband filed a certificate of mandatory disclosures under CRCP 16.2. In September 2012, based on an agreement reached in mediation, the parties entered into a memorandum of understanding (MOU) dividing the marital value of a business, Big R Construction Company (Big R), owned and operated by husband. In March 2013, wife filed a motion for relief from the MOU provisions relating to Big R, which was denied.

On appeal, wife contended that husband violated CRCP 16.2(e) by not disclosing mandatory financial information regarding Big R, and therefore, the district court erred by not granting her motion to reopen the property division under CRCP 16.2(e)(10). Husband had an affirmative duty to disclose financial information regarding Big R, and he violated CRCP 16.2(e) by failing to disclose all personal and business financial statements prepared in the last three years; loan applications and agreements from 2011 and 2012; a 2010 appraisal of Big R’s real property; and a 2012 appraisal of its equipment. Without husband having violated the disclosure requirements of CRCP 16.2, wife would have been bound by her decision to enter into the MOU, acknowledging the uncertain value of Big R. Because husband violated CRCP 16.2(e), however, the plain language of CRCP 16.2(e)(10) applies, which allows a five-year period within which to reallocate “material assets or liabilities, the omission or non-disclosure of which materially affects the division of assets and liabilities. Accordingly, the district court should have applied CRCP 16.2(e)(10) and granted wife’s motion to reopen the property division, despite the MOU language. The district court’s order was reversed and the case was remanded.

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

The Colorado Lawyer: Effective Conflict Waivers

Editor’s Note: This article originally appeared in the February 2015 issue of The Colorado Lawyer. Reprinted with permission.

By J. Randolph Evans, Shari L. Klevens, and Lino S. LipinskyEvans-Klevens-Lipinsky


Authors’ Note:
The references to “safest courses to proceed,” “safest course,” or “best practices” in this series of articles in the “Whoops—Legal Malpractice Prevention” department are not intended to suggest that the Colorado Rules require such actions. Rather, these references reflect actual experience and results from defending legal malpractice claims, where attorneys are often best served if they follow the best practice rather than simply complying with the bare minimum that the Rules of Professional Conduct require.

For example, as explained in this article on “Effective Conflict Waivers,” a client’s oral consent to a conflict waiver should always be confirmed in writing for an obvious reason—to avoid factual disputes that may result from differing recollections or testimony. Hence, the best practice is to obtain a written confirmation signed by the client. This protects both the attorney and the client because it reduces the risk that the client will later disclaim having provided the consent. The Colorado Rules, however, also permit the attorney to document the client’s consent to the waiver in a writing provided to the client, although experience suggests that this is not a best practice. In any event, as stated in the article, the writing, whether obtained by or transmitted to the client, must be created within a reasonable time of obtaining the client’s oral consent to the conflict waiver. The authors welcome and comments and feedback on these articles and are happy to discuss them.


By performing fast and broad computer searches, attorneys and law firms are able to identify potential conflicts of interest. But, like the dog that catches the bus, many attorneys encountering a potential conflict invariably face the important question of “What now?”

Identifying potential conflicts of interest is only half the battle. The other half requires attorneys to seek and obtain the client’s written consent to the representation after obtaining informed consent. After all, a potential conflict of interest that has not been resolved in accordance with the applicable ethical rules is still a conflict.

Informed Consent for Purposes of Resolving Potential Conflicts

Informed consent is required to enable a client to make an educated decision regarding whether to agree or object to a representation. For a former client, it involves accepting the risk that the attorney could use confidential information against the former client on behalf of a new client. For current clients who share an attorney, it involves waiving the right to insist that the attorney protect only their interests, as opposed to protecting their collective interests with the other clients.

According to the Colorado Rules of Professional Conduct (Rules), to obtain informed consent, an attorney must provide a full disclosure that demonstrates he or she has made reasonable efforts to ensure that the client or other person has obtained information reasonably adequate to make an informed decision.[1] Comment 6 to Rule 1 explains, in relevant part:

Ordinarily, this will require communication that includes a disclosure of the facts and circumstances giving rise to the situation, any explanation reasonably necessary to inform the client or other person of the material advantages and disadvantages of the proposed course of conduct and a discussion of the client’s or other person’s options and alternatives. . . . [A] lawyer who does not personally inform the client or other person assumes the risk that the client or other person is inadequately informed and the consent is invalid.

For the disclosure to be effective, it must enable a former or existing client to fully appreciate the risks of granting consent. It is not sufficient for an attorney to simply advise a client that there is a potential conflict of interest and to ask for consent without providing an explanation and additional information.

A Simple Waiver Isn’t Enough

Similarly, it is not sufficient merely to confirm a client’s waiver of the conflict and consent to the representation. An effective disclosure requires more. The Rules require that an attorney

propose a course of conduct to [the client or other person] with adequate information and explanation about the material risks of [giving consent] and reasonably available alternatives to the proposed course of conduct.[2]

In general terms, this means that an attorney should disclose whatever information a reasonable person would expect and need before waiving an important right.

There are topics that every attorney should include when seeking a client’s consent or waiver. However, there is no template that attorneys can use as a form for full disclosure when seeking a client’s consent to a representation, because the type and content of a disclosure required for effective consent varies depending on the facts and circumstances of the specific representation. For example, the scope and content of full disclosure will often depend on the sophistication of the client, the nature of the representation, prior representations, and the length of the relationship.[3]

Written Consent

Does the client’s consent have to be in writing? Under the Rules, the answer is yes. Rules 1.7(b)(4) and 1.9(a) require that informed consent be “confirmed in writing.” Comment 20 of Rule 1.7 further requires that the writing be obtained or transmitted within a “reasonable time” after receipt of oral consent. Additionally, Comment 20 emphasizes the importance of written consent:

[T]he writing is required in order to impress upon clients the seriousness of the decision the client is being asked to make and to avoid disputes or ambiguities that might later occur in the absence of a writing.

Invariably, once problems arise, clients have different recollections about the extent of the disclosure, their understanding of the risks, and whether they consented to the representation. That is why the safest way to proceed is to require that all clients consent in writing to a multiple or successive representation.

The easiest course is to include a signature line on the full disclosure letter and have the client return an executed copy. This simple measure serves to protect both the client (by making sure the client receives full disclosure in writing) and the attorney.

Client Consultation: Next Steps

Now that you have a client in your office, what steps should you take? First, identify the proposed representation and then state what consent the attorney seeks. General waivers involve a different kind of disclosure than a limited waiver for a specific representation. Hence, tailoring the full disclosure necessarily involves clarifying exactly which type of waiver the attorney seeks.

In the multiple representation context, this means advising the client that the attorney is requesting permission to jointly represent the client along with others. In the successive representations context, this means advising a former client that the attorney is requesting permission to represent a new client in a matter involving the former client.[4]

Second, identify the risks. There should be no mincing of words when disclosing the potential risks to a client. Subtle implication and suggestion do little when an attorney is attempting later to prove that a client consented to a representation after full disclosure. To be effective, the disclosure should clearly and plainly articulate the risks so that, if necessary, a court can determine that the client understood and accepted the risks by providing consent to the representation.

In the multiple representation context, this means identifying the kinds of things that an attorney cannot and will not do because the representation involves more than one client. For example, the attorney will not explore or pursue claims by one client against another client, such as opposing parties in the same transaction, a testator and beneficiary of a will, or spouses in a dissolution of marriage proceeding. Similarly, a lawyer who prosecuted a case could not subsequently represent the accused in a civil action against the government involving the same facts.[5] In addition, information communicated by one client may be disclosed to the other clients. Other limitations on the attorney’s ability to act may also need to be disclosed, depending on the context.

The important point is to ensure that the consenting clients understand the limitations that arise from a joint representation, as opposed to the representation of a single client. In the successive representation context, this means explaining the risk that the attorney may have learned confidential information that may be used on behalf of a new client. The standard is not whether an attorney actually did learn confidential information in the prior representation that can be used against a former client. Instead, to trigger an attorney’s obligation to obtain a former client’s consent, all that is required is that the new representation be “substantially related” to the former representation.[6] The existence of confidential information is presumed.

Third, advise the clients of their right to consult with independent counsel in deciding whether to agree to the multiple or successive representation. The safest course is to encourage independent counsel on all issues arising out of the potential conflict of interest.

Importantly, an attorney seeking a client’s consent should not advise a client on whether to give consent. Instead, the attorney’s role should be limited to fully disclosing the risks without actually advising the client about whether to give consent.

Fourth, confirm what will happen if an actual conflict develops that precludes the continued representation. Clients may agree, for example, that the attorney may continue to represent one of the clients if an actual conflict develops. Alternatively, the clients may insist that, under such circumstances, an attorney withdraw from the entire representation. In either case, it is important that the clients agree before the representation begins.

Both the multiple and successive representation rules require a consultation with the attorney for the client to consent. In most cases, the consultation will be in person. Unfortunately, although it is important to answer any questions a client may have, the consultation actually does little to protect an attorney from a later allegation challenging the client’s consent to the representation.

In addition to the consultation, there must be a written component. The most important document for effective consent is a writing, typically a letter. The letter should be jointly addressed to all of the clients (for a multiple representation), or to the former client (for successive representations), and should include a discussion of all the material risks of the representation.

Conclusion

Effective conflict waivers require a writing confirming the affected clients’ informed consent. There is no checklist or formula that an attorney can use in discussing conflict waivers with a client, or in drafting a written waiver for the client’s execution. These must be tailored to the unique circumstances of each situation. The four steps above, however, provide a helpful starting point for the attorney.


Notes

[1] See, e.g., Colo. RPC 1, cmt. [6].

[2] Colo. RPC 1.0(e).

[3] See Colo. RPC 1.7, cmt. [22] for additional information on how the effectiveness of informed consent will be evaluated.

[4] See Colo. RPC 1.9, cmt. [1]. A client transitions from a current client to a former client when the attorney–client relationship is terminated, such as when the attorney or the client provides the other with a writing confirming that the relationship has concluded.

[5] See Colo. RPC 1.9, cmt. [1].

[6] See Colo. RPC 1.9(a).

Randy Evans is an author, litigator, columnist and expert in the areas of professional liability, insurance, commercial litigation, entertainment, ethics, and lawyer’s law. He has authored and co-authored eight books, including: The Lawyer’s Handbook; Georgia Legal Malpractice Law; Climate Change And Insurance; Georgia Property and Liability Insurance Law; Appraisal In Property Damage Insurance Disputes; and California Legal Malpractice Law. He writes newspaper columns (the Atlanta Business Chronicle, the Recorder, and the Daily Report) and lectures around the world. He served as counsel to the Speakers of the 104th – 109th Congresses of the United States. He co-chairs the Georgia Judicial Nominating Commission. He serves on the Board of Governors of the State Bar of Georgia. He handles complex litigation throughout the world. He has been consistently rated as one of the Best Lawyers in America, Super Lawyer (District of Columbia and Georgia), Georgia’s Most Influential Attorneys, and Georgia’s Top Lawyers for Legal Leaders. Along with numerous other awards he has been named the “Complex Litigation Attorney of the Year in Georgia” by Corporate International Magazine, and Lawyer of the Year for Legal Malpractice Defense in Atlanta. He is AV rated by Martindale Hubble.

Shari Klevens is a partner in the Atlanta and Washington, D.C. offices of McKenna Long & Aldridge LLP. Shari represents lawyers and law firms in the defense of legal malpractice claims and advises and counsels lawyers concerning allegations of malpractice, ethical violations, and breaches of duty. In addition, Shari is the Chair of the McKenna’s Law Firm Defense and Risk Management Practice and is a frequent writer and lecturer on issues related to legal malpractice and ethics. Shari co-authored Georgia Legal Malpractice Law and California Legal Malpractice Law, which address the intricacies and nuances of Legal Malpractice law and issues that confront the new millennium lawyer. She also co-authored The Lawyer’s Handbook: Ethics Compliance and Claim Avoidance, which is an easy-to-use desk reference offering practical solutions to real problems in the modern law practice for every attorney throughout the United States.

Lino Lipinsky de Orlov is a litigation partner in the Denver office of McKenna Long & Aldridge, LLP.  He represents clients in all aspects of commercial litigation, mediation, arbitration, and appeals.  He has developed particular experience in complex business cases, particularly those involving creditor’s rights, real estate, trade secrets, and employment disputes.  Mr. Lipinsky also frequently speaks and writes on legal issues relating to technology, employment law, and ethics.   He is a member of the Colorado Bar Association’s Board of Governors and serves on the Board of the Colorado Judicial Institute.  He is a former President of the Faculty of Federal Advocates.  Among his honors, Chambers USA has recognized Mr. Lipinsky as one of Colorado’s leading general commercial litigators, and he has been included in The Best Lawyers in America.  He received his A.B. degree, magna cum laude, from Brown University and his J.D. degree from New York University School of Law, where he was a member of the New York University Law Review.

 

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Tenth Circuit: Politically Active Organization Entitled to Media Exemption from Campaign Disclosure Requirements

The Tenth Circuit Court of Appeals issued its opinion in Citizens United v. Gessler on October 27, 2014, and reissued it as a published opinion on Wednesday, November 12, 2014.

Citizens United is a nonprofit corporation engaged in independent political and religious activity. Since 2004 it has produced and released 24 films on political and religious topics, including Rocky Mountain Heist, which discussed political candidates by name and was set to release just before the 2014 mid-term election. Because the film unambiguously referred to Colorado elected officials by name, it comes under some of Colorado’s election laws regarding “electioneering communications” and “independent expenditures.” In April 2014, Citizens United sought a ruling from the Secretary of State that Rocky Mountain Heist and related advertising would not qualify as “electioneering communications” or “expenditures” under Colorado law. In support of its motion, it cited a similar exemption from the Federal Election Commission under the Federal Election Campaign Act’s disclosure and expenditure rules, which are similar to Colorado’s. The FEC determined Citizen United was entitled to the press exemption. The Secretary denied its request, finding that the film and advertising did not fall under Colorado’s exemption for print media and Citizens United is not a broadcast facility. The Secretary’s order concluded that Rocky Mountain Heist would be an electioneering communication not entitled to any exemption.

After the Secretary denied its motion, Citizens United brought suit against the Colorado Secretary of State in the U.S. District Court for the District of Colorado, alleging Colorado’s reporting and disclosure requirements violate the First Amendment. It sought a preliminary injunction against enforcing the provisions that do not apply to exempted media, which the district court denied, finding that Citizens United’s facial and as-applied challenges were not likely to succeed on the merits. Citizens United appealed.

The Tenth Circuit agreed with Citizens United’s as-applied challenge to Colorado’s campaign disclosure requirements, finding that under an exact scrutiny standard, the First Amendment required the Secretary to treat Citizens United the same as the exempt media. The Tenth Circuit questioned the Secretary’s assertion that journalism seeks to inform the public in a transparent, balanced, and accountable manner, noting that “our nation’s founding and history are replete with examples of highly partisan newspapers, and many observers would say that some modern media continue the tradition.” The Tenth Circuit similarly disposed of the Secretary’s argument that the media should be distinguished from “single-shot speakers,” finding instead that Citizens United was well-established for these purposes so disclosure of its financial backers was unnecessary. The Tenth Circuit found Citizens United entitled to a media exemption from disclosure and expenditure requirements under Colorado law.

The Tenth Circuit did not find that the exemption extended to advertisements for Rocky Mountain Heist, which mention candidates and express support for or opposition to candidates. These politically charged ads require disclosure of financial supporters so the general public can make an informed decision about the legitimacy of the advertisements.

The district court’s denial of the preliminary injunction was reversed, and the case was remanded with instructions to issue the preliminary injunction. Judge Phillips dissented.

Colorado Supreme Court: District Courts Should Order Disclosure of Possibly Exculpatory Material Throughout Post-Conviction Proceedings

The Colorado Supreme Court issued its opinion in In re People v. Owens on Monday, June 30, 2014.

CAR 21 Original Proceeding—Death Penalty—CRS §§ 16-12-201 to -210—Discovery and Disclosure.

Owens and Ray petitioned pursuant to CAR 21 for relief from a series of discovery rulings of the district court relative to post-conviction proceedings in their respective death penalty cases. Each had moved to discover the prosecution’s investigation of the claims raised by Owens’s motion for post-conviction review, on the grounds that such disclosure was required either by Crim.P. 16 or by the federal or state constitution. The district court ruled that Crim.P. 16 did not impose obligations on the prosecution with respect to its preparation to meet defendants’ post-conviction claims, but that the prosecution continued to have obligations to disclose information that was both exculpatory and constitutionally material, without regard for the time of or impetus for its discovery.

The Supreme Court issued a rule to show cause why the district court’s ruling should not be disapproved for too narrowly limiting the prosecution’s discovery obligations during the unitary review proceedings prescribed by statute for all death sentences and convictions resulting in death sentences in this jurisdiction. The Court held that because Crim.P. 16 imposes disclosure obligations on the prosecution only with regard to materials and information acquired before or during trial, the district court did not err in finding it inapplicable to information acquired in response to defendants’ post-conviction claims. However, because the Court previously has held not only that a prosecutor’s constitutional obligation to disclose information favorable to an accused extends through the appeal of a death sentence, but also that district courts should order the disclosure of some possibly exculpatory material, despite being unable to find a reasonable probability that nondisclosure would change the result of the proceeding, the Court remanded the cases with directions for the district court to apply the due process standard and procedure announced in People v. Rodriguez, 786 P.2d 1079 (Colo. 1989).

Summary and full case available here.