June 18, 2019

The Colorado Lawyer Book Review: Limited Liability Companies and Partnerships in Colorado

Editor’s Note: This article originally appeared in the March 2016 edition of The Colorado Lawyer. Reprinted with permission.

ZLLCAP15Limited Liability Companies and Partnerships in Colorado 

by Herrick K. Lidstone, Jr. and Allen Sparkman
687 pp., plus CD-ROM; $109 ($99 for CBA members)
CLE in Colorado, Inc., 2015
1900 Grant St., Ste. 300, Denver, CO 80203
(303) 860-0608; www.cle.cobar.org

Reviewed by Keith M. Olivia

Keith M. Olivia is a member of Roberts & Olivia, LLC in Boulder, where he represents businesses and individuals in their transactional matters. He is also an adjunct faculty member at the University of Colorado School of Law, where he co-teaches the Entrepreneurial Law Clinic—kmolivia@wrrlaw.com.

Limited Liability Companies and Partnerships in Colorado is a practitioner’s guide that is primarily focused on Colorado limited liability companies (LLCs) and Colorado partnerships, including general partnerships, limited partnerships, limited liability partnerships, and limited liability limited partnerships. A typical chapter opens with a discussion of the relevant Colorado LLC law and then compares and contrasts the various Colorado partnership laws. In addition to the primary focus on Colorado unincorporated business entities, the authors frequently compare and contrast the Colorado law with the Delaware law on unincorporated business entities, especially when the Delaware law differs from the Colorado law or the Delaware courts have addressed a matter that has not been addressed by the Colorado courts.

The first chapter provides an interesting historical perspective of the development of partnerships (which date back to ancient times), limited partnerships, and LLCs. The early chapters address choice of entity issues and then walk the reader through forming the entity, drafting the operating or partnership agreement that governs the entity, and dissolving the entity. The chapters that follow focus on the rights and duties of members, managers, and partners; derivative actions filed by members on behalf of an LLC; the transfer of membership and partnership interests and the restrictions imposed on such transfers; creditors’ rights and theories of owner liability for the debts of the entity; the merger or conversion of LLCs and partnerships into other business entities; special uses of unincorporated entities, such as single or special purpose entities, joint ventures, and regulated businesses, including the practice of law; and the “Series LLC,” which provides for the segregation of assets under a single legal entity and is permitted under Delaware law but not yet under Colorado law.

Additional chapters address the applicability of the securities laws, income tax laws, and employment tax laws to LLCs and partnerships. The final chapters address the use of LLCs and partnerships for estate planning purposes, as well as ethical considerations, such as defining “who is the client” and potential conflicts of interest when the attorney represents multiple parties and enters into business transactions with the entity client.

The three appendices to the text are (1) a form operating agreement for a manager-managed, multi-member LLC, (2) a form operating agreement for a manager-managed, single-member LLC, and (3) an LLC formation checklist that summarizes the material points that counsel should consider when forming an LLC. Each of the appendices includes cross-references to where the relevant provisions are addressed in the text and annotations to the underlying law. The accompanying CD-ROM includes Microsoft Word versions of the form documents and a searchable table of authorities and subject matter index for the text.

Limited Liability Companies and Partnerships in Colorado is a comprehensive practitioner’s guide that is suitable for seasoned transactional attorneys who routinely form unincorporated business entities and attorneys who occasionally work with discreet issues related to Colorado LLCs and partnerships. The text is compiled into coherent chapters that thoroughly address the Colorado statutes for unincorporated business entities; other substantive areas of the law related to LLCs and partnerships that attorneys routinely address, such as tax law and securities law; and practical uses of limited liability companies and partnerships to address specific client needs, such as estate planning.

Colorado attorneys who work with LLCs and partnerships and who purchase this cost-effective reference tool for their law libraries will quickly recoup the cost. Attorneys will also appreciate the well-developed forms of multi-member and single-member operating agreements and the LLC formation checklist, whether they are used as a starting point for drafting documents for a client or to supplement clauses in practitioners’ existing form documents.

CLE Book: Limited Liability Companies and Partnerships in Colorado

Order this CLE book online here or call (303) 860-0608 to order.

Standard price: $109.00
CBA member price: $99.00

The Colorado Lawyer: Four Things to Know About Motions to Disqualify

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

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


Authors’ Note
Readers’ comments and feedback on this series of “Whoops—Legal Practice Malpractice Prevention” articles are welcomed and appreciated. References in the articles to “safest courses to proceed,” “safest course,” or “best practices” are not intended to suggest that the Colorado Rules require such actions. Often, best practices and safest courses involve more than just complying with the Rules. In practice, compliance with the Rules can and should avoid a finding of discipline in response to a grievance or a finding of liability in response to a malpractice claim. However, because most claims and grievances are meritless, effective risk management in the modern law practice involves much more. Hence, best practices and safer courses of action do more; they help prevent and more quickly defeat meritless claims and grievances.


Few things are worse for an attorney than getting a new big matter, starting work on it, and then facing a motion to disqualify. At that point, the attorney is put in the awkward position of either explaining to the client why he or she should pay more money to keep the attorney, or absorbing the fees associated with defending the motion to disqualify.

Motions to disqualify are far from rare occurrences. In recent months, a number of high-profile disqualification motions have been reported.[1] Many disqualification motions are well-founded. Others are nothing more than a litigation tactic, forcing attorneys to scramble to protect valued client relationships. Significantly, the increasing mobility of lateral attorneys (with attorneys rarely spending their entire legal careers at a single law practice or firm) has raised issues that can serve as the basis of a motion to disqualify.

Disqualification motions implicate the most important duties that an attorney owes a client: the duties of confidentiality and loyalty. Under the Colorado Rules of Professional Conduct (Colorado Rules or Colo. RCP), an attorney must safeguard client confidences and secrets, subject to a few exceptions.[2] The attorney is also obligated to elevate the client’s interests above the interests of the attorney and the law firm. Disqualification motions put these obligations directly at issue.

Courts differ on how they address motions to disqualify, especially because such motions are at times simply a litigation tactic by an opposing party in search of a strategic advantage.[3] Additionally, courts are usually reluctant to interfere with a client’s choice of counsel unless the conflict is real and there are few options other than to grant disqualification.[4]

Courts also appear to distinguish between conflicts based on multiple representations and those based on successive representations.[5] After all, parties filing disqualification motions based on multiple representation conflicts are typically strangers to the attorney-client relationship.

The far more common motion to disqualify involves a former client, either of the law firm or of an individual attorney (who may have recently joined the firm). In those circumstances, courts are generally protective of confidences or secrets that the law firm or attorney may possess or to which the firm or attorney has access as a consequence of either the prior or the existing representation. According to the Colorado Supreme Court, however, a court “may not disqualify counsel on the basis of speculation or conjecture.”[6] The moving party’s burden for a motion to disqualify is satisfied only when “the motion to disqualify sets forth specific facts that ‘point to a clear danger that either prejudices counsel’s client or his adversary.’”[7]

Conflict violations are not always the focal point for resolution of a motion to disqualify. As the Colorado Supreme Court has noted, “[v]iolation of an ethical rule, in itself, is neither a necessary nor a sufficient condition for disqualification,” although there typically must be evidence of a violation or potential violation of “attorney ethical proscriptions,” such as those centered on the duties of loyalty and fairness or those intended to protect the integrity of the process.[8] Often, motions to disqualify turn on the risk that a client’s former attorney or law firm might be able to use against the client the confidences or secrets gained during the prior representation. This is because it “must be presumed” that a client shared confidences with its attorney pursuant to the attorney-client relationship.[9] Appreciating this distinction is important to successfully making or defeating a motion to disqualify.

In assessing motions to disqualify based on conflicts, Colorado courts also consider (1) a client’s preference for a particular counsel, (2) the client’s right to confidentiality in communications with his or her attorney, (3) the integrity of the judicial process, and (4) the nature of the particular conflict of interest involved.[10] Below are some important concepts that have emerged in the context of motions to disqualify.[11]

“Substantially Related” Matters

The Colorado Rules do not bar attorneys from representing current clients against former clients. Instead, Colo. RPC 1.9(a) provides that

[a] lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

Colo. RPC 1.9 does not define a “substantially related matter,” although Comment 3 to that Rule provides some context:

Matters are “substantially related” for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter.

More Than “Playbook Knowledge”

Frequently, a former client accuses the attorney of having “insider information” regarding the client that does not rise to the level of a client confidence. Indeed, even if the attorney does not possess any direct information regarding the present lawsuit or transaction, the client may say that the attorney understands how the client thinks and acts. The attorney may know the client’s bottom line for settlement or how the client prefers to approach litigation. This is often referred to as “playbook knowledge”—the attorney knows the client’s paths and approaches.

As with the “substantial relationship” test, whether an attorney’s playbook knowledge is sufficient for disqualification is heavily dependent on the facts. Thus, there is no bright-line rule or test to determine whether an attorney should be disqualified because of her or his playbook knowledge. However, Comment 3 to Colo. RPC 1.9 sets a minimum baseline: “In the case of an organizational client, general knowledge of the client’s policies and practices ordinarily will not preclude a subsequent representation.”

This comment makes clear that attorneys are permitted, under some circumstances, to engage in representations that are adverse to a former client. Possessing “general knowledge” about a client may not, by itself, be enough for disqualification. Typically, a former client seeking to disqualify a former attorney from representing an opposing party must identify specific, cogent information that the attorney possesses and show that the information is confidential and implicates the duty of loyalty.

Attorneys should not assume that possession of mere playbook knowledge precludes disqualification. Attorneys should be aware, however, that clients can make a successful case for disqualifying attorneys who had a greatly invested role with the organizational client or where the playbook knowledge is uniquely and particularly relevant to the new representation.

Avoiding the Motion to Disqualify

The best way to deal with motions to disqualify is to prevent them. Two important pre-motion strategies are effective. First, identify and resolve potential conflicts, including both multiple and successive representations, before undertaking a representation or hiring a lateral. Where a conflict exists, an effective written consent is the best defense to a motion to disqualify.

Second, take effective steps to mitigate, if not eliminate, risks that a former client’s confidences and secrets might be accessible to attorneys working on a matter involving the former client. Increasingly, courts nationwide have recognized and accepted timely, effective ethics screens as a positive factor for permitting an attorney to continue the representation, although sometimes a screen is not enough to avoid the ramifications of an imputed conflict.[12] Nonetheless, if the attorneys choose to employ a screen, it is important that it be erected before the involvement of the conflicted attorney in the new representation.[13]

Responding to a Motion to Disqualify

Upon receiving a motion to disqualify, the attorney should promptly notify the client. Attempting to defeat the motion without advising the client is not an acceptable solution.

In addition, if the motion is made by a former client, attorneys should consider providing notice of a potential circumstance to their legal malpractice insurer. Such motions are sometimes followed by either a grievance or a legal malpractice claim.

Finally, assess whether the firm or different counsel should defend the motion to disqualify. Independent counsel, free from the suggestion of economic self-interest, often can more effectively than the attorney press the case for allowing the client to keep its counsel of choice.

Conclusion

Attorneys understandably may feel apprehensive about the threat of a motion to disqualify, given the potential risk and loss of work. However, by understanding the underpinnings of this ethical issue, attorneys will be better prepared to anticipate, respond to, or even avoid motions to disqualify.


Notes

[1] E.g., Celgard, LLC v. LG Chem., Ltd, No. 2014-1675 (Fed.Cir. Dec. 10, 2014) (order disqualifying Jones Day), http://assets.law360news.com/0606000/606910/Celgard-LGC%20Order%20disqualifying%20Jones%20Day.pdf; Utica Mut. Ins. Co. v. Employers Ins. Co. of Wausau, No. 6:12-cv-01293-NAM-TWD (N.D.N.Y. Dec. 18, 2014) (denying motion for summary judgment on issue of whether Hunton & Williams should be disqualified in underlying arbitration), http://assets.law360news.com/0580000/580691/Memorandum%20and%20Order.pdf; Defendant and Counterclaimant Tate & Lyle Ingredients Americas LLC’s Notice of Motion and Motion to Disqualify Squire Patton Boggs (US) LLP; Memorandum of Points and Authorities in Support Thereof, Western Sugar Coop. v. Archer-Daniels-Midland Co., No. 2:11-cv-03473-CBM-MAN (Aug. 26, 2014) (motion to disqualify Squire Patton Boggs), www.law360.com/dockets/download/53fdfac81101ea655a00000b?doc_url=https%3A%2F%2Fecf.cacd.uscourts. gov%2Fdoc1%2F031119586589&label=Case+Filing.

[2] Colo. RPC 1.6.

[3] Brown v. Encompass Ins. Co. of Am., No. 14-CV-01885-RM-BNB, 2014 WL 7177378 at *2 (D.Colo. Dec. 16, 2014) (the court noted that “[m]otions to disqualify opposing counsel are viewed with suspicion”).

[4] People v. Nozolino, 298 P.3d 915, 919 (Colo. 2013) (“Disqualification of a party’s chosen attorney is an extreme remedy and is only appropriate where required to preserve the integrity and fairness of the judicial proceedings.”) (citation omitted).

[5] See, e.g., People v. Shari, 204 P.3d 453, 457 (Colo. 2009) (distinguishing between duties to current clients under Colo. RPC 1.7 and to former clients under Colo. RPC 1.9).

[6] People v. Harlan, 54 P.3d 871, 877 (Colo. 2002).

[7] Id. (quoting People ex rel. Woodard v. Dist. Ct., 704 P.2d 851, 853 (Colo. 1985)).

[8] Myers v. Porter (In re Estate of Myers), 130 P.3d 1023, 1025 (Colo. 2006).

[9] Rodriguez v. Dist. Ct., 719 P.2d 699, 704 (Colo. 1986).

[10] Shari, 204 P.3d at 460-62. See also Harlan, 54 P.3d at 877 (the Court noted that “[i]n determining whether disqualification is warranted ‘the critical question is whether the litigation can be conducted in fairness to all parties’” and explained that “[d]isqualification should not be imposed unless the claimed misconduct in some way ‘taints’ the trial or legal system”) (quoting Fed. Deposit Ins. Co. v. Isham, 782 F.Supp. 524, 528 (D.Colo. 1992)).

[11] By far the majority of successful motions to disqualify are brought on the basis of a conflict of interest with a former or concurrent client or imputation, but attorneys should also be aware that successful motions to disqualify have been brought on the following bases, among others: (1) lawyer as witness, (2) appearance of impropriety, (3) receipt of confidential data, (4) personal interest, (5) violation of the no contact rules, and (6) misconduct with a witness. See Swisher, “The Practice and Theory of Lawyer Disqualification,” 27 Geo. J. Legal Ethics 71, 77 (Winter 2014).

[12] See People ex rel. Peters v. Dist. Ct., 951 P.2d 926, 930 (Colo. 1998).

[13] See People v. Perez, 201 P.3d 1220, 1246 n.11 (Colo. 2009).

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.

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.

The Colorado Lawyer: Conflicts Check—Just Do It

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

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


Authors’ Note
Readers’ comments and feedback on this series of “WhoopsLegal Practice Malpractice Prevention” articles are welcomed and appreciated. References in the articles to “safest courses to proceed,” “safest course,” or “best practices” are not intended to suggest that the Colorado Rules require such actions. Often, best practices and safest courses involve more than just complying with the Rules. In practice, compliance with the Rules can and should avoid a finding of discipline in response to a grievance or a finding of liability in response to a malpractice claim. However, because most claims and grievances are meritless, effective risk management in the modern law practice involves much more. Hence, best practices and safer courses of action do more; they help prevent and more quickly defeat meritless claims and grievances. Other than billing, there is virtually nothing that attorneys dread more than addressing potential conflicts of interest. After all, resolving conflicts issues requires and attorney to focus on why not to take on a new representation rather than how to get the business in the door. However, unidentified or unresolved conflict issues cost lawyers more—in both clients and money—than most attorrneys realize.


Legal publications are replete with articles about motions to disqualify, disciplinary cases, and legal malpractice claims based on an unidentified or unresolved conflict of interest. Even when successfully defended, conflict-based allegations cost lawyers time and money. When lawyers lose, the risks are serious. The attorney could be disqualified from representing the client, face discipline for violating the Rules of Professional Conduct, receive an unfavorable jury verdict, or be forced to pay punitive damages based on a finding of disloyalty. The Office of the Presiding Disciplinary Judge (PDJ) takes conflicts of interest violations very seriously.[1]

In addition, judges and juries may well disregard defenses to claims (such as the protections of independent professional judgment or “trial tactics”) based on a breach of the lawyer’s fundamental fiduciary duty of loyalty to the client. Unfortunately, in today’s fast-paced world, the path of least resistance when a new client walks in the door is to get started on the case without performing even a rudimentary conflicts check. When it comes to conflicts, however, haste really does make waste.

Rule 1: Identify Conflicts Before Representation

Conflicts do not get better with time and cannot simply be undone. Once a conflict-laden representation begins, one cannot simply give back the confidences and secrets and forget it ever happened. When the attorney–client relationship attaches under a cloud of a potential or actual conflict of interest, there is no going back to the way things were before. For this reason, the attorney must identify and resolve conflicts of interest before the attorney–client relationship begins. It is one of those areas where an ounce of prevention really is worth a pound (if not a ton) of cure.

Rule 2: Grant No Exceptions

With conflicts, systems aimed at 100% compliance are critical. Inevitably, it is that one representation that escaped the system that creates the most problems. Typically, the reasons for operating outside the conflicts process for one representation (the client is too important, the case is too complicated, the attorney is too rushed) are the same reasons the conflict analysis was so important for that representation. Hence, the single most important part of conflicts analysis is compliance without exception.

The challenge, then, is to address conflicts as painlessly as possible. The easier and faster the system is, the more likely it will be that every lawyer will “run conflicts” on every representation.

One last point on the “no exceptions” rule bears emphasis. Every new representation—even if it does not involve a new client—should be screened for conflicts. Conflicts screening should be done each time a new party becomes involved as a plaintiff, defendant, lender, buyer, or seller. Also note that, although computers make conflicts screening much easier, they are no substitute in the final conflicts analysis for involving lawyers in the process. Effective conflicts procedures involve both.

Spotting Actual and Potential Conflicts

Attorneys in Colorado must comply with Rules 1.7 and 1.8 of the Colorado Rules of Professional Conduct, which govern conflicts. There are two kinds of conflicts: actual conflicts and potential conflicts. The distinctions between each are worth noting.

Actual Conflicts

An actual conflict means that the conflict cannot be waived by disclosure or consent; the attorney simply cannot accept the representation. One type of actual conflict is direct adversity, which occurs when the needs of one client are directly adverse to the needs of another client. For example, a law firm cannot represent both a plaintiff and a defendant in the same lawsuit (although it has been tried). Effective conflicts systems identify direct adversity conflicts and make it impossible to open a matter when they arise.

Potential Conflicts

A potential conflict means that there is some issue that must be addressed before a lawyer can accept the representation. Typically, the issue is some form of consent or waiver from either the new client, another client, or a former client.

There are two types of potential conflicts: successive representations and multiple representations. Although they are different, the waiver is largely the same—full disclosure and consent. In both situations, the attorney must provide full disclosure to all of their clients and obtain their written consent before taking on the representation.

Successive representation. Successive representation conflict rules involve potential conflicts between a current (or prospective) client and a former client. Under the conflict rules, a lawyer cannot represent a new client in a matter substantially related to the representation of a former client without the former client’s consent after full disclosure.

Although there are many cases defining “substantially related,” the essence is whether the lawyer learned (or could have learned) confidential information from the old client that could be used in the new representation for the new client. If the answer is no—the lawyer did not and could not have learned confidences and secrets that could now be used—then the lawyer should be able to accept the new representation. If the answer is yes (and lawyers should assume the answer is yes when in doubt), then the lawyer should provide full disclosure to the former client and acquire his or her consent in writing before taking on the new representation.

Multiple representation. Multiple representation conflict rules involve potential conflicts arising out of the representation of more than one client. Many lawyers overcomplicate the analysis; it is actually pretty straightforward. If there is more than one client, then the multiple representation rules should be applied.

In most situations, the potential conflict is easy to spot—there is more than one client listed on the new matter form, so the rules have to be applied. However, sometimes the conflict is not so apparent. These situations can arise out of probate litigation (representing the executor, estate, and heirs); securities litigation (representing both the corporation and the directors/officers); domestic litigation (representing the parents and the children); and bankruptcies (representing multiple creditors).

Whenever there is more than one client, the lawyer should ask (1) Are there things I might do differently if I represented only one of the clients? and (2) Could changes down the road create adversity between the clients? If the answer to both questions is no, then there may be no conflict. Depending on the circumstances, the attorney may be able to accept the representation without further investigation. If the answer to either question is yes, then there is a potential conflict that requires a more thorough analysis. This analysis involves determining whether the lawyer can adequately represent the interests of all of the clients. If the answer to this question is no, then there is an actual conflict.

A simple way to establish whether there is an actual conflict is to determine if the clients’ interests are linked in any way. In a contested divorce proceeding, for example, no lawyer could advance one spouse’s interests without impacting the interests of the other spouse. Therefore, the representation of a wife and husband in a contested divorce proceeding is not permissible with or without consent.

Conclusion

Conflicts do not have to be complicated. They just require practice discipline and proper analysis. Before the representation begins, get the names and run the conflicts. Adopt the mantra “Just Do It!”


Note

[1] See People v. Layton, No. 13PDJ036 (PDJ Sept. 25, 2013) (suspending an attorney in part due to violation of Colo. RPC 1.8(e), which prohibits an attorney from providing financial assistance to a client involved in pending litigation).

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.

Is There a Better Exit Strategy Than Death?—Part II: The Interviews: Tony Turrini—Changing Course, Pursuing Fulfillment

Editor’s Note: This article appeared in the September 2014 issue of The Colorado Lawyer. This is the fourth part of a 5-part series on Legal Connection. Click here for Part 1, click here for Part 2, and click here for Part 3.

Sandgrund-TurriniBy Ronald M. Sandgrund, Esq., InQ.

InQ: How old were you when you first felt that practicing law was what you wanted do for a career?

Tony: I was 20 years old.

InQ: How old were you when you started practicing law full-time?

Tony: I started practicing law full-time at 24, and I practiced full-time for roughly seven years. I did legal work as part of my job for another twenty-five years.

InQ: When did you first start thinking about exiting the full-time practice of law?

Tony: I began having second thoughts about full-time private practice when I was 26 or 27. I really didn’t enjoy being a hired gun and felt like I was spending way too much time sitting behind a desk. I was in private practice for only a couple of years before I decided I’d rather go count elk or caribou in the woods.

InQ: Did you develop any sort of plan at that point—whether to count elk, caribou, or some other critters?

Tony: I realized that my law degree and undergraduate degree in English literature were not going to be particularly helpful if I wanted to pursue a new career in wildlife management. I decided to go back to the University of Colorado and get a master’s degree in biology. I thought I could get the degree in eighteen months. It ended up taking closer to two years.

InQ: Did any obstacles to your plan crop up?

Tony: My wife, who was working full-time, was pregnant with our first child. Money was a little tight and I took a couple of part-time clerking jobs. As a former practitioner, it was relatively easy to find part-time work. To stay within a two-year time frame, I earned a master’s of basic science, which was a less prestigious and less useful degree than a master’s in wildlife biology.

InQ: What strategies did you employ to manage these obstacles?

Tony: I was very, very nice to my wife.

InQ: Always a good strategy. At any point did you think about reversing course?

Tony: I didn’t have any second thoughts about returning to school. I thoroughly enjoyed the course work and appreciated the learning experience in a way I hadn’t in law school or as an undergraduate. Although I didn’t reverse course, I did alter it. When I graduated with the MBS, I found that while I was qualified for entry-level positions in wildlife management, many potential employers were interested in me primarily because I was a lawyer with a science degree. I also realized, belatedly, that law school and private practice had ruined me as a scientist. I wasn’t going to be satisfied simply collecting data; I wanted to apply the information in some way. Apparently, once an advocate, always an advocate. Eventually, I accepted a position as legal counsel for National Wildlife Federation’s Prairie Wetlands Resource Center in Bismarck, North Dakota. This was the beginning of a wonderful twenty-six years in the nonprofit world.

So, I didn’t reverse course, but I did make a few course corrections. After transferring to National Wildlife Federation’s Alaska office, I became the regional director in 1997. After eleven years with the organization, I was ready for a change, and the director position involved different responsibilities. Seven years later, I arranged to swap jobs with one of our staff attorneys. As senior attorney, I was able to work on specific projects and reduce my hours.

InQ: Did you eventually leave the practice of law completely?

Tony: I went part-time in 2013 and retired earlier this year.

InQ: Some say that the biggest hurdles to changing one’s career path are a lack of imagination, fear, and finances—what do you think?

Tony: I’ve never had any problem filling my time or imagining life without a full-time job. After working most of my career at a nonprofit, I also know that there are many good organizations looking for volunteers. Money was a factor in the timing of my retirement. I waited until I thought my wife and I could maintain our current lifestyle and tried not to let “what ifs” affect my judgment too much.

InQ: How much did finances affect your decision to retire?

Tony: I wouldn’t have considered retirement before paying for my children’s college education. It’s probably a little too soon to tell if our financial analysis was correct—we haven’t run out of money yet!

InQ: How did your significant other react when you were exploring options other than the full-time practice of law? Did any tensions arise within your family?

Tony: My wife was very supportive—except when I suggested I could get a really good job if I went back to school for a doctorate! Ultimately, my wife had veto authority over many of the more significant career choices I made, but fortunately she never exercised it. I didn’t really experience any tensions, and I was fortunate in being able to phase out of full-time active practice. It was really a pretty easy transition.

InQ: You are only 56. How are you filling your new-found time?

Tony: I have a lot of interests that are now limited only by the threat of repetitive stress injuries. So far, I haven’t felt the need to find new hobbies to fill the time. At some point, I plan on doing something more productive, but right now I’m just relaxing and enjoying life.

InQ: What does your wife think of you playing all the time while she is still working? Has your share of the domestic chores increased?

Tony: She thinks I’m working from home. Just kidding. My wife retires in November. In the meantime, I’m doing most of the household chores and trying not to look like I’m enjoying myself too much.

InQ:

Tony: I wouldn’t do anything differently.

InQ: How happy were you when practicing law full-time and how happy are you now?

Tony: For most of my career, I was very happy. The last few years, I was ready for something new. I’m very happy now. Change is good.

Is There a Better Exit Strategy Than Death?—Part II: The Interviews: Walter Kingsbery—Stepping Back From Full-Time to Pursue Other Passions

Editor’s Note: This article appeared in the September 2014 issue of The Colorado Lawyer. This is the third part of a 5-part series on Legal Connection. Click here for Part 1 and click here for Part 2.

Sandgrund-KingsberyBy Ronald M. Sandgrund, Esq., InQ.

InQ: Walter, how old were you when you first felt that practicing law was what you wanted do as a career? How old were you when you first had serious thoughts about exiting the full-time practice of law? What prompted this change in your thinking?

Walter: When I went to law school I was unsure what I would do with my law degree. After law school I worked as a lawyer, but not until I turned 30 and moved to Boulder to practice with my brother did I first began to feel that practicing law was what I would do as a career. I worked full-time for twenty-four years; then part time, about three days per week, for eleven years; and since January 2014, I have been “of counsel” with no set office hours.

I’ve thought about the ability to exit full-time work (whether the practice of law or any other job) since I was in high school. My father impressed on me the benefit of putting oneself in an economic position such that you could work because you wanted to, not because you had to, so that has always been at least in the back of my mind. Also, I have always had many interests other than the practice of law, and I have sought to balance time spent working with time spent on other activities throughout my career.

I have always had the desire to work less than full-time, and I have maintained a modest lifestyle and saved money to allow me to do so. I started making concrete plans to exit the practice of law when I was 44, when I took a year off from my practice. At the time, I thought that it was unlikely that I would return to the full-time practice of law. After my year off, however, my thought process changed and I began focusing on creating a firm structure that would let me continue to practice law—which I realized I enjoyed—but not have to do so full-time. I wanted to have time to pursue my other interests so that the practice of law would be less stressful and more fulfilling.

InQ: What do you think were the key aspects of your developing a plan to accomplish these goals?

Walter: A key part of my planning was simply having an awareness that my economic and lifestyle choices affected how much I had to work, and that if I wanted to work less than full-time, I needed to make choices that would allow me to afford to do so. Beyond that, I’m not sure that I so much as had a plan as that I recognized the choices that were presented to me that would mean less time practicing law versus more time practicing law. So, the process was more recognizing the direction I wanted to take my law practice and making choices that took me in that direction when the opportunity arose, as opposed to actively seeking choices to implement a specific plan. I was fortunate that things fell into place!

InQ: How long did you expect your plan would take to implement?

Walter: If I remember correctly (which I probably don’t), I started to talk about retiring by age 40. My plan changed over time. As I mentioned, I took a year off at age 44, thinking that it might lead to retiring from the practice of law. But I learned that I liked much of what I did as a lawyer, and changed my objectives to focus on structuring a practice where I did more of what I liked to do and less of what I did not, and on balancing work and non-work time. I felt like I largely achieved those objectives six years later, when I reduced my work time commitment to three days a week. About ten years later, I decided that I needed more time to pursue non-work activities, and began my current “of counsel” position. I did not leave the practice of law completely because I still enjoy the work and had the opportunity to continue to practice in a very flexible environment.

InQ: What sort of obstacles cropped up, if any, impeding the plan’s implementation?

Walter: There is always pressure to work more, either because that is what you are supposed to do, or because of uncertainty about whether you need the income from working. In fact, getting to a financial position where you don’t need the income from working is a significant obstacle for most of us. Otherwise, I would say the impediments were more lack of opportunities than obstacles. I was fortunate to be in the type of practice (estate planning) and with the type of firm and partners that allowed me to be more flexible in structuring my work environment. Many attorneys don’t have that opportunity. At no time did I think about reversing course, but as I have noted, my course was altered by things I learned about myself.

InQ: Some say that the biggest obstacle to distancing oneself from the full-time practice of the law is the inability to imagine what life would be like not practicing law full-time. Others say it is a fear of not being able to fill up the time. Still others say it is a fear of not having enough money later in life? How did these factors affect your thinking?

Walter: The first two did not affect my thinking at all. For those who do worry about those things, maybe working part-time should be their objective if they still enjoy legal practice. The third factor—financial considerations—is something I had to get comfortable with before I reduced my income. I have some financial background and low expenses, so I felt competent to determine how much money I needed to save to retire. Others might need the assistance of a financial advisor to make this determination.

InQ: How did your significant other react while you were exploring options other than the full-time practice of law?

Walter: She rolled her eyes and told me I should get on with it. She made it clear that I should do what I wanted. And, she did not try to exercise any sort of veto power over my choices that I was realistically considering.

InQ: Did any tensions arise between you and others, including co-workers, as a result of you retreating from the full-time practice of law? How did you manage them?

Walter: I would not call them tensions, but there was definitely a need to negotiate with my law partners regarding the appropriate structure of and compensation for my part-time practice. It was very important to me that my partners felt that my deal was fair to them and to the firm.

InQ: What sort of activities have you embraced to fill the time you formerly devoted to the full-time practice of law? How satisfying have those activities been and have you run into any unexpected issues arising from engaging in them?

Walter: I’m still in transition from my three-day-a-week schedule to my “show up when I want/need to” schedule. So far, I have been spending my new-found time on outdoor activities, reading, managing some family investments, movies, socializing, and relaxing. So far, everything’s good.

InQ: During your decision-making and decision-implementing process, what mistakes, if any, do you feel you made?

Walter: My mistakes were more a lack of self-awareness that caused me to pursue the wrong objectives. It took me a while—and taking a year off from practicing law—to realize that I enjoyed and got a lot of satisfaction from my practice, and that it would be very difficult to duplicate that through some other activity. At about the same time, I realized that I did not want to get a job doing what I like to do for fun, but instead wanted my job to provide the freedom to do fun things. My goal became structuring my law practice so I could spend less time on work I did not find satisfying, which in turn allowed me to spend more time doing the non-work things I enjoyed. Looking back, I can’t think of anything I would do differently. I’ve enjoyed the evolution of my career, and the process of figuring out what I want to be doing and how to get to the position so I can do it. And that process will just continue from here.

InQ: What assumptions did you make that turned out to be mostly or wholly incorrect?

Walter: The assumption that I wanted to retire completely from the practice of law.

InQ: How happy were you when practicing law full-time? How happy are you now?

Walter: When I was practicing law full-time, I was happy, but recognized that my life was not as well balanced as I would like it to be. I was very happy to begin working three days a week, and I am very happy now.

InQ: How much did financial considerations influence your decision to retreat from the full-time practice of law?

Walter: I needed to be comfortable with my financial position before I retreated from the full-time practice of law, and financial security allowed me to retreat from the full-time practice, but it was not the reason I retreated.

InQ: In retrospect, did you give financial considerations too much, too little, or just the right amount of weight?

Walter: I gave financial considerations a lot of weight in my decision-making process, and I think that was about the right amount. If I was not able to support myself, I would not have given up the income from the full-time practice of law. So, it was a necessary condition for me to be able to execute my exit strategy. However, I continue to practice law even though I no longer need the income from doing so. Basically, financial security lets you make choices based on what you want to do, not based on what people will pay you to do. I think maintaining a debt-free standard of living that you can easily support gives you tremendous flexibility in structuring a satisfying work environment. To me, being able to work because you want to, and not because you have to, is a great position to be in.

InQ: How, if at all, did having children affect your decision-making process?

Walter: Not having children was part of my decision-making process. I don’t think any of us can have it all.

Is There a Better Exit Strategy Than Death?—Part II: The Interviews: Anne Vitek—Planning for and Managing Your Retirement Sortie

Editor’s Note: This article appeared in the September 2014 issue of The Colorado Lawyer. This is the second part of a 5-part series on Legal Connection. Click here for Part 1.

Sandgrund-VitekBy Ronald M. Sandgrund, Esq., InQ.

InQ.: Anne, how old were you when you first felt that practicing law was what you wanted do as a career? How old were you when you first had serious thoughts about exiting the full-time practice of law? What prompted this change in your thinking?

Anne: From about age 14, I thought I wanted to be a lawyer. I was 29 when I started practicing law full-time, and did so for thirty-four years, almost to the day. I always knew that I would retire from practicing law. I was probably in my late 40s when I started thinking about where I would retire to.

InQ: How old were you when you first started making concrete plans to exit the full-time practice of law? What was your thought process?

Anne: I was 58 when I started making plans to exit. I had been practicing law for thirty-four years. We all have a limited lifespan and I wanted to do something different with the remainder of my life. My husband and I did a lot of work for the state and our contracts lasted for two years. We timed the contracts so that they were completed as we were closing down the practice. However, we still wanted to earn a living until we were ready to retire, so we took on more hourly work. Since our practice was primarily trial work, we could practice from our home. We did so for the last three years, which substantially reduced our overhead.

InQ: Did you develop any sort of plan as far as how to accomplish your retirement goals?

Anne: My plan was to begin thinking about retirement when I was in my 50s and to try to assure that I would have the financial resources to retire. At that point, and perhaps earlier, I began to assess possible retirement sites and to determine how they would fill my retirement needs. Once we started thinking that we might retire in Paris (around 2002), we began taking French classes at the Alliance Française in Denver. My plan was based primarily on financial considerations. I think it took a little longer to implement than I had anticipated because of the substantial stock market losses in the preceding years. My husband and I purchased our apartment in Paris in 2006 and retired in 2012, so it took about six years from the first concrete step toward retirement in Paris until our actual retirement.

InQ: What sort of obstacles to your plan cropped up, and did you ever think about reversing course?

Anne: The only obstacles that arose were the fluctuations in the stock market and the effect that they had on our ability to have sufficient funds to retire. The only strategies we could employ were to work longer so that we would have additional financial resources, given the volatility of the stock market. Although we had at one time had a law firm that included eight attorneys, in addition to ourselves and numerous staff, we had downsized in anticipation of retirement. So, the only person who was affected by our retirement was our longtime secretary. Fortunately, she was considering plans to stop working, so it worked out well for us and for her.

We did not ever think about reversing course. I think we’d had personally satisfying careers in the legal profession, but we were ready for a change. We had reached a stage in our lives where we wanted to indulge our interests in art, photography, and jazz. We also wanted the opportunity to travel.

InQ: Some say that the biggest obstacles to retreating from the full-time practice are the inability to imagine what life would be like not practicing law full-time, fears of not being able to fill the time, and not having enough money later in life. Did any of these factors affect your thinking?

Anne: I think that for most people who spend the majority of their adult life working at a profession, their sense of self is inextricably woven with their professional life. Thus, I do think that the idea of “not having a profession, not being a lawyer” can be daunting. As to the notion that one will not be able to fill the time, I can only say that we are as busy as or busier than we were when we were practicing law. We have organized our nonprofessional life much as we organized our professional life. The difference is that we are now free to pursue our own interests rather than the interests of our clients. In my opinion, it is essential to try to be as organized in retirement as one was when practicing law. In other words, we have a schedule that includes working out, taking classes, attending lectures, visiting museums, etcetera. We tend to organize our week in retirement much as we organized our agenda when we were trial attorneys.

InQ: What about financial concerns?

Anne: Certainly, there are always financial concerns. Of course, individuals with a pension may have fewer financial concerns than those who were self-employed and who must rely on their investments to fund their retirement. Obviously, there is always going to be uncertainty. I think that one needs to balance the regret of not having enjoyed a change of lifestyle against the possibility that one may not be able to maintain that lifestyle into very old age.

InQ: How did your significant other react during the course of you exploring options other than the full-time practice of law?

Anne: I was fortunate that my husband was as keen to be retired as I was. He was a full partner in the decision to retire as soon as it was financially feasible. He manages our finances and his competence in that regard made retirement a reality for us. My husband and I practiced law as partners for twenty-five years, so we were used to making decisions as a team. We had the advantage of having run a business as a team. I think that this business experience spilled over into our personal relationship. I feel that we have always made decisions in our personal lives as a team. I can quite honestly say that neither one of us has ever had veto power over the choices of the other. There were not any tensions resulting from our retreating from the full-time practice of law.

InQ: How, if at all, did having children affect your decision-making process?

Anne: Because we do not have children, I think our decision to leave the United States was easier. I think that having children would impact one’s decision-making process, if one had financial responsibilities toward those children. However, aging parents are also a consideration. In our case, my mother-in law, who was in the beginning stages of dementia, came to live with us in 2009. By 2010, her condition had deteriorated and we placed her in a nursing home within walking distance of our home. Luckily, she remembered my husband and me, but unfortunately she had no other memory. After consideration, we decided that we would go to Paris as planned in 2012. Our plan was to place my mother-in-law in a facility in Florida near my brother. She had retired to Florida and still had friends there who would visit her. Additionally, my family also would visit periodically. We would make two extended visits to Florida per year to spend time with her. However, she died in the fall of 2011 at the age of 89. I think that aged parents may be more of a concern for many potential retirees than children, especially if they are financially responsible for the parent.

InQ: What sort of activities have you embraced to fill the time you formerly devoted to the full-time practice of law? How satisfying have those activities been, and have you run into any unexpected issues arising from engaging in them?

Anne: We have been very actively engaged in many pursuits since our retirement. We are also actively involved in improving our French, and we are making a new circle of friends in Paris. Of course, this requires us to be sociable and to explore new venues where we might meet people to befriend. I believe this is a real plus in retirement. I think constant exploration is the key to a successful retirement and more important for a fulfilling life.

InQ: During your decision-making and decision-implementing process, what mistakes, if any, do you feel you made?

Anne: I’m sure we made some mistakes, but none of them were significant enough to have impacted our retirement plans. I can honestly say that I would not have done anything differently, except that I might have worked harder on honing my skills in French while I was planning for retirement.

InQ: What assumptions did you make that turned out to be mostly or wholly incorrect?

Anne: I thought I would miss having a professional identification and that I would have more time to pursue other interests than I actually have.

InQ: How happy were you when practicing law full-time? How happy are you now?

Anne: I was happy practicing law and I am happy now.

InQ: How much did financial considerations influence your decision to retreat from the full-time practice of law?

Anne: Obviously, financial considerations do play a large part in the decision to retire, to stop working outside the home, or to change careers. I think financial considerations did delay our retirement. In the end, I think we made the right decision for us, and I think we gave financial considerations the right amount of weight.

Is There a Better Exit Strategy Than Death?—Part I: The Interviews: Jaimee Reed—Getting Out, Starting Over

Editor’s Note: This article appeared in the August 2014 issue of The Colorado Lawyer. This is the final part of a 5-part series on Legal Connection. Click here for the introduction, click here for an interview with Kyle Velte, click here for an interview with Roxanne Jensen, and click here for an interview with Kevin Rhodes.

Sandgrund-ReedBy Ronald M. Sandgrund, Esq., InQ.

InQ.: Jaimee, how old were you when you first felt that practicing law was what you wanted do as a career? How old were you when you first had serious thoughts about exiting the full-time practice of law? What prompted this change in your thinking?

Jaimee: I was a 22-year-old college junior when I started thinking about a legal career, and I was 27 when I started thinking of leaving full-time practice. I first had serious thoughts about exiting full-time when I was 33. I had a baby that year and my perspective changed, so I started thinking about different ways to use my law degree.

InQ.: Did you eventually leave the practice of law completely?

Jaimee: Yes, and it was a smooth transition. My clients were very supportive, as were my co-workers. It was a positive experience all around. I stayed at home for a couple of years before I decided to pursue a career as an insurance broker, which required passing a licensing exam. My husband had been in the insurance industry for many years, so I was already familiar with and interested in the field, and it was a natural transition for me.

InQ.: At any point in the process of implementing your plan, did you think about reversing course?

Jaimee: No. I enjoyed my new career and I liked the quality of life. For me, leaving the practice of law was about quality of life and being able to spend a lot of time with my family.

InQ.: Some say that the biggest obstacle to retreating from the full-time practice of the law is the inability to imagine what life would be like not practicing law full-time. Others say it is a fear of not being able to fill the time. Others say it is a fear of not having enough money later in life. What do you think of each of these suggested impediments and how, if at all, did they affect your thinking?

Jaimee: I did wonder whether I would miss the practice of law because, for many years, that’s what I did and that’s who I was—it defined me. But, after I stopped practicing, staying at home with my child really changed my perspective on life and what really matters—being engaged with and raising my kids was very important to me. I now have time for my family, networking events (which I love!), helping in my community, and volunteering, all while still working. I think some people who have known me a long time were shocked because I was a natural “lawyer”—even as a child. I promised them I would keep my license active in case they needed any free legal advice!

InQ.: How did your significant other react during the course of your exploring options other than the full-time practice of law?

Jaimee: He was extremely supportive and wanted me to find something I truly enjoyed. His only advice was to find something I would enjoy doing day in and day out. Period.

InQ.: How happy were you when practicing law full-time? How happy are you now?

Jaimee: Before I had children, I wasn’t unhappy practicing law. When I was practicing criminal law, I had a great time. All of us then were young and childless. When I transitioned to the civil side and started a family, things changed. I wouldn’t say I was unhappy necessarily, but I wasn’t fulfilled. I am very happy now.

InQ.: How much did financial considerations influence your decision to retreat from the full-time practice of law?

Jaimee: It was a concern, but it came down to the fact that I had to make a decision and prioritize my life. In making my decision, I think I gave financial considerations just the right amount of weight.

InQ.: Do you ever feel you wasted time and money on a law school education?

Jaimee: Not really—law school and my experience practicing law gave me valuable skills—such as negotiating and reasoning—that were helpful, as well as “people skills.” Also, my knowledge as a former litigator that other insurance brokers do not have helps me navigate the field. I value the education I received and the transferable skills I’ve honed over the years.

InQ.: If you knew back in college what you know now about yourself and the practice of law, would you still have gone to law school?

Jaimee: Well, I met my husband while in law school, so I would definitely do it all over again!

Conclusion

Even though each of these dialogues and those appearing in Part II are merely vignettes among the many stories lawyers have to tell about exploring exit strategies in their own lives, some commonalities emerge. First, to paraphrase something former CBA President Mark Fogg said, “Marry well,” which I think is simply a shorthand way of saying, if you have a significant other in your life, he or she needs to share your life’s vision and support your efforts to achieve fulfillment. Second, “Don’t live large,” meaning moderate your accumulation of material things and unnecessary debt, so that you have greater freedom to change your trajectory, reprioritize your life, and find greater happiness.

Is There a Better Exit Strategy Than Death?—Part I: The Interviews: Kevin Rhodes—Exit Strategies Galore

Editor’s Note: This article appeared in the August 2014 issue of The Colorado Lawyer. This is the fourth part of a 5-part series on Legal Connection. Click here for the introduction,click here for an interview with Kyle Velte, click here for an interview with Roxanne Jensen, and stay tuned for more interviews.

Sandgrund-RhodesBy Ronald M. Sandgrund, Esq., InQ.

InQ.: Kevin, how old were you when you first felt that practicing law was what you wanted do as a career?

Kevin: When I was 31, I entered my final year of a JD/MBA program. I had this idea I wouldn’t practice law, but that I would use the joint degree in business. However, the market for newly minted MBAs had dried up, while the market for new lawyer hires was robust, so I took the path of least resistance and joined a law firm. I was about 32 when I first felt that practicing law was the career for me. I practiced law full-time for twenty-two years, and I had a hand in it for another six years after that—once a lawyer always a lawyer.

InQ.: How old were you when you first gave serious thought to how to exit the full-time practice of law?

Kevin: I’ve made three exits from the practice.

InQ.: Three! Many people don’t have the time or energy for even one. Tell me more.

Kevin: The first was a little over a year after I started, at age 33. The work was new and intellectually stimulating, but the realities of law firm life were a shock. At the time, I also felt tugged-at by a religious renewal experience. All this was personally disorienting. I needed space, so I quit. During the following year, I drifted for a few months, and then took a job as a road warrior management consultant with a Big 4 accounting firm. I was hired to work in corporate finance, but that market vanished with the crash of 1987, and I was shifted to accounting projects I knew nothing about and had no interest in. At the end of the year, I really couldn’t think of what else to do, so I hung out my shingle.

The second exit was eight years later, at age 40. I’d spent the years since my initial exit first as a solo, then with a large firm, and then back as a solo. This time, I left to respond to what I considered to be a call into the ministry. I transferred the practice to another lawyer. A year-and-a-half later, it was obvious ministry wasn’t where I belonged. I had been working part-time for a large firm. They took on a giant family business succession case and needed to staff up, so they made me an offer I couldn’t refuse and I went back to full-time. The first month back I billed 250 hours.

The third exit was fourteen years later at age 54. I’d gotten my religious zealot days out of my system, and I’d made peace with the practice, first in a large firm and then founding a small boutique estate planning and business succession firm of my own. I’d just finished my best year ever in terms of both money and satisfying work. I’d brought in a partner who was handling the regular caseload, and I was working on larger, more complex cases, often co-counseling with lawyers from large firms. I also was putting three kids through college. On the surface, life was good.

But something was rotten in Denmark. Despite external success, on the inside I was becoming increasingly angry and cynical. I was alarmed at my state of mind. My wife and I talked about it, and I vowed to stop being such a pain. Then, two days later, I was in the hospital after a nasty ski accident that laid me up for a couple months. About the time I was rehabbed, I had a “creative visitation” one afternoon, and was suddenly and unexpectedly inspired to produce an all-original multimedia stage spectacle.

InQ.: Did they check you for a head injury while you were in the hospital?

Kevin: (smiling) As a matter of fact they did! Apparently not enough! I realize all this sounds crazy, and in fact maybe it was. Suddenly getting inspired to do a show is maybe no big deal if you’re in showbiz, but I wasn’t. I was a lawyer. I had no background in theater. The whole thing was nuts, and I went nuts over it.

InQ.: So, when did you first make concrete plans to finally and truly exit the practice of law?

Kevin: Well, first I spent a couple months developing the show and trying to find someone to produce it, but when no one would, I decided to do it myself. Soon, I was working full-time on it. It was not fair to let my law partner carry the whole practice load, so I proposed to her that she buy me out, and she agreed. I believe our total time framework for the transition and buyout was maybe three years. I was 54 and I decided, finally, to stop being a lawyer.

InQ.: Did you develop any sort of plan as far as how to accomplish this goal?

Kevin: I had a substantial business succession law practice. I had done that kind of work for scores of clients, I had written about it, and I given talks and seminars for clients and other professionals. I knew exactly what to do, and my law partner and I put our deal in writing. It was all very congenial, efficient, professional, and thorough, and the plan went together in short order. Little did I know, though, that I was about to get a whole new education in business succession planning: there are so many non-rational, non-legal issues involved—emotions, sense of identity, motivations, etcetera. I believed I was better than most at addressing these “soft” issues, but my personal experience was headed for territory with which I was unfamiliar and that I hadn’t personally experienced before—a whole new psychological realm. I never really appreciated ahead of time the enormity of the task.

InQ.: Hmm, so was Abraham Lincoln right—”He who represents himself has a fool for a client”?

Kevin: (smiling) Guilty as charged.

InQ.: How long did it actually take you to implement your exit strategy?

Kevin: After I took my last partner draw (more than normal, as a sort of down payment), there wasn’t much left to do. My partner was in charge, and I was already mostly disengaged from the practice. We agreed I would be available as needed, which turned out to be not very much. This all happened within the space of maybe a few months.

InQ.: At any point in the process of implementing your plan, did you think about reversing course?

Kevin: It was only a matter of months before my former partner was struggling to make the payments on the buyout note. She approached me and said, “It’s just not working and I can’t sleep at night.” It was clear to me that our plan had fallen victim to a set of false assumptions. We talked and strategized, had a lot of heart-to-heart conversations. One of my proposed solutions would have negated my exit and her buyout, and brought me back into the practice. After a few more months, we reversed the course of our deal, but not my exit from the practice. We agreed that the large draw I’d taken plus the amounts she’d paid on the promissory note were enough. We revised our buyout contract to lower the price and renegotiated the note so the purchase price was paid in full. That cleaned up the buyout, but left me without an income when I was already hemorrhaging cash developing the show. There were of course lots of other ways we could have handled it, but frankly, I didn’t care enough to reach for them. By the time this was happening, we had completed a successful sneak preview event of the show, and I was pushing toward a premier later that year. My ties to the law practice were a distraction, so I cut them.

InQ.: And then?

Kevin: As it turned out, a few months after we renegotiated our deal, the show crashed and burned, and took most of my life’s savings with it. I grieved over the show’s demise for a month or so, and then began working on starting up a new solo practice from scratch. I wanted to honor the exit I’d made, and didn’t want to compete with my former practice, which had stabilized and returned to profitability. I talked to my former partner about my plans, and it was clear I wasn’t needed or wanted back.

InQ.: And then?

Kevin: A month later, that effort was cut short by a second accident, with injuries much worse than the first. I would be laid up for several more months. It was the perfect storm—personally, professionally, financially—you name it.

InQ.: Holy mackerel! It sounds like a visit to purgatory.

Kevin: That was five-and-a-half years ago. Since then, I periodically tested the waters regarding a return to the practice. In the meantime, my new life outside law kept morphing, and I kept following it, to see where it might lead.

InQ.: A lack of imagination, worries about what one will do, and financial concerns appear to be thebiggest obstacles to escaping the full-time practice of the law. What do you think?

Kevin: Not being able to imagine what life would be like not practicing law full-time was never a factor: after my first two exits, I thought I was a lifer, and I hadn’t considered getting out again until the moment the show seized me so completely that I just had to do it. I never had time to imagine life after law; I just dove into it. As far as being afraid not to fill the time, again, this was never a factor. Once I started the show, it was all-consuming, and I figured I’d be in showbiz the rest of my life. And, as far as being afraid of not having enough money later in life, this also was never a factor, although in hindsight it’s easy to say it should have been! But, at the time, I really never considered it.

InQ.: How did your significant other react during your odyssey?

Kevin: My wife watched me act like a man possessed those first two or three months as I was moving into show production, and then she sat me down one day and said, “I don’t really understand what’s come over you, but I like the new person you’ve become. You’re so much happier! This is obviously going to be one amazing adventure, and I don’t want to be left out of it. So, I’m all the way in with you.” Amazing, isn’t it, to think of her saying that? Since then, we’ve traveled every inch of this long, strange trip together. She’s had immeasurable influence on my plans. There’s just too much here to tell!

InQ.: Did any tensions arise between you and others, including your children, co-workers, and significant other, as a result of retreating from the full-time practice of law? How did you manage them?

Kevin: There were several tensions of this nature, but I didn’t “manage” any of them. I did my best; sometimes it was good enough, sometimes it wasn’t. I had the best intentions, but you can’t do what I did and not leave some people behind. There was hurt, for me and others. I definitely stressed my law partner and my long-time administrative assistant by disengaging from the practice and then getting out the way I did. I did lose some friendships with clients who had become friends and with some fellow professionals. My path was at first a curiosity, and even a cause of envy, but after a while I became irrelevant. They moved on, and so did I. My wife was also stressed at first, but then she jumped in with both feet. My kids, on the other hand, loved what I was doing. It was exciting to have a dad who was bucking the system and going for it in a big way, and they were proud of me. As for my extended family, frankly we didn’t tell them much—not out of deception, but self-preservation. They came to know in time. They’ve never understood things the way we’ve seen them. Not really.

InQ.: What sort of activities have you embraced to fill the time you formerly devoted to the full-time practice of law, and how satisfying have those activities been?

Kevin: Even though the show bombed, I wanted to go deeper into expressing its life-affirming message. I tried doing this via screenwriting for a couple of years, but finally decided that maybe I’m not the creative genius I’d like to be. Mostly, I’ve invested a lot of self-examination, research, reading, conversations, and other investigations into trying to understand what happened to me during my exit from the practice, and what that means not just for me but also for all those lawyers out there for whom the practice of law has become an empty, unhappy, or even toxic place. Maybe they’d like to enhance their law careers, or maybe they’d like to get out. I wanted to know if what I’ve learned might help them.

InQ.: What did you do to turn those thoughts into action?

Kevin: I started keeping a journal, which eventually became a book (Life Beyond Reason: A Memoir of Mania, just released, and available on Amazon) about my misadventures and lessons learned regarding the dynamics of change, creativity, personal transformation, following our dreams, etcetera. I write a blog on those topics for the CBA, and have also designed and conducted several workshops on those topics for lawyer, law student, and non-lawyer audiences.

InQ.: Anything else?

Kevin: Besides the workshops and blogging, I’m now a mentor through the Colorado Supreme Court’s CAMP initiative, have done some career and law practice coaching, and have conducted workshops for the CBA’s Job Search and Career Transitions Support Group and at Denver Law. This was one of the reasons I re-hung my shingle last year. I thought that, by returning to “insider” status, I might have a more credible voice in the profession. All of those activities have been highly satisfying.

InQ.: You re-hung your shingle? Going for the record for exit strategies are we? Tell me, during your previous three exits, what mistakes, if any do you feel you made?

Kevin: I’ve reached the point in my life where I don’t think of things as mistakes. It’s always tempting to look backward with regret, and calling things “mistakes” fuels that temptation, so I try to avoid it. On the other hand, I will say that if acting unreasonably is a mistake, then I made countless mistakes in how I went about leaving the practice. And, if having blind spots is also a mistake, then I’ve made even more. As for acting unreasonably, I’ll admit that making a sudden jump from a successful long-term law practice into the unknown waters of showbiz was unreasonable, by any measure. It wasn’t a reasonable thing to do when I did it, and it’s still not reasonable in the bright light of hindsight. The list of my lack of qualifications was so long, it wasn’t even embarrassing—it was just insane.

InQ.: What, if anything, would you do differently?

Kevin: It’s tempting to say, “Well, I wouldn’t ruin my career by doing something so crazy.” or “I would have gotten coaching help.” or “I should have seen a shrink.” But really, the truth is, I can’t say what I would do differently. So, you go forward, because to look backward is just more crazy-making. As a friend of mine says, “The trouble with blind spots is you can’t see them.”

InQ.: What assumptions did you make that turned out to be mostly or wholly incorrect?

Kevin: For one thing, I assumed the practice would go humming along as robustly after I left as it had while I was still fully engaged in it. As a result, I totally underestimated how my absence would affect cash flow. Without me present, there just wasn’t as much work generated. At its height in the late ’90s, the firm had been bigger, but by the time I left, it was a two-lawyer operation.

InQ.: How happy were you when practicing law full-time? How happy are you now?

Kevin: After all this, one thing that’s changed for me is that I have a different perspective on the topic of happiness than I ever did before. For the first decade or so of my law career, my attitude was often something like, “The practice of law is making me unhappy,” or “I am unhappy practicing law.”

InQ.: And now?

Kevin: Now, I think, “I was an unhappy person for much of the time I was practicing law.” I think you can see the difference. The former put the problem outside me; the latter sees the problem looking back at me from the mirror. Then, in the second and into the third decades of my law career, it was easy for me to look at the external trappings of my practice success and think they equated with happiness; that is, this outlook locates happiness in external circumstances. It says, “Gee, that guy is successful. He must be happy.” The fallacy is obvious when you say it that bluntly, but that was another of my blind spots. Now, simply put, I’ve come to believe that happiness is mostly an inside job; you don’t get it by reference to externals, but by finding it within.

InQ.: In retrospect, did you give financial considerations too much, too little, or just the right amount of weight?

Kevin: I think it would be fair to say that, measured on the scale of reasonable behavior, as I’ve described previously, I blew the financial issues royally. Measured on the scale of things like inspiration and personal awakening and awareness, you get a whole different read on it. My exit from the law—

InQ.: Exits?

Kevin: —exits from the law, ended up costing me everything except my family and closest friends. What did I get in return? Well, for starters, I felt I got my soul back, plus a whole new understanding and outlook on life, plus new relationships with my family and old friends, and a whole bunch of new friends to boot. And like I said, that’s just for starters.

InQ.: How, if at all, did having children affect your decision-making process?

Kevin: Not at all.

Is There a Better Exit Strategy Than Death?—Part I: The Interviews: Roxanne Jensen—Balancing Work and Family While Staying Engaged and Challenged

Editor’s Note: This article appeared in the August 2014 issue of The Colorado Lawyer. This is the third part of a 5-part series on Legal Connection. Click here for the introduction, click here for an interview with Kyle Velte, and stay tuned for more interviews.

Sandgrund-JensenBy Ronald M. Sandgrund, Esq., InQ.

InQ.: Roxanne, how old were you when you first felt that practicing law was what you wanted do as a career? How old were you when you first had serious thoughts about exiting the full-time practice of law? What prompted this change in your thinking?

Roxanne: I first thought I wanted to practice law when I was 22, and I started practicing full-time at 25. I continued to practice full-time until I was 38, when I had my first child. At 42, I had my third child and recognized that my firm’s international law practice was changing, becoming highly specialized, and that significant travel was required to put the right person in the right place at the right time for the clients. I thought I would try to find a way to regulate my work schedule more significantly, perhaps by teaming with lawyers who could handle a more significant travel load.

InQ.: So, what happened?

Roxanne: At some point, after having three kids, I simply realized that for our family, I needed to be more present. Although every family is different, my kids needed me to commit to a career path that would require less travel. My law practice at Morrison & Foerster absolutely and justifiably required significant travel responsibilities. My initial plan was to do contract work for lawyers until the kids were a bit older. I was able to start doing contract work pretty much right away, mostly for my former law partners.

InQ.: How did that go?

Roxanne: The plan worked, but I wasn’t satisfied without having more entrepreneurial, creative input into my work. So, I started looking around for a more committing framework, with less travel obligations—something more focused and sustained than project work, with long-term goals, and seeing matters or ideas through to completion. Contract work often doesn’t fill that need. Meanwhile, I missed practice in Big Law terribly—and I still miss it. The quality of practice and the caliber of my colleagues were unmatched. I’ll never find more fulfillment in a job than I did at Morrison & Foerster, including my several years as its Denver managing partner. I thought many times about re-engaging in the practice, but I knew the travel obligations would overwhelm me and my family.

InQ.: It seems that you gave some thought to reversing course; did you do so?

Roxanne: No, I didn’t, but I changed course again to find something more committing. In 2007, I left the practice of law and joined a national legal recruiting firm, to start their division for Lateral Partners and Firm Mergers. I grew that division very profitably. However, over time, I recognized that adding owners to law firms was not a staffing issue, but a strategic one. I exited the recruiting world to join the consulting world in 2011. I currently own EvolveLaw, a strategic consulting LLC, helping law firms set and execute growth strategies (including mergers and acquisitions) and refine their business models in a changing and challenging legal services marketplace. I also am a managing director with Catapult Growth Partners, a professional services consulting group that provides strategic planning, business development, and executive recruiting services.

InQ.: Some obstacles that lawyers face when retreating from full-time practice include not being able to imagine life not practicing law full-time, fearing not being able to fill the time, and dreading not having enough money. What do you think of each of these suggested impediments?

Roxanne: For me, there are always creative professional possibilities; I’ve never felt limited to practicing law, or concerned about how to fill my time. Being valued financially and professionally is important, so of course I have felt some need to use my gifts and experience well to serve and be compensated appropriately.

InQ.: How did your significant other react during the course of you exploring options other than the full-time practice of law?

Roxanne: Despite being by nature somewhat less entrepreneurial than I, my spouse has been fabulously supportive while I’ve remade myself professionally.

InQ.: Did any tensions arise between you and others, including your children, co-workers, and significant other, as a result of you withdrawing from the full-time practice of law?

Roxanne: No.

InQ.: Looking back, what, if anything, would you do differently?

Roxanne: I would think more entrepreneurially and creatively right away, instead of “ramping down” my practice by doing contract work.

InQ.: What assumptions did you make that turned out to be mostly or wholly incorrect?

Roxanne: I assumed my highest and best use would be in legal practice, when my training and gifts were in fact suited for a broad range of possibilities.

InQ.: How happy were you when practicing law full-time versus how happy are you now?

Roxanne: I loved the practice of law; but I’m also very happy now, using my many years of practice and management and my strategic thinking skills to help firms position well in the market.

InQ.: How much did financial considerations influence your decision to retreat from the full-time practice of law?

Roxanne: Not at all.

Is There a Better Exit Strategy Than Death?—Part I: The Interviews: Kyle Velte—Less Stress, More Time With Her Children

Editor’s Note: This article appeared in the August 2014 issue of The Colorado Lawyer. This is the second part of a 5-part series on Legal Connection. Click here for the introduction, and stay tuned for more interviews.

Sandgrund-VelteBy Ronald M. Sandgrund, Esq., InQ.

The Inquiring Lawyer (InQ.): Kyle, how old were you when you first felt that practicing law was what you wanted to do as a career?

Kyle: I did not think about practicing law until after college and I entered the working world. I had planned on being a college professor, and I was taking a few years off before applying to PhD programs. I worked at the National Organization for Women in Washington, DC, where one of my jobs was to run the internship program. As part of that program, I took interns to a U.S. Supreme Court argument. One of the arguments I saw was Romer v. Evans. When I saw Jean Dubofsky argue on behalf of the gay, lesbian, bisexual, and transgender plaintiffs, I then and there decided to go to law school and become a lawyer.

InQ.: How old were you when you started practicing law full-time?

Kyle: I had two judicial clerkships after law school—one at the age of 28, the other at 30. (I completed an LLM in between clerkships.) I entered a firm when I was 31.

InQ.: How long did you practice law full-time?

Kyle: Nine years.

InQ.: How old were you when you first had any serious thoughts about exiting the full-time practice of law? Did something in particular prompt this thought?

Kyle: A few years into practice—around the age of 35—I began thinking about exiting to teach law. My pre-law school plan had been to be a college professor, so teaching law always loomed in the back of my mind as something I would like to do.

InQ.: How old were you when you first started making concrete plans to exit the full-time practice of law, and what was your thought process?

Kyle: When I was 40 years old (eight-and-a-half years into practice), I had the chance to teach an adjunct class at the University of Denver School of Law (Denver Law). I did that while continuing to practice full-time. I loved teaching. My thought process was to try adjunct teaching first, before deciding to make the big move, to see if I really did like it as much as I expected to. I did.

InQ.: Why did you want to leave the full-time practice of law?

Kyle: For several reasons. Although I was in a regional, mid-sized litigation firm, where my focus was commercial litigation, with fantastic colleagues and interesting and engaging work, I was growing tired of litigation as a whole. The constant conflict and stress, the travel, and the unpredictable and sometimes very large number of hours (particularly around trial) began to wear me down. In addition, I have children and wanted a more consistent, less stressful job to spend more time with them.

InQ.: Did you develop any sort of plan as to how to accomplish this goal?

Kyle: My plan was to try to teach as an adjunct first. I was able to do that, which in turn led me to my current position at Denver Law.

InQ.: How long did you expect it would take you to implement your plan?

Kyle: I wasn’t entirely sure. I had planned to continue teaching as an adjunct while practicing for at least as long as it took me to write and publish a law review article, which is highly encouraged to enter academia. However, I didn’t have to wait even that long, because my current position opened just a few months after I finished teaching my first adjunct class. I just got lucky on timing. The position I’m currently in opened in the fall of 2011, and I finished teaching my adjunct class in April 2011. I saw the opening, applied, and by November 2011, I was a full-time faculty member of Denver Law’s Legal Externship Program.

InQ.: What sort of obstacles cropped up, if any, impeding the plan’s implementation?

Kyle: The biggest obstacle was financial: figuring out how to manage a significant pay cut.

InQ.: How well did you manage this obstacle, and what strategies did you employ?

Kyle: I worked with a financial planner and figured out a way to make the financial transition.

InQ.: At any point in the process of implementing your plan, did you think about reversing course?

Kyle: Only briefly, when the financial obstacle had not been overcome. But I never reversed course. Except for a pro bono matter that ended in March 2013, I have not practiced law since November 2011.

InQ.: Some say that the biggest obstacle to retreating from the full-time practice of the law is the inability to imagine what life would be like not practicing law full-time. Others say it is a fear of not being able to fill the time. Still others say it is a concern of not having enough money later in life. What do you think of each of these suggested impediments and how, if at all, did they affect your thinking?

Kyle: The first two concerns never entered my mind. I knew that I would find enjoyable and fulfilling work in teaching law. The money issue was the biggest challenge, and it gave me great pause.

InQ.: How did your significant other—if you had one—react during the course of exploring options other than the full-time practice of law?

Kyle: As a single parent without a significant other, making this change was a particular challenge for me. No matter how wonderful a private firm is, litigation never stops, and when you’re in trial, everything else in your life comes to a standstill. Now that I am out of practice, I have a very predictable schedule; my stress level is way lower (which makes me a better parent); and I’m much more involved in my kids’ lives, volunteering in the classroom, chaperoning field trips, being home at night to help with homework, etcetera.

InQ.: What sort of activities have you embraced to fill the time you formerly devoted to the full-time practice of law, and how satisfying have those activities been?

Kyle: I still work full-time, so there is no need to fill any time. In addition, because I am no longer a litigator and no longer have a billable-hours requirement, I have been able to do more than when I was practicing. I now sit on four boards of directors and I am active in specialty bar associations.

InQ.: During your decision-making and decision-implementing process, what mistakes, if any, do you feel you made?

Kyle: Looking back, I don’t have any regrets and don’t feel like I made any mistakes.

InQ.: What, if anything, would you do differently?

Kyle: Nothing!

InQ.: What assumptions did you make that turned out to be mostly or wholly incorrect?

Kyle: I had assumed that it would be difficult to find an opportunity outside practice that would still be engaging to me and also one for which I would be qualified. However, I also assumed that if I were to find such a position, I would be able to find a fulfilling and satisfying professional experience outside practice. The first assumption was wrong: there are, contrary to my assumption, many non-practice opportunities that are engaging, interesting, and fulfilling, and for which practicing attorneys will be given serious consideration. My assumption that I could be professionally satisfied outside practice was completely accurate. In fact, I’m more satisfied now.

InQ.: Did any tensions arise between you and others, including your children, as a result of you retreating from the full-time practice of law?

Kyle: No.

InQ.: How happy were you when practicing law full-time and how happy are you now?

Kyle: I was content while practicing and sometimes happy. I am extremely happy with my career now, and often think to myself: “I really love my job and am so lucky to have it.”

InQ.: How much did financial considerations influence your decision to retreat from the full-time practice of law?

Kyle: As noted above, it was an obstacle—and a scary one—but I overcame it and have learned lessons about what I really need to be happy.

InQ.: In retrospect, did you give financial considerations too much, too little, or just the right amount of weight?

Kyle: Just the right amount.

InQ.: How, if at all, did having children affect your decision-making process?

Kyle: It impacted it for sure, because I had to make sure that I could still provide for them. Once I figured that out, I knew that leaving the practice of law would be a big benefit to them, as well as to me.

The InQuiring Lawyer: Is There a Better Exit Strategy Than Death?—Part I

Editor’s Note: This article appeared in the August 2014 issue of The Colorado Lawyer. This is the first part of a 5-part series on Legal Connection. Stay tuned for the interviews.

SandgrundIntroduction to Part I of the Dialogue

by Ronald M. Sandgrund, Esq., InQ.

This two-part article discusses an issue all lawyers must face during their careers: developing and deploying an exit strategy. This can mean exiting one practice area for another; transitioning from the law to a different career; accommodating the demands of raising a family; and slowing down or retiring near the end of one’s career. This article explores the issue through the eyes of two groups of lawyers: the first group transitioned from the day-to-day practice of law to a different job; the second group sought to reduce their hours either to accommodate family needs or as they travelled the long and winding road to retirement.

Although it is easy for me to reflect on the extraordinary blessings my legal career has afforded me—I basically worked for the same law firm and with the same terrific people for thirty years—there were more than a few times when I wanted to run for the hills. One time came when I noticed a small, balding spot in the back of my head due to a nervous habit I had developed of unconsciously twisting and plucking out my hair. With this incontrovertible evidence in hand, I worried that my job was ruining my mental and physical health. Then, my firm’s revenues dropped by 70% over thirty-six months due to sea changes that were occurring in our insurance defense practice. At the time, it appeared like a good opportunity to make a change, but I could imagine no exit strategy that seemed feasible. How would working at another firm change anything? At least I was a partner in my current firm, which allowed me greater control over my life—but which also burdened me with sometimes crushing managerial and financial worries. Also, what skills did I have that would have transferred to a job outside the law? Zero: I had gone straight from college to law school, and practicing law was all I knew.

In the end, I was very lucky. My law partners and I effectively doubled down on our law practice (that is what gamblers do, right?), jumping from the defense bar and into the strange new world of a plaintiff contingency-fee practice. In my twelfth year of practice, at age 36, I realized that the last thing I wanted to do was work for someone else or work with anyone else. I also recognized that I had developed a civil trial skill set that, if refocused, could still bring me joy and, hopefully, reward.

My wife and I adopted austerity measures that I found liberating rather than constraining. Eight years and a lot of good fortune later, things had come full circle. I sat down with my law partner and told him I wanted to map out a five-year exit strategy (which took seven years to implement). Later, I realized there was so much that I enjoyed about practicing law that we agreed to lengthen the exit ramp. I still practice some today, as of counsel with an energetic and skilled group of attorneys in a newly merged law firm—and my little bald spot has (mostly) grown back in. I also teach occasionally at Colorado Law, have written much short fiction (which I am trying to get published), started this column, travel to places I thought I’d never see, and I am working really, really hard on my tennis backhand—the last, always a work in progress (and now a greater challenge with an artificial hip and a reconstructed knee).

The story of every lawyer I spoke to is different; however, the moral of those stories is the same: there are many, many better exit strategies than death. For those who want to “jump to the chase,” I will tell you right up front that all the people I spoke to were happy to have employed their exit strategies. Not a single one of them left the full-time practice of law with any serious regrets.

Is There a Better Exit Strategy Than Death?—Part I

Some view practicing law like the Hotel California, a place “you can check out anytime you like, but you can never leave,” and where the guests are “all just prisoners here, of [their] own device.”[1] I spoke at length to eight lawyers over the past year, each of whom sought to exit the full-time practice of law, either early on, in the middle of, or near the end of their legal careers. Their reasons for exiting were personal to each, and none was provided a road map on how to accomplish this goal. All enjoyed the practice of law, but each saw the need to develop an exit strategy. By “exit strategy” I mean a change from the status quo, but not necessarily leaving the practice of law entirely—although for many, this is exactly what it entailed. For example, one lawyer with whom I spoke, Sue Borgos, practiced law for ten years, and then transitioned to information technology (IT) for twenty years. She ran her own IT company for the last nine of those twenty years before being hired as a territory manager for a national IT firm. Sue told me that she firmly believes her law degree was not wasted, nor was her time as an attorney, and that she still uses the skills she gained as a lawyer in many different ways on a regular basis.

None of the lawyers I spoke to found a “how to” book on transitioning effectively. For each, it was dynamic process; they learned as they went along. Based on what they shared with me, the keys to their accomplishment included:

1) recognizing that a change was necessary to make their lives more fulfilling;

2) imagining how their world would be after they had made such a change;

3) making and implementing a plan to effect this change; and

4) clearly communicating their desire for change to those around them.

In this Part I, we talk to four lawyers who sought a change of scenery outside the day-to-day practice of law. In Part II, we will talk to four lawyers who sought a reduction in workload on the road to retirement.

 

 


[1] From “The Hotel California,” by the Eagles, words by Don Felder, Don Henley, and Glenn Frey (1977). Having grown up in the 1970s and 1980s, I am most familiar with the Eagles’ lyrics; but every generation’s music seems to repeat their themes.