Colorado Lawyer: April 2020 by Colorado Lawyer

APRIL 2020

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TABLE OF CONTENTS April | Vol. 49, No. 4 | www.cobar.org

COLORADO LAWYER, THE OFFICIAL PUBLICATION OF THE COLORADO BAR ASSOCIATION, SERVES AS AN INFORMATIONAL AND EDUCATIONAL RESOURCE TO IMPROVE THE PRACTICE OF LAW.

EDITORIAL OFFICES

1290 Broadway, Ste. 1700 Denver, CO 80203 www.cobar.org/tcl Susie Klein, Managing Editor (303) 907-1828, sklein@cobar.org Jodi Jennings, Legal Editor (303) 824-5326, jjennings@cobar.org Kate Schuster, Graphic Designer (303) 824-5312, kschuster@cobar.org ADVERTISING

Jessica Espinoza advertising@cobar.org MEMBERSHIP SERVICES/ ADDRESS CHANGES

The SECURE Act

Teri Roberts, Membership Services Coordinator (303) 824-5376, troberts@cobar.org COLORADO LAWYER BOARD

Kathryn Starnella, Chair Denver—(303) 813-6589 kstarnella@warllc.com Chris Levkulich, Vice Chair Denver—(303) 861-4154 clevkulich@lektax.com Joseph G. Michaels, Secretary Denver—(720) 508-6460 joseph.michaels@coag.gov

PAGE

James S. Witwer, Immediate Past Chair Denver—(303) 892-7478 james.witwer@dgslaw.com

FEATURES

Michael Blasie Denver—(303) 244-1994 mblasie@gmail.com

ALTERNATIVE DISPUTE RESOLUTION

REAL ESTATE LAW

A Digital Door to Justice or Pandora’s Box? Part 3

An Essential Tool in the Affordable Real Estate Toolbox

Online Dispute Resolution

Amy C. DeVan Denver—(720) 625-5697 devanamy@gmail.com

Community Land Trusts

Adam Espinosa Denver—(720) 337-0831 adam.espinosa@denvercountycourt.org

by Doug McQuiston and Sharon Sturges

by Erin Clark

PAGE 26

PAGE 36

APPELLATE LAW

TRUST AND ESTATE LAW

Lindsay J. Miller Castle Rock—(303) 688-3045 miller@ffcolorado.com

by Christopher Jackson

Impact on Estate Planning with Qualified Retirement Plans and IRAs

Jennifer Seidman Denver—(303) 792-5595 jseidman@burgsimpson.com

Horizontal Stare Decisis PAGE 32

David W. Kirch Aurora—(303) 671-7726 dkirch@dwkpc.net

The SECURE Act by Emily L. Bowman

Patrick R. Thiessen Arvada—(303) 420-1234 prthiessen@friearndt.com

PAGE 42

Jami Vigil Colorado Springs—(719) 452-5401 jami.vigil@judicial.state.co.us Amy Larson CBA Executive Director and CEO

ON THE COVER: “Camo Owl.” Tom Van Buskirk took this early morning photo of a male great horned owl in

Cherry Creek State Park in February 2019. The owl was roosting high in a cottonwood tree against a bluebird sky, with his head turned 180 degrees to check on a gang of noisy crows. The tree trunk is behind, its line blending into the owl’s tail feathers as he sits on a large perpendicular branch. Van Buskirk is a claims attorney with Church Mutual Insurance Group in Greenwood Village.

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WELCOME 4

CBA President’s Message

It’s Your Problem, Too: Gender Bias and the Legal Profession by Maya Kane and Jessica Yates

Mailbag

From Our Readers

DEPARTMENT 11

Colorado Lawyers for Colorado Veterans: A Walk Down the Legal Yellow Brick Road by Sabra Janko

Colorado Supreme Court Office of Attorney Regulation Counsel

Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition

Kathleen Hearn Croshal President

Disciplinary Case Summaries 74

Jessica Brown President-Elect

U.S.

Court of Appeals for the Tenth Circuit

John Vaught Immediate Past President

Summaries of Selected Opinions 78 Colorado

Court of Appeals

94 Colorado

Supreme Court

Ryann Peyton Vice President First Region

Summaries of Published Opinions

Historical Perspectives An Innocent Man? The Russell Boles Case by Frank Gibbard

SERIES

OFFICERS

of the Presiding Disciplinary Judge

Wellness

Is Work/Life Balance the Right Goal? by Lisa Hogan

Alexis King Senior Vice President Second Region

Summaries of Published Opinions

Judson Hite Vice President Third Region

ALSO IN THIS ISSUE 98 Attention

Executive Council

72 Office

Access to Justice

COLUMN 17

FROM THE COURTS

100 Membership 102

Cobea Becker Vice President Fourth Region

Photographers Perks

Keith Vance Vice President Fifth Region

Writing for Colorado Lawyer

Leslie German Vice President Sixth Region

UNDER OATH 104

Member Spotlight

Leslee Balten Vice President Seventh Region

AROUND THE BAR 51 Bar

News

News From the CBA, Local Bars, and More

COUNCIL MEMBERS

Melanie Bartlett At Large Member

by Jessica Espinoza

56 Bar

News Highlight

Writing the Next Chapter of IAALS

by Scott Bales

Lawyers’ Announcements

Amanda Hopkins At Large Member Ian McCargar At Large Member Michelle McCarthy Section Representative Kevin McReynolds DBA President

64 In Memoriam

Kimberley Neilio At Large Member Yamini Piplani Grema Diversity Bar Representative Bonnie Schriner Section Representative Ted Tow Section Representative ©2020 Colorado Lawyer and Colorado Bar Association. All Rights Reserved. Colorado Lawyer (USPS 666-270) (ISSN 0363-7867) is published 11 times per year by the Colorado Bar Association, 1290 Broadway, Ste. 1700, Denver, CO 80203. Periodicals postage paid at Denver, Colorado. Postmaster, send address changes to: CBA Membership Services, 1290 Broadway, Ste. 1700, Denver, CO 80203.

Danaé Woody CBA YLD Chair

Permission to print and make limited copies for personal use or within Colorado Bar Association (CBA) members’ law firms of material printed in Colorado Lawyer (CL) is hereby granted, provided that the copyright notice appear in all copies and that the material is used only for informational, educational, and noncommercial purposes. Without the express written permission of the CBA, readers are prohibited from making copies or reproductions of any kind for distribution other than for personal use, or within CBA members’ law firms, of material contained in this publication. Contact the editorial office to acquire the appropriate form. The information in this publication is intended for general guidance and is not meant to be a substitute for professional legal advice. The CBA accepts no responsibility for loss occasioned to any person acting or refraining from action as a result of using any material in this publication. Readers may wish to ask the advice of a lawyer. The CL logo is unavailable for use by any individual or entity other than the CBA. The price of an annual subscription to members of the CBA ($50) is included in their dues as part of their membership and cannot be billed separately. The cost of CL is $150 (annual subscription) or $15 (per issue) for nonlawyers, nonresident lawyers who are not licensed in Colorado, and for-profit organizations (including law firms and law firm libraries); and $50 (annual subscription) or $5 (per issue) for nonprofit organizations and libraries, plus tax and postage if mailed. Changes of address must reach the CBA Membership Services Department by the fifteenth day of the month prior to publication. Appearance of advertisements in CL does not constitute an endorsement or recommendation by CL or the CBA of goods and services offered. CL and the CBA do not independently investigate, evaluate, or authenticate advertiser claims. Articles and advertisements appearing in CL do not necessarily reflect the official position of the CBA; their publication does not constitute an endorsement of views that may be expressed or products or services advertised. Accuracy of citations in articles is the sole responsibility of the authors. For writing guidelines or to submit an article, contact a member of the editorial staff.

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Mary Jo Gross Treasurer Amy Larson CBA Executive Director and CEO

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M It’s Your Problem, Too Gender Bias and the Legal Profession BY M AYA K A N E A N D J E S SICA YAT E S

Introduction I’ve been a mom throughout my 40-plus-year legal career. I was a single parent to two middle schoolers during law school, gave birth to my third child while working as a solo practitioner, and helped raise four stepchildren in our new blended family of seven. Needless to say, work/life balance and gender parity in the legal profession are issues I care deeply about. When I was fresh out of law school, I was asked in multiple job interviews, “Why should we hire you, a single mother, when we can hire a man?” The firms would go on to express concern that I would miss work when my kids were sick. My response was that I would not miss work—as the sole bread winner, I would do what was necessary to get my work done. Still, none of these firms hired me. When my third child arrived early, I called the clerk’s office from the labor and delivery room to advise the court that I needed to reschedule several court dates. After she was born, I planned to keep her at my office for the first months of her life. This didn’t work out because of the number of lawyers who would drop by my office to see the baby. One of the older attorneys actually came into my office one day and said, “I just wanted to see what a woman lawyer looks like.” That was many years ago, yet women lawyers still face gender bias in 2020. To take a look at where we stand today, I’ve placed this month’s message in the capable hands of Maya Kane and Jessica Yates. They discuss why women disproportionately leave the legal profession, why this trend is harmful to the entire profession, and how we can help reverse course and achieve inclusivity and equality within our own legal organizations. —Kathleen Hearn Croshal

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aya’s Story: “After earning a graduate degree and working as a scientist, I switched careers to law. I felt fortunate to find a position working for a small firm in Southwest Colorado on federal voting rights litigation on behalf of underrepresented communities. When I started, my son was 10 months old. At the time, I was the only female attorney at the firm with an infant, balancing work with caretaking responsibilities. During my six years at that firm I was routinely the target of comments from the senior partner who served as my direct supervisor. For example, when I worked up the courage to tell him I was pregnant with my second child, he responded, “Not again!” When I advocated for careful scrutiny of a contract involving child vaccinations, he dismissed my concerns saying, “Don’t let your maternal instincts get in the way of your legal judgment.” Almost weekly, the partner asked me if I had “put my kids on eBay yet?” While the comments were flippant, the implication was clear: my identity as a woman and a mother was viewed as deleterious to my practice. When I expressed my concerns to other partners in the firm, they were dismissive, even mocking. Ultimately, I resigned and started my own practice, which has been rewarding, but my decision to leave came at a high cost. In addition to significant financial consequences, I left behind work that I loved and relationships with clients that had taken years to build. But I had arrived at a moment where remaining was untenable. While I knew that the firm’s culture was deeply flawed, I did not have the experience, confidence, and seniority to change it.” Unfortunately, Maya’s account is not unique. Gender bias and discrimination pervades the legal profession. Despite many advances, substantial gender disparities persist. Women lag far behind men in compensation and other critical metrics of success, including positions of leadership and power in law firms. Women disproportionately face bullying, tokenism, and subconscious bias, especially around motherhood and caretaking. We face a demographic crisis in the legal profession: women are leaving the practice of law in droves. As women are sidelined, we lose

the talent and skills of excellent attorneys, often fully trained and experienced. Equally important, when women leave we lose their voices and the opportunity to meaningfully change our professional culture because the absence of women “at the table” reinforces existing cultural norms. Below, we explore these issues in greater depth and offer recommendations for the legal community, including law firms, to foster institutional and cultural change. Pay and Power Disparities It is incontrovertible that women have a desire to practice law. The percentage of women attending law school began a marked increase in the 1970s, approaching 50% in the early 2000s.1 After some fluctuation, the last five years have seen women outnumber men in law school, and the gap is widening.2 In 2018, the percentage of women law students was 52.4%.3 Upon graduating, women enter the legal profession in roughly equal proportion to men, comprising between 45% and 50% of all first-year associates.4 But this is where parity ends. Women begin leaving the profession in their thirties, and the attrition steadily continues through retirement age.5 By contrast, male attorneys reach peak demographic representation in the profession in their thirties and maintain consistent numbers until retirement. (See Figure 1.) Given these dynamics, it’s not surprising that men outnumber women nearly 2 to 1 in the legal profession.6 Gender disparities extend far beyond demographic representation. Nationally, women lag behind men in critical metrics of professional success. Women are underrepresented in positions of power in law firms, where they comprise just 22.7% of partnerships and 19% of equity partnerships.7 Likewise, fewer women are promoted: 141 men are promoted to partner for every 100 women who are promoted.8 Women are similarly underrepresented in positions of leadership, where they make up just 25% of management committees and practice leadership.9 Women are underrepresented in non-firm leadership too, including positions of general counsel (30%), general counsel for fortune 501–1,000 (23.8%), law school deans (35%), and the judiciary, where in 2019 only 27% of all federal judges were women.10

Figure 1. Active attorneys licensed by the state of Colorado by gender and age between 2014 and 2018. Source: Office of Attorney Regulation Counsel 2018 Annual Report, www. coloradosupremecourt.com.

Gender disparities are magnified in compensation, especially in private practice. Women earn less than men at all levels, beginning as early as law school graduation and increasing over time.11 Female lawyers earn on average 20% less than male lawyers, a wage gap that has remained relatively consistent since at least 2002.12 A 2017 survey reported that male partners annually earned $959,000 on average compared to $627,000 for female partners, a 53% difference.13 The partner wage gap has increased in the last five years (up from 48% in 2014).14 How the Culture of Law Drives Women Out The significant attrition rate for women lawyers is inextricably tied to the culture of the practice of law—both as a reason for why women leave (and don’t return to) the profession, and the resulting impact on the profession.15 A 2019 study by the American Bar Association (ABA study) found that while 75% of senior women lawyers (practicing 15 or more years) experienced demeaning comments, stories, or jokes, only 8% of senior men lawyers reported such experiences. 16 Similarly, a 2019 International Bar Association study (IBA study) found that 63% of female respondents in the United States reported being

bullied versus 38% of male respondents.17 The same study found that 54% of women in the legal profession in the United States reported being sexually harassed versus 11% of men.18 The study’s author concluded: “Lawyers who are bullied or harassed are unlikely to perform at their best; this survey indicates that they leave their workplaces and, in some cases, the profession altogether.”19 Indeed, in the IBA study, 63.4% of respondents stated that bullying would contribute to leaving their workplace, and 14.2% affirmed as much as to leaving the profession.20 As to sexual harassment, the survey reported similar effects: 35.4% said it would contribute to leaving the workplace, and 7.5% said as much for leaving the profession.21 And the ABA study found that 24% of senior women lawyers reported that sexual harassment or retaliation were very or somewhat important reasons for leaving their firms.22 Women who are mothers or caregivers face an often overlooked but insidious form of discrimination in the legal profession. When women become pregnant, bear children, or return part-time or on a flexible schedule after having children, they confront the “maternal wall,”23 a term for unconscious or implicit bias stemming from the assumption that attorney A PR I L 2 0 2 0

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mothers are less committed to their careers, are unable to expend sufficient hours to work on complex cases, or are generally unable to meet demands for work and travel.24 Women who work on a flexible schedule are perceived as disloyal, unreliable, and lacking ambition. These same assumptions are not applied to attorney fathers. Indeed, managing partners tend to assign more complex matters and matters requiring travel and irregular hours to men.25 Even where women attorneys rely on “family friendly” policies, they report a perception that taking advantage of such programs jeopardizes their chances for promotion and professional success.26 This systemic bias has significant financial consequences, with women earning 80 cents for every dollar their male counterparts make.27 Working attorney mothers, who often bear the majority of caretaking responsibilities (i.e., school pickups, transportation to after-school activities, sick days, doctor’s appointments, etc.), and the associated “mental load” that this entails, are further disadvantaged by law firms that focus on narrow measures of success (such as billable hours) and employ stringent requirements for time spent in the office (either codified or in practice). These rigid structures disadvantage attorney mothers who require a measure of flexibility and autonomy over their schedule. Other aspects of private practice contribute to the 2:1 ratio of men-to-women in private practice. The ABA study found that while caretaking commitments were cited by a greater percentage of survey respondents than any other category of reasons for leaving a firm, this was followed closely by work stress, an undue emphasis on marketing or business origination, and the required number of billable hours.28 As with conduct-based problems affecting women lawyers, these other factors impact the culture of firms and the profession as a whole. As the authors noted: “Law firms devote substantial resources to hiring and training their lawyers, and the attrition of senior women lawyers causes substantial losses, both tangible and intangible.”29 Firms lose when women depart. Estimates of financial loss to firms when an associate departs range between $200,000

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and $600,000, or roughly 1 to 1.5 times the associate’s salary.30 Change is Possible For decades, organizations and scholars have sounded the alarm about women leaving the practice of law. Given the pervasive and insidious nature of gender bias in the legal profession, how do we move the needle toward inclusivity and equality? Changes are needed at every level of the profession to provide women with the same opportunities and support that men have historically experienced in developing their practices. At the same time, we have to be responsive to the unique experiences and needs of professional women. First, the legal profession must own the fact that gender disparities result in large part from gender stereotypes, and make a clear commitment to deconstructing those stereotypes.31 Legal employers, specifically law firms, must expressly assess the impact of their policies and practices on women lawyers, and commit to countering or eliminating policies that have a disparate impact on women.32 Employers can engage a neutral professional to evaluate critical metrics of gender equality and inclusivity within their organizations. Those metrics should include whether women are adequately represented at partnership, management, or leadership levels. And as part of that commitment to women, legal employers should encourage feedback—protected from retaliation—so women attorneys have an opportunity to relay experiences to management (apart from annual professional reviews). Second, legal employers, and all lawyers, should commit to eliminating the bad behavior—whether bullying, harassment, or demeaning comments—that disproportionately affects women and can make the practice of law miserable for everyone encountering the behavior. All communities of lawyers should codify a commitment to civility, whether in bar associations or law firm policies. Finally, legal employers should invest in women-focused mentorship and coaching programs, particularly in firm environments. Employers can help counter family-related impacts—and also help level the perceptions

about parent-lawyers—by offering flexible and remote work programs for all attorneys, establishing gender-neutral parental leave policies, and ensuring there is no real or perceived financial or career-related penalty for attorneys who take advantage of these programs. Employing these practices serves to ensure that women lawyers stay at the table and are part of the much-needed change in our profession.

Maya Kane is an attorney with Southwest Water and Property Law LLC in Durango. Her practice focuses on protecting public lands, conserving wildlife, and securing governmental transparency with respect to environmental policies and practices. She also spent six years litigating federal voting rights cases on behalf of Native American tribes in Southern Utah. Jessica Yates is Attorney Regulation Counsel for the Colorado Supreme Court. She oversees attorney admissions, attorney registration, mandatory continuing legal and judicial education, attorney discipline and diversion, regulation against the unauthorized practice of law, and inventory counsel matters. Before her Colorado Supreme Court appointment, Yates was in private practice as a partner at Snell & Wilmer LLP, focusing on appeals and litigation.

NOTE S

1. ABA Profile of the Legal Profession (2019), https://www.americanbar.org/news/reporter_ resources/profile-of-profession. 2. Id. 3. Id. 4. Liebenberg and Scharf, Walking Out the Door: The Facts, Figures, and Future of Experienced Women Lawyers in Private Practice (ABA Book Pub. 2019). 5. Sterling and Reichman, “Navigating the Gap: Reflections on 20 Years Researching Gender Disparities in the Legal Profession,” 8 FIU L. Rev. 515 (2013). 6. ABA Profile of the Legal Profession, supra note 1. In Colorado, 38% of attorneys in private practice are female and 62% are male. See also Colorado Supreme Court Office of Attorney Regulation Counsel 2018 Annual Report at 2, http://www. coloradosupremecourt.com/PDF/AboutUs/ Annual%20Reports/2018%20Annual%20 Report.pdf. 7. ABA Commission on Women in the Profession, A Current Glance at Women in the Law (Apr. 2019), https://www.americanbar. org/content/dam/aba/administrative/women/

current_glance_2019.pdf. 8. Brodherson et al., Women in Law Firms (McKinsey & Co. Oct. 2017), https:// www.mckinsey.com/~/media/mckinsey/ featured%20insights/gender%20equality/ women%20in%20law%20firms/women-inlaw-firms-final-103017.ashx. 9. Id. 10. ABA Profile of the Legal Profession, supra note 1.

attorneys of color; however, research supports that women lawyers of color disproportionately experience the effects of gender bias. The authors believe this is a topic that needs to be explored in greater depth in its own right. 16. Liebenberg and Scharf, supra note 4. 17. Pender, “Us Too? Bullying and Sexual Harassment in the Legal Profession” at 98 (IBA May 2019).

26. ABA Commission on Women in the Profession, Charting Our Progress: The Status of Women in the Profession Today (2006). 27. National Women’s Law Center Fact Sheet: Frequently Asked Questions About the Wage Gap (Sept. 2018), https://nwlcciw49tixgw5lbab.stackpathdns.com/wpcontent/uploads/2018/09/Wage-Gap-FAQ. pdf. 28. Liebenberg and Scharf, supra note 4.

11. Sterling and Reichman, Overworked and Undervalued: Women in Private Law Practice, 12 Annual Rev. L. Soc. Sci. 373 (Oct. 2016).

18. Id. at 98.

29. Id.

19. Id. at 7.

12. ABA Commission on Women in the Profession, supra note 7.

21. Id. at 67.

30. Poll, Is Your Overhead Too High? The Factors Involved in Reducing Law Firm Overhead Costs (Aug. 7, 2014), https://www.cba.org/Publications-Resources/ CBA-Practice-Link/2015/2014/Is-YourOverhead-Too-High-The-Factors-Involved-in.

13. Lowe, Partner Compensation Survey (Dec. 6, 2018), https://www.mlaglobal.com/en/ knowledge-library/research/2018-partnercompensation-report. 14. Lowe, Partner Compensation Survey (Sept. 10, 2014), https://www.mlaglobal.com/en/ knowledge-library/research/compensationsurvey-2014. 15. This article does not explore the unique experiences of lawyers of color, especially the impact of the legal culture on women

20. Id. at 48. 22. Liebenberg and Scharf, supra note 4. 23. Williams and Segal, “Beyond the Maternal Wall: Relief for Family Caregivers Who Are Discriminated Against on the Job,” 26 Harv. Women’s L.J. 77 (2003).

31. Sterling and Reichman, supra note 5. 32. Liebenberg and Scharf, supra note 4.

24. Sweeney, The Female Lawyer Exodus (2016), https://www.debbieepsteinhenry.com/ wp-content/uploads/2016/03/DEH_The_ Female_Lawyer_Exodus.pdf. 25. Sterling and Reichman, supra note 11 at 383.

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A SEAT ON OUR BOARD? Help shape the future of the CBA’s official publication by serving on the Colorado Lawyer advisory board. To be eligible, you just need to be a CBA member who enjoys reading and talking about Colorado Lawyer. If this sounds like you, please email your résumé to Susie Klein, managing editor, at sklein@cobar.org. The application deadline is May 1. Board members meet quarterly, either in-person or by phone, and serve a three-year term.

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From Our Readers Colorado Lawyer welcomes reader feedback. Letters are published with their sender’s consent and may be edited for clarity, length, or grammar. The opinions expressed are those of the sender and do not necessarily represent those of the CBA or the sender’s employer. Please send feedback to Susie Klein at sklein@cobar.org, or contact article authors directly.

The InQuiring Lawyer, by Ron Sandgrund (Jan.–Mar. 2020)

Ron, I am loving your entrepreneurial lawyer series! The first two articles have caught and held my attention and have resonated deeply with me— part 2 especially so. Both lawyers you profiled talk about the importance of your network and your relationships—with mentors, colleagues, and clients—as being fundamentally critical to success. This has been a topic near and dear to my heart. I truly think I am where I am in the legal profession because I networked and, as Christina Saunders said, that wasn’t about the number of people on my list, but rather the deep and lasting connections I had with each of those people. My first role with WTO was the result of networking relationships I made here before joining! I can’t say enough about how important it is. I also thought Rex O’Neal’s discussion of failure was critical. Failure goes hand in hand with success! When I left government practice and started out on my own it was with a big idea,

Legal Enemy No. 1, by Sarah Myers (Feb. 2020)

one I still believe in, but I was also a crash and burn small business failure. Thankfully I failed up, because doing what I did demonstrated to the people in my network what I was about and how strongly I believed in my area of law, and that led them to think I was worth taking a risk on. Every time I speak publicly, especially to young lawyers, or meet people for mentoring conversations I always talk about my professional journey. Far too many of us are not open about our failures, and that leads others to be afraid of risk, or to think if they risk and fail they are all alone in that. Talking about it helps us support and lift each other up and encourage each other to keep trying. I’m looking forward to part 3. Keep up the great work!

Dear Editor: A funny thing happened on the way to reading the marquee articles in your February edition: I stumbled across, inter alia, “Legal Enemy No. 1,” by Sarah Myers. Her article provided a brief, welcome opportunity to reflect on the personae we adopt in the practice and profession. Thank you for publishing it. Harold E. “Wynn” Miller Miller Law Office LLC

Amy DeVan Executive Director, Wheeler Trigg O’Donnell LLP

Case Summaries and Captions from the Colorado Supreme Court and Court of Appeals Case announcement sheets and published opinions are delivered to your inbox within hours of release from the courts. Summaries are available within 72 hours. Sign up at cobar.org by clicking on “My Cobar.” Then, click on “Sign up for and unsubscribe from CBA listservs.” Questions? Contact membership@cobar.org or call 303-860-1115, ext. 1.

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DEPARTMENT | SUB TITLE

METRO VOLUNTEER LAWYERS MAKE A DIFFERENCE MVL’s mission is “to bridge the gap in access to justice by coordinating the provision of pro bono legal services by volunteer lawyers within the Denver area to people who could not otherwise afford legal services for their civil legal issues.”

Pro bono attorneys can make a difference.

denbar.org/mvl 303-830-8210 Volunteer today. 10

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DEPARTMENT | ACCESS TO JUSTICE

Colorado Lawyers for Colorado Veterans A Walk Down the Legal Yellow Brick Road BY S A BR A JA N KO

he CBA runs two impressive legal clinics for veterans: the Colorado Lawyers for Colorado Veterans Legal Clinics in Denver and Colorado Springs. Both clinics were created by CBA Immediate Past President John Vaught and former CBA Director of Public Legal Education Carolyn Gravit. The CBA’s Amy Sreenen and Ashley Staab currently carry the torch for the clinics and run the CBA Military and Veterans Affairs Section. The clinics are greatly valued by Colorado veterans. Due to our nation’s access to justice crisis, many veterans struggle to obtain the assistance of counsel for their legal matters.1 Areas where veterans frequently need legal assistance include eviction and foreclosures, outstanding warrants and fines, public benefits, guardianship, consumer debt, criminal records, divorce, child support, and child custody.2

Veterans Legal Needs and Challenges According to the Veterans Administration (VA), between 11% and 20% of veterans who served in Operations Iraqi Freedom and Enduring Freedom have post-traumatic stress disorder (PTSD). 3 This can make them particularly vulnerable to joblessness and homelessness. In addition, many veterans find it difficult to transition to civilian life and to connect with friends and family back home.

Homelessness The U.S. Department of Housing and Urban Development estimates that about 40,000 veterans are homeless on any given night, and over the course of a year, approximately twice that many experience homelessness.4 Significantly, the VA only reimburses shelters for homeless veterans but not their children, which means that homeless veterans with

The U.S. Department of Housing and Urban Development estimates that about 40,000 veterans are homeless on any given night, and over the course of a year, approximately twice that many experience homelessness. children often must choose between staying by themselves in a shelter or living in a car with their children.5 Female veterans are the fastest growing segment of the homeless population.6 The primary causes of homelessness among women veterans include unemployment, disability, A PR I L 2 0 2 0

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poor health, and lack of treatment for PTSD and anxiety issues.7 Many homeless women veterans are trying to cope with mental health issues, substance abuse, and physical and sexual trauma.8 Sexual assault, like domestic violence, cuts across all social classes. Arizona Senator Martha McSally, a female veteran, recently testified to Congress about sexual assault in the military, shared her personal experience with it, and discussed the lack of an effective response from military leadership.9 Transitioning to Civilian Life Military service transitions can be difficult and create legal needs as well. A Pew Study found that veterans who were married and deployed while in the service were significantly more likely than other veterans to have family problems after discharge, and 77% experienced a difficult reentry into the civilian sector.10 The report also noted that women veterans are almost twice as likely to divorce than civilian women.11 Many veterans report that their transition was harder than they expected it to be. A military transition is not a change from one job to another; it’s a change from one culture to another. Despite the challenges of military service, the military is a culture of diversity, teamwork, comradery, and mutual support. It has an established and reliable support structure unparalleled in the civilian sector. For example, in the Army everyone has a “battle buddy”—a person whose job it is to look out for and keep his or her buddy safe. A common expression in the military is “I’ve got your six”—meaning “I’ve got your back.” One veteran, when discussing his military service transition with me, said that he felt like he was transitioning into a “dog eat dog” world. For many veterans, finding their place after transition is not a quick or easy path, and there is often trial and error in finding a new mission. Veterans from all walks of life may experience negative impacts in transitioning from military service. University of Denver Professor Ann Vessels began running the Veterans Advocacy Project after her son transitioned from the military and had to wait a lengthy period of time to receive a VA disability rating and the associated financial support. She stated,

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While pro se litigants may develop a basic understanding of legal issues, they very often trip over procedural hurdles. They also may not know how to communicate with courts in a way that courts can understand and are often unaware of important responsive actions and deadlines.

“Had it not been for us, he’d have been on the streets. That really opened my eyes to the whole issue of homelessness among veterans.”12 In her clinical program, law students assist veterans with VA disability benefits. The Legal Yellow Brick Road Veterans have protected our nation’s freedom, often by leaving their families for a year or more and exposing themselves to danger in combat zones. Yet when they leave the service and face legal troubles, many cannot afford an attorney and must navigate foreign territory without a guide. These veterans, like all pro se litigants, face significant challenges in the court system. Let’s take a walk down their legal yellow brick road.

“Toto, I’ve a Feeling We’re Not in Kansas Anymore!” Although perhaps achieving impressive accomplishments in other areas, when attempting

to represent themselves in the court system, pro se litigants may feel like “Dorothy—the small and meek,” stepping into the Land of Oz, everything uncertain. The judge seems like “the Wizard”—mysterious and all-powerful. “Yes, sir. Yes, your honor. You see . . . a while back, we were walking down the yellow brick road, and . . . ” Opposing counsel seems like the “Wicked Witch of the West.” Pro se litigants search for “Glinda the Good Witch”—pro bono counsel; but for most, she never appears. Gateway to Emerald City—Civil Procedure Pro se litigants often become frustrated by court procedures they don’t understand and that seem overly burdensome. Form seems elevated over substance in a way unparalleled in society as a whole. While pro se litigants may develop a basic understanding of legal issues, they very often trip over procedural hurdles. They also may not know how to communicate with courts in a way that courts can understand and are often unaware of important responsive actions and deadlines. Though the law dictates that pro se litigants be held to the same legal standards as practicing attorneys, in an attempt to even the scales of justice, some judges offer accommodations to pro se litigants; thus, a pro se litigant’s experience in the courtroom may depend on the luck of the judicial draw. Opposing Counsel— The Wicked Witch of the West A significant legal power imbalance is created when one party to an action is represented while the other is not, and that imbalance may dictate the result of a legal conflict irrespective of the merits of a case.13 Opposing counsel may capitalize on a pro se litigant’s lack of legal knowledge in pursuit of zealous advocacy for their client. For example, tactics may be intentionally deployed to delay legal proceedings to cause litigation fatigue: “Poppies will put them to sleep.” Judicial Orders—“Bring Me the Broomstick of the Witch of the West” Pro se litigants may not understand judicial orders and may even perceive them as setting unreasonable requirements.

Bring me the broomstick of the witch of the west I’ve spoken so you will obey Bring me the broomstick and I will grant your request Now do precisely what I say I said go Be off and be on your way Bring me the broomstick of the witch of the west These are your orders now obey14 Pro se litigants often do not understand how to present evidence to a court. Judges must make decisions based on evidence presented to them, and most pro se litigants do not know what evidence to present or how to present it. Pro se litigants are all too often overly inclusive and emphasize the emotionally relevant over the legally relevant. While pro se litigants often have a good instinct for what is right and wrong, there is nothing in their everyday experience that teaches them how to talk about their legal problems through the formal rules of evidence. If they do not speak the court’s language, the court may not understand them nor be able to act in their favor, regardless of the merits of their case. CBA Veterans Legal Clinics The CBA’s veterans legal clinics help fill this gap in knowledge and experience. Carolyn Gravit started the CBA veterans clinics in part be-

“Regardless of how you judge America’s foreign wars, it is incontrovertible that they have exacted a disproportionate price from the young men and women who served in the field.” cause her grandfather was in the military. Her cofounder, John Vaught, served in the military himself and has a son currently serving in the military as a pilot. Denver Legal Clinic The Denver veteran’s clinic has longstanding and dedicated attorney volunteers. Among them is Casey Frank, a regular volunteer at the monthly clinic. Frank lived for while in a

EIDE LIKE I’D LIKE TO KNOW THE ECONOMIC LOSSES FROM A DAMAGING EVENT

Buddhist monastery, and in his legal practice represents community mental health clinicians. He has handled adoptions for active duty military personnel and says that much of what he does at the clinic involves just listening to the veterans share their stories. About his volunteer work, Casey states, “Regardless of how you judge America’s foreign wars, it is incontrovertible that they have exacted a disproportionate price from the young men and women who served in the field. The physical, mental, and financial wounds they suffered may endure throughout their lives. That should motivate all of us to contribute to the well-being of our veterans. Attorneys are especially well-suited to do so, since we are skilled in problem-solving the types of issues endemic to these fellow citizens.” The Denver Legal Clinic is held on the second Tuesday of each month from noon to 2 p.m. at the Bill Daniels Veteran’s Center in the Santa Fe Art District in Denver. Colorado Springs Legal Clinic The newer of the two CBA veterans legal clinics is in Colorado Springs. Ryan Coward, chair of the CBA Military and Veterans Affairs Section, has been running the Springs clinic for two years. Thus far, the Springs clinic has assisted over 650 veterans with 10 volunteers. Ryan has big plans for the Military and Veterans Affairs

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Section. One goal is to increase membership. He kicked off a speaker series to include a special Veterans Day section event at the Alfred A. Arraj Federal Courthouse in Denver, co-sponsored with the Faculty of Federal Advocates and presented by Marine Corps veteran and Clerk of the Court Jeffrey Colwell. He further plans to expand section meeting locations and to host a section meeting in Colorado Springs. El Paso County has the largest military and veterans population in Colorado. The Colorado Springs Clinic is held on the fourth Tuesday of each month from 12:30 to 3 p.m. at the PFC Floyd K. Lindstrom VA Outpatient Clinic in Colorado Springs. Be Glinda the Good Witch— Volunteer at a Veterans Legal Clinic After giving a presentation at the Breaking

Ground Veteran’s Homeless Transition Facility in the Hudson River Valley area of New York, I asked one veteran how he came to be at the facility and he said, “My house of cards finally fell.” As a volunteer, you can help those who served our country rebuild their legal houses, this time with a stronger foundation. You can give pro se scarecrows a legal brain, pro se tinmen legal hearts, and pro se lions legal courage through volunteer service at the clinic. Attorneys volunteer in their practice areas. You can get started by contacting Ashley Staab at astaab@cobar.org or (303) 860-1115, or by signing up at the Colorado Attorneys for Colorado Veterans webpage, https://www.cobar. org/clcv. The CBA also sends out a case list for attorneys who would like to take pro bono or sliding fee scale cases rather than volunteer at the clinic.

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Sabra Janko is an attorney and managing member of JLaw LLC, where she assists clients, including service members and veterans, with family law matters. She also volunteers at the CBA Veteran’s Legal Clinic at the Bill Daniels Veteran’s Center in Denver. Janko is a former Army JAG attorney with two combat deployments in Iraq. Her first assignment in the military was as a student in the Defense Language Institute’s Russian language program, and her last was as a professor at the U.S. Military Academy in West Point teaching constitutional and criminal military law to cadets. Janko assisted low- to moderate-income veterans as a staff attorney in the Military and Veterans Program at the Legal Services of the Hudson Valley in New York. She also spent a year setting up and running Colorado’s first Federal Pro Se Clinic at the Alfred A. Arraj Federal Courthouse in Denver. Coordinating Editor: Kath Schoen, kschoen@cobar.org

N OTE S

1. The average U.S. employee hourly wage is $27.35, whereas the national average law firm rate is $245 an hour. See U.S. Department of Labor, Bureau of Labor Statistics Economic News Release (Nov. 2018), https://www.bls.gov/ schedule/2018/home.htm; and Packel, “Lawyers Maintain an Edge in Rising Billing Rates, Study Finds,” American Lawyer (Oct. 4, 2018), https:// www.law.com/americanlawyer/2018/10/04/ lawyers-maintain-an-edge-in-rising-billingrates-study-finds. As a result, in a majority of family law cases, at least one party is self-represented. In some courts, upwards of 80% to 90% of cases involve a self-represented party. Houlberg, “Creating a Court Compass for the Family Law System,” IAALS Blog (Jan. 22, 2109), https://iaals.du.edu/blog/creating-courtcompass-family-law-system. 2. VA Hosts Forum on Veterans’ Legal Needs, U.S. Department of Veterans Affairs, Office of Public and Intergovernmental Affairs (Apr. 4, 2014), https://www.va.gov/opa/pressrel/ pressrelease.cfm?id=2534. 3. Morin, “Homeless Veterans Living With PTSD” (Sept. 29, 2019), https://www.

verywellmind.com/homeless-veterans-livingwith-ptsd-4164824. 4. National Coalition for Homeless Veterans, http://nchv.org/index.php/news/media/ media_information/#how. 5. “Homeless Veterans With Children Face a Difficult Choice,” CBS News (Apr. 4, 2019), https://denver.cbslocal.com/2019/04/04/ homeless-veterans-cory-gardner-shelter. 6. Richman, “Female Veterans comprise fastest-growing segment of homeless Veteran population,” U.S. Department of Veterans Affairs (Mar. 21, 2018), https://www.research. va.gov/currents/0318-Female-Veteranscomprise-fastest-growing-segment-ofhomeless-Veteran-population.cfm. 7. “Homeless Women Veterans: It’s Worse than you Think,” National Veterans Foundation (July 23, 2015), https://nvf.org/homeless-womenveterans-worse. 8. Salisburry, “Women Are The Fastest Growing Demographic of Homeless Veterans,” N.Y. Minute Magazine (June 30, 2017), https://www. newyorkminutemag.com/women-are-the-

fastest-growing-demographic-of-homelessveterans. 9. Scanlan, “Sen. Martha McSally takes on mission to change how US military handles sexual assault,” CBS News (May 26, 2019), https://abcnews.go.com/Politics/sen-marthamcsally-takes-mission-change-us-military/ story?id=63277502. 10. Morin, “The Difficult Transition From Military to Civilian Life,” Pew Research Center at 4 (Dec. 8, 2011). 11. Id. at 9. 12. Cordell, “Breach of Honor,” 5280 (Aug. 2017), https://www.5280.com/2017/07/breachof-honor. 13. Whitfield, “The Impact of the Justice Gap on Litigants: Are We Providing a Level Playing Field?” Va. Law. (Oct. 2014), http://brls.org/ the-impact-of-the-justice-gap-on-litigants-arewe-providing-a-level-playing-field. 14. “Bring Me the Broomstick,” Wizard of Oz (2011 musical), https://www.youtube.com/ watch?v=W-5afKwW_bk.

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An Innocent Man? The Russell Boles Case BY F R A N K GI BB A R D

n New Year’s Eve 1901 a teenaged girl named Florence Fridborn was sexually assaulted at a neighborhood pond in the City of Denver. When her brother tried to stop the assault, the rapist killed him with an ax. These brutal events set off a frantic manhunt for the killer, leading to a shootout with an innocent man in a local canyon. Eventually Russell Boles, a transient who was living in Canada under an assumed name, was arrested and convicted of the slaying. Boles’s conviction for first-degree murder earned him a sentence of life imprisonment at hard labor. Although the Colorado Supreme Court affirmed his conviction, some have questioned over the years whether he was actually guilty, or merely the scapegoat for a heinous crime. The Assault On December 31, 1901 at 8:20 p.m., Florence Fridborn left her house at 2734 Gray Street to go ice skating. She was 16 years old. Her brother Harold, age 14, accompanied her. On their way out of the house, the siblings passed by their mother, who was sitting in the parlor. She looked up at the clock, saw the time, and told them they shouldn’t go out because it was so late. Harold replied that they would just skate around the pond two or three times and then walk home. He pleaded with her, saying they had had a “lovely time” there the night before, and there were “plenty of children down there.”1 She let them go. The pond where they planned to skate was a few blocks from their home. The pair walked by vacant lots, making their way first down

Lake Avenue and then Firth Court. They walked alone on the night streets. They saw no one. Soon they arrived at the south side of the pond. Electric light, some of it coming from a nearby church, provided some illumination at the scene. Just across the pond, to the north, it was darker. On that side of the ice was a trash heap that locals called the dump: a pile of rubbish and ashes.

As he approached them, he let his hands drop to his sides. That’s when Florence saw the ax, held in his right hand. Florence sat down on an overturned can and began putting on her skates. Harold helped her with them. As he worked, she looked up and saw a man walking slowly down Lake Avenue with a shuffling gait, staring down at his feet. Florence told Harold, “That man looks suspicious and I am scared of him.”2 Harold told her not to be afraid. “He just wants to see us skate,” he said.3 That quenched her fears for the moment. Harold finished putting on her skates. When she stood up with her skates on, Florence saw the man again. He was closer now,

shuffling down Firth Court toward them. She saw that he had on a long overcoat and a cap. “Harold,” she said, “There is that man again.”4 By now, like his sister, Harold was becoming suspicious. He jumped up and called out to the man, “What do you want down here?”5 The stranger asked them if the skating was any good. Florence noted his strange voice, soft and effeminate, which contrasted with his rough appearance. They both assured him that no, the skating wasn’t any good here. The man came closer anyway, sliding toward them on his feet over the ice. He had his hands behind his back. As he approached them, he let his hands drop to his sides. That’s when Florence saw the ax, held in his right hand. The man was upon them now. He asked them if they had any money. They both said no. He told them he didn’t believe them. He kept asking them if they had money, and they kept insisting they didn’t. Finally, he said, “Well if you be still I won’t hurt you, but if you make any noise I will kill you.”6 Florence remembered something her father had said. Several women had recently been assaulted in the Capitol Hill area of Denver. He’d remarked how strange it was that none of them could give a description of their assailant. She decided to look carefully at the stranger who had threatened them, so that she could identify him later. She looked him over from top to bottom in the light cast by the electric streetlights. She noticed his frowning face and the gold ring on one of his fingers. The man had a “short stubby beard and a moustache.”7 The man ordered them to walk over to the north side of the pond, by the dump, where it was darker. Florence’s skates had become untied. She took them off and left them in the mud. They begged the man to let them go. He told them to sit down and put their hands up. He said, “I will have to search you.”8 Then he told Florence to lie down. As she did, he straddled her body, pinning her arms. Harold pleaded with him, “Please, mister, don’t disgrace my sister—I will give you everything I got.”9 He offered the man his knife and the few other things he had in his pockets, including some peanuts. At this, the man became enraged. He yelled at Harold to shut up. Then he swung A PR I L 2 0 2 0

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the ax, hitting the boy twice on the left side of his head. The powerful blows, which fractured Harold’s temporal bone and ruptured his carotid artery, were almost immediately fatal. The man grabbed Florence’s throat, choking her. She struggled until she passed out. When she came to, he was still on top of her, but her hands were free. She hit him as hard as she could in the face with both her fists. She grabbed at his mouth and caught his tongue, skinning two of her fingers on his teeth. She managed to kick him and screamed as loud as she could. He grabbed a handful of weeds and dirt and stuck it in her mouth, put his hands over her mouth, and swore at her. She bit his fingers as hard as she could. Then she fell unconscious again. When Florence awoke, the man was gone. Her clothes were torn, rumpled, and covered with dirt. She got up and stumbled across the

ice, falling down repeatedly and calling out for her brother. He did not respond, and she assumed he had gone home. Somehow, she made her way home, rang the bell, and asked if Harold was there. Her sister told her no. She told her sister and her mother Harold had been struck with an ax. Then she fainted. The next few weeks were a daze for Florence. She gave her story to police and at inquests. But later, she would claim to remember few details of what she had said. The trauma, she claimed, had left her barely conscious during this time period. She did not even know she had been sexually assaulted until a medical examination revealed that fact.10 The Investigation After Florence returned home, disheveled and bleeding, and told her story, her father Frederick Fridborn went looking for his son.

His neighbors accompanied him. They climbed down into an area north of the pond known as the “hole” or the “pit.”11 There they found Harold, lying on a dark mound of ashen dirt and rubbish about 20 or 30 feet from Firth Court on the northeast side of the pond.12 Though only starlight illuminated the scene, it was plain that Harold Fridborn was dead. An ambulance came. In addition to doctors, it carried a policeman and a reporter for the Denver Republican. Other police soon arrived, some on horseback. In the following days the police went from house to house in the area, looking for suspicious characters who might have committed the crime. Denver Detectives Ed Carberry and George Sanders were assigned to the case. Over the succeeding months they brought many men, perhaps as many as a hundred, to Florence to see whether she could identify them. She always stated that they were not the man who killed her brother. Tomaso Minci’s Suspicious Behavior The detectives soon received a tip that led them to an Italian immigrant named Tomaso Minci.13 The initial description of the assailant dispatched to officers had included a suggestion that he might be an Italian or German immigrant. Minci’s suspicious behavior had incited the citizens of Bellvue, Colorado to attempt a citizens’ arrest of him for the Fridborn murder. He had escaped the mob and headed north. Carberry and Sanders began searching for Minci all over Northern Colorado. They scoured the area between Larporte and Boxelder and even alerted ranchers up in Tie Siding to be on the lookout. Eventually, acting on a tip, they caught up with the fugitive near Six Mile Canyon. Minci had built a fire near the mouth of a cavern in the rocks, where he was warming his hands. The officers, along with the Larimer County sheriff, quietly surrounded him. Detective Carberry made his way behind Minci to cut off his line of retreat. Then the sheriff called out for him to surrender. Minci yelled back that he would never be taken alive. He pulled out a double barreled shotgun, pointed it at the sheriff, and snapped both barrels. Fortuitously, neither cartridge went off.

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Minci put aside the useless shotgun. He drew a pistol, held it under his own chin, and pulled the trigger. This time the gun fired. The bullet broke his jaw in three places and lodged under his left eye. When the sheriff heard Minci’s gun go off, he thought he was under fire, and he shot off a round at Minci’s head. But Minci was already collapsing from his wounds, and the bullet missed. Detective Carberry tackled the suspect without further incident and the officers took him into custody. The officers bound up Minci’s wounds as best they could and transported him first to Fort Collins by horse, then to Denver by train. But after arriving in Denver they discovered that Minci had an airtight alibi. He was in Central City at his home on the night of the murder and could not have committed the crime. It seemed Minci, a miner from Central City, had recently suffered a crippling mental breakdown. His bizarre behavior, which had caused Bellevue citizens to believe he could be the Fridborn murderer, had resulted from his delusional belief that imaginary people were pursuing him.14 The detectives would have to look elsewhere to find their suspect. The “Bert Jewel” ID Their investigation next led the officers to Russell Boles. The detectives chased him to Pueblo, but he eluded them. Over the next few months he traveled to several other states. Finally, through a tip the officers discovered he was living and working in British Columbia, Canada, under the alias “Bert Jewel.” The Denver detectives alerted Canadian authorities, who took Boles into custody. On September 19, 1903, Florence sailed to British Columbia with Detective Carberry and her father. Their trip was paid for by the Denver Post. They arrived at New Westminster, where Boles was being held, on September 21. During the trip, Both Mr. Fridborn and the detective cautioned Florence she would have to be entirely positive about the identification. They told her a man’s life was at stake. When she got to New Westminster they walked by the outside of the jail. The men pointed out a man standing at the window and said it was Boles, but Florence couldn’t see his face at that point.

They went inside and she sat in the jail office. They brought Boles in. The officers did not perform a lineup; Boles alone was presented to Florence for identification. Boles looked right at her. He began trembling and shaking. He said, “you will have to excuse me for being frightened, but this is a serious charge you have got against me.”15 The minute she saw him and heard Boles’s voice, Florence knew it was the man who had assaulted her. She had heard that voice in her sleep for many nights after the attack. She’d had to leave the light on in her room at night because she kept seeing the man’s face and hearing his voice.

The prosecution presented a long line of witnesses designed to show that Boles was the unshaven man in the hat and overcoat who had committed the rape and ax murder. After she identified Boles as the man who had assaulted her and killed her brother, Detective Carberry asked Florence again if she was sure about her identification. She said she was. She cited the man’s height, the frown between his eyes, his voice, and his general appearance. “[I]t is like a photograph in my mind,” she said.16 At first, Boles refused to return to Denver, which raised the specter of an extradition proceeding. But after a few days Detective Carberry persuaded him to return voluntarily. The Trial Boles was tried in February 1904. The prosecution presented a long line of witnesses designed

to show that Boles was the unshaven man in the hat and overcoat who had committed the rape and ax murder. Though the testimony was at times vague, confusing, or even contradictory, particularly concerning the source of the ax and the length of Boles’s facial hair, in the aggregate it provided a significant case against him. Grace Brown, who lived in the area near the Fridborn house, testified that on New Year’s Eve, 1901, between 4 p.m. and dusk, Boles came to her house peddling celery. She didn’t buy any, but after his visit she noticed that the hatchet she kept in her coal house had disappeared. She remembered he was unshaven and wore an overcoat and a cap. Joseph J. Bane, a motorman for the Denver Tramway Company, identified an ax the prosecutor handed him as his ax, which had gone missing from a barn in the rear of the lot where he lived on December 31, 1901. He also stated his son had found a hatchet in the alley near the barn. He gave it to a police officer. The officer determined that it was Grace Brown’s missing hatchet. Ella Talbot stated that on December 31, 1901, she was sitting on a street corner at 36th and Goss Street waiting for a streetcar when a man approached her. He was wearing an old overcoat and walked with a shuffling gait. As she stood up he took a swing at her with a hatchet. He told her, “if you open your mouth I will let you have this.”17 She screamed and sprung away from him. He stood still for a moment, then swore at her and ran away. Victor S. Nott testified that on the night of December 31, 1901, after playing whist, he was on his way home at the corner of Goss and west 32nd streets when he encountered a man wearing a long brown overcoat and a cap. The man had ashes on his shoes and pants. He identified the man as the defendant, Russell Boles. Charles F. Fitzmyer, an unemployed cigar maker, testified that he knew Russell Boles. At about 10 p.m. on December 31, Boles had showed up at a drinking establishment on 32nd and Bert Street. As Boles stood with his hands over the stove, warming them, Fitzmyer noticed that the last three fingers on Boles’s right hand were bloody. He asked Boles what happened

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to his hand. Boles replied that he had cut it or hurt it. Fitzmyer told him he should wash his hand because “it looks like hell.”18 He also stated Boles wore a plain band ring. Michael Keating, who knew Boles, saw him on New Year’s Day, 1902, at Tony Volo’s Saloon at 37th and Bell. He was wearing his overcoat and cap. It was between 6 and 7 in the morning. One of Boles’s fingers on his right hand was wrapped up. A friend of Keating’s at the bar asked Boles what was the matter with his finger. The question angered Boles. Keating also said Boles had “a peculiar voice—more like a lady than a man.”19 Peter J. Kane also saw Boles at Tony Volo’s Saloon on New Year’s Day. Both he and Keating had been planning to go to mass at a nearby church but wound up at the saloon instead. He asked Boles what was wrong with his finger. Boles mumbled something. He got angry and acted like he wanted to fight. Kane also noticed Boles’s ring and his feminine voice. Tommy Olford saw Boles the evening of the 31st at Tony Volo’s. Boles was wearing his hat and coat. One of the fingers on his right hand looked sore. When he saw Boles the next morning, the finger was wrapped up. A bartender told them in a disapproving tone that Boles had left his underwear in the privy at the saloon. The implication was clear: perhaps Boles had been disposing of evidence of the assault. Olford confirmed that Boles’s voice sounded like a lady’s and he had an odd gait. Bert Jones saw Boles the night of the 31st as well. Boles accompanied him from Tony Volo’s to another saloon about a block away called Herman Wassenich’s. Boles washed his hands in a nearby hydrant. The next day he saw Boles again at Tony Volo’s and asked him what was the matter with his finger. Boles wouldn’t answer. George Westman told Boles, “if you killed that kid, why don’t you give yourself up.”20 Jones also heard the bartender claim that Boles had thrown his underwear away. Jones began “joshing” Boles; at one point, Jones even pulled up Boles’s pants to see if he was wearing underwear. He didn’t see any. (This was the era of long underwear known as the “Union Suit,” and it was January. Jones acknowledged that he only peered as far as Boles’s knees; he

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admitted Boles could have been wearing shorter underwear.) Jones confirmed Boles’s feminine voice and shuffling gait. Franklin Dabney, a Denver physician, said he treated a man on the morning of New Year’s Day, 1902, who matched Boles’s description. He dressed two fingers on the man’s right hand. He stated the wound on the fingers could have been produced by biting. After treating the fingers he told the man his fee was $2. The man said he hadn’t any money, but he would pay him “sometime.”21 Dr. Dabney noted the man’s boyish voice.

The defense then put on an array of witnesses who painted an entirely different picture of Boles’s appearance and actions during the time period in question. If the defense witnesses were to be believed, the police had the wrong man—pure and simple. Several witnesses had commented on Boles’s beard growth and moustache at the time of the murders. Joseph Buckman, a barber, testified that he shaved Boles clean a few days after the murder. The State rested its case. The defense then put on an array of witnesses who painted an entirely different picture of Boles’s appearance and actions during the time period in question. If the defense witnesses were to be believed, the

police had the wrong man—pure and simple. The defense began its case by trying to undermine Florence’s description of Boles, which admittedly contained some holes or inconsistencies. It cited her alleged prior statements that the man who had assaulted her had a German or Italian accent and that she was unsure whether he was wearing a gold ring. Having elicited from Florence only protestations about her vague memory due to trauma, the defense attempted to impeach her by calling other witnesses besides Florence and asking them about her prior statements. The trial court severely restricted this line of inquiry. The Denver chief of police testified that when providing her initial description, Florence thought her assailant had a German or Italian accent. The description he passed on to officers suggested the man might be a German or Italian immigrant. But he also noted she said he was wearing a plain gold ring and that she had bitten one or two of his fingers, details consistent with other witnesses’ descriptions of Boles. The police chief further admitted he had instructed Carberry to arrest Boles and bring him back to Denver, even before Florence had identified him. Defense counsel put on numerous witnesses who testified that it was very dark at the pond that night. This could have made it difficult for Florence to identify her assailant. They also attempted to show that Boles had not immediately fled the city but had remained in Denver for several days after the murder. Counsel was permitted to present Florence’s testimony from the coroner’s inquest and preliminary hearing. It was roughly consistent with her trial testimony, though at the coroner’s inquest she had stated her assailant was “either a [G]erman or Italian”22 with a gruff voice and an accent. She later denied saying he had a foreign accent. At the preliminary hearing she had also denied that she had identified a different man as her assailant, had described the assailant as 5 feet 6 inches tall, or had given a different description of the assailant to a reporter from the Rocky Mountain News. Boles’s alibi witnesses followed. A friend of his named Levi Cronkhite said he saw Boles on the evening of December 31, 1901. Cronkhite knew Boles as a musician who had played the

San Miguel Examiner, March 5, 1904. Courtesy of the Colorado Historic Newspapers Collection.

guitar at Cronkhite’s house. Cronkhite had gone out to get some wine for a family gathering that night and met Boles at a saloon around 8 or 8:30. The saloon was a mile or more from the crime scene. Cronkhite’s description of Boles that night was very different from the State’s witnesses’. He stated Boles was clean-shaven and not wearing a long coat. He stated that he couldn’t recognize Boles by his voice. Nettie Cronkhite, Levi’s daughter, also testified. She stated she knew Boles but had never seen him wearing a beard before she saw him in the courtroom. (Boles had grown a beard before the trial.) She had never seen him wearing jewelry of any kind. After the time of the murder, she saw him at a nearby house party. He played the mandolin and guitar that night and she didn’t notice anything wrong with his fingers. She did not notice him wearing a gold ring. He was dressed in an ordinary fashion and “acted like a gentleman.”23

Ollie Cross said she saw Boles on December 31, 1901 around 5 or 6 p.m. at her house. He was peddling celery. He had neither a beard nor a moustache, nor did she notice him wearing a gold ring. She knew he worked as a wood turner and was also a musician. She next saw him New Year’s morning, when he came to get payment for the celery she’d bought. She did not notice then that he had any sore fingers. His appearance was “[f ]airly neat and tidy.”24 Fred Cross, Ollie’s husband, who worked for the Pullman Company, said he saw Boles on the evening of December 31. Boles was sitting in a buggy. He asked Boles “what the Devil he was doing in that buggy.”25 Boles said he had to sell a load of celery. He was clean-shaven, and Cross described him as “[p]retty neat for Boles.”26 He saw Boles again that evening between 8 and 10. He played the guitar and sang for them. Cross saw Boles again on January 3, but did not notice he had any sore fingers.

Cross’s niece and a brakeman from Needles, California named Festus Mullin also described Boles’s musical soiree at the Cross household on New Year’s Eve. Through careful cross-examination the state showed the connections between the witnesses for Boles, suggesting they may have arranged their stories together ahead of time. The State even brought up the fact that Mullin had attempted to talk with Fitzmeyer, a prosecution witness, before the trial, possibly at defense counsel’s instigation, and that he had bought Fitzmeyer’s wife some beer. There were other witnesses as well. Mary A. Stephenson, Boles’s landlady, said she passed him on the street on the 31st when he was in the celery wagon, and he did not have a beard or a moustache at that time. Nor did she ever see him with sore fingers or a gold ring. James A. Cox, who sold provisions in Denver, also stated that he saw Boles on the 31st. He didn’t have much of a beard or moustache then, and may even have been clean-shaven. Boles and another man went out that day selling celery for him. They finished selling the second load around 7 p.m. Boles went out and returned to Cox’s house around 1 a.m., intoxicated, when some friends including Bert Jones helped put him to bed. The prosecution elicited on cross-examination that when Cox saw Boles the next day, Boles seemed very nervous. And Cox admitted that he’d had a conversation with Mr. Fridborn in which he had stated his suspicion that Boles might be his son’s murderer. Griffin Norman saw Boles at Cox’s place on the 31st and had a conversation with him around 10 or 11 p.m. He told Boles it was time to go to bed. Boles replied that it was no use; he couldn’t sleep. He said he would go take a stroll downtown. But Griffin, thinking of the Fridborn murder, told him the police were likely to arrest a rough-looking character like himself. Boles agreed to go to bed. Griffin saw Boles the next morning but didn’t notice his fingers wrapped up. Anna Benz gave testimony that suggested that someone else who matched Florence’s description of the murderer was out and about that day. She testified that she saw a man answering to Florence’s description on the A PR I L 2 0 2 0

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DEPARTMENT COLUMN | HISTORICAL | SUB TITLE PERSPECTIVES

afternoon of the murder. But this man had a foreign accent. He came to her door to demand a meal from her. Frank Barboo stated that Boles had worked for him in December 1901 as a wood turner. While engaged in that work, Boles had injured three of his fingers. But that injury apparently occurred before the end of December and affected Boles’s fingers for only a few days. Defense counsel even tried an “O.J. Simpson” style demonstration involving a ring and Boles’s finger, apparently to show that the ring he had did not fit. But it came to nothing when the prosecutor refused to attempt to slip the ring onto Boles’s finger.27 Finally, Boles himself took the stand. He claimed he’d hurt his fingers working at the North Denver Planing Mill in early December as he was putting a belt on the planer. That night, after the fingers had been bandaged up, he went to Tony’s place and saw “Tommy Olford and those boys.”28 Boles said he had two professions, as a wood turner and a music teacher. When he couldn’t find sufficient work in either line, he left Denver on January 8, 1902. Boles described his travels after that in some detail, explaining he had only started using the name “Bert Jewel” when he moved to Washington state because he’d heard his wife had divorced him and he didn’t want her to know where he was. After that he moved to Canada, where he stayed until he was arrested on September 17, 1903. Boles claimed that when Florence Fridborn arrived at the New Westminster jail, it was the first time he had ever seen her. He did not even know what murder he was suspected of. Florence was brought in to identify him, with no other persons presented in a “lineup.” Detective Carberry told him, in Florence’s presence, that he was being held for the murder of Harold Fridborn. Later, Boles agreed to go voluntarily back to Colorado, because the detective had promised to pay him for the work time he would lose and to give him a ticket back to Canada. Boles’s account of his whereabouts on December 31 fit with the accounts of other defense witnesses. Cox had made him shave that morning. He sold celery until about 6 p.m. After that he went over to the Cross’s house. He

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stayed there, performing music, until about 10 p.m. Then, he went out and met Mr. Cronkhite. After that, he went to Tony Volo’s saloon and drank with friends. Later, they returned to Cox’s place, where he spent the night. The next morning, he went back to Tony Volo’s. He got very drunk there. He denied hearing any of his friends joshing with him about being the Fridborn murderer. He denied that he had his fingers tied up, and he denied ever wearing a plain gold band ring or having a moustache. In rebuttal, the State called another witness who had seen Boles at Tony Volo’s on the night of the 31st and had noticed he had a rag around one of the fingers on his right hand. The State also called a reporter from the Denver Post who said he’d heard Mrs. Cross tell Boles’s counsel she had three more witnesses for him. A couple of witnesses testified that on January 1, 1902, Boles had asked for money for a drink from a man at a bar, who replied, “go and soak your [gold] ring.”29 The Appeal The jury convicted Boles, and he appealed to the Colorado Supreme Court. In the appeal, Boles challenged the sufficiency of the evidence. His appellate attorney argued that Harold Fridborn may have been killed not by a rapist but by an unnamed lover who was attempting to cover up an indecent assignation with Florence. Little evidence had been presented at trial to support such a theory.30 The Colorado Supreme Court roundly rejected his attempt to blame the murder on a purported paramour. It called the contention that Florence’s lover killed Harold “cruel and clearly unjust to the unfortunate girl, who has suffered so terribly through the assault on herself and the murder of her brother.”31 The Court reasoned the evidence pointed to a sexual assault and a murder, not to consensual sex followed by a cover-up murder. It cited “[t]he tender years of the assaulted girl, the torn and soiled condition of her apparel, her very serious physical injuries, her then violated virginity, and her great physical and mental suffering consequent upon the assault,” along with “the other strong corroborative circumstances,” all of which evidenced “a fiendish criminal assault.”32

The Court also upheld the jury’s rejection of Boles’s carefully constructed alibi defense. It found Florence’s identification of Boles in British Columbia consistent, exclusive, and corroborated by the evidence, noting the assailant’s “heavy and peculiar frown,” moustache, “beard of some days’ growth,” “shuffling gait,” and “peculiar voice.”33 These traits matched Boles. The Court also pointed to numerous other items of corroborating evidence, including the ashes on Boles’s clothes, his possession of the ax, his wounded fingers, and the fact that he had discarded his underwear around the time of the murder, which likely bore evidence of the assault. Though the evidence was conflicting due to testimony from Boles’s alibi witnesses, the jury was free to resolve that conflict in favor of guilt, and there was sufficient evidence to convict. At trial, defense counsel had asked Fredrick Fridborn if he was acquainted with John Slater, a spiritualist medium. Fridborn said he was. He asked if Fridborn was a spiritualist. He replied that he was “not entirely,” but was “not antagonistic” to such beliefs.34 Fridborn admitted he’d consulted Slater as a spiritual medium but denied seeking advice about who had killed Harold. The trial court sustained the State’s objection to the inquiry about Fridborn’s consultation with Slater. Defense counsel took exception. On appeal, Boles again raised this rather occult issue, but the Colorado Supreme Court held the district court had not erred in rejecting this evidence. Boles raised a number of other evidentiary issues, none of which the Court found meritorious. It affirmed his conviction, holding that “the evidence abundantly supports the findings of the jury” and that Boles had received a fair trial.35 Aftermath Although the Colorado Supreme Court upheld Boles’s conviction, doubts lingered in some quarters about his guilt. One Denver newspaper opined that “it is an open secret among police officers and detectives that none of them believe Russell Boles guilty of the killing of Harold Fridborn.”36 The State Board of Pardons eventually determined that Boles was innocent,37 and he was unconditionally pardoned by Colorado Governor George A. Carlson in January 1916.38

Boles was released from prison on January 12, 1916.39 But he was later found guilty of a different sexual assault, this time in Boulder County, and he was sent back to prison.40 He died in 1941.41 As one commentator has noted, the Fridborn murder case technically remains unsolved.42

Frank Gibbard is a staff attorney with the Tenth Circuit Court of Appeals—(303) 844-5306, frank_ gibbard@ca10.uscourts.gov.

N OTE S

1. People v. Boles, No. 16216, Trial Tr. at 92 (available at Colorado State Archives as part of the Colorado Supreme Court record). 2. Id. at 23. 3. Id. 4. Id. 5. Id. 6. Id. at 24. 7. Id. at 27. 8. Id. at 25. 9. Id. 10. Ida Fridborn, Florence’s mother, said that when Florence arrived at home she said Harold had been struck with an ax twice in the head, “and I have been assaulted.” Id. at 92 (internal quotation marks omitted). Mabel Fridborn, Florence’s sister, similarly remembered Florence’s statement. See id. at 96. 11. Id. at 211, 246. 12. Id. at 50. 13. The facts of Minci’s arrest were later reported in a Fort Collins newspaper. See “Almost a Tragedy,” Weekly Courier at p. 2, col. 2. (Jan. 30, 1902). See also http://www. kmitch.com/Pueblo/asylumm.html (quoting contemporaneous newspaper articles). 14. An odd article about Minci appeared in the Aspen Times on January 28, 1902. According to this article, the Denver police were reasonably sure that Minci had not killed Harold Fridborn, but they were also convinced he must have committed some other serious crime, perhaps when he was back in Italy. The article stated that Minci purportedly believed the Mafia was after him. According to a letter found on his person addressed to an Italian priest, he believed he was being hounded and was going to be killed in Central City, though he did not know why. See “Minci: Not the Thug but a Crazy Italian,” Aspen Daily Times at p. 1, col. 3 (Jan. 28, 1902). 15. Trial Tr. at 30. 16. Id. at 178. 17. Id. at 109 (internal quotation marks

omitted). 18. Id. at 135. 19. Id. at 145. 20. Id. at 161. 21. Id. at 167. 22. Id. at 235. 23. Id. at 260. Oddly, she also said they traveled from Mrs. Stevens’s house that day to visit the spot where the murder was committed. 24. Id. at 300. 25. Id. at 305. 26. Id. 27. Id. at 434. 28. Id. at 466. 29. Id. at 619 (internal quotation marks omitted). 30. “Defense counsel tried to argue that a ‘paramour’ of Florence’s might have been the guilty party, since her skates were found at the pond strapped together and her cape was folded.” O’Hare and Dick, Wicked Deeds:

Mile-High Misdeeds & Malfeasance 79 (History Press 2012). 31. Boles v. People, 86 P. 1030, 1031 (Colo. 1906). 32. Id. 33. Id. 34. Trial Tr. at 71. 35. Boles, 86 P. at 1034. 36. See O’Hare and Dick, supra note 30 at 79 (quoting Denver Times article). See also “For a Pardon,” Daily Sentinel at p.1, col. 2 (Apr. 23, 1907) (“The sympathy goes out to [Boles] because no one believes him guilty.”). 37. See O’Hare and Dick, supra note 30 at 79. 38. See, e.g., “Russell Boles Gets Unconditional Pardon,” Telluride Daily J. at p.1, col. 2 (Jan. 15, 1916). 39. See O’Hare and Dick, supra note 30 at 79. 40. See id. at 80. 41. See id. 42. See id. at 79.

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DEPARTMENT SERIES | WELLNESS | SUB TITLE

Is Work/Life Balance the Right Goal? BY L I S A HO G A N

t’s rare to find an article on lawyer well-being that doesn’t talk about work/ life balance. Most of us strive to avoid taking work home so that we can be fully present with our loved ones. But really, how many of us are consistently able to pull this off, and how many of us are left feeling that this is just one more way we’re falling short? “Balance” implies that one thing exists in opposition to the other—life versus work. But is there a different way to look at it? This article explores the notion of what I call “intentional integration” of work and home, particularly when children are part of the equation. Our Power as Parents Let’s start with the premise that we all want our children to grow up to be happy, well-adjusted,

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able to support themselves, and working in a profession that brings them satisfaction. Most of us are not trying to push our progeny to get into the same profession we’re in and, in fact, that happens far less these days than it did a century ago. Nevertheless, research suggests that the professions our children end up in are significantly influenced by how parents shape their kids’ values and ideologies.1 We set an example of what is ultimately important, and that can affect our children’s career trajectories. So how are we influencing our children’s views of our profession, and why does it matter? There are many among us who profess a desire to steer our children or loved ones away from law because of our own experiences. If you are one of those people, this article is not meant to be a criticism of that approach, but merely

an exploration of why your work experience causes you to feel that way and whether an indictment of an entire career is a productive response. For others of us, we are disappointed that our children seem to rebel against even considering going into law, and we wonder why that is. Integrating Work and Home Life My own experience has caused me to think long and hard about this and is why I suggest we shift to a model of work/life integration rather than balance. In the mid-’90s, I was a newly divorced, newly minted law partner with two girls, ages 4 and 6. I was struggling to do what I needed to do as a busy litigator while also trying to be the kind of mom I wanted to be—present, loving, grateful, and open to what the world had to offer. I didn’t want my daughters to grow up afraid of hard work and challenge, so I tried to resist the temptation to complain about the demands of work. Instead, I focused on all the aspects of my day that were interesting, funny, or compelling and made sure to share those things with my young daughters. And when I was facing an upcoming trial, when my attention span and patience inevitably shortened, I decided to just be open with them about what was going on. So I started talking to these little girls about upcoming trials. I told them what made me

nervous, how I had to wrestle with self-doubt when I questioned whether I had what it takes to first-chair jury trials with high stakes, or why I cared about the people involved and why I believed in our version of the case. We talked about how to disagree with the opposing side without allowing it to become personal and rancorous, and that it’s possible to hang on to your humanity and empathy while advocating for a legal position that means someone loses. I would explain the cases and then ask what they thought and what else they’d want to know to make a decision. And when a case went to trial or I had a significant hearing, I’d take them out of school for a day (with help from family and friends) so they could see how what we talked about played out in court. Not only was the process helpful for me to stay focused on the forest, but I think this work/life integration approach fostered a

Not only was the process helpful for me to stay focused on the forest, but I think this work/ life integration approach fostered a sense that we were all in it together.

Attention Photographers Don’t squirrel away your Colorado photos. Send them to us for a future cover. Flip to page 98 for details. Questions? Email Kate at kschuster@cobar.org.

sense that we were all in it together. This helped to reinforce that we each have “jobs” within the family, and if one of us doesn’t perform, it affects all of us. Your Job is a Uniting Force I have friends and colleagues who tell me that their children have absolutely no interest in what they do and that the kind of law they practice would be too boring to talk about. But I think most of us can translate some aspect of what we do to a child so that the family unit can feel some sense of united purpose. For me, this discipline of finding and sharing the positive aspects of my job couldn’t help but raise my own happiness quotient. And, in case you were wondering, yes, both of my daughters are gainfully and happily employed . . . as lawyers. You can’t imagine how many times I’ve heard “you couldn’t talk them out of it, eh?” Nope.

Lisa Hogan is a shareholder at Brownstein Hyatt Farber Schreck, where she heads up the Employment and Labor group and represents clients in general commercial litigation. She served as vice president of Litigation for Level 3 Communications from 2005 to 2007 and started her career as a Denver deputy district attorney. She also serves as NITA faculty and frequently presents on trial advocacy skills. Her clients include various large regional companies in industries ranging from health care to manufacturing, energy, and engineering/construction/ real estate to retail and financial services.

NOTE

1. Dockrill, “This Interactive Graph Shows How Your Parents’ Career Choices End Up Affecting Yours,” ScienceAlert (Mar. 22, 2016), www. sciencealert.com/facebook-figures-out-thechances-of-your-job-based-on-your-parentsjobs.

Sarah Myers, executive director of the Colorado Lawyer Assistance Program, is the coordinating editor of this series of Wellness articles. Readers may send Myers their feedback or suggestions for topics of future articles at smyers@ coloradolap.org.

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FEATURE | TITLE ALTERNATIVE DISPUTE RESOLUTION

Online Dispute Resolution A Digital Door to Justice or Pandoraâ&#x20AC;&#x2122;s Box? Part 3 BY D OUG MC QU I ST ON A N D SH A RON ST U RGE S

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This three-part series takes a deep dive into the future of online dispute resolution in Colorado. Part 3 considers ethical issues surrounding the use of ODR.

art 1 of this article discussed videoconference mediation, a form of online dispute resolution (ODR). Part 2 considered artificial intelligence (AI)-assisted ODR. This Part 3 expands on the ethical issues touched on in Parts 1 and 2. Ethical questions involving videoconference mediation and AI-assisted ODR tools have both strictly legal and, more broadly, societal dimensions. An analysis of the issues begins with the Colorado Rules of Professional Conduct (Colo. RPC or the Rules).1 But the Rules must be viewed in the context of broader societal issues posed by these new technologies. The Technology Context As computers begin to act more like humans (or more profoundly, in ways humans might not even recognize as “human”), some thorny ethical challenges immediately become apparent. Enthusiasm for new software tools must be tempered with critical thought about how to use these tools fairly and appropriately. The tools might have features that get in the way of their equitable use by negatively impacting privacy, fair use, and constitutional protections. For example, if your Amazon Echo is “always listening,” who else can access your data? Given that your Nest thermostat allows remote adjustment via its app, will users be required to connect their thermostats to the utility company so it can remotely adjust the settings on its own? And if your refrigerator can monitor how many beers you consume each day, will it also be able to call your doctor to report your over-consumption? These concerns involving the appliances and applications we use every day are similarly implicated in the use of ODR tools. For Brad Smith, the president and chief legal officer of Microsoft, the societal question posed by “intelligent” machines is it’s “not just what computers can do, but also what they should do.”2 He further cautions: “We not only need a technology vision for AI, we need an ethical vision for AI.”3 Further, such ethical issues should not be the focus of only “‘engineers and tech

companies . . . because growing numbers of people and organizations are creating their own AI systems using the technological ‘building blocks’ that companies, like Microsoft, produce.”4 Thus, the use of AI-assisted tools in the law ought to begin with these fundamental ethical questions, which have profound implications for attorneys, policymakers, and the public. As attorneys, we are uniquely positioned to advocate for building ethical limits into the source coding of AI-informed platforms. We can also advocate for using AI-assisted tools only when they out-perform functions that lawyers and legal systems already fulfill. We should not succumb to the notion that AI is necessarily “better” simply because it is new. When issues concerning legal rights are implicated, legal institutions should proceed prudently, despite the push to bring technological tools to the practice of law and court system as soon as they become available. The Ethical Issues The following broad issues face legal professionals and alternative dispute resolution (ADR) participants when using videoconference mediation and AI-assisted ODR:

Confidentiality, Privacy, and Safety ■ How secure is the ODR platform? ■ How secure is the medium, including both endto-end and en route encryption? ■ Can confidentiality of the result be maintained as it is in conventional ADR? ■ When the mediator separates the parties into digital “rooms,” how sure can all participants be that the room is truly sequestered from the other parties? Are the attorneys sufficiently trained on the software to ensure clients full confidentiality in separate rooms? Reliability ■ Is the digital platform on which the tool is run (the internet service provider or broadband vendor) A PR I L 2 0 2 0

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sufficient to provide stable, understandable, reliable transmission and reception without undue interruption? ■ Is the broadband bandwidth sufficient? If you recommend an ODR tool to your clients, what duties do you have to ensure clients have the necessary bandwidth, stability, and speed to handle the transmission without disruption? Does your office have sufficient bandwidth? Competency ■ How tech-savvy is your client? How tech-savvy are you? ■ If your clients engage in AI-assisted ODR without your involvement but with your knowledge (or maybe following your recommendation), are you confident they can competently do so? What duties might you have undertaken to assist clients by recommending or knowing about their use of ODR, or your partial assistance in drafting documents for their case submission? Does your engagement letter on these matters cover these questions sufficiently? ■ Have you taken the time to understand the tool your client intends to use and discussed its potential risks and benefits? Did you document your advice on the point? Should you offer to participate with the client? ■ If you represent a corporate defendant or other party who is brought into an ODR process, will you be sufficiently up to speed on the tool to competently defend them? Fairness ■ What is your obligation to ensure your client will be treated fairly in using the tool chosen? ■ What steps should you take to educate your client on how best to present the claim or dispute to maximize the likelihood of a fair resolution? ■ Even if they decline your offer of full representation in the ODR process, should you offer to assist clients with completing forms or preparing documents? ■ Is the result binding, or are there bail-out

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points to go before a mediator or cease the ODR process altogether? The Relevant Standards Existing ethical standards for dispute resolution professionals specifically inform the approach to engaging in ODR. For attorney and non-attorney mediators, the American Bar Association’s (ABA) Model Standards of Conduct for Mediators,5 ABA Standards for Family Mediators, 6 and Colorado Model Standards of Conduct for Mediators7 are all important to review before entering online territory. There are specific standards for ODR as well. The International Council for Online Dispute Resolution (ICODR) has established standards of practice for ODR programs and practitioners.8 Though they are broad and not directed at practical guidance, the ICODR standards offer a workable baseline for best ODR practices and suggest that ODR programs be: ■ Accessible: ODR must be easy for parties to find and participate in and not limit their right to representation. ODR should be available through both mobile and desktop channels, minimize costs to participants, and be easily accessed by people with different physical ability levels. ■ Accountable: ODR systems must be continuously accountable to the institutions, legal frameworks, and communities that they serve. ■ Competent: ODR providers must have the relevant expertise in dispute resolution, legal, technical execution, language, and culture required to deliver competent, effective services in their target areas. ODR services must be timely and use participant time efficiently. ■ Confidential: ODR must maintain the confidentiality of party communications in line with policies that must be made public around a) who will see what data, and b) how that data can be used. ■ Equal: ODR must treat all participants with respect and dignity. ODR should enable often silenced or marginalized voices to be heard, and ensure that offline privileges and disadvantages are not replicated in the ODR process.

■ Fair/Impartial/Neutral: ODR must treat all parties equally and in line with due process, without bias or benefits for or against individuals, groups, or entities. Conflicts of interest of providers, participants, and system administrators must be disclosed in advance of commencement of ODR services. ■ Legal: ODR must abide by and uphold the laws in all relevant jurisdictions. ■ Secure: ODR providers must ensure that data collected and communications between those engaged in ODR is not shared with any unauthorized parties. Users must be informed of any breaches in a timely manner. ■ Transparent: ODR providers must explicitly disclose in advance a) the form and enforceability of dispute resolution processes and outcomes, and b) the risks and benefits of participation. Data in ODR must be gathered, managed, and presented in ways to ensure it is not misrepresented or out of context. Relevant Professional Conduct Rules Several Colo. RPC are particularly relevant for attorneys engaging in ODR. Though these rules apply generally to attorney representation, they should be given a fresh look for nuances in their application to ODR. Eventually, the Rules will likely be amended to specifically address ODR tools and AI in general.

Rule 1.1 Colo. RPC 1.1 states, “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” For practitioners involved in a videoconference mediation or AI-assisted ODR proceeding, does this rule require both legal and technological competence? Based on the rule’s comments and its counterparts such as the ABA Model Rules,9 the answer is yes. It is no longer sufficient to simply be up-to-date on the law; technological acumen is now every bit as important. Therefore, if you are not comfortable with the intricacies of online tech tools, get

training. If you lack technological competence, you risk misadvising your clients and setting them up for failure. Rule 1.2 Colo. RPC 1.2 governs the scope of representation. Subsection (c) provides that [a] lawyer may limit the scope or objectives, or both, of the representation if the limitation is reasonable under the circumstances and the client gives informed consent. A lawyer may provide limited representation to pro se parties as permitted by C.R.C.P. 11(b) and C.R.C.P. 311(b). ODR is a great tool to help clients resolve issues that attorneys are otherwise not available to resolve due to factors such as the cost of representation and geographical limitations. Advice on the use of those tools can add value for both attorneys and clients. Thus, reticence to recommend ODR tools or advise clients on their use might be counterproductive and contrary to Rule 2.1, as discussed below. The precise scope of legal representation must be explicitly stated for the attorney’s and the client’s benefit. So review your engagement agreement—does it cover your duties in limited or unbundled representation, such as you might offer in the ODR realm? It is good practice to clearly delineate any limitations in the scope of representation and consider adopting a specific engagement letter for use in limited-scope representation matters. If you choose to render advice about how the client might use ODR independent from your legal representation, it is similarly advisable to delineate the services you will and will not perform. For example, in the ODR area, an engagement agreement should state that the attorney will assist with preparing supporting arguments or completing the initial online process screens, but will not manage the process in any ODR or similar applications the client might choose to use. Clear communication and documentation on this point are essential. As the pro se use of these tools becomes more common, clients may become involved in ODR systems without an attorney’s knowledge. A brief discussion in client communications of that possibility and

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information in the ODR process. Discuss with your client that videoconference mediation should be considered every bit as private as an in-person session. Thus, they shouldn’t log in while sitting in a Starbucks or allow nonparties to be present when they are “in session.” The same applies to counsel; make sure you and your client are logging in on a secure connection, in a private setting, whether you are logging in together from your office, or separately from different locations. Whenever possible, the best practice for videoconference mediations is to appear together from the same location, either in your office or the client’s office, to maintain client control and easily have offline discussions. It is most important to determine whether the ODR tool a client intends to use can maintain confidentiality. Some questions to consider in this regard include: ■ Are negotiated resolutions confidential? Is the ODR tool less secure if it is hosted by a private company who retains ownership of the data? ■ What data does the system retain after resolution? ■ Does the ODR system aggregate data from proceedings and retain it for its own use or sale? ■ How does the system remove identifiable information?

It is no longer sufficient to simply be up-todate on the law; technological acumen is now every bit as important. Therefore, if you are not comfortable with the intricacies of online tech tools, get training.

” its implications for representation will avoid later misunderstandings. Rule 1.6 Colo. RPC 1.6, governing confidentiality, should also be consulted for videoconference mediation and AI-assisted ODR. Attorneys and mediators have an obligation to keep client communications and confidential documents confidential. This includes proprietary information and of course your own advice. It is crucial to ensure that clients understand which documents should, and should not, be uploaded or used in the ODR process. Attorneys should set limits with clients, reinforce them, and document the client’s informed understanding and consent on how the client can and should use documents and

Rule 2.1 Colo. RPC 2.1 covers attorney duties as a client’s counselor. It provides that a lawyer advising a client during or before litigation must also “advise the client of alternative forms of dispute resolution that might reasonably be pursued to attempt to resolve the legal dispute or to reach the legal objective sought.” (Emphasis added.) That implies a duty to become informed about, and to advise clients on, the availability and use of all ODR platforms. Thus, the failure to reasonably advise clients about ODR tools could raise issues under Rule 2.1. Ethical Issues Involving Attorney Neutrals ODR tools may involve neutrals at some point in the process. For example, some AI-assisted

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ODR tools allow for contracts with neutrals who can enter disputes that are underway in the system. How this is accomplished may raise ethical questions for mediators. Mediators who offer videoconference mediation face similar ethical issues. In addition to an attorney-mediator’s need to comply with all Colo. RPC applicable to attorneys in general, Rule 2.4 pertains to an attorney’s work as a neutral. Thus, attorney-neutrals must clearly define the scope of their function in these new venues and scrutinize contracts with ODR providers to be sure the contracts are consistent with their ethical duties under the Rules. Contracts for services as an attorney-neutral should spell out that the attorney is acting as a neutral and is not affiliated with the operation or management of the ODR platform other than through the contractual arrangement to act as a neutral. And if a private mediation entity deploys its own version of an ODR platform, the financial arrangement by which the neutral receives remuneration from the vendor should be disclosed in the agreement to mediate. Finally, as in any dispute resolution matter, attorney-neutrals must clearly communicate that they do not and cannot provide legal advice to either party, even if the ODR tool provides data regarding average settlement amounts for a given case. Ethical Issues Involving All Neutrals The Colorado Dispute Resolution Act, CRS §§ 13-22-301 et seq. (CDRA), applies to any matter with venue in Colorado. Thus, any neutral who signs up to mediate disputes through any ODR tool should apply the same general approach they use in a face-to-face mediation to the online services they provide. For instance, neutrals should ensure that parties to ODR who take an off-ramp to conference with them understand that the neutral is not going to decide their dispute. And depending on the ODR platform used, the neutral may have an obligation to explain the ODR platform’s process and answer questions about how it works. A neutral must also screen for potential conflicts and necessary disclosures. Before agreeing to serve, the neutral should ask the vendor about how the ODR platform ensures

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confidentiality of the process, documents, communications, and outcome. In addition to these steps, a Colorado neutral who contracts with an interstate or international ODR platform may want to research the participants’ home state rules and statutes involving neutrals to determine if any agreement would be enforceable. In Colorado, CRS § 13-22-307 governs neutrals and the confidentiality of the process they play any part in. It provides that: (1) Dispute resolution meetings may be closed at the discretion of the mediator. (2) Any party or the mediator or mediation organization in a mediation service proceeding or a dispute resolution proceeding shall not voluntarily disclose or through discovery or compulsory process be required to disclose any information concerning any mediation communication or any communication provided in confidence to the mediator or a mediation organization, unless and to the extent that: (a) All parties to the dispute resolution proceeding and the mediator consent in writing; or (b) The mediation communication reveals the intent to commit a felony, inflict bodily harm, or threaten the safety of a child under the age of eighteen years; or (c) The mediation communication is required by statute to be made public; or (d) Disclosure of the mediation communication is necessary and relevant to an action alleging willful or wanton misconduct of the mediator or mediation organization. (3) Any mediation communication that is disclosed in violation of this section shall not be admitted into evidence in any judicial or administrative proceeding. (4) Nothing in this section shall prevent the discovery or admissibility of any evidence that is otherwise discoverable, merely because the evidence was presented in the course of a mediation service proceeding or dispute resolution proceeding. (5) Nothing in this section shall prevent the gathering of information for research or educational purposes, or for the purpose of

evaluating or monitoring the performance of a mediator, mediation organization, mediation service, or dispute resolution program, so long as the parties or the specific circumstances of the parties’ controversy are not identified or identifiable. These confidentiality requirements raise some tricky ethical questions, including: ■ If the mediation is conducted online and asymmetrically, how can a mediator guarantee full confidentiality of the process? ■ How can a mediator ensure a party is alone and not accompanied by a friend, spouse, lawyer, or other person? ■ How can the mediator make certain that no party records the session? The mediator could explain to the parties that the process needs to be treated as confidential throughout, despite the online format. Again, this should be addressed in the agreement to mediate. ■ How does the ODR platform document any settlement reached? CRS § 13-22-308 specifies that upon request of the parties any settlement reached must be “reduced to writing and approved by the parties,” and if approved by the court, it will be “enforceable as an order of the court.” Does the ODR platform “reduce to writing” any settlement reached? Is an electronic document sufficient to constitute a “writing,” and is an “e-signature” sufficient to constitute a “signed” document? While most commentators on the topic would likely opine that electronic documents and e-signatures suffice for a “writing,” CDRA does not define the term “reduced to writing,” and there are no reported cases on the subject in connection with ODR. These questions illustrate the need for professional conduct rules to catch up to emerging legal technology. Ethical Issues Confronting Courts The Colorado Judicial Branch’s mission is to provide a “fair and impartial system of justice,” which, among other things, ■ protects constitutional and statutory rights and liberties; ■ assures equal access;

■ provides fair, timely, and constructive resolution of cases; and ■ enhances public safety.10 The use of ODR in the courts arose out of the need to resolve high volume, low value cases using a proportionate dispute resolution mechanism. When considering the use of ODR in other types of cases, courts must balance the need maintain a system that provides due process with the provision of dispute resolution tools that allow parties self-determination and efficiency in resolving their disputes.11 To promote a robust online democratic process, courts and private providers must consider developing choice architectures that optimize a litigant’s fast understanding of legal rights and options, yet a process that then slows to allow thoughtful decision-making.12 Courts should establish an ethical framework before adopting ODR wholesale that incorporates the underlying purposes of mediator standards, which are to guide conduct, inform parties, and promote public confidence and transparency in a process for resolving disputes.13 Ideally, online tools will provide the public with a general understanding of the type of legal dispute they may be facing; provide referrals to legal clinics, attorney resources, and resources such as court rules and statutes; and offer a platform for party-to-party communication (with or without a third-party neutral) to allow productive settlement discussions. Further, if settlement negotiations are successful, ODR systems must allow parties to e-file agreements to judicial officers for review and adoption in an enforceable order. All this must be done in a transparent, yet confidential, online setting in which data is protected and online security standards are met. Conclusion This three-part article took a close look at ODR and the broad implications for its use in Colorado. In many ways, AI-assisted and other ODR tools are merely the newest mechanisms for resolving existing legal problems. Typewriters led to the abandonment of the quill pen, and the advent of word processing, fax machines, email, laptops, tablets, and electronic document transmission revolutionized the practice of law.

We’ve adapted to these new technologies, and we will adapt to videoconference mediations and AI-assisted ODR in our practices. But like the other tools we now find indispensable, these new tools carry both promises and pitfalls. As legal professionals, we have a duty to the

communities we serve to advocate for the safe, prudent, and well-governed development and deployment of ODR tools. With careful design and management, ODR can effectively contribute to the preservation of individual rights and civil justice.

Doug McQuiston is a mediator panelist with Accord ADR Group in Boulder and metro Denver. He is a Colorado lawyer, mediator, and writer with over 38 years’ experience in litigation, alternative dispute resolution, law and technology, and law office management. McQuiston is currently vice chair of the CBA’s ADR Section and is a frequent contributor to the Denver Bar Association’s Docket and other publications. Sharon Sturges is the director of the Office of Dispute Resolution and coordinator of the Access and Visitation Program for the Colorado court system. Previously, she was in private civil practice for over 15 years in Western Colorado, and she served as the executive director for a community mediation center in Anchorage, Alaska—sharon.sturges@ judicial.state.co.us. The views, thoughts, and opinions expressed in this article belong solely to Sturges and do not necessarily reflect the official position of the Office of Dispute Resolution or the Colorado Judicial Department. Coordinating Editor: Marshall Snider, msniderarb@comcast.net

NOTE S

1. Colo. RPC, https://www.cobar.org/RulesofProfessionalConduct. 2. Spencer, “Technology, ethics and the law: Grappling with our AI-powered future,” Microsoft (Apr. 9, 2018), https://news.microsoft.com/apac/features/technology-ethics-and-the-law-grapplingwith-our-ai-powered-future. (Emphasis added.) 3. Id. 4. Id. 5. ABA Model Standards of Conduct for Mediators, https://www.americanbar.org/groups/dispute_ resolution/policy_standards. 6. ABA Standards for Family Mediators, https://www.americanbar.org/groups/dispute_resolution/ policy_standards. 7. Colorado Model Standards of Conduct for Mediators, https://www.courts.state.co.us/ Administration/Section.cfm?Section=odrres. 8. ICODR Standards, https://icodr.org/standards. 9. ABA Model Rule 1.1 cmt. 8 specifies that lawyers must know and understand “the benefits and risks associated with relevant technology.” New York Rule of Professional Conduct 1.1 cmt. 8 states: “To maintain the requisite knowledge and skill, a lawyer should . . . keep abreast of the benefits and risks associated with technology the lawyer uses to provide services to clients or to store or transmit confidential information.” 10. https://www.courts.state.co.us/mission.cfm. 11. In most civil cases, one or both parties are not represented by counsel, and the majority of civil cases are resolved without a contested hearing; based on calendar year data available from the Colorado Judicial Branch for 2012–18, excluding domestic relations cases, less than 1% of all civil cases in district and county courts result in a contested trial. 12. See Sela, “e-Nudging Justice: The Role of Digital Choice Architecture in Online Courts,” J. of Dispute Resolution vol. 2019, no. 2 at 127. For an explanation of “slow” and “fast” thinking, see Kahneman, Thinking, Fast and Slow (Farrar, Straus and Giroux Apr. 2, 2013). 13. See, e.g., ABA Model Standards of Conduct for Mediators, supra note 5, Preamble (“These Standards are designed to serve as fundamental ethical guidelines for persons mediating in all practice contexts. They serve three primary goals: to guide the conduct of mediators; to inform the mediating parties; and to promote public confidence in mediation as a process for resolving disputes.”). There are also National Standards for Court-Connected Mediation Programs that are voluntary but provide another lens through which courts can view the ethical issues inherent in providing online tools for court customers, https://s3.amazonaws.com/ aboutrsi/59a73d992959b07fda0d6060/NationalStandardsADR.pdf.

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Horizontal Stare Decisis BY C H R I ST OPH E R JAC K S ON

A recent Colorado Supreme Court opinion suggests that the Court is undergoing a substantial shift in its horizontal stare decisis jurisprudence. This article examines the current state of the law and identifies some issues the Court may take up in the near future.

tare decisis—Latin for “to stand by things decided” 1—has long been a rather sleepy area of law. Most practitioners and judges take it for granted that courts will follow earlier judicial decisions if the same issue comes up again in another case.2 But that principle is subject to two important exceptions. First, a judicial decision isn’t binding on all courts; a somewhat complex set of rules dictates which decisions bind which courts and how federal and state judicial systems interact—a concept commonly called “vertical stare decisis.”3 Second, and more important, a court may, in compelling circumstances, depart from “horizontal” precedent by deciding to overrule one of its own prior decisions.4 But what exactly qualifies as a “compelling circumstance”? That

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question is particularly important when it comes to the Colorado Supreme Court and any other court of last resort (including, of course, the U.S. Supreme Court); because such a court is the final arbiter on the interpretation of a certain class of laws, it’s the only body that can formally overturn one of its own decisions. This often-overlooked issue received heightened scrutiny with the recent additions of Justices Gorsuch and Kavanaugh to the U.S. Supreme Court. 5 It’s also worth looking at stare decisis in Colorado, particularly at how the Colorado Supreme Court conceives of its “precedent on precedent”—that is, the way it decides when to depart from a prior ruling. A recent opinion suggests that the Colorado Supreme Court may be rethinking its horizontal

stare decisis jurisprudence. This article reviews the current state of Colorado law and analyzes open issues the Court may face in the near future. The Creacy and Blehm Cases For decades, the Colorado Supreme Court’s law on horizontal stare decisis remained mostly unchanged. In 1961, in Creacy v. Industrial Commission, the Court broadly recognized that previous decisions “will not be departed from for slight or trivial causes, and certainly not where such departure would promote injustice or defeat justice.”6 In that case the Court identified a few relevant factors for analyzing when to depart from a prior ruling, including the length of time a particular rule has been in place, whether the decision has become “firmly embedded in the jurisprudence of the jurisdiction,” and whether it was “handed down by closely divided courts.”7 By the 1990s, the Court had settled on a particular formulation of this rule. In People v. Blehm, the Court articulated, apparently for the first time in a majority opinion, “that a court will follow the rule of law it has established in earlier cases, unless clearly convinced that the rule was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come from departing from precedent.”8 Thus, a litigant seeking to overturn a previous decision must clearly convince the Court that (1) the original decision was wrong or has become unsound, and (2) more good than harm will come from overturning it. In Creacy, the Court recognized the importance of “uniformity, certainty, and stability of the law and the rights acquired thereunder.”9 Yet neither Creacy nor Blehm discussed one of the principal justifications for stare decisis: reliance, or the idea that “people have organized [their lives] and made choices” based on a previous decision.10 Thus, the Creacy-Blehm line of cases justifies horizontal stare decisis on broad principles and provides little practical guidance on when the Colorado Supreme Court will depart from the doctrine.

Novotny Signals a Change In 2014, the Colorado Supreme Court’s thinking appeared to shift rather significantly. That year

the Court decided People v. Novotny, a criminal case about whether automatic reversal was the proper remedy for an erroneous ruling on a challenge for cause during jury selection.11 The Court overruled its prior decisions and held that these errors aren’t structural and don’t require automatic reversal.12 In doing so, the Court spent considerable time discussing stare decisis. But

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Thus, the CreacyBlehm line of cases justifies horizontal stare decisis on broad principles and provides little practical guidance on when the Colorado Supreme Court will depart from the doctrine.

” it didn’t rely on its earlier pronouncements; it included only a cursory citation to Creacy and made no reference to the standard for overturning precedent.13 Instead, the Court focused on U.S. Supreme Court decisions, relying primarily on Planned Parenthood v. Casey, the 1992 case where a closely divided Court declined to overturn Roe v. Wade.14 In Novotny, the Colorado Supreme Court also expressed

little deference to its previous decisions and suggested that the scope of horizontal stare decisis was quite narrow. The Court began by noting that “[w]hether the highest court of any jurisdiction will choose to follow or depart from its own prior decisions must ultimately remain a matter of discretion.”15 It then held that, because it was the only body capable of overturning one of its previous decisions, “it is not merely within our discretion but in fact our obligation, when given the opportunity, to expressly overrule any of our prior holdings the necessary premises for which are no longer good law.”16 The existence of that obligation depends on the practical workability of that [prior] decision; the extent to which a departure would work a hardship or inequity on those who have relied on and ordered their behavior around the prior ruling; and, whether the principles upon which the ultimate holding is premised . . . have themselves developed in such a way as to leave the prior ruling without support.17 Novotny was a substantial change to the Court’s precedent on precedent in at least three ways. First, the Court explicitly grounded its reasoning on decisions from the U.S. Supreme Court, rather than common law principles or its previous opinions.18 Second, Novotny adopted a narrow view of horizontal stare decisis, indicating that the Court has not just the right but the obligation to overrule decisions that it thinks were wrongly decided. And third, the Court offered specific factors—including reliance interests—that it would consider in assessing whether to follow its previous decisions. A Return to Creacy and Blehm, and Back Again Soon after Novotny, the Court retreated from its new construction of horizontal stare decisis. In a string of cases from 2015 to 2018, the Court relied instead on the Creacy and Blehm standard, omitting any reference to Novotny or its list of factors. In People v. Porter, the Court applied the “more good than harm” articulation and didn’t cite Novotny at all.19 In People v. Kutlak, it generally noted that it would “depart from our precedent where, as here, sound reasons A PR I L 2 0 2 0

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exist for doing so,” and cited Novotny only for the broad proposition that a supreme court shouldn’t often overrule itself.20 The Court took a similar tack in Nicholls v. People 21 and Love v. Klosky.22 But in 2019, the Court switched gears again. In Vigil v. People, it relied on Novotny in overturning a previous decision that also involved jury selection.23 In a 4 to 3 decision, the Court again suggested that horizontal stare decisis isn’t a firm rule but “ultimately a matter of discretion,” and that when the basis for a prior holding is no longer supported, “overturning it is not only merited but is in fact an obligation of the high court.”24 Vigil doesn’t cite Creacy at all. Even a special concurrence written by Justice Hood and joined by Justice Hart doesn’t quibble with this analysis of stare decisis. In fact, Justice Hood wrote that he felt “compelled to join the [majority’s] decision” because “stare decisis compels my reluctant obedience . . . today.”25 So, where has the Court ultimately landed when it comes to horizontal stare decisis? It’s difficult to say for sure. While the Creacy and Novotny lines of cases appear at first blush to be distinct, the Court may not view them that way.26 Perhaps it believes that the two can be reconciled, and that Novotny did little more than flesh out the broader principles articulated in Creacy and its progeny. If that’s the case, then Novotny certainly offers litigants more guidance on how the Court views stare decisis. But no matter how the Court conceives of these cases, several unresolved issues remain about how the doctrine applies in practice. Open Questions Notwithstanding the general ambiguity in the standard for horizontal stare decisis under existing case law, the Court could potentially address two discrete issues in the near future.

What Deference Will the Court Give to Constitutional Issues? Arguably the most significant open issue is whether the Colorado Supreme Court will treat horizontal stare decisis differently when it interprets the state constitution. The U.S. Supreme Court has indicated, most recently in Franchise Tax Board v. Hyatt, that stare decisis

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“is ‘at its weakest when we interpret the [Federal] Constitution because our interpretation can be altered only by constitutional amendment.’”27 Some commentators have suggested that, as an empirical matter, the U.S. Supreme Court isn’t actually more likely to depart from precedent in constitutional cases,28 but it’s certainly true that “[t]he Justices regularly say” that they do.29 The Colorado Supreme Court appears to have directly addressed this issue only once, in a 1963 dissent. In People v. Quimby, Chief Justice Frantz articulated the argument: To say that a mistake in the interpretation of the Constitution by the Supreme Court may undo the voice of the people as expressed in their Constitution, and that it will take a vote of the people to undo the judicial mistake is iniquitous doctrine, wholly out of keeping with a government operating under a Constitution in which the mandate of the people may not be set at naught by an errant court.30 But based on this author’s research, the Court has never stated in a majority opinion whether it will give more, less, or the same deference to its previous constitutional decisions. At least some of the Court’s opinions treat constitutional and non-constitutional questions the same for purposes of horizontal stare decisis.31 But Novotny and Vigil’s holdings that the Court has an “obligation” to correct opinions it believes were wrongly decided indicates some degree of willingness to adopt a different view. If the Court does decide to take up this issue, it’s important to note that the argument articulated by the U.S. Supreme Court in Hyatt (and by the Quimby, Novotny, and Vigil Courts) doesn’t support the precise rule those cases advocate for—namely, less deference to a previously decided constitutional case. It’s true, as the Hyatt Court says, that the U.S. Supreme Court’s interpretation of a constitutional issue “can be altered only by constitutional amendment.”32 But if the concern is that it’s more difficult to overturn a supreme court decision in a constitutional case because doing so requires a constitutional amendment, that’s an argument to give maximum deference to the statutes and rules that the legislative and executive branches adopt, not a willingness to readily reconsider an

earlier decision. This can most clearly be seen in a hypothetical case where the Court upholds, rather than strikes down, a state law. In that situation, the legislature can always choose to repeal the law at issue; it certainly doesn’t need to spearhead a constitutional amendment to “reverse” the Court’s decision. It’s only in cases where the Court strikes down a legislatively enacted law or holds that a governmental action is unconstitutional that this minimal-deference position makes sense. The point, in other words, is that if a court were to adopt the concerns articulated by Hyatt and Novotny, it should seek to give the legislature (and the executive, and state and local governments) as much room to maneuver as possible. Within the paradigm of these cases, when the Supreme Court has previously upheld a law, it should accord more deference to that decision going forward. And in fact, the Colorado Supreme Court has partially adopted this idea already in another, related context: it “presume[s] a statute to be constitutional” and won’t strike it down unless the challenger proves her case “beyond a reasonable doubt.”33 But it remains to be seen how the Court will synthesize this principle with Novotny and Vigil’s assertion that previous decisions should always be up for grabs. In particular, the Court might choose to address both the level of deference it will afford a previous constitutional decision striking down a law and whether it will give more deference to a constitutional decision that upholds a law. Will the Court Continue to Follow the U.S. Supreme Court’s Lead? Another outstanding question on horizontal stare decisis is whether the Colorado Supreme Court will continue Novotny’s practice of following the U.S. Supreme Court’s approach. As noted above, Novotny relies almost entirely on cases from the nation’s highest court, rather than Colorado decisions or common law principles. The U.S. Supreme Court’s pronouncements on horizontal stare decisis have never been perfectly consistent.34 But there’s substantial evidence that the U.S. Supreme Court’s thinking on this subject is evolving. Take, for example, Justice Thomas’s recent concurrence in Gamble v. United States, where he wrote that “the Court’s

typical formulation of the stare decisis standard does not comport with our judicial duty under Article III because it elevates demonstrably erroneous decisions . . . over the text of the Constitution and other duly enacted federal law.”35 A recent dissent by Justice Breyer expressed grave concern about the Court’s new willingness to overturn prior decisions: he wrote in Hyatt that it’s “dangerous to overrule a decision only because five Members of a later Court come to agree with earlier dissenters on a difficult legal question” and that “[t]oday’s decision can only cause one to wonder which cases the Court will overrule next.”36 Certainly

the Colorado Supreme Court isn’t required to follow the U.S. Supreme Court’s decisions on stare decisis.37 But Novotny’s apparent adoption of a less-deferential standard might be a sign that the Colorado Supreme Court is ready to follow suit.38 Conclusion Admittedly, no court could ever adopt a truly bright-line set of rules on when it will overturn its own precedent. But in the right case, the Colorado Supreme Court could provide additional guidance about how it views horizontal stare decisis. Ideally, savvy practitioners will be on

the lookout for the right vehicle to tee up these questions for the Court’s consideration.

Christopher Jackson is a member of Sherman & Howard L.L.C. in Denver. His practice focuses on appeals, commercial litigation, and political law—cjackson@shermanhoward.com. The author thanks Michael Blasie and Will Hauptman for their insightful comments on this article. Coordinating Editor: Marcy Glenn, mglenn@ hollandhart.com

NOTES

1. Black’s Law Dictionary (11th ed. 2019). 2. Id. 3. Id. (vertical stare decisis is the doctrine that holds “that a court must strictly follow the decisions handed down by higher courts within the same jurisdiction”); Bromely v. Crisp, 561 F.2d 1351, 1354 (10th Cir. 1977) (“[T]he Oklahoma courts may express their differing views on the retroactivity problem or similar federal questions until we are all guided by a binding decision of the Supreme Court.”). 4. Black’s Law Dictionary, supra note 1 (“[H]orizontal stare decisis” is the doctrine that “a court, esp. an appellate court, must adhere to its own prior decisions, unless it finds compelling reasons to overrule itself[.]”). 5. E.g., Barnes, “Supreme Court’s conservatives overturn precedent as liberals ask ‘which cases the court will overrule next,’” Wash. Post (May 13, 2019). 6. Creacy v. Indus. Comm’n, 366 P.2d 384, 386 (Colo. 1961). 7. Id. 8. People v. Blehm, 983 P.2d 779 (Colo. 1999) (citing Hanna, “The Role of Precedent in Judicial Decisions,” 2 Vill. L. Rev. 367, 368 (1957)). However, Justice Lohr did reference this formulation in an earlier dissent in People v. Naranjo, 840 P.2d 319, 335 (Colo. 1992) (“In addition, although this court is not strictly bound by its own precedents, I am not ‘clearly convinced that the rule . . . was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come by departing from precedent.’”) (quoting Hanna, supra, at 368) (Lohr, J., dissenting). 9. Creacy, 366 P.2d at 386. 10. Planned Parenthood v. Casey, 505 U.S. 833, 856 (1992). 11. People v. Novotny, 320 P.3d 1194, 1196 (Colo. 2014). 12. Id. 13. Id. at 1202–03.

14. Planned Parenthood, 505 U.S. 833. 15. Id. at 1202 (citations omitted). 16. Id. at 1203 (citing Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)) (emphasis added). 17. Id. at 1202 (citing Planned Parenthood, 505 U.S. at 854–55). 18. The Court took a similar approach in Warne v. Hall, 373 P.3d 588 (Colo. 2016), reversing course on the rules governing pleading standards in light of the U.S. Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 566 U.S. 662 (2009). But rather than explicitly overruling a prior decision, the Court adopted “the interpretive gloss added by the [U.S.] Supreme Court,” which it found “to be very much in line with the direction our rule-making has taken . . . .” Id. at 595. 19. People v. Porter, 348 P.3d 922, 927–28 (Colo. 2015). 20. People v. Kutlak, 364 P.3d 199, 204–05 (Colo. 2016). 21. Nicholls v. People, 396 P.3d 675, 861 (Colo. 2017). 22. Love v. Klosky, 413 P.3d 1267 (Colo. 2018). 23. Vigil v. People, 2019 CO 105, ¶ 22. It’s worth noting that Chief Justice Coats wrote the majority decisions in both Novotny and Vigil. This may go some way in explaining the difference between the Novotny and Creacy lines of decisions. 24. Id. 25. Id. ¶ 34 (Hood, J., specially concurring). 26. See, e.g., the dissent penned by Justice Gabriel that cites to both the Creacy line and Novotny in laying out the Court’s view regarding precedent in Laura A. Newman, LLC v. Roberts, 365 P.3d 972, 979 (Colo. 2016) (Gabriel, J., dissenting). 27. Franchise Tax Bd. of Cal. v. Hyatt, 587 U.S. ___, 139 S. Ct. 1485, 1499 (2019) (quoting Agostini v. Felton, 521 U.S. 203, 235 (1997)). 28. Epstein et al., “The Decision to Depart

(or Not) from Constitutional Precedent: An Empirical Study of the Roberts Court,” 90 N.Y.U. L. Rev. 1115, 1117 (2015). 29. Id. 30. People v. Quimby, 381 P.2d 275, 280–81 (Colo. 1963) (Frantz, C.J., dissenting) (emphasis added). Chief Justice Frantz’s dissent also seems to conjure up the originalist argument that, because Article III says the Constitution, not judicial precedent, is the supreme law of the land, courts should never defer to a previous decision. See, e.g., Mitchell, “Stare Decisis and Constitutional Text,” 110 Mich. L. Rev. 1 (2011) (defending constitutional stare decisis based on constitutional text, rather than consequentialist considerations). 31. E.g., City & Cty. of Denver v. Bd. of Assessment Appeals, 30 P.3d 177, 180 (Colo. 2001) (“Under the doctrine of stare decisis, we adhere to our prior construction of statutory and constitutional provisions, unless new provisions or changed conditions lead us to conclude that our prior construction is no longer sound.”) (citations omitted) (emphasis added); Blehm, 983 P.2d at 788–89 (same formulation of stare decisis in case involving protections for constitutional rights); Quimby, 381 P.2d at 277–78 (applying similar formulation to a constitutional question). 32. Hyatt, 139 S. Ct. at 1499. 33. Hinojos-Mendoza v. People, 169 P.3d 662, 668 (Colo. 2007). 34. Epstein, supra note 28 at 118 nn.13 & 14. 35. Gamble v. United States, __ U.S. __, 139 S. Ct. 1960, 1981 (2019) (Thomas, J., concurring). 36. Hyatt, 139 S. Ct. at 1506 (Breyer, J., dissenting). 37. E.g., Colo. Ethics Watch v. Senate Majority Fund, LLC, 275 P.3d 674, 685 (Colo. 2010). 38. Another point to consider is whether the different mechanisms for amending the federal and Colorado constitutions impact the analysis at all. Compare U.S. Const. art. V, with Colo. Const. art. XIX, § 2.

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FEATURE | TITLE REAL ESTATE LAW

Community Land Trusts An Essential Tool in the Affordable Real Estate Toolbox BY E R I N C L A R K

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Affordable Housing Series

This article discusses the use of community land trusts to address affordable real estate needs.

hether practicing along the Front Range or on the Western Slope, Colorado lawyers face a range of issues that accompany the double-edged sword of Colorado’s booming economy and its impact on the creation, availability, and preservation of affordable real estate. As the presence of corporate headquarters and tech startups increases, so do the number of workers needed to fill those jobs and the demands on service providers required to address those workers’ needs. Unfortunately, the impacts of such job and population growth include the increasing scarcity of affordable housing along with affordable land for services critical to workers and their families, such as schools, libraries, community centers, health clinics, and office space for nonprofits. This widespread shortage of affordable real estate impacts not only individuals and families, but also the broader community. As land values rise, so do the costs of development, resulting in increased rental and mortgage rates faced by working households. When individuals and families struggle to keep a roof over their heads without spending significantly more than 30% of their income on housing costs, they are increasingly forced to live farther from work, school, and other daily activities because they are located in ever more expensive areas. When community service providers operate far from the people they serve, households with already strained economic resources face challenges to access basic needs like healthy food and medical care. This, in turn, creates adverse collateral impacts, including traffic congestion and its associated problems. This article discusses the use of the community land trust (CLT) as a tool to manage the scarcity of affordable real estate.

Addressing the Housing Crisis The term “missing middle” is bandied about quite often these days when discussing affordable housing. Realtors and developers use it to refer to housing that is affordable to households earning between 80% to 120% of the Area Median Income (AMI) as defined by the U.S. Department of Housing and Urban Development (HUD).1 These households include those who do not earn enough to comfortably purchase a market rate home, given the steep increase in property values and accompanying property taxes, but who make too much to be eligible for traditional affordable housing that serves households earning 80% of AMI or below. On the other hand, when urban planners and architects refer to the “missing middle,” they often do so in the context of a building typology that is in short supply these days—duplexes, triplexes, and row homes—housing that helps fill the gap in density between single family dwellings and large apartment complexes. However, there may yet be a third way to view the “missing middle”: as the gap between renting a home, either market rate or subsidized, and purchasing a home. CLTs seek to bridge that divide. Previously, an individual or a family could rent a home for a period of time while saving money toward a down payment, and then transition to homeownership, but that scenario is rapidly becoming outdated. Rather, as real estate prices in today’s markets vastly outpace income gains, households increasingly find themselves on the outside looking in on the American dream of homeownership. Neighborhoods, towns, and cities suffer when individuals and families are priced out of the areas where jobs and services exist. Those forced to relocate typically face increased expenses and a decreased quality of life, while their former

communities lose their contributions to the local economy and civic affairs. This circumstance exists in urban, rural, and resort settings alike throughout Colorado. For example, places like Telluride, Vail, and Aspen conjure images of lavish ski chalets and high-end restaurants for wealthy vacationers. But what is the quality of life for firefighters who work in these communities year-round, or teachers who educate the children of service workers who cater to the visiting masses, or the service workers themselves? These behind-the-scenes service providers are often overlooked but are just as critical to the functioning of those communities as the tourists. The widespread lack of affordable Colorado real estate in the very locations where it is needed most, combined with rising land acquisition and construction costs, raises the question of how reducing or even eliminating the high cost of land can increase options that address Colorado’s affordable housing crisis. This question spurred the emergence of the CLT2 as a creative addition to the affordable real estate toolbox. CLTs offer options for households seeking to move from renting into homeownership, for rental apartments to remain affordable in perpetuity, and for nonprofits seeking stable real estate with a lower monthly cost. The CLT structure seeks to enable occupants to better deploy their limited resources toward actual housing and/or programming needs, instead of diverting these resources disproportionately to mortgage or rental costs. What is a CLT? Essentially, a CLT is a public-private partnership. The hallmark of the CLT approach involves severing land ownership (the public asset) from the value of building improvements constructed on that land (the private asset). Under CLT structures, land is owned by a nonprofit A PR I L 2 0 2 0

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entity, and the owner of the building or other improvements has a leasehold interest in the land through a long-term ground or land lease. This approach of separating ownership of the land from ownership of the building provides opportunities for building owners to create equity through the value of the physical structures while allowing landowners to ensure that the underlying land is held in trust for community benefit, in perpetuity. Typical entities involved in CLTs are nonprofits, municipalities, school districts, and faith-based institutions. Such entities are well-suited to retaining ownership of the land and having a voice in improvements made on the land that can best serve the broader community through affordable rental or for-sale housing, or for the benefit of nonprofit service providers, in perpetuity. Philosophical Underpinnings As noted by the eminent CLT scholar, John Emmeus Davis, Only part of a property’s unencumbered value is a product of an individual’s personal investment in purchasing and improving the property. The rest of it, often the bulk of it, is a product of the community’s investment . . . and equity accruing to the property over time because of public investment in necessary infrastructure (roads, schools, utilities, etc.) and economic growth in the surrounding society.3 This enunciates the key philosophical underpinning of the CLT structure. As anyone working in the affordable housing arena keenly understands, significant time, effort, and resources are required to deliver real estate that is truly affordable to the end user. Indeed, the results of initial capital investments, typically in the form of an affordability covenant or other method of income restriction, often only benefit the real estate for periods ranging from 15 to 60 years.4 Affordable housing programs that focus on individual homebuyers or tenants instead of the real estate itself, such as down payment assistance or Section 8 housing vouchers, are useful to specific households, but the benefit stops there. CLTs seek to remedy this shortcom-

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ing by ensuring that the front-end investment to create affordable housing remains available to multiple households across generations. This focus on future benefit is the basic philosophical foundation of the CLT model and drives its success. CLTs for Homeownership and Rental Housing CLT homes take various forms, including new construction of single-family residences, townhomes, or condos in a single community or building; the purchase of existing rental homes across scattered sites to be rehabilitated and sold, ideally to the very family that had been renting the unit; and permanently affordable apartments. The CLT model seeks to extend the affordability period. For example, if a multifamily building is constructed using Low Income Housing Tax Credit (LIHTC) financing,5 but the underlying land is owned by a CLT and leased to the owner of the building, the land lease can lower the initial investment required to create the affordable multifamily housing, because the land lease fee is far lower than the cost to purchase the land outright. That approach, in turn, enables the affordability period to extend beyond the standard 40-year term set forth in the land use restriction agreement under the LIHTC program. CLTs in Commercial Contexts In the commercial context, a building containing a charter school, library, recreation center, health clinic, or even office space for nonprofit organizations can also be owned by one entity that then leases the underlying land from a CLT. A Denver-based organization, Urban Land Conservancy, often uses the CLT in this manner. For example, Urban Land Conservancy owns the land under two commercial buildings in Denver’s Northeast Park Hill neighborhood. One building was constructed and is operated by the Boys & Girls Club of America. The other was constructed by a nonprofit charter elementary school. Cost Savings CLTs save substantial costs for all entities involved. Rather than being burdened with a

mortgage on the entire property, the building owner pays for the improvements only, while paying a nominal land lease fee to the CLT for use of the land. This structure permits community service organizations and small businesses to enter the real estate market at a rate that is more sustainable in the long run by allowing them to direct more of their debt and income to operations rather than real estate. Using the above example, because Urban Land Conservancy retains ownership of the land, the nonprofit end users were able to focus their fundraising efforts on financing the costs of vertical construction while avoiding finance costs for the land acquisition. Preserving Community Priorities CLTs can also ensure that real estate remains affordable to subsequent owners and will always be used for community benefit, regardless of changes in building ownership. This was recently proven when a charter school closed its doors. Urban Land Conservancy, as the landowner, had control over the ground lease and thus a seat at the table when determining who would next own the building. Before entering into the ground lease, the CLT worked with neighborhood stakeholders to establish guiding principles for future development of the property, including priorities such as partnerships, collaboration, and sustainability. By writing these principles into the ground lease instrument itself, Urban Land Conservancy was able to ensure that the community had a voice in determining the next building owner/operator. As a result, another nonprofit entity providing health and wellness programming now calls the former charter school building home. How Prominent Are CLTs? According to Grounded Solutions Network, a national organization that supports and advises CLTs, there are now more than 225 CLTs across the United States,6 including six in Colorado. The Colorado CLTs are listed in the chart on page 40, in the order of the date they were formed. Be sure to check each organization’s website for the most up-to-date information regarding areas and households served, as this information is subject to change.

Affordable Housing Series

Several grassroots community organizations are also engaged in purchasing land in the interest of stabilizing the housing stock in a given neighborhood. One example of this approach involves the residents of the Elyria-Swansea neighborhood in North Denver. These residents have partnered with Colorado Community Land Trust to purchase existing homes in the community and to manage them via a CLT to maintain affordability and mitigate involuntary displacement of long-time residents who are being forced out due to rapidly rising property values and property taxes. The CLT Toolbox CLTs hammer out the framework for achieving their goals through ground and land lease provisions, which contain specific terms designed to reach the goal of long-term affordability, and the use of a resale formula.

The Ground/Land Lease The linchpin of the CLT model is the creative use of ground or land leases. The importance of such leases to ensure long-term affordability cannot be overstated. Similar to deed restrictions or affordability covenants, the CLT ground/land lease approach uses a recorded document that encumbers ownership of real property and specifically addresses issues such as property uses and restrictions on when and to whom improvements built on the underlying land can be transferred. Since 2011, Grounded Solutions Network has offered a model ground lease that many CLTs use as a starting point.7 Unlike restrictive covenants, however, the fact that a CLT entity retains ownership of the underlying land means that two owners, the CLT and the improvements/building owner, must be at the closing table upon any transfer of improvements or ownership. A common practice to provide further assurance of control involves recording a $10 deed of trust on the land so that both the CLT and the local municipality are on notice of any modifications or releases of encumbrances, such as the deed of trust. This approach helps avoid the risk that the details of a resale restriction might inadvertently be missed or overlooked, resulting in transfer of an income-restricted property to an ineligible

“

CLTs hammer out the framework for achieving their goals through ground and land lease provisions, which contain specific terms designed to reach the goal of longterm affordability, and the use of a resale formula.

” household, as occurred with a number of properties in the Green Valley Ranch, Montbello, and Stapleton neighborhoods of Denver in 2017–18.8 As reflected in the model form, the key elements of a successful ground lease include: Lease term and renewal option. The goal of land trusts is to maintain affordability of the real estate at issue “in perpetuity.” Accordingly, the standard term of a CLT ground lease is 99 years, with either an automatic renewal term or an option for the homeowner at year 99 to renew the lease term for one additional term of 99 years. This is the legal standard used by CLTs to create “permanent affordability”—a 198-year affordability restriction. Most CLTs, however, enter into new ground leases upon each transfer of the overlying improvement, resulting in a further extension of the affordability of the subject real estate even beyond 198 years.

Right of first refusal. A successful ground lease will also contain a reciprocal right of first refusal, so if the building owner seeks to transfer ownership of the improvements, the CLT will have the right to purchase the building. Likewise, if the CLT ever sought to transfer the land to an entity other than another nonprofit, charitable trust, government, or other entity committed to the expressed long-term public benefit goals of the CLT, the building owner would have a right of first refusal with respect to purchasing the underlying land. Lease fee. CLTs charge a nominal monthly lease fee to the building owner/ground lessee to cover costs related to the value of the land (accounting for the restrictions associated with the land lease), pre-lease holding costs (e.g., for property taxes, insurance, and maintenance), and overhead for the ongoing management of CLT administration. Many CLT managers note that an important side benefit of the land lease fee is that it serves as an important early indicator of a homeowner’s financial solvency. If a homeowner has trouble paying the lease fee, this may evidence current or future difficulty meeting mortgage payment obligations. This information can signal to the CLT the need to check in with the homeowner to provide early intervention to help the homeowner get back on track. The lease fee is one of the key reasons that foreclosure rates for CLT homes are far lower than for conventional homeownership options. Financing. The availability and structure of mortgage financing is central to CLT operations. Not all lenders will work with ground/land leases because the land cannot be collateralized; only the improvements can. Accordingly, the land collateral is defined by its “leasehold value,” which is its fee simple value less its lease fee value. This significantly impacts underwriting requirements, and because the lending volume for CLT properties is far lower than that for the overall market, most lenders have limited experience with these types of loans. CLTs have addressed this situation in two ways: ■ Many successful CLTs work with a small number of pre-approved lenders who are familiar with the model. This enables CLTs

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FEATURE | REAL TITLEESTATE LAW

COLORADO COMMUNITY LAND TRUSTS YEAR FOUNDED, HQ CITY

CLT

Thistle Communities (homeownership)

1989, Boulder

AREA(S) CURRENTLY SERVED

1996, Colorado Springs

Boulder County

First-time homebuyers earning 80% of AMI or below (up to $75,500 in annual income for a family of four in 2019).*

El Paso County

First-time homebuyers earning 80% of AMI or below (up to $65,100 in annual income for a family of four in 2019).*

By 2018, there were 338 families in Rocky Mountain CLTâ&#x20AC;&#x2122;s Affordable Homeownership Program.

Denver

Approximately 200 homes (mostly in the Lowry neighborhood). Affordable to households earning 80% of AMI or below (up to $74,250 in annual income for a family of four in 2019).*

The current waitlist is reported to be about two years. Only 15 units turn over each year, with many homes currently occupied by their original owners (i.e., since 2004).

Aurora, Commerce City, Denver, Lakewood, Westminster

Renters at or below 60% of AMI (up to $74,250 in annual income for a family of four in the Denver-AuroraLakewood Metropolitan Statistical Area in 2019).*

Urban Land Conservancy serves the nonprofits Vickers Boys & Girls Club and New Legacy Charter School.

Chaffee and Lake Counties

Those earning 80% of AMI or below (up to $54,500 in annual income for a family of four in 2019).*

In 2016, the average home prices in Salida and Buena Vista were $398,000 and $346,000 respectively, requiring an annual income of $75,000 to afford. That income level is 130% of AMI.

Denver, Boulder, Aurora, Longmont

Those earning 80% of AMI or below (up to $74,250 family of four in the Denver-AuroraLakewood Metropolitan Statistical Area in 2019).*

This is one of the largest CLT entities in the country.

rmclt.org

Colorado Community Land Trust (homeownership)

2002, Denver

coloradoclt.org

Urban Land Conservancy (rental apartments and nonresidential uses)

2003, Denver

urbanlandc.org

Chaffee Housing Trust (homeownership) chaffeehousing.org

Elevation Community Land Trust (homeownership)

2007, Buena Vista

2018, Denver

elevationclt.org

*HUD User portal, https://www.huduser.gov/portal/datasets/il/il2019/2019summary.odn.

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ADDITIONAL INFORMATION Thistle concentrates on expanding affordable rental housing. It has developed over 250 CLT homes across Boulder County, including the preservation of a mobile home park.

thistle.us

Rocky Mountain Community Land Trust (homeownership)

HOUSEHOLDS SERVED

Affordable Housing Series

to direct potential homeowners to banks familiar with CLTs, and the pre-approved lender’s knowledge of CLTs results in reduced transaction costs. ■ Many CLTs incorporate a Rider to the form of ground lease that has been pre-approved by Fannie Mae. The Rider ensures that the Fannie Mae mortgage will be a “Permitted Mortgage” under the ground lease and, as such, will retain first lien status with respect to the leased premises. The Rider also ensures that if a CLT home goes into foreclosure, it can be re-sold at market rate. However, the nominal land lease fee can also be increased to a market rate. Because of this, many banks often prefer to work with the CLT to find another income-eligible homebuyer to reduce the land lease fee rather than sell the home at market rate. Thus, the Rider helps to incentivize mortgage lenders to work with CLTs to continue the mission of maintaining the long-term affordability of the home and the land. The Resale Formula For homeownership CLTs, the resale formula is critical to defining how equity is earned by the homeowner, while also ensuring that the improvement will be sold at an affordable price to the next household. This is the reason the structure is often referred to as “shared equity homeownership.”9 The details of resale formulas differ among CLTs, but a typical structure ensures that: ■ 25% of appreciation in market value goes to the homeowner upon sale; and ■ 75% of appreciation in market value stays in the land upon sale of the improvement. In this way, homeowners essentially “pay forward” the opportunity of homeownership they enjoy, enabling the same benefit for future households. Resale formulas vary from market to market based, in part, on how much value has to remain in the land to maintain the property’s affordability for future owners (subsidy retention). In tight housing markets, this could mean a slightly lower amount of equity earned by an individual homeowner. Where land is more affordable,

the CLT’s equity share may be reduced and the homeowner’s share increased.10 Either way, the CLT model incentivizes owners to make improvements to their homes to increase the total amount of equity they may realize upon selling the property. Burlington Associates, a prominent consulting firm that provides technical assistance to CLTs, describes the two primary goals of a successful resale formula as ■ ensuring fair access for future CLT homeowners who are buying CLT homes, and ■ ensuring a fair return for present CLT homeowners who are selling CLT homes.11

Conclusion It is a matter of public concern to ensure that the families and services that define neighborhoods can afford the option to remain in those neighborhoods, and the CLT provides a public trust method to meet that goal. To that end, attorneys should educate themselves and their clients about the option of using the CLT model. As with Colorado open lands protection, similar attention should be paid to protecting the affordability of urban and rural land for affordable housing to maximize this resource for the benefit of future generations.

Erin Clark is an urban planner and real estate attorney who currently serves as vice president of Master Site Development for Urban Land Conservancy. She oversees development of large, multi-use sites throughout the Denver metro area, particularly in transit-oriented development areas, using land trusts to ensure long-term affordability and community benefits—eclark@urbanlandc.org. Coordinating Editor: Christopher D. Bryan, cbryan@garfieldhecht.com

NOTE S

1. HUD User portal, https://www.huduser.gov/portal/datasets/il/il2019/2019summary.odn. 2. CLTs have operated in Colorado since the 1990s. The most recent statewide effort, Elevation Community Land Trust, was formed in 2018. The modern CLT is often traced to New Communities, Inc., a group of African American families in and around rural Albany, Georgia, who banded together in 1969 to purchase 5,700 acres communally for the purpose of creating a selfsustainable farm and affordable housing. Elliott, “5 Decades Later, New Communities Land Trust Still Helps Black Farmers,” NPR (Oct. 23, 2019), https://www.npr.org/2019/10/03/766706906/5decades-later-communities-land-trust-still-helps-black-farmers. 3. Davis, “More Than Money: What is Shared in Shared Equity Homeownership?” J. of Affordable Hous. & Cmty. Dev. Law vol. 19, nos. 3 and 4 at 262–63 (2010), https://community-wealth.org/sites/ clone.community-wealth.org/files/downloads/article-davis10.pdf. 4. The initial LIHTC compliance period is 15 years. In 2018, the City of Denver adopted Ordinance 18-1089, which extended affordability restrictions on City-subsidized housing units from 20 years to 60 years. 5. See Pasquini and Munroe, “Building Healthy Communities through Health Care and Affordable Housing Synergies: Front Range Case Studies,” 48 Colo. Law. 40, 41–42 (Dec. 2019), discussing LIHTCs. 6. Grounded Solutions Network, Community Land Trusts, https://groundedsolutions.org/ strengthening-neighborhoods/community-land-trusts. 7. Another model ground lease that is recognized by Fannie Mae for underwriting purposes is produced by the Institute for Community Economics, https://groundedsolutions.org/sites/default/ files/2018-11/21%20ICE-Model-Ground-Lease_0.pdf. 8. Kenney, “How 300 homeowners may have broken affordable-housing rules—and what happens next,” Denverite (May 28, 2018), https://denverite.com/2018/03/28/hundreds-people-improperlyliving-affordable-homes-denver-says. 9. Davis, supra note 3 at 259–77. 10. See, e.g., Girga et al., A Survey of Nationwide Community Land Trust Resale Formulas and Ground Leases: A Report Prepared for the Madison Area Community Land Trust (Apr. 2002), http://affordablehome.org/homeowner-resources/index_assets/resale-formulas-groundleases-2002.pdf. 11. Designing Resale Formulas: Goals, https://www.burlingtonassociates.com/ files/8113/4461/6265/4-Goals_in_Designing_Resale_Formulas.pdf.

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The SECURE Act Impact on Estate Planning with Qualified Retirement Plans and IRAs BY E M I LY L . B OW M A N

This article analyzes the SECURE Act’s impact on individuals with qualified retirement plans and IRAs. It focuses on changes related to estate planning.

he Setting Every Community Up for Retirement Enhancement Act of 2019, more commonly known as the SECURE Act (the Act),1 was signed into law on December 20, 2019. Among other things, the Act aims to make it easier for more people to save for retirement. The Act makes several significant changes to how and when individuals can save for retirement using qualified retirement plans and individual retirement accounts (IRAs) (collectively, retirement

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plans). It also drastically limits the timeframes during which retirement plan benefits must be distributed to a participant’s beneficiaries. This article focuses broadly on the Act’s most significant changes as relevant to estate planners. The Act’s impact on the estate planning profession will be substantial, but because the Act is still in its infancy, unforeseen complexities and complications will inevitably result, and solutions to these issues remain uncertain. This article does not offer the best

solutions to all of the issues that will arise as a result of the Act, nor should it be relied on to answer questions relating to specific situations, given the uncertainties and the wide range of possible circumstances and outcomes. Instead, the article focuses on the changes that have been enacted, the expected impact of those changes on currently established estate planning practices, and some possible alternative estate planning options available to estate planners.

expect to see estate planning clients who have increasingly larger traditional IRAs.

ABBREVIATION KEY Act

SECURE Act

Designated beneficiary (either a pre-SECURE Act DB, or postSECURE Act ODBs and EDBs collectively)

EDB

Eligible designated beneficiary

IRA

Individual retirement account

IRC

Internal Revenue Code

Non-DB

Non-designated beneficiary (a beneficiary that does not qualify as a DB, such as an estate, charity, or non-see-through trust)

ODB

Ordinary DB (a DB that does not qualify as an EDB)

RBD

Required beginning date

Retirement plans

Qualified retirement plans and IRAs

RMD

Required minimum distributions

Overview of the Act The Act originated in the House of Representatives, where it passed quickly in the summer of 2019 (H.R. 1994), but thereafter stalled in the Senate and appeared to have been indefinitely delayed and virtually forgotten. In a surprise shift, however, the Act was attached to a critical spending bill in December 2019 that needed to be passed to avoid a government shutdown. The spending bill (and the Act) was quickly approved by the Senate on December 19, 2019 and signed into law by President Trump on December 20, 2019, catching estate planning attorneys and retirement plan participants totally by surprise and leaving them with many unanswered questions about the Act’s operation and impact on estate planning. The changes brought by the Act affect not only who clients select as their retirement plan beneficiaries, but also how clients’ estate plans (particularly trusts receiving retirement plan benefits) must be drafted going forward.

RMDs Begin at 72 Before the Act’s passage, owners of retirement plans (participants) were required to begin taking their required minimum distributions (RMDs) beginning on April 1 of the calendar year following the year in which the participant turned 70½, known as the required beginning

date (RBD). With more individuals continuing to work longer, retire later, and live longer, and with the progressively increasing need for the country’s workforce to individually save for retirement, Congress saw a need to adjust the age at which retirement plan participants were required to start withdrawing minimum distributions. Therefore, the Act adjusted the RBD for participants to age 72.2 This change applies to retirement plan participants turning 70½ on or after January 1, 2020. Note that those participants who are under 72 but turned 70½ before January 1, 2020 are still required to continue taking their RMDs (or begin taking RMDs on April 1 of the year after turning 70½), pursuant to the prior laws. Traditional IRA Participants May Contribute Beyond 70½ Due to the increasingly vital need for individuals to save for their retirement, coupled with the fact that workers are continuing to work longer and postpone retirement, the SECURE Act eliminates the prior rule that traditional IRA participants could not contribute to their plans after reaching age 70½. Now there is no age limit to participants contributing to traditional IRAs (other qualified retirement plans, such as 401(k)s, did not have a contribution age limit in the first place). Thus, estate planners should

10-Year Beneficiary Payouts Limit By far the SECURE Act’s greatest impact on the estate planning profession is the elimination of stretched IRA payouts in most cases. Previously, designated beneficiaries (DBs) of retirement plans, defined as “any individual designated as a beneficiary” by the participant3 or any see-through trust for such person, could elect to receive their benefits in the form of inherited “stretch” IRAs, through which the retirement plan benefits were paid out to these beneficiaries over the course of their individual life expectancies. The stretch IRA was a widely used and popular estate planning tool because it permitted DBs to defer distributions of taxable income while allowing the benefits to grow tax-free in the retirement account. Now, for retirement plans of participants who die on or after January 1, 2020, the availability of stretch IRAs has been eliminated for all but a specific new category of DBs, as discussed below. (Note that the Act did not affect the rules regarding spousal rollovers, which remain an alternative option for surviving spouse beneficiaries.) RMDs Before the Act, Internal Revenue Code (IRC) § 401(a)(9)(B) and the affiliated Treasury Regulations provided the rules governing retirement plan required minimum distributions (RMDs) following the participant’s death. Under this section, there were two categories of retirement plan beneficiaries, DBs and non-designated beneficiaries (non-DBs). A non-DB was anything other than a DB, primarily any entity such as an estate, non-see-through trust, or charity. Under these old rules, if a DB was named on the retirement plan, he or she could elect to stretch the payment of the plan’s benefits over his or her life expectancy. Non-DBs, on the other hand, were required to receive all retirement plan proceeds within five years after the participant’s death, if the participant’s RMDs had not yet begun; or, if the participant’s RMDs had begun, over the participant’s remaining life expectancy, had he or she been still living.

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Significantly, the Act has changed IRC § 401(a)(9) by (1) adding a third class of retirement plan beneficiary, named an “eligible designated beneficiary” (EDB),4 and (2) modifying the timing within which DBs must receive distributions of retirement plan benefits. An EDB is a special category of DB that includes any DB who is (1) the surviving spouse of the participant,5 (2) a child of the participant who has not yet reached majority,6 (3) a disabled individual,7 (4) a chronically ill individual,8 or (5) an individual not described above who is not more than 10 years younger than the participant.9 Whether a beneficiary qualifies as an EDB is determined as of the participant’s date of death, and, except in the case of a participant’s child who later reaches the age of majority, appears to be irrevocably fixed at such date. Under the Act, EDBs are now the only class of beneficiaries who can still use their life expectancies to stretch the payout of retirement plan benefits over their lifetime.10 Because there are now two types of DBs under the Act—EDBs, and all other DBs that do not qualify as EDBs—they must be carefully distinguished because the distinction has significant consequences. Therefore, for purposes of this article, DBs will be referred to either as EDBs or ODBs, meaning all other “ordinary” DBs. While the Act did not change who or what constitutes a DB and a non-DB, it modified the timing for distributions to DBs depending on whether the DB is an ODB or an EDB. ODBs are no longer eligible for a stretch payout and must receive all retirement plan benefits within 10 years following the participant’s date of death (the 10-year payout).11 Note that, while the Act does not expressly so provide, estate planning professionals generally believe that the 10-year payout is intended to operate similar to the five-year rule,12 which preceded the Act, so that all retirement plan benefits must be paid to the beneficiary by December 31 of the tenth year following the participant’s date of death. Thus, the 10-year payout may actually span the course of up to 11 tax years. Similar to the old five-year rule, the 10-year payout does not require any distributions to be made in years one through nine; it requires

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DISTRIBUTION PERIODS FOR RETIREMENT PLAN BENEFICIARIES EDB

ODB

Non-DB

Participant’s RMDs had not begun

EDB’s life expectancy (stretch)13*

10-year payout14

5-year payout15

Participant’s RMDs had begun

EDB’s life expectancy (stretch)16*

10-year payout17*

Participant’s remaining life expectancy18

*Subject to anticipated regulatory guidance, as discussed herein.

only that the retirement plan benefits be distributed in full by the end of the tenth year. This affords the beneficiary some degree of flexibility in determining when and how to receive distributions, depending on need, income, and current and expected future tax brackets. However, in most circumstances, spreading the receipt of income out evenly to have it taxed at lower tax brackets usually produces the best tax results. The new distribution rules under the Act may be summarized as: ■ EDBs must receive their share of retirement plan benefits in annual RMDs over the EDB’s life expectancy (the stretch payout), regardless of whether the participant died before or after his or her RBD. However, there has been some discussion as to whether certain exceptions may apply to this rule, as discussed below. ■ ODBs must receive their share of retirement plan benefits via the 10-year payout, regardless of whether the participant died before or after his or her RBD. Again, there has been some discussion as to whether certain exceptions may apply to this rule, as discussed below. ■ Non-DBs (estates, charities, and non-seethrough trusts) must receive their share of retirement plan benefits via either (1) the five-year payout, if the participant died before his or her RBD; or (2) over the participant’s remaining life expectancy, if the participant died after his or her RBD. These non-DB distribution rules are unchanged from the old rules.

Open Questions As expected, some complications and uncertainties have arisen as a result of the Act. The following are notable issues and may require clarification through Treasury Regulations. ■ The participant’s children are considered EDBs (and thus eligible for the stretch payout) only so long as they have not reached the age of majority. Upon reaching the age of majority, a child loses EDB status and becomes an ODB, at which point his or her remaining share of the retirement plan benefits must be distributed within 10 years of the date he or she reached majority.19 However, it is uncertain whether these remaining benefits must be paid exactly 10 years after the child reaches majority, or by December 31 of the tenth year after the child reaches majority. The age at which the minor child reaches “majority” may not always be straightforward, as this appears to depend on state law as well as whether the child is in the process of completing a “specified course of education.”20 In the latter case, a child may not reach the age of majority until reaching up to 26 years of age. ■ If an EDB dies before receiving all of his or her retirement plan benefits, the Act provides that such EDB’s named successor beneficiaries must withdraw the remaining benefits within 10 years of the EDB’s death, rather than over the deceased EDB’s remaining life expectancy. Under this rule, the 10-year payout applies to all successor beneficiaries of the EDB, no matter who or what they are.21 It appears this would

be true even if the remainder beneficiary were a non-DB who would otherwise be subject to the five-year payout, such as an estate, charity, or non-see-through trust, resulting in an extended payout timeframe for such non-DBs. ■ Qualified retirement plans and IRAs of participants who die on or after January 1, 2020 may not be the only retirement plans impacted by the Act. For participants who died before 2020, the Act appears to provide that, if the DB begins taking RMDs based on his or her own life expectancy but dies post-2020 before receiving all of his or her benefits, the DB’s successor beneficiaries will be required to withdraw the remaining benefits over the 10-year payout (as opposed to continuing to receive the remaining benefits based on the deceased DB’s remaining life expectancy, as under the old rules).22 This may or may not be a beneficial result, depending on the remaining life expectancy of the deceased DB. ■ There has been some discussion among estate planning professionals as to whether the 10-year payout for ODBs and the stretch payout for EDBs are the only payout options available to these beneficiaries. Pre-SECURE Act, certain Treasury Regulations permitted a DB to

elect to have his or her retirement plan benefits paid out as if such DB were a non-DB (i.e., over the five-year payout, if the participant died pre-RBD; or over the participant’s remaining life expectancy, if the participant died post-RBD), if this would produce a more favorable payout timeframe for the DB.23 This might have applied where the DB was older than the participant or had a life expectancy of less than five years. The intent was to ensure that DBs were never subject to less favorable payout terms than non-DBs. Post-SECURE Act, however, with the seemingly rigid 10-year payout for ODBs and life expectancy payout for EDBs, it is not clear whether these two types of DBs can avail themselves of such nonDB treatment in circumstances where it would be beneficial to do so. Until Treasury guidance is issued to resolve this uncertainty, the conservative approach would be to assume that no such option is available. The Act’s Impact on Trusts Trusts remain a popular and useful estate planning tool for a variety of circumstances—for example, when clients want to ensure that their beneficiaries receive their inheritance over an extended period of time and are not given the

opportunity to take (and potentially squander) their inheritance in one lump sum. (Potential beneficiaries who often fit this description include those who are young, spendthrifts, disabled, or struggle with substance abuse.) As retirement plans continue to represent a growing portion of clients’ estates, trusts have been increasingly designated as beneficiaries of the retirement plans to preserve the benefits and prevent individual beneficiaries from receiving their share of retirement plans too quickly. However, trusts that are designated as retirement plan beneficiaries require specific and careful drafting. Without proper drafting, these trusts may be required to withdraw and/ or distribute retirement plan benefits much more rapidly than the client intended. There are two general categories of trusts for purposes of receiving retirement benefits, “see-through” and “non-see-through.” The Act’s impact on the operation of each of these trusts is discussed below. See-Through Trusts A trust cannot attain DB status unless it qualifies as “see-through.” While an in-depth analysis of how a trust qualifies as see-through is beyond the scope of this article, in general terms, a trust is see-through if (1) it is valid under state law, (2) it is irrevocable as of the participant’s date of death, (3) the trustee provides certain

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documentation to the plan’s administrator by October 31 of the year following the participant’s date of death, and (4) the trust beneficiaries—all of whom must be “individuals” within the meaning of the IRC—are identifiable from the trust instrument.24 By qualifying as see-through and gaining DB status, the see-through trust avoids being subject to the restrictive five-year/ participant life expectancy payout that would otherwise apply to trusts that do not qualify as see-through and are therefore non-DBs. There are two types of see-through trusts, conduit trusts and accumulation trusts. In general terms, conduit trusts are structured such that all retirement plan distributions (including RMDs) that are paid to the trust must be distributed immediately and in full to the trust’s beneficiaries. No retirement plan benefits may be held in the trust, and the proceeds are taxed as ordinary income to the beneficiaries. When structured as a trust for an individual beneficiary, the conduit trust is guaranteed see-through status. (While conduit trusts for multiple beneficiaries are also presumed to qualify as see-through, there is little IRS authority on this point and see-through status is therefore less certain.) In contrast to conduit trusts, accumulation trusts are not required to immediately distribute all retirement plan distributions received to the beneficiaries and can instead “accumulate” the proceeds in trust. To the extent the proceeds are not distributed in full to the trust’s beneficiaries, they are taxed to the trust at its compressed income tax rates. However, not all accumulation trusts qualify as see-through. To qualify as see-through, all primary and “countable” remainder beneficiaries of the accumulation trust must be identifiable individuals. If any beneficiaries do not so qualify, the trust fails to be see-through.25 For purposes of this article, references to “accumulation trusts” are generally to those accumulation trusts qualifying as see-through. Operation Before the Act The primary advantage of using see-through trusts is the ability to hold retirement plan benefits in trust to protect against the beneficiary accessing the benefits too quickly, while also

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having RMDs gradually distributed to the trust over the beneficiary’s life expectancy. This maximizes tax-free growth in the account and minimizes the income tax burden on the trust or its beneficiaries. Before the Act, when a trust qualified as see-through and attained DB status, the measuring life for purposes of

“

Now, in general, unless all countable beneficiaries of the see-through trust would individually qualify as EDBs, retirement plan benefits must be paid to the trust in full within 10 years following the participant’s date of death.

” calculating the retirement plan’s RMDs was that of the trust’s beneficiaries. Essentially, the IRS would disregard the trust and “see through” to its individual beneficiaries. Whether the trust was a conduit or accumulation trust, and whether such trust was structured as a “pot trust” (one trust for multiple beneficiaries)

or a single-beneficiary trust dictated which measuring life to use for purposes of determining the applicable distribution period for RMDs: ■ For conduit trusts for one beneficiary, the measuring life was that beneficiary. ■ For conduit trusts for multiple beneficiaries, the measuring life was the beneficiary with the shortest life expectancy. ■ For accumulation trusts, the measuring life was the beneficiary (whether primary or countable remainder) with the shortest life expectancy. The Act’s Impact While the Act has not changed the requirements for a trust to qualify as see-through, it has significantly impacted the see-through trust’s utility. Now, in general, unless all countable beneficiaries of the see-through trust would individually qualify as EDBs, retirement plan benefits must be paid to the trust in full within 10 years following the participant’s date of death. While this change will affect both conduit and accumulation trusts, the change is expected to most significantly impact the use of conduit trusts, particularly when structured for the benefit of younger beneficiaries. Conduit Trusts The operation and utility of conduit trusts will vary greatly post-SECURE Act, depending in large part on (1) whether the conduit trust’s beneficiary is an EDB or an ODB, and (2) whether it is a single-beneficiary conduit trust or a conduit pot trust. Now, a conduit trust for an ODB must both withdraw all retirement plan proceeds and distribute all such proceeds to the ODB within 10 years of the participant’s death. This is an extreme deviation from the operation of conduit trusts before the Act, when retirement plan benefits were withdrawn and distributed to the trust beneficiary over the course of his or her life expectancy (or, in the case of pre-Act conduit pot trusts, over the life expectancy of the oldest beneficiary). Though the trustee of a conduit trust post-Act may retain some discretion as to when and how much of the retirement plan benefits to draw from the plan and pay to the beneficiary over the 10-year period, depending

on the terms of the trust instrument (e.g., no distributions in years one through eight; one-half of the retirement account in year nine; and the remainder in year 10), the unavoidable result is that all of the trust’s beneficiaries must receive all retirement plan proceeds within 10 years. Not only will most conduit trust beneficiaries now receive larger sums of money more quickly, which may push them into higher tax brackets, but they will also be burdened with increased income tax liability upon these distributions. This will undoubtedly be an unacceptable result for many clients, as historically one of the primary reasons clients used conduit trusts was to ensure their retirement plan benefits were paid out gradually over their beneficiaries’ lifetimes. But conduit trusts for most EDBs are expected to remain a useful estate planning tool. Because an EDB can still use his or her life expectancy to calculate RMDs, a conduit trust for the benefit of a single EDB should generally continue to operate in the same fashion as before the Act, with annual RMDs withdrawn and distributed to the trust beneficiary gradually over the course of his or her life. For EDBs who are participants’ minor children, however, the conduit trust will be far less advantageous, because the EDB stretch payout will be replaced by the 10-year payout as soon as these children reach the age of majority. While conduit trusts for the benefit of a single EDB are expected to generally remain popular, the operation and viability of conduit trusts for multiple EDBs is far less certain under the Act. Various factors must be weighed carefully in determining whether a conduit trust is the appropriate estate planning vehicle: ■ If the conduit trust’s EDB is the participant’s minor child, the life expectancy payout can only be used until such beneficiary reaches majority, which may not always be age 18. After this point, the beneficiary becomes an ODB and the 10-year payout applies. Practically speaking, this would mean that a conduit trust established for a minor EDB must pay all retirement plan benefits to the beneficiary by the time he or she reaches age 28, assuming age of majority is 18 and the education exception does not apply.

■ Many questions exist about how a conduit pot trust for multiple beneficiaries will operate under the Act. Assuming a conduit pot trust remains viable under the Act, which is not yet certain: ▷ For a conduit pot trust for the benefit of either (1) all ODBs, or (2) a combination of EDBs and ODBs, it appears there is no longer a need to determine which of the beneficiaries has the shortest life expectancy, as the 10-year payout is expected to apply regardless. ▷ While conduit pot trusts for multiple EDBs appear to remain possible under the Act, there are many uncertainties. Is the measuring life for purposes of calculating the life expectancy payout the oldest beneficiary? The youngest? What happens when one of the EDBs is a participant’s child and reaches the age of majority; does the 10-year payout apply at that point, or does the life expectancy payout continue because the other trust beneficiaries remain EDBs? Would this determination depend on whether that child’s life expectancy was the life expectancy used to calculate the RMDs? ▷ When the conduit trust is structured as a pot trust for multiple minor children EDBs, many estate planning professionals believe (but are not yet certain) that the “switch” from EDB to ODB status for payout purposes will likely occur when the first child reaches the age of majority and becomes an ODB, at which point the 10-year payout is expected to apply to all of the trust’s beneficiaries, regardless of whether they are still minors. ▷ Due to the uncertainties surrounding the operation of conduit trusts for multiple beneficiaries, if the stretch payout is of primary importance to the client (for example, in the case of a conduit trust for the benefit of a surviving spouse), it would be best practice to establish separate single-beneficiary conduit trusts for each EDB to ensure that each receives

retirement plan benefits individually over their respective life expectancies. Accumulation Trusts The Act also significantly impacts accumulation trusts, but perhaps to a lesser degree. Now, for most accumulation trusts, all retirement plan benefits must be distributed to the trust within 10 years of the participant’s death. The trust, however, is not required to distribute those proceeds to the trust’s beneficiaries over the same 10-year period. Instead, the terms of the trust can still control the payout period, method, and restrictions. Thus, while the SECURE Act requires retirement plan benefits to be paid to an accumulation trust more rapidly (thereby resulting in increased income taxes to the trust at a potentially higher tax bracket, unless all benefits are immediately distributed to the trust beneficiaries), it does not change the accumulation trust’s ability to hold the retirement benefits in trust and ensure that the benefits are not distributed to its beneficiaries too quickly. For this reason, the accumulation trust may become a more popular estate planning tool, replacing the conduit trust for many clients. Accumulation trusts for EDBs with life expectancy stretch payouts appear to remain theoretically possible under the Act. In practice, however, with the exception of the “applicable multi-beneficiary trust” (discussed below), it will be virtually impossible to qualify an accumulation trust for an EDB’s life expectancy payout, because presumably all primary and countable remainder beneficiaries of the trust would have to individually qualify as EDBs to avoid application of the flat 10-year payout. Even in such cases, the life expectancy of the oldest EDB would likely be used to calculate RMDs for all beneficiaries, as was the case pre-SECURE Act. Again, various factors must be considered in determining whether an accumulation trust is an appropriate estate planning vehicle for the client’s circumstances: ■ Generally, accumulation trusts require more extensive and careful drafting by the estate planning attorney to ensure the trust qualifies as see-through and avoids the five-year payout. Specifically,

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both primary and countable remainder beneficiaries must all qualify as DBs (whether ODBs or EDBs). Extra care must be taken to ensure that no part of the retirement plan benefits can be paid to an estate, charity, or non-see-through trust, whether by power of appointment or some other method.26 ■ For most accumulation trusts, as long as at least one of the primary or countable remainder beneficiaries is an ODB, it appears it should no longer be necessary to determine the trust beneficiary with the shortest life expectancy, as the 10-year payout will apply regardless. ■ Due to the relative difficulty in drafting an accumulation trust, there is an increased likelihood that the trust will not qualify as see-through (usually because at least one potential remainder beneficiary is a non-DB). If the accumulation trust fails to qualify as see-through, it would have to withdraw the retirement plan benefits based on the five-year payout (if the participant died before his or her RBD), or over the remaining life expectancy of the participant (if the participant died after his or her RBD). While virtually all see-through accumulation trusts will be subject to the flat 10-year payout going forward, the Act has carved out an important exception for the “applicable multi-beneficiary trust.” This is a new type of trust defined under the Act as a trust for two or more beneficiaries, all of whom must be DBs and at least one of whom must be a disabled or chronically ill EDB.27 ■ If an applicable multi-beneficiary trust is structured such that no individual (other than the disabled or chronically ill EDB(s) of the trust) has any right to the participant’s interest in the retirement plan until the death of all such EDBs, the EDB(s) can use the life expectancy payout during their life. Following the death of such EDBs, the remaining retirement plan benefits must be paid out to the remainder ODBs via the 10-year payout.28 Note that it is not yet clear which EDB’s life expectancy would be used to calculate

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the stretch payout where an applicable multi-beneficiary trust is established for the benefit of two or more disabled or chronically ill EDBs. ■ If the terms of an applicable multi-beneficiary trust provide that such trust be divided immediately upon the death of the participant into separate trusts for each beneficiary, the EDBs may use their individual life expectancies to receive stretch payouts of their separate trusts, while ODBs will be subject to the 10-year payout for their separate trusts.29 This is a notable exception to the general rule that if a single trust is named as the DB of a retirement plan and subsequently divides into sub-trusts following the participant’s death, the individual life expectancies of each sub-trust’s beneficiary cannot be used for purposes of determining distribution periods, and instead a single distribution period is applied to all of the sub-trusts. Non-See-Through Trusts The Act did not change the payout rules for non-see-through trusts. As with any other non-DB, a non-see-through trust must receive all retirement plan distributions either (1) within five years following the participant’s death (if the participant died before the RBD), or (2) over the remaining life expectancy of the participant (if the participant died after the RBD). What the Act has changed, however, is the relative utility of see-through trusts as opposed to non-see-through trusts. Because the Act has limited the time period in which ODBs must receive all retirement plan benefits to 10 years following the participant’s death, see-through trusts for the benefit of individuals who would individually qualify as ODBs likewise must receive all retirement plan proceeds within the same 10-year period. For clients with smaller retirement plans who want their retirement plan benefits to be held in trust after their death, it may become more common to have such benefits pass to ordinary non-see-through trusts instead of see-through trusts. While the five-year payout remains less desirable than the new 10-year

payout that would result for most see-through trusts, this five-year difference may not be significant enough for clients with smaller retirement plans to justify an estate planning attorney’s fee for drafting a see-through trust that complies with the Act’s new rules. Further, where the retirement plan participant died after his or her RBD, the non-seethrough trust may present a more beneficial payout option than the see-through trust. Whereas ODBs (and see-through trusts for ODBs) apparently must use the 10-year payout under such circumstances, non-DBs (including non-see-through trusts) may be subject to a payout period that is longer than 10 years, if the participant died shortly after reaching age 72 and has a life expectancy of more than 10 years. General Estate Planning Considerations Post-Act The Act has brought many changes for both existing and future estate plans. Clients with retirement plans of significant value should have their estate plans and beneficiary designations reviewed and revised appropriately. Clients with existing estate plans having retirement plan benefits paid into trust will require extra attention. Perhaps the most critical assessments are needed for estate plans that have arranged to have conduit trusts receive retirement plan distributions at the participant’s death for the benefit of beneficiaries who would individually qualify as ODBs and not EDBs. Many clients likely established conduit trusts with the understanding that the beneficiaries of these trusts would gradually receive the retirement plan benefits over the course of their lifetimes. With this possibility now gone, these conduit trusts are required to pay out all retirement plan benefits over 10 years, which will be an unacceptable outcome for many clients. For those select clients who wish to keep their conduit trusts intact, at a minimum, revisions to the trust’s language may be required. For example, language in existing conduit trust documents may state that only RMDs from the retirement plan can be distributed to the trust’s beneficiaries. However, if the conduit trust is for the benefit of an ODB who would now be subject to the 10-year payout, technically the

only required distribution is the participant’s entire interest in the retirement plan at the end of the tenth year following the participant’s death. Failure to revise the language of such an existing trust document could result in the trust beneficiary having to receive one lump sum payment of all the retirement benefits in year ten. One option would be to change the conduit trust to an accumulation trust, in which case the retirement plan benefits would still have to be paid in full to the trust within 10 years, but would not have to be paid to the trust’s beneficiaries during this timeframe. While the 10-year payout to the trust may result in higher income taxes than before the Act, this may be a preferred alternative for clients who want their individual beneficiaries (often their children) to receive their entire share of retirement plan benefits over a more extended period of time. Another option for charitably inclined clients would be to designate a testamentary charitable remainder trust as the beneficiary on the client’s retirement plan. By this method, the entire retirement account could be immediately paid to the charitable remainder trust tax-free, an income stream from the reinvested proceeds could be paid to the client’s named beneficiaries over a period of greater than 10 years (which would be taxable income to such beneficiaries), and the remaining proceeds would be paid to a charity of the client’s choice. While this option permits payments to the lifetime beneficiaries to exceed the 10-year payout that would likely otherwise result, such beneficiaries may receive less than they otherwise would if they were the expressly named DBs on the retirement plan, because the remainder of the retirement plan benefits must ultimately be paid to a charitable entity. The reduction in the amount of payments to the non-charitable beneficiaries will ultimately depend on the value of the remainder interest to the charity. Yet another option is for eligible individuals to convert their traditional IRAs to Roth IRAs during their lifetimes. Distributions from Roth IRAs are tax-free, so this option is anticipated to be of greater interest going forward. Making this conversion would not prevent the retirement

plan benefits from being paid out to beneficiaries at a different rate than that required by the Act but would allow beneficiaries to avoid paying income taxes at the accelerated rate that would otherwise be associated with the new payout rules. This option, however, may only be viable for clients who are both (1) in a lower income tax bracket than their beneficiaries, and (2) able and willing to foot the bill for the income tax owed at the time of the conversion. Conclusion The SECURE Act will undoubtedly have a far-reaching impact on estate planning for indi-

viduals with significant retirement plan assets. Clients’ estate plans, especially those using conduit trusts to pass retirement benefits to younger beneficiaries, will need to be reviewed and appropriately revised as soon as possible. As time passes, and with anticipated clarifying Treasury Regulations, estate planners will develop a range of solutions to suit each client’s individual needs within this new estate planning landscape. In the meantime, conservative estate plan revisions that maximize built-in flexibility, coupled with trial-and-error drafting aimed at addressing the various possible outcomes, will be the name of the game.

Emily L. Bowman is a partner with Kirch Rounds Bowman & Deffenbaugh PC in Aurora. Her practice focuses on estate planning, estate administration, elder law, tax planning, conservatorships, and guardianships—ebowman@dwkpc.net.

Coordinating Editors: David W. Kirch, dkirch@dwkpc.net; Emily Bowman, ebowman@dwkpc. net NOTE S

1. Setting Every Community Up for Retirement Enhancement Act of 2019, Pub. L. 116-94. 2. IRC § 401(a)(9)(C)(i)(I). 3. IRC § 401(a)(9)(E) (pre-SECURE Act); IRC § 401(a)(9)(E)(i) (current law). 4. IRC § 401(a)(9)(E)(ii). 5. IRC § 401(a)(9)(E)(ii)(I). 6. IRC § 401(a)(9)(E)(ii)(II). 7. IRC § 401(a)(9)(E)(ii)(III). “Disabled” is determined within the meaning of IRC § 72(m) (7) (“an individual shall be considered to be disabled if he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration. An individual shall not be considered to be disabled unless he furnishes proof of the existence thereof in such form and manner as the Secretary [of the Treasury] may require.”). 8. IRC § 401(a)(9)(E)(ii)(IV). “Chronically ill” is determined within the meaning of IRC § 7702B(c)(2), “except that the requirements of subparagraph (A)(i) thereof shall only be treated as met if there is a certification that, as of such date, the period of inability described in such subparagraph with respect to the individual is an indefinite one which is reasonably expected to be lengthy in nature).” 9. IRC § 401(a)(9)(E)(ii)(V). 10. IRC § 401(a)(9)(H)(iii). 11. IRC § 401(a)(9)(H)(i). 12. See 26 CFR § 1.401(a)(9)-3, A-2. 13. IRC § 401(a)(9)(H)(ii).

14. IRC § 401(a)(9)(H)(i). 15. IRC § 401(a)(9)(B)(ii). 16. IRC § 401(a)(9)(H)(ii). 17. IRC § 401(a)(9)(H)(i). 18. IRC § 401(a)(9)(B)(i). 19. IRC § 401(a)(9)(E)(iii). 20. See 26 CFR § 1.401(a)(9)-6, A-15. 21. IRC § 401(a)(9)(H)(iii). 22. See § 401(b)(5) of the SECURE Act (Further Consolidated Appropriations Act, 2020, Division O, Title IV). 23. See, e.g., 26 CFR § 1.401(a)(9)-3, A-4(c). 24. For a more complete analysis as to what constitutes a see-through trust, see Bowman and Kirch, “Avoiding Pitfalls for Minor Beneficiaries of IRAs and Other Qualified Retirement Benefits,” 46 Colo. Law. 46 (Oct. 2017). 25. Perhaps the most uncertain and complicated issue in this analysis is determining which remainder beneficiaries are “countable” and which are disregarded as “mere potential successors.” Before drafting see-through trusts for retirement benefits, practitioners are strongly encouraged to review Choate, Life and Death Planning for Retirement Benefits: The Essential Handbook for Estate Planners (8th ed. Ataxplan Publications 2019). 26. For a more complete analysis of all the ways an accumulation trust could fail to qualify as see-through, see id. 27. IRC § 401(a)(9)(H)(v). 28. IRC § 401(a)(9)(H)(iv). 29. Id.

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Colorado Lawyers Committee Annual Awards Luncheon May 12, 2020 | Hyatt Regency Denver Convention Center

Honorees • Outstanding Sustained Contribution Award: Peter H. Schwartz, partner with Davis Graham & Stubbs LLP. • Special Recognition Awards: Michelle Berge, general counsel at Denver Public Schools, and Paul Hartmann, owner of Hartmannphoto, LLC. • Law Firm of the Year Nominees: Faegre Drinker Biddle & Reath LLP, Polsinelli PC, Squire Patton Boggs (US) LLP, and The Harris Law Firm PC.* • Team of the Year Nominees: » Hate Crimes National Team: Elizabeth Froehlke (Berg Hill Greenleaf & Ruscitti LLP); Beth Ann Lennon (Sherman & Howard L.L.C.); John M. McHugh (Reilly Pozner LLP); Tarek F. M. Saad (Squire Patton Boggs (US) LLP); Christine Snider (Ballard Spahr LLP); Valeria Spencer (U.S. Attorney’s Office for the District of Colorado); Phyllis V. Wan (Center for Legal Inclusiveness); and Mark D. Wilding (Fortis Law Partners LLC). » Young Lawyers Division CLE Series Steering Committee: Annika K. Adams (Denver Law student); Adrienne D. Boyd (Arnold & Porter); Jonathan M. Goldstein (Davis Graham & Stubbs LLP); Abigail Moss Hinchcliff (Bartlit Beck LLP); Caitlin McHugh (Lewis Roca Rothgerber Christie LLP); Ryan B. Thurber (Polsinelli PC); and Miles Williams (Colorado Law student). » Immigration Task Force—Probation Disclosure Subcommittee: Nancy B. Elkind (Elkind Alterman Harston PC, retired); Christine M. Hernandez (CHBA and Hernandez & Associates, P.C.); Arash Jahanian (Meyer Law Office, P.C., formerly Colorado ACLU); Christopher N. Lasch (Denver Law); Hans C. Meyer (Meyer Law Office, P.C.); Mark Silverstein (Colorado ACLU); and Steven Williams (Ogletree, Deakins, Nash, Smoak & Stewart, P.C.). » Preparing Asylum Seekers for Success Pilot Program: This team includes 35 lawyers, mentors and translators who worked in teams through four law firms: Davis Graham & Stubbs LLP; Gibson, Dunn & Crutcher LLP; Kilpatrick Townsend & Stockton LLP; and Wilmer Cutler Pickering Hale and Dorr LLP.* *Law Firm and Team of the Year award recipients to be announced at the luncheon. And featuring keynote speech by Lee Gelernt, deputy director of the ACLU’s national Immigrants’ Rights Project and director of the Project’s Access to the Courts Program. Gelernt recently argued several groundbreaking challenges to current administration policies, including the President’s travel ban on individuals from certain Muslim-majority nations. Purchase individual tickets ($75) and sponsorships at coloradolawyerscommittee.org.

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AROUND THE BAR | BAR NEWS

News from the CBA, Local Bars, and More BY J E S SICA E SPI NOZ A Bar News is a monthly compilation of news from the CBA, including sections and committees, administration, and local and specialty bar associations. It also includes notices of activities—past, present, and future—from local and national law-related organizations and groups.

James E. Bye Award

Terrarium Workshop

The CBA Tax Section presented Theodore “Ted” H. Merriam with the 2019 James E. Bye Lifetime Achievement Award during the section’s annual Ethics Update at the Brown Palace. The award is given annually to a Colorado tax lawyer who has made significant contributions to the practice of tax law. Merriam has practiced tax law in Denver since 1978 and has taught as an adjunct professor for the University of Denver Sturm College of Law and Graduate Tax Program. He has been an active and contributing member of the CBA Tax Section and the Greater Denver Tax Counsel Association.

On February 20, members had a chance to create their own terrariums at Birdsall & Co. Garden Boutique as part of the DBA’s Attorney Wellness Program. The program hosts monthly activities to celebrate creativity, inclusiveness, and uniqueness within the legal community.

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Adding the first layer. Voilà!

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Tax Section chair Justin Mills (right) presents the 2019 James Bye Award to Ted Merriam. Ted Merriam with past winners Nancy Crow, Ted Gelt, and John Wilson.

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Toothbrush Drive

ABA Midyear Meeting

The DBA YLD sponsored a Toothbrush Drive over the winter to benefit Kids In Need of Dentistry (KIND). Local-area law firms participated in the drive by donating toothbrushes, toothpaste, and dental floss to the nonprofit organization.

A delegation from the CBA traveled to Austin, Texas to attend the American Bar Association’s House of Delegates Midyear Meeting on February 12–17. The ABA Midyear Meeting brings leaders together for an in-depth discussion of issues, regulations, and trends shaping the future of the legal profession.

EPCBA Celebrates Retirements Judge Daniel M. Taubman of the Colorado Court of Appeals was recognized at the El Paso County Bar Association’s January Luncheon for his service as the Court’s Liaison to the Fourth Judicial District since 2014. Judge Taubman is retiring from the Court of Appeals after 28 years on the bench. Also recognized during the lunch was Colorado Springs attorney Bruce Buell, who retired after 61 years in practice this past May. Among his many career highlights, Buell was a cofounder of the Colorado Lawyer Trust Account Foundation (IOLTA) and the El Paso County Bar Foundation.

Representing the CBA were Mark Fogg, Scott LaBarre, Courtney Holm, Clarissa Collier, John Vaught, Rebecca Kourlis, Terry Ruckriegle, Joi Kush, Megan Garnett, and Johnnie Nguyen.

Judge Daniel Taubman and EPCBA President Jeff Weeks. 2 Judge Timothy Schutz and Bruce Buell. Judge Schutz was an associate attorney when Buell served as managing attorney. 1

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CONTRIBUTE

Bar News is always looking for pictures and descriptions of legal events happening throughout Colorado. Snapshots taken with a phone camera work great! To contribute pictures, simply email them to Jessica Espinoza at jespinoza@cobar.org, and be sure to select the largest file size when prompted.

DBA Past Presidents’ Dinner The DBA hosted its annual Past Presidents’ Dinner at the Hilton Garden Inn Union Station on February 18. During the event, past president Franz Hardy (2016–17) welcomed immediate past president Mo Watson into the past presidents’ club.

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Group photo of DBA past presidents. Dan Sweetser, John Baker, Mark Fogg, and Pat Fogg. CBA/DBA Executive Director Amy Larson addresses the distinguished group. Mo Watson receives the past-presidential pin from Franz Hardy.

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Addressing Sexism in the Legal Profession

Lawyers with Littles On February 6, members of the DBA YLD met at Pints Pub to talk “parenting” as part of the group’s Lawyers with Littles series. The casual gathering was led by Troy Rackham, a father of four and a partner at Spencer Fane, who shared his tips on staying sane while juggling professional and family responsibilities.

On January 30, a panel of women attorneys led a discussion on sexism in the legal profession during a CLE at Foster Graham Milstein & Calisher, LLP. The panelists spoke about their personal experiences with sexism in the workplace in dealings with colleagues, clients, opposing counsel, and judges. The CLE sought to provide both men and women strategies for addressing sexism in the legal workplace.

Panelists Kate Laubach, Heather Salg, and Katherine Otto.

David Coats and Matthew Broderick.

Denver Regional Mock Trial Tournament On February 22 and 23, Denver-area high school students competed in the Denver Regional Mock Trial Tournament for a chance to advance to the Colorado High School Mock Trial Program State Tournament in March. The CBA congratulates all the student participants and thanks the many volunteers who served as attorney coaches, presiding judges, scoring panelists, and courtroom monitors.

Young Lawyers in Action Sonia Anderson, a fourthyear associate at Husch Blackwell, successfully Anderson. argued against summary judgment for a pro bono client in federal court. Her client was a disabled woman in her 80s who was incarcerated. She was at risk for falling when she walked, so she needed assistance with going to the bathroom, getting meals, and taking her medication. The client’s prison facility provided disabled people with aids, fellow inmates who are trained to provide various levels of care to disabled inmates. But for one month, the prison officials refused to provide the client with an aid, which resulted in her missing meals, not taking her medicine, and not being able to shower. Chris Ottele was the supervising attorney.

Contribute Send your stories of young lawyers taking meaningful action in court to Jessica Espinoza at jespinoza@cobar. org. Provide the name of the young attorney; a high-resolution photo of the young attorney; the name of the supervising attorney and/or law firm supporting the young attorney; and a 50- to 100- word summary of the action taken in court. Please keep the descriptions general and do not identify the client.

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Presenting a case to the jury. Taking notes.

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The Colorado Bar Association helps members save thousands of dollars on legal research every year. Casemakerâ&#x20AC;&#x2122;s comprehensive libraries cover all 50 states, Tribal Courts and federal materials. Casemaker, free with your CBA membership! Complimentary webinar training is available. Log in to cobar.org and click the Casemaker logo to get started.

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Writing the Next Chapter of IAALS BY S C O T T B A L E S

s the new executive director of IAALS—the Institute for the Advancement of the American Legal System at the University of Denver—I welcome this opportunity to introduce myself and to talk a bit about IAALS. From Arizona to Colorado I became executive director in September 2019 after the retirement of Founding Executive Director Rebecca Love Kourlis. One of the first questions people ask me is why I chose to join IAALS after I retired from Arizona’s Supreme Court upon completing my term as Chief Justice. Joining IAALS was, in some ways, not a big move for me. Arizona and Colorado are neighboring mountain states. Granted, Colorado has bigger mountains (and smaller deserts) and our shared border is very short. Apart from standing in both states at once at the Four Corners, my wife and I have other Colorado connections. She was the daughter of an Air Force officer and spent more of her childhood in Colorado Springs than anywhere else, including graduating from Doherty High School. My father retired from teaching at Colorado Northwestern Community College. We are both outdoor enthusiasts and have enjoyed many vacations in Southwestern Colorado with our children and friends over the years. While I love the natural beauty of Colorado, that was not what drew me to IAALS. I had met Becky and learned about IAALS while serving as an Arizona justice. Our courts—like many others—had looked to IAALS as a guide for improving our processes for judicial selection and evaluation, reforming our court processes for civil and family court cases, and encouraging

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New IAALS leader Scott Bales.

greater access to legal services. I also knew that Becky had assembled a great team at IAALS because Brittany Kauffman, who leads IAALS’ civil justice work, and Natalie Knowlton, who directs the work related to family court reforms, had each spoken at Arizona court conferences or helped court committees there. I was surprised when Becky told me she intended to step down as executive director, but I was intrigued when she asked if I might be interested in the position. I had greatly enjoyed my 14 years as a judge and my 20 years as a lawyer in private practice (as a partner in the Phoenix firms that later became Osborn Maledon and Lewis Roca Rothgerber Christie) and in public settings (as Arizona’s Solicitor General, a federal prosecutor, and a U.S. Deputy Assistant Attorney General). But my years as a lawyer convinced me that our system needs fundamental changes to better approach our ideal of justice for all. And, like Becky, I had

Leading IAALS was an unexpected opportunity for me to help improve key aspects of our legal system— access to justice, court processes, legal education, and the regulation of legal services.

learned that achieving systemic reform rarely occurs through case-by-case adjudication, even before a state’s highest court. Leading IAALS was an unexpected opportunity for me to help improve key aspects of our legal system—access to justice, court processes, legal education, and the regulation of legal services. I’m quick to tell people that I’m not “replacing” Becky. She built a great institution at IAALS that has sparked real improvements to justice in Colorado and on a national level. As her successor, my goal is to build on and honor her legacy by continuing and expanding IAALS’ impact. What Sets IAALS Apart In its role as a research institution devoted to improving the American legal system, IAALS is unique for several reasons. It truly is a “think-and-do tank” that combines empirical research, collaboration among stakeholders, and user-focused design to identify practical solutions. IAALS benefits from being located at the University of Denver, where it is a distinct entity that works with other university components, such as the Sturm College of Law and the Morgridge College of Education. Finally, IAALS is nonpartisan and independent—it does not represent particular constituents of

the legal system (sometimes called “one side of the v.”), but instead seeks to bring together different perspectives to help promote a system that is more accessible, fair, and efficient for all. IAALS has enjoyed great support from the Colorado bench and bar, and I intend to continue these important partnerships. We have worked together on successful efforts to reform Colorado’s rules of civil procedure, to pilot innovative approaches for family law disputes, and to identify ways that courts can better handle dispositive motions. For example, U.S. District Judge R. Brooke Jackson recently announced that he has adopted recommendations from IAALS’ Efficiency in Motion project, which reflected input from Colorado judges and attorneys, as part of his practice standards. Our advisory board presently includes Colorado Supreme Court Justice Carlos Samour; University of Denver Sturm College of Law Dean Bruce Smith, Dean Emeritus Marty Katz, and Board of Trustees Chair Emeritus Doug Scrivner; and Colorado attorneys John Moye from Moye|White (an IAALS founder), Greg Kerwin from Gibson Dunn, Kenzo Kawanabe from Davis Graham & Stubbs, and Sam Walker, formerly general counsel for Molson Coors and now with the Colorado Attorney General’s Office. Many other Colorado lawyers and judges serve or have served on various IAALS committees or helped with our projects. We look forward to building on these relationships and extending them further. Featured Projects IAALS has many projects underway, as described on our website (iaals.du.edu), but I want to mention two that illustrate the direction of our work.

US Justice Needs The US Justice Needs project is a landmark study canvassing 10,000 individuals and businesses nationwide to better understand the kinds of legal issues they face, how they resolve them, and their views of the process. We are partnering with HiiL, The Hague Institute for Innovation of Law, which has conducted similar studies worldwide. This work will help identify justice

IAALS has enjoyed great support from the Colorado bench and bar, and I intend to continue these important partnerships.

needs and guide reform efforts both in Colorado and nationally. Unlocking Legal Regulation Access to justice also is the driving concern of our Unlocking Legal Regulation project, which focuses on how reforming the regulation of the delivery of legal services can promote innovation and greater access. Related to that project, IAALS and the Sturm College of Law are cohosting a three-part speaker series this spring on the future of legal services, which includes the ABA president-elect, leading legal scholars, and a panel of state justices, including Colorado Supreme Court Justice Melissa Hart. The last two of the series have been postponed due to COVID-19 and will be rescheduled soon. Each event is free and will be eligible for CLE credit; learn more at iaals. du.edu/2020speakerseries. Justice We Can Believe In IAALS aspires to promote justice we can believe in, which means expanding access, thoughtfully adapting to technological change, and embracing and better reflecting our diversity. I look forward to meeting members of Colorado’s legal community, to working together toward these goals, and to perhaps crossing paths on a mountain trail.

CBA SECTIONS We’re saving a seat for you at the table. Participating in a CBA section is one of the best ways to enhance your professional growth and keep your practice on the cutting edge. Learn from targeted information. Augment your specialized skills and knowledge. Discuss and share ideas. Influence the course of the profession.

Join a CBA Section today at cobar.org/sections or call 303-860-1115.

Scott Bales became IAALS executive director in September 2019 after retiring from the Arizona Supreme Court, where he had served for 14 years, including as Chief Justice from 2014 to 2019.

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Submission Guidelines for Lawyers’ Announcements in Colorado Lawyer The content of Lawyers’ Announcements is subject to approval and must meet criteria for this type of advertising. Lawyers’ Announcements are distinguishable from “display advertising.” Email advertising@cobar.org for information about display advertising in Colorado Lawyer.

General The Lawyers’ Announcements section is reserved to announce the following: ■ New members to a law firm or legal department ■ Name change of a law firm ■ Formation, merger, or new affiliation of law practice(s) and law-related associations ■ Relocation of a law practice ■ Change in job status ■ Retirement of attorneys ■ Notices of professional appointment, honors, or awards Sizes and Cost Quarter page vertical ■ 3.75" wide x 4.25" tall ■ $250 CBA members; $350 nonmembers

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Submission of Content ■ Advertisers are responsible for the editorial and graphic content of their announcements. ■ Digital files are preferred. ■ Color files are now accepted. ■ Colorado Lawyer staff will no longer provide layout/design services. ■ Submit files as press-quality PDFs saved at 300 dpi resolution. ■ Ads must be designed to the correct ad size. Ads sent in an incorrect size are subject to refusal or misprinting.

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Announcements received past deadline will be accommodated as space permits. Payment must be received by deadline to secure placement.

New and Experienced Hinds and Hinds Family Law, P.C. is excited to make the following announcements:

Nathan M.J. Dowell has been named as a Shareholder of the Firm. Nathanâ&#x20AC;&#x2122;s practice emphasizes appellate work in domestic relations matters.

Frank L. McGuane, Jr. has joined the Firm in an of Counsel role. Frank is a preeminent attorney whose practice is limited to premarital, post-marital and cohabitation agreements.

Stuart S. Sargent has joined the Firm as an Associate Attorney. Stuart has many years of Estate Planning experience and will lead the Firm in that area of practice.

8490 EAST CRESCENT PKWY SUITE 395 GREENWOOD VILLAGE, CO | (303)224-9000 | WWW.HINDSANDHINDS.COM

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E N GAG I N G N EW ASS O C I AT ES

MATTHEW BLUBAUGH

STEPHANIE BOUTSICARIS

ARIANA BUSBY

JARED ELLIS

We are pleased to welcome these valued professionals to the Firm as our newest Litigation Associates. Matthew Blubaugh joins our Construction and Design Practice Group, Stephanie Boutsicaris joins our Transportation Practice Group, Ariana Busby joins us as a Generalist, and Jared Ellis joins our Healthcare / Medical Malpractice Practice Group.

COLORADO

MISSOURI

MONTANA

NEW MEXICO

UTAH

WYOMING

W W W . H A L L E VA N S . C O M

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Mark H. Boscoe

Gary A. Kleiman

We are excited to announce that Mark Boscoe and Gary Kleiman have joined the firm as Special Counsel. Mark’s practice focuses on trusts, estate planning, probate, real estate, lending, taxation, and corporate law. Gary’s practice focuses on business and wealth management, estate planning, and tax & probate law. 360 South Garfield Street, Suite 600 Denver, CO 80209 P: 303.333.9810 | WWW.FOSTERGRAHAM.COM | F: 303.333.9786

Please Join Us In Welcoming AYSHAN E. IBRAHIM Collins Cockrel & Cole is pleased to announce that Ayshan Ibrahim has joined the Firm as an Associate. Prior to joining Collins Cockrel & Cole, Ayshan represented railroad companies at a regional Denver-based law firm. She brings litigation and regulatory experience and is excited to transition into her new role as counsel to CCC’s local government clients. Collins Cockrel & Cole has for more than 40 years specialized in local government law and represents over 200 special districts and municipalities throughout Colorado.

390 Union Blvd, Suite 400, Denver, CO 80228 303-986-1551 | 800-354-5941 | cccfirm.com

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CBA ETHICS HOTLINE is pleased to announce that

Edward A. Gleason has joined the Þrm as a partner.

Mr. GleasonÕs practice will continue to emphasize civil litigation.

A Service for Attorneys The CBA Ethics Hotline is a free resource for attorneys who need immediate assistance with an ethical dilemma or question. Inquiries are handled by individual members of the CBA Ethics Committee. Attorneys can expect to briefly discuss an ethical issue with a hotline volunteer and are asked to do their own research before calling the hotline.

To contact a hotline volunteer, please call the CBA offices at 303-860-1115.

2 North Cascade Ave. Colorado Springs, CO 80903 719.428.4937 Ñ nussbaumspeir.com

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TITLE AROUND | THE SUB TITLE BAR | IN MEMORIAM

In Memoriam Judd Golden December 21, 1949–January 28, 2020 Boulder activist and lawyer Judd Golden died on January 28, 2020. Judd had his own law office in Boulder, Judd Golden Attorney at Law, and was well-known for his passion for civil rights. He got his start with the American Civil Liberties Union (ACLU) in Des Moines, Iowa, where he was a volunteer cooperating attorney starting in 1974. He moved to Colorado in 1984 as the Mountain States Counsel, a national staff attorney position based in Denver. He became a member of the Boulder Chapter of the ACLU in 1985, ultimately serving as the chapter’s director for 20 years. During his years in Boulder, Judd played a key role in a 1989 ordinance to prevent Boulder companies from randomly drug testing their employees, unless they could prove a connection to safety issues, and later helped preserve the ordinance from attempts to weaken it. He was a cooperating attorney in CU v. Derdeyn in 1993, which found random drug testing of student-athletes unconstitutional. He advocated for Amendment 64 legalizing marijuana use in Colorado in 2012. He successfully advocated for and protected a policy barring CU coaches from leading students in group prayer, and his advocacy efforts addressed prisoner rights, criminalization of homelessness, surveillance cameras, protest rights, and other civil liberties issues. More recently, he worked on drug policy reform with the Coalition for Drug Testing Policy Reform and NORML. He was also a political science lecturer at CU and had an all-encompassing passion for music and VW Vanagons.

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He is survived by his wife Julie Golden, who also served in co-director positions at the ACLU in Iowa and Colorado. Donations in his memory may be made to the ACLU Foundation of Colorado, https://action.aclu.org/give/ support-aclu-colorado. Thomas Vaughan Holland July 23, 1939–February 19, 2020 T h o m a s Va u g h a n Holland passed away on February 19, 2020, su r rou n d e d by h i s loving wife and family. He was predeceased by his sisters Janet (Yeakel) and Kay (Evans), his parents Maxine and Frank, his “Mom and Pop” Jessie and Tom, and many other family and friends. He is survived by his wife Olivia Therese Filipek Holland, daughter Elisa Joy Holland, son Gregory Trent Davis, half-sister Donna Klapakis, as well as nephews, a niece, and two grandchildren. Tom was born in Tulsa, Oklahoma to Maxine (Parish, nee Cross) and Frank. At a young age, he and his sisters were taken in by his grandparents Tom and Jessie Holland in Sterling, Kansas. Tom liked to recall that the family had gotten a foothold in the plains living in a dugout constructed by his great-great-grandfather. The siblings excelled in school. As a young man, Tom worked on farms and oil rigs. In the bitter cold, positioned in a hole in the ground trying to hook a drill bit, Tom had a realization about his future. His cousin Wayne Hogan, already enrolled at Kansas State University, welcomed him, and Tom graduated with a BA in 1963. During this time, Tom worked on the Proffitt’s farm and for his brother-in-law Bruce Yeakel, a builder. He went on to the University of Kansas,

earning his JD in 1967. He also served in the U.S. National Guard. In 1994, Tom married Olivia “Livy” Therese Filipek. Together they traveled the Colorado mountains and to San Francisco. Tom’s children are each from previous marriages. While at Kansas State, Tom met Gwen (Davis, nee Dudley), who gave birth to Gregory Trent in 1969. While teaching at Defiance College (Ohio), Tom met Teri Lyn (Dion, nee Tuckey), who gave birth to Elisa Joy in 1974. Greg is a doctor in Austin, Texas, with two children. Elisa is an architect in New York City. Tom began his law career at Legal Aid in La Junta, Colorado, representing migrant farmers and the poor. He resided in a Denver commune while studying for the Colorado bar exam. In the Colorado Attorney General’s Office, he was attorney for the State Board for Community Colleges, Department of Education, and Department of Social Services. He practiced city and county law across the Denver area and ski country, advising agencies across many matters, and notably prevailing over Walmart in a case that prevented the retailer from locating in downtown Steamboat Springs, protecting main street mom and pop’s. He began a real estate business, joining his law expertise with his appreciation for Denver architecture. When in his 60s, Tom returned to college to become a math teacher. He retired from teaching to enjoy life with Livy and chauffeur her in his 1967 Datsun convertible roadster with a racing stripe. In addition to Livy and his family, his memory is celebrated by enduring friends Mike, Chip, Chris, Frank, and Ken (“the boys”) and their loving partners; by his dear in-laws, the Filipek family of Little Rock, Arkansas; by his friends at Montview Boulevard Presbyterian

Church; by caring neighbors; and by many other friends from all chapters of life. Memories are welcomed and may be emailed to the family at voxelisa@gmail.com. William H. Kirkman, Jr. February 27, 1933–February 21, 2020 William H. Kirkman, Jr. of Colorado Springs passed away peacefully on February 21, 2020, with his family at his side. He is survived by his wife Marilyn (Marshall) Kirkman; sister Jean E. Kirkman; children Kitty (Brent) Ohman, Lisa (Greg) Kirkman-Werner, Jen (Courtney) Heinicke, and Andy (Angela) Kirkman; and 12 grandchildren and four great-grandchildren. “Pa’s Pack” will forever be grateful for his unconditional love, optimism, generosity, and humor.

Bill was born in Greensboro, North Carolina to Martha Mitchell and William H. Kirkman, Sr. Bill was an impressive athlete and tenacious competitor. He played football at the University of North Carolina and graduated Phi Beta Kappa in 1955. He completed his JD in 1958. He was a commissioned officer in the Air Force and was assigned as a JAG officer at the Royal Air Force base in Bentwaters, England, where he met Marilyn, his wife of almost 58 years. He made his home in Colorado Springs in 1958 and taught international law at the Air Force Academy before joining the District Attorney’s office in 1968. He entered private practice in 1970 and dedicated 57 years to the Colorado Springs legal community. He was known as a common-sense, fast-thinking attorney, and a compassionate, hardworking, and ethical man. He was said to have been as comfortable in the courtroom as on a handball court. He loved both with equal passion and enthusiasm.

Bill ran a great race and lived by example. An avid poker player, he often said, “You don’t have a right to the cards you believe you should have been given, but you have an obligation to play the hell out of the hand you are dealt.” Memorial donations in Bill’s honor may be sent to the Rocky Mountain Chapter of the Cystic Fibrosis Foundation, 400 S. Colorado Blvd., Ste. 840, Denver, CO 80246.

In Memoriam lists the birth and death dates of recently deceased members, including obituaries and tributes as received. The CBA relies on correspondence from members for this information. To help us recognize as many members as possible, please send notices to Susie Klein at sklein@ cobar.org.

IS ON CASEMAKER All past issues of Colorado Lawyer are available to CBA members via Casemaker. Once logged into the CBA website, follow these steps: 1. 2. 3. 4. 5.

Visit www.cobar.org/Casemaker. Select “Click here to Enter Casemaker.” Select “Colorado.” Select “The Colorado Lawyer.” Browse issues by date, or select “Advanced Search” to search by keyword, title, or author.

Questions? Contact Susie Klein, sklein@cobar.org, or Jodi Jennings, jjennings@cobar.org.

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FROM THE COURTS TITLE | SUB TITLE | COLORADO SUPREME COURT OFFICE OF ATTORNEY REGULATION COUNSEL

Disciplinary Case Summaries for Matters Resulting in Diversion and Private Admonition

iversion is an alternative to discipline (see CRCP 251.13). Pursuant to the rule and depending on the stage of the proceeding, Attorney Regulation Counsel (Regulation Counsel), the Attorney Regulation Committee (ARC), the Presiding Disciplinary Judge (PDJ), the hearing board, or the Supreme Court may offer diversion as an alternative to discipline.

For example, Regulation Counsel can offer a diversion agreement when the complaint is at the central intake level in the Office of Attorney Regulation Counsel (OARC). Thereafter, ARC or some other entity must approve the agreement. From November 1, 2019 through January 31, 2020, at the intake stage, Regulation Counsel entered into four diversion agreements involving four separate requests for investigation. ARC

approved nine diversion agreements involving nine separate requests for investigation. ARC approved 10 diversion agreements involving 12 separate requests for investigation during this time frame. There were no diversion agreements submitted to the PDJ for approval. Determining if Diversion is Appropriate Regulation Counsel reviews the following factors to determine whether diversion is appropriate: 1. the likelihood that the attorney will harm the public during the period of participation; 2. whether Regulation Counsel can adequately supervise the conditions of diversion; and 3. the likelihood of the attorney benefiting by participation in the program. Regulation Counsel will consider diversion only if the presumptive range of discipline in the particular matter is likely to result in a public censure or less. However, if the attorney has been publicly disciplined in the last three years, the matter generally will not be diverted under the rule (see CRCP 251.13(b)). Other factors may preclude Regulation Counsel from agreeing to diversion (see CRCP 251.13(b)). Purpose of the Diversion Agreement The purpose of a diversion agreement is to educate and rehabilitate the attorney so that he or she does not engage in such misconduct in the future. Furthermore, the diversion agreement may address some of the systemic problems an attorney may be having. For example, if an attorney engaged in minor misconduct (neglect), and the reason for such conduct was poor office management, one of the conditions of diversion may be a law office management audit and/or practice monitor. The time period for a diversion agreement generally is no less than one year and no greater than three years. Conditions of the Diversion Agreement The type of misconduct dictates the conditions of the diversion agreement. Although each diversion agreement is factually unique and different from other agreements, many times

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the requirements are similar. Generally, the attorney is required to attend ethics school and/ or trust account school conducted by attorneys from OARC. An attorney may be required to fulfill any of the following conditions: ■ law office audit ■ practice monitor ■ financial audit ■ restitution ■ payment of costs ■ mental health evaluation and treatment ■ continuing legal education (CLE) courses ■ any other conditions that would be determined appropriate for the particular type of misconduct. Note: The terms of a diversion agreement may not be detailed in this summary if the terms are generally included within diversion agreements. After the attorney successfully completes the requirements of the diversion agreement,

Regulation Counsel will close its file and the matter will be expunged pursuant to CRCP 251.33(d). If Regulation Counsel has reason to believe the attorney has breached the diversion agreement, Regulation Counsel must follow the steps provided in CRCP 251.13 before an agreement can be revoked. Types of Misconduct The types of misconduct resulting in diversion during November 1, 2019 through January 31, 2020 generally involved the following: ■ lack of competence, implicating Colo. RPC 1.1; ■ lack of diligence, implicating Colo. RPC 1.3; ■ neglect of a matter and/or failure to communicate, implicating Colo. RPC 1.3 and 1.4; ■ fees issue, implicating Colo. RPC 1.5;

■ declining or terminating representation, implicating Colo. RPC 1.16; ■ failure to comply with a court order or the rules of a tribunal, implicating Colo. RPC 3.4(c); ■ communications with a person represented by counsel, implicating Colo. RPC 4.2; ■ supervisory responsibilities regarding non-lawyer assistants, implicating Colo. RPC 5.3; ■ committing a criminal act, implicating Colo. RPC 8.4(b); and ■ conduct prejudicial to the administration of justice, implicating Colo. RPC 8.4(d). Some cases resulted from personal problems the attorney was experiencing at the time of the misconduct. In those situations, the diversion agreements may include a requirement for a mental health evaluation and, if necessary, counseling to address the underlying problems

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FROM COURTS TITLE THE | SUB TITLE | COLORADO SUPREME COURT OFFICE OF ATTORNEY REGULATION COUNSEL

of depression, alcoholism, or other mental health issues that may be affecting the attorney’s ability to practice law. Diversion Agreements Below are some diversion agreements that Regulation Counsel determined appropriate for specific types of misconduct from November 1, 2019 through January 31, 2020. The sample gives a general description of the misconduct, the Colorado Rule(s) of Professional Conduct implicated, and the corresponding conditions of the diversion agreement.

Competence In representing a client on immigration matters, respondent failed to ensure that the deadline for filing the client’s appeal was placed correctly on respondent’s calendar. Respondent filed the appeal out of time and the client’s appeal was dismissed. Respondent failed to supervise office staff to ensure that the deadline was noted correctly. Rules Implicated: Colo. RPC 1.1, 1.3, 5.3, and 8.4(d). Diversion Agreement: One-year diversion agreement with successful completion of ethics school, completion of the online Colorado lawyer’s self-assessment tool with peer review, and payment of costs. Respondent represented a client in a worker’s compensation case. Respondent relied heavily on a non-lawyer case manager. Respondent failed to adequately supervise the non-lawyer case manager and failed to notice that the case was not being diligently handled. Respondent terminated the employee and the client was not prejudiced by the delay. Rules Implicated: Colo. RPC 1.1, 1.3, 1.4(a), 5.3(b), and 5.5(a)(3). Diversion Agreement: One-year diversion agreement with successful completion of ethics school, practice audit, and payment of costs. Diligence Respondent was hired in 2012 to defend a client in removal proceedings. Respondent entered respondent’s appearance on the client’s behalf with the immigration court, filed paper-

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work on the client’s behalf seeking cancellation of removal, and secured a temporary work permit for the client. Respondent then lost touch with the client and had no direct contact with the client thereafter. Respondent did not withdraw from the client’s immigration case, did not attempt to contact the client by telephone or letter, and did not take steps to notify the client of respondent’s intent to terminate further representation. Respondent moved offices and did not update respondent’s contact information with the court. Respondent did not monitor the client’s court file to determine if any actions were being taken on the client’s case or if any hearing had been set. Respondent stated that no notice was received from the court of any hearing set in the client’s case. However, a hearing was scheduled and conducted in the client’s immigration matter. Neither respondent nor the client attended. Due to the client’s non-appearance at that hearing, the client was ordered removed from the United States. Respondent has been unable to locate the client file, and those documents respondent was able to produce related to the representation of this client were housed on the computer system of respondent’s former office mate. Rules Implicated: Colo. RPC 1.3, 1.4, 1.6, and 1.16A. Diversion Agreement: One-year diversion agreement with successful completion of ethics school, completion of the online Colorado lawyer’s self-assessment tool, and payment of costs. In representing a homeowner’s association, respondent failed to communicate with the client reasonably and failed to work diligently to provide a written opinion letter over an 11-month period of time. Rules Implicated: Colo. RPC 1.3 and 1.4(a) and (b). Diversion Agreement: One-year diversion agreement with successful completion of ethics school and payment of costs. Respondent fell behind in caseload management due to a combination of a heavy case load and complications caused by mental health issues, which ultimately resolved with treatment.

Rules Implicated: Colo. RPC 1.3 and 8.4(d). Diversion Agreement: Two-year diversion agreement with successful completion of ethics school, mental health monitoring, and payment of costs. Respondent failed to timely draft business formation documents for a client over a period of five months. During that time, respondent failed to respond to the client’s attempts to contact respondent. Respondent alleges a computer issue prevented respondent from receiving the client’s emails during that time. Rules Implicated: Colo. RPC 1.3 and 1.4. Diversion Agreement: One-year diversion agreement with successful completion of ethics school, practice audit, compliance with recommendations of auditor, and payment of costs. Neglect of a Matter and/ or Failure to Communicate Respondent began representing a client in a mass tort case in January 2016. Respondent’s office had difficulty communicating with the client, so in August 2016, respondent’s firm sent the client a disengagement letter. After the client got back in touch, the firm continued the representation, including filing a complaint in federal court. As part of the lawsuit, the client had to provide certain documentary evidence, including photos, by a certain deadline. When the client had not provided the photos by the date of a show cause hearing in January 2019, rather than dismiss the client’s case with prejudice, the court granted an extension of time to provide them. There is no evidence that this information was communicated to the client, and in April 2019, having not received the photos, the court dismissed the case with prejudice. Although respondent directed a staff member to draft and send a disengagement letter to the client in May 2019, that did not occur. As a result, the client did not find out that the case had been dismissed until the client called respondent’s office in August 2019. Rules Implicated: Colo. RPC 1.4(a) and (b). Diversion Agreement: One-year diversion agreement with successful completion of ethics school, completion of the online Colorado

lawyer’s self-assessment tool, and payment of costs. In representing a worker’s compensation claimant, respondent failed to communicate with the client reasonably, did not provide a written basis or rate of fees to the client, did not provide a written contingent fee agreement, and advised the client to contact opposing counsel directly to obtain information about the case. Respondent provided the client’s file to the client several months after the client requested the file. Rules Implicated: Colo. RPC 1.4(a) and (b), 1.5(b) and (c), and 8.4(d); and CRCP Ch. 23.3, Rule 4. Diversion Agreement: One-year diversion agreement with successful completion of ethics school, completion of the online Colorado lawyer’s self-assessment tool, and payment of costs.

Diversion Agreement: One-year diversion agreement with successful completion of trust account school, completion of the online Colorado lawyer’s self-assessment tool, and payment of costs. Respondent failed to include a provision in a contingency fee agreement limiting the amount of costs the attorney could incur without client approval, and failed to communicate with the client regarding increasing costs. After the attorney-client relationship deteriorated, respondent also discussed the cost dispute with third parties without authorization. Rules Implicated: Colo. RPC 1.5(c), 1.4(b), 1.6, and 1.16(d). Diversion Agreement: One-year diversion agreement with successful completion of ethics school and payment of costs, including a requirement that respondent resolve the fee and cost dispute.

Failure to Comply with a Court Order Respondent failed to comply with a court-ordered child support obligation due to a transition in respondent’s employment and decreased income. Respondent ultimately came into compliance as a condition of the diversion agreement. Rules Implicated: Colo. RPC 3.4(c). Diversion Agreement: Two-year diversion agreement with conditions, including a requirement that respondent repay the accrued child support arrears. Communications with a Person Represented by Counsel Respondent represented a client in a litigation matter. The opposing party retained an attorney who entered a limited appearance for the purposes of mediation. The parties entered into a settlement agreement, and a term of the

Fee Issues As a new associate at a law firm, respondent was pressured to bill a minimum amount for respondent’s work each day. Respondent overcharged a client for work that was billed at an unreasonable fee. Respondent notified the client and resigned from the position. Respondent self-reported the misconduct to OARC. Rules Implicated: Colo. RPC 1.5(a). Diversion Agreement: One-year diversion agreement with successful completion of ethics school, completion of the online Colorado lawyer’s self-assessment tool, and payment of costs. Respondent represented a criminal defendant as alternate defense counsel (ADC). Respondent met with the client on numerous occasions, including in jail and in court. On two occasions, respondent billed the Office of Alternate Defense Counsel (ADC Office) for time spent meeting with the client, and related travel time, on days it appears respondent did not actually meet with the client. The evidence indicates these billing entries were unintentional. When the issue was brought to respondent’s attention, responded reimbursed the ADC Office the fees that respondent received for those days. Rules Implicated: Colo. RPC 1.5(a). A PR I L 2 0 2 0

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FROM COURTS TITLE THE | SUB TITLE | COLORADO SUPREME COURT OFFICE OF ATTORNEY REGULATION COUNSEL

agreement was that the opposing party was to remove the complaint filed with the OARC about respondent. In addition, respondent emailed the opposing party directly after mediation despite the fact that the communication was about a mediation agreement that fell within the opposing party attorney’s limited representation. Rules Implicated: Colo. RPC 4.2 and 8.4(d). Diversion Agreement: One-year diversion agreement with conditions, including successful completion of ethics school, completion of the online Colorado lawyer self-assessment tool, and payment of costs. Criminal Act Respondent pleaded guilty to DUI. This was respondent’s second DUI; the prior DUI conviction was eight years old. Respondent was sentenced to 50 days of in-home detention with requirements of 48 hours of community service,

payment of fines and costs of $1,978.50, 86 hours of therapy, level II education, attendance at a MADD Victim Impact Panel, monitored sobriety through substance testing, and no violation of laws during probation. Rules Implicated: Colo. RPC 8.4(b). Diversion Agreement: Two-year diversion agreement with conditions, including alcohol monitoring, compliance with the terms of criminal probation, and payment of costs. Respondent pleaded guilty to the charge of wrongs to minors arising from overly aggressive discipline of a child. Respondent received a oneyear court supervised deferred judgment and sentence with requirements of family therapy, 12 hours of parenting classes through NCTI, and no violations of laws during probation. Rules Implicated: Colo. RPC 8.4(b). Diversion Agreement: One-year diversion

agreement with conditions, including compliance with the terms of the criminal probation, successful completion of ethics school, and payment of costs. Respondent got into an argument with respondent’s significant other. Respondent got into a vehicle and drove at a high rate of speed, hitting a fence and almost hitting respondent’s significant other. Respondent had consumed alcohol prior to the incident. Respondent was arrested and ultimately entered a guilty plea to criminal mischief (class 2 misdemeanor) and reckless endangerment (class 3 misdemeanor) as an act of domestic violence. Other charges were dismissed. Respondent was sentenced to two years of probation. Substantial mitigation, including relating to personal and emotional problems, existed at the time of the incident. Respondent took significant steps in mitigation shortly after the incident, including relating to his sobriety. Rules Implicated: Colo. RPC 8.4(b). Diversion Agreement: Two-year diversion agreement with conditions, including alcohol monitoring, successful completion of ethics school, and payment of costs.

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Summaries of diversion agreements and private admonitions are published on a quarterly basis. They are supplied by the Colorado Supreme Court Office of Attorney Regulation Counsel.

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FROM COURTS TITLETHE | SUB TITLE | OFFICE OF THE PRESIDING DISCIPLINARY JUDGE

Disciplinary Case Summaries No. 19PDJ081. People v. Evans. 2/20/2020. The Presiding Disciplinary Judge approved the parties’ conditional admission of misconduct and suspended Michael Donivan Evans (attorney registration number 39407) for two years, to run consecutive to a two-year suspension he is currently serving in case number 18PDJ019. The suspension thus takes effect February 15, 2021. To be reinstated, Evans must first pay restitution and then formally petition for reinstatement; he

will be required to prove by clear and convincing evidence that he has been rehabilitated, has complied with disciplinary orders and rules, and is fit to practice law. The sanction took into account compelling mitigating circumstances. In four client matters, Evans failed to keep client retainers in his trust account, recklessly consumed those unearned fees, and never refunded to clients the amounts they were owed. Through this conduct, Evans violated Colo.

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RPC 1.5(f ) (a lawyer does not earn fees until a benefit is conferred on the client or the lawyer performs a legal service); Colo. RPC 1.15A(a) (a lawyer shall hold client property separate from the lawyer’s own property); Colo. RPC 1.16(d) (a lawyer shall protect a client’s interests upon termination of the representation, including returning unearned fees to which the client is entitled); and Colo. RPC 8.4(c) (providing that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation). In another client matter, Evans accepted a flat fee retainer in cash, which he did not deposit into his business or trust account. The client provided the retainer per a fee agreement that contained a benchmark calling for an unreasonable fee. Evans later moved to withdraw but did not return any portion of the retainer. Evans thereby violated Colo. RPC 1.5(f), 1.15A(a), and 1.16(d). In a separate client matter, Evans failed to safeguard in his trust account a client’s retainer and then failed to refund unearned fees in violation of Colo. RPC 1.5(f ) and 1.15A(a). Evans also failed to communicate with a client who had hired him to seal his criminal records in violation of Colo. RPC 1.4(a)(3) (a lawyer shall keep a client reasonably informed about the status of the matter). In another client matter, he charged a client unreasonable fees for attending a hearing on a day in which no hearing took place. He then filed a civil lawsuit against his client for an unpaid balance, and he twice included a copy of the unreasonable billing statement as an exhibit in the same case. Through this conduct, Evans violated Colo. RPC 1.5(a) (a lawyer shall not charge an unreasonable fee or an unreasonable amount for expenses) and Colo. RPC 3.1 (a lawyer shall not assert frivolous claims). In a final matter,

Evans brought a civil action against a former client to collect attorney fees, during which he unnecessarily made public certain documents that contained privileged correspondence or were otherwise disparaging or irrelevant. Evans thereby violated Colo. RPC 1.9(c)(2) (a lawyer who has formerly represented a client in a matter shall not reveal information relating to the representation). The case file is public per CRCP 251.31. No. 19PDJ041. People v. Piccone. 1/13/2020. A hearing board suspended Juliet Rene Piccone (attorney registration number 30934) for six months, all stayed upon the successful completion of a two-year probationary period with conditions. The probation took effect February 18, 2020. In two separate client cases, Piccone signed engagement agreements containing a provision

permitting her to reverse previously granted courtesy discounts if her representation was terminated before the case’s completion. In the same cases, respondent made eight posts on social media that revealed client information; some of those posts also disclosed confidential attorney-client communications and disparaged her clients. And in connection with one of those cases, respondent posted on social media embarrassing information that had no substantial purpose other than to humiliate opposing counsel. Piccone’s conduct violated Colo. RPC 1.5(g) (a lawyer shall not purport to restrict a client’s right to terminate the representation); Colo. RPC 1.6(a) (a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent); and Colo. RPC 4.4(a) (in representing a client, a lawyer shall not use means that have no substantial purpose

other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person). The case file is public per CRCP 251.31.

These summaries of disciplinary case opinions and conditional admissions of misconduct are prepared by the Office of the Presiding Disciplinary Judge and are provided as a service by the CBA; the CBA cannot guarantee their accuracy or completeness. Full opinions are available on the Office of the Presiding Disciplinary Judge website at www.coloradosupremecourt.com/PDJ/ PDJ_Decisions.asp.

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FROM COURTS TITLE THE | SUB TITLE | U.S. COURT OF APPEALS FOR THE TENTH CIRCUIT

Summaries of Selected Opinions No. 19-1025. Hill v. Warsewa. 1/23/2020. D.Colo. Judge Kelly. Prudential Standing— Easement for Public Use—Sovereign Immunity—Generalized Grievance—Constitutional Standing. Plaintiff filed an action in Colorado state court alleging that the defendant landowners tried to exclude him from a spot on the Arkansas River where he likes to fly-fish. The landowners contend they own the Arkansas riverbed up to its centerline at plaintiff’s fishing spot. Plaintiff

contends the property is subject to an easement for public use. The landowners removed the action to the district court on the basis of federal question jurisdiction. Plaintiff added the State of Colorado (State) as a named defendant. The landowners and the State moved to dismiss. The district court held that plaintiff lacked prudential standing because he asserted the rights of a third party and alleged only a generalized grievance, and it dismissed the case.

On appeal, plaintiff argued that the district court erred by finding that he lacked prudential standing to bring his claims. As an initial matter, he argued that the district court erred by analyzing prudential standing before sovereign immunity and constitutional standing. However, a federal court may choose among threshold grounds for dismissing a case. On the merits, under the prudential standing doctrine, a party’s claims may not

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rest on the rights of third parties where it cannot assert a valid right to relief of its own. Here, plaintiff asserted a right in himself: his own right to fish. While his purported right comes to him by virtue of the State’s title, his claims do not turn on the superiority of the sovereign’s property right. Further, whether plaintiff’s claim is a generalized grievance is part of a constitutional standing analysis, not prudential standing. Therefore, the district court erred by concluding that plaintiff lacked prudential standing to bring his claims. The judgment was reversed and the case was remanded. No. 18-1342. United States v. Rubbo. 1/27/2020. D.Colo. Judge Carson. Fraud—Breach of Plea Agreement—Waiver of Appellate Review in Plea Agreement—Downward Departure from U.S. Sentencing Guidelines. Defendant participated in a fraudulent business scheme involving the sale of a cleaning product. He pleaded guilty to conspiracy to commit fraud and engaging in a monetary transaction involving proceeds of criminal activity. As part of his plea agreement, defendant waived his right to appeal his sentence. In exchange, the government dismissed the remaining counts and agreed to recommend a 20% downward departure from the high end of the U.S. Sentencing Guidelines range if defendant “fully and truthfully” cooperated. After being released on bond, defendant violated the conditions of his bond by communicating with a known witness in the case and failing to inform the government of his unpermitted contact. At sentencing, the government recommended a 15% downward departure. The district court accepted the recommendation. On appeal, defendant argued that the government breached the plea agreement because it refused to recommend a 20% downward departure and therefore it could not enforce the appellate waiver in the plea agreement. An appellate waiver is not enforceable if the government breaches its obligations under a plea agreement. Here, the express language in the plea agreement shows that the government did not unequivocally promise to recommend a downward departure of a certain percentage.

Instead, it conditioned its obligation on defendant’s cooperation, which it retained sole discretion to evaluate. Defendant also argued that the government breached the agreement because it made a smaller downward departure recommendation for reasons unrelated to defendant’s cooperation. However, defendant withheld information relating to the government’s investigation, so it did not breach the plea agreement by recommending a 15% downward departure at sentencing. The appeal was dismissed. No. 18-2182. United States v. Tony. 1/27/2020. D.N.M. Judge Bacharach. Murder—Federal Rule of Evidence 404(b)—Proper Purpose—Self-Defense—Harmless Error. Defendant was convicted of first-degree murder for fatally stabbing Garcia during a fight.

On appeal, defendant argued that the district court erred by excluding evidence that Garcia had used methamphetamine before the fight. In the district court, defendant asserted self-defense, arguing that he was protecting himself from Garcia’s attack. The district court allowed defendant to present evidence of Garcia’s erratic and violent behavior, but it excluded evidence of Garcia’s methamphetamine use on the ground that defendant failed to identify a proper purpose for admission of the evidence, as required under Fed. R. of Evid. 404(b). Rule 404(b) prohibits using evidence of other acts to prove a person’s character for purposes of showing that the person acted in accordance with that character on a particular occasion. But the rule provides an exception for evidence of other acts admitted for non-propensity purposes. Here, defendant stated that he was offering the methamphetamine evidence to show why

Professionalism Matters Enjoy some good, bad and ugly attorney behavior and earn 1 ethics credit in the process!

The Professionalism Coordinating Council offers entertaining and engaging vignettes that illustrate negative and positive attorney behavior. You can preview the vignettes at cobar.org/professionalismvideos. The Council’s speaker panel is also available to discuss professionalism matters with attorneys at local and specialty bar associations, sections, committees, law firms and other attorney gatherings. Contact Katie Null at knull@cobar.org or 303-860-1115 to schedule a program.

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FROM COURTS TITLE THE | SUB TITLE | U.S. COURT OF APPEALS FOR THE TENTH CIRCUIT

Garcia was acting erratically and violently, which was a permissible purpose under Rule 404(b). Thus, the district court abused its discretion in excluding the evidence. Further, the error was not harmless because defendant denied premeditation at trial, and the government did not address how the methamphetamine evidence might have affected this denial. The conviction was vacated and the case was remanded for a new trial. No. 19-7007. United States v. Blackbird. 2/5/2020. E.D.Okla. Judge Carson. Attempted Sexual Abuse of a Minor—Sentence Enhancement—Victim Under Perpetrator’s Custody, Care, or Supervisory Control. Defendant’s now ex-wife lived in a house with four of the couple’s minor grandchildren, including S.B. Defendant is a convicted sex offender and had been required to move out of the house before the minor grandchildren were placed there, but he lived in a nearby trailer and often came to the house. When S.B. was alone in the house, defendant attempted to sexually abuse her. Defendant pleaded guilty to attempted sexual abuse of S.B. At sentencing, the district court imposed a four-level sentence enhancement under U.S. Sentencing Guideline § 2A3.2(b) (1) on the basis that the minor granddaughter was in defendant’s custody, care, or supervisory control at the time of the attempted sexual abuse. On appeal, defendant argued that the district court erred in applying the sentence enhancement because the government presented no evidence that S.B. was in defendant’s custody, care, or supervisory control. Here, the government failed to show that defendant had some degree of authority over or responsibility for the victim. The fact that defendant exploited an opportunity when he found the victim home alone did not meet the threshold for applying the enhancement. Therefore, the district court clearly erred. The sentence was vacated and the case was remanded for resentencing. No. 19-1086. Alpern v. Ferebee. 2/7/2020. D.Colo. Judge Phillips. Public Lands Fees— Federal Lands Recreation Enhancement Act— Amenities.

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Plaintiff hikes in Maroon Valley and the surrounding wilderness, often taking multiday backpacking trips or day hikes exceeding 12 hours. To do so, he enters the valley on its only road, pays a $10 fee, and parks. He filed suit claiming that the U.S. Forest Service violates the Federal Lands Recreation Enhancement Act (REA) by charging him the fee because he does not use any amenities and is thus charged the fee solely for parking. The district court denied his as-applied challenge to the Maroon Valley fee program. On appeal, plaintiff argued that the U.S. Forest Service is prohibited from charging a fee at the Maroon Valley location solely for parking. The REA allows recreational fees for certain federal lands at locations with statutory amenities, such as picnic tables, trash bins, and interpretive signs, but prohibits a fee solely for parking. Here, plaintiff parks in a developed parking lot near toilets, picnic tables, interpretive signs, and several other amenities. Further, though plaintiff does not admit to using the security services, he does so every time he parks in one of the three Maroon Valley lots, each of which provides security. Accordingly, the fee is allowed. The judgment was affirmed. No. 19-3011. United States ex rel. Janssen v. Lawrence Memorial Hospital. 2/7/2020. D.Kan. Chief Judge Tymkovich. False Claims Act—Medicare Reimbursement—Materiality Requirement—Deficit Reduction Act. Janssen, a qui tam relator, brought this False Claims Act (FCA) case alleging that Lawrence Memorial Hospital (Hospital) fraudulently received Medicare reimbursements. She claimed that the Hospital (1) falsified patient arrival times to qualify for incentives to improve quality of care, and (2) falsely certified compliance with the Deficit Reduction Act (DRA) to receive additional Medicare reimbursements, because the Hospital’s employee manuals did not adequately explain the FCA. The Hospital moved for summary judgment. The district court held that Janssen failed to raise a genuine issue of material fact with respect to the materiality of the alleged falsehoods, and it granted summary judgment to the Hospital.

On appeal, Janssen challenged the summary judgment, arguing for a broad interpretation of the concept of materiality. Proof of a false claim requires a showing of (1) a false statement, (2) made with the requisite scienter, (3) that is material, and (4) resulted in a claim to the government. The FCA is not a general anti-fraud statute, and liability attaches only where alleged misrepresentations are material to the government’s payment decision. Therefore, to be material, a false statement must influence the entity who makes the payment decision. As to Janssen’s first claim, although the evidence indicated that the Hospital falsely reported some arrival times, the evidence does not demonstrate sufficiently widespread reporting deficiencies to likely affect the government’s payment decision. Janssen thus failed to present sufficient evidence to raise a fact issue about whether the alleged falsification of arrival times was material to the government’s payment decision. Janssen also did not adduce evidence of a cover-up, which might signal materiality. As to the second claim, while the employee handbooks lacked detailed discussion of the FCA, these sources were supplemented with additional training and informational materials. Janssen at most demonstrated limited compliance issues and failed to show any likely effect the DRA compliance issues would have on the government’s payment decision. Accordingly, Janssen failed to raise a fact issue with respect to the materiality of the Hospital’s alleged noncompliance with the DRA. Thus, summary judgment was appropriate. The judgment was affirmed.

These summaries of selected Tenth Circuit opinions are written by licensed attorneys Katherine Campbell and Jenine Jensen. They are provided as a service by the CBA and are not the official language of the court. The CBA cannot guarantee the accuracy or completeness of the summaries. The full opinions are available on the CBA website and on the Tenth Circuit Court of Appeals website.

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Summaries of Published Opinions February 6, 2020

2020 COA 19. No. 16CA0107. People v. Thomas. Criminal Law—Evidence—Resisting Arrest—Criminally Negligent Bodily Injury to an At-Risk Adult—Third Degree Assault—Lesser Included Offense—Merger—Prosecutorial Misconduct—Habitual Criminal—Prior Convictions.

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Defendant lived in a trailer on the victim’s property. After receiving complaints that defendant was being loud and disruptive, the victim went to defendant’s trailer where defendant grabbed her by the neck and slammed her into a nearby parked car, yelling that she “didn’t belong in this world.” Police arrived and arrested defendant. When police tried to handcuff him, defendant flailed his arms. When police

attempted to put defendant in the patrol car, he went limp. A jury found defendant guilty of third degree assault, negligent bodily injury to an at-risk adult, and resisting arrest. On appeal, defendant argued that there was insufficient evidence to convict him of resisting arrest. By going limp in physical surroundings that included glass and other debris, defendant knowingly attempted to prevent officers from proceeding with the arrest by using means that created a substantial risk of causing bodily injury to the officers through falling or contacting nearby objects or conditions. Therefore, there was sufficient evidence to convict defendant of resisting arrest. Defendant next contended that his conviction for criminally negligent bodily injury to an at-risk adult should merge into his conviction for third degree assault because the former is a lesser included offense of the latter. However, proof of injury to an at-risk adult is not established by proof of the same or fewer facts than are required to prove injury to another person. Accordingly, criminally negligent injury to an at-risk adult is not included in the offense of knowing or reckless injury to a person. Defendant also contended that the trial court erred by allowing prosecutorial misconduct during closing arguments. During rebuttal closing argument, the prosecutor implored the jury to evaluate each witness’s credibility in this “he said, she said” case. The prosecutor’s argument did not undermine the fundamental fairness of the trial. Therefore, the trial court did not err when it did not intervene and instruct the jury to disregard the prosecutor’s argument. Defendant further argued that the trial court lacked authority to sentence him as a habitual criminal. Defendant previously pleaded guilty to a class 6 felony for possession of a controlled substance and, in a separate case, pleaded guilty to class 4 felony possession of a controlled substance. In addition, the record contains ample proof that he also had a prior conviction for a class 4 felony theft. Therefore, there was sufficient proof of defendant’s three prior convictions. Further, while CRS § 181.3-801(2)(b) eliminates level 4 drug felonies as triggering felonies for habitual criminal sentencing, it does not prohibit courts from

considering level 4 drug felony convictions as predicate felony convictions. Thus, the trial court did not err when it applied the habitual criminal sentencing statute. Lastly, the Court of Appeals rejected defendant’s argument that Colorado’s habitual criminal statutes are unconstitutional because they allow a judge rather than a jury to make necessary findings about whether a defendant was previously convicted. The judgment and sentence were affirmed. 2020 COA 20. No. 18CA1149. Korean New Life Methodist Church v. Korean Methodist Church of the Americas. Religious Organizations— Property—Neutral Principles Approach—Polity Approach—Submission—First Amendment— Fourteenth Amendment. Kim began a prayer group in his home and later incorporated the prayer group as a nonprofit

corporation, the Korean New Life Church (the local church). Thereafter, the local church’s board of directors passed a resolution stating that the local church “shall join the Korean Methodist Church” and changing the church’s name to Korean New Life Methodist Church. The Korean Methodist Church (the denomination) is based in South Korea and has specific rules governing its operations. The local church never amended its articles of incorporation to reflect the local church’s new name, nor do the articles reference the denomination or its rules. Further, the local church did not register its property with the denomination. Subsequently, Pastor Cha began working at the local church. Pastor Cha developed a conflict with the board when he attempted to register the local church’s property with the denomination and attempted to take control of the local church’s finances, contrary to the board’s

resolutions. The district superintendent, acting on behalf of the denomination, fired the board members and authorized Pastor Cha to install a new church board under the denomination’s authority. The old board passed resolutions terminating Pastor Cha and dissociating from the denomination, and it filed this declaratory judgment and injunctive relief action asking the district court to declare that the old board was the lawful church board in control of the local church, including the local church’s property and finances. The old board also requested injunctive relief to preserve the status quo and bar Pastor Cha from the local church property. Applying a neutral principles approach, the court found insufficient evidence to show that the local church had submitted to the denomination’s authority. Following the preliminary injunction hearing, the parties entered into a stipulation making the injunction order permanent. The

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court accepted the stipulation and entered a final judgment under CRCP 65(a). On appeal, the denomination challenged the district court’s decision to apply the neutral principles approach rather than the polity approach to the submission question, and its application of the neutral principles approach to the hearing facts to find there was no submission. The First and Fourteenth Amendments to the U.S. Constitution preclude civil courts from resolving religious disputes involving religious law and decisions of ecclesiastical tribunals, including disputes involving church governance (polity approach). But when a dispute involves the ownership and control of church property, civil courts are permitted and required to apply neutral principles of law in resolving them (neutral principles approach). This approach includes inquiring into whether the local church has submitted to the authority of a national denomination. The submission to authority question arises from the local church’s organizational intent as evidenced by church documents, testimony, and conduct. Neutral principles of general corporate law must be applied to resolve it. Here, the district court did not err in its application of neutral principles to the evidence, which included the local church’s articles of incorporation, bylaws, resolutions, board meeting minutes, property conveyance actions, and the denomination rules, to conclude that the local church did not submit to the denomination’s authority. The local church’s request for appellate attorney fees and costs was denied because the question here was one of first impression and the parties stipulated that neither would be awarded attorney fees. The judgment was affirmed. 2020 COA 21. No. 18CA2136. DIA Brewing Co., LLC v. MCE-DIA, LLC. Civil Procedure—Right to Amend Complaint—Responsive Pleading—Motion to Dismiss—Final Judgment—CRCP 15(a). DIA Brewing Co., LLC (Brewing) unsuccessfully bid for a contract to establish restaurants and related businesses at Denver International Airport. Brewing then sued several public and private defendants, alleging a bid-rigging conspiracy. The nongovernmental defendants

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moved to dismiss. In a series of dismissal orders, the district court dismissed Brewing’s claims based on lack of standing and failure to plead fraud with particularity. The dismissal orders did not indicate whether the case was dismissed with or without prejudice. Brewing then filed an amended complaint under CRCP 15(a). The trial court entered an order denying the filing of the amended complaint because, among other reasons, the complaint failed under the futility of amendment doctrine. On appeal, Brewing contended that it had the right to amend its complaint as a matter of course, even after dismissal of its original claims, because the defendants never filed a responsive pleading. CRCP 15(a) allows a complaint amendment as a matter of course any time before a responsive pleading is filed. Here, defendants filed a motion to dismiss, which is not a responsive pleading. Brewing also contended that it had the right to amend its complaint as a matter of course because the court dismissed its original claims without prejudice. CRCP 41(b)(3) presumes that a dismissal order that does not specify with or without prejudice must be construed as a dismissal without prejudice, so the dismissal here was construed to be without prejudice. A dismissal without prejudice is not a final judgment if the plaintiff can cure deficiencies through an amended complaint. Here, Brewing could have amended its complaint to cure the deficiencies noted in the dismissal orders. Further, the futility of amendment doctrine does not apply to amended pleadings filed as a matter of course. Therefore, the district court erred. The judgment was reversed and the case was remanded for further proceedings. 2020 COA 22. No. 19CA0033. Ruiz v. Chappell. Civil Procedure—Amended Complaint—CRCP 15(c)—Summary Judgment—Statute of Limitations—Relation Back of Amendments. Plaintiff sued 7-Eleven, Inc. alleging that she sustained injuries after she slipped and fell on an icy walkway outside a 7-Eleven store. After the statute of limitations ran, 7-Eleven filed a motion for summary judgment arguing that it had a franchise agreement with Chappell making Chappell a franchisee and allocating to Chappell

the responsibility for walkway maintenance. The court granted the motion. Plaintiff then amended her complaint, naming Chappell as the sole defendant. Chappell moved to dismiss the action as time barred. The court converted Chappell’s motion to a summary judgment motion, which it granted, concluding that the amended complaint did not relate back to the original complaint’s filing under CRCP 15(c). On appeal, plaintiff argued that the court erred in granting Chappell summary judgment. For a claim in an amended complaint against a new party to relate back to the filing of the original complaint under CRCP 15(c), (1) the claim must have arisen out of the same conduct, transaction, or occurrence set forth in the original complaint; (2) the new party must have received such notice of the institution of the action that she will not be prejudiced in maintaining her defense on the merits; and (3) the new party knew or should have known that, but for a mistake concerning the proper party’s identity, the action would have been brought against her. The district court here did not make the required determinations under Rule 15(c). The judgment was reversed and the case was remanded for the district court to determine whether plaintiff made a deliberate choice to sue 7-Eleven rather than Chappell. If so, the court must reenter summary judgment for Chappell. If not, the court must determine whether Chappell (1) knew or should have known that, but for a mistake, plaintiff’s action would have been brought against Chappell; and (2) received such notice of the commencement of the action that she will not be prejudiced in maintaining a defense on the merits. If the court determines that Chappell had such knowledge and will not be prejudiced by plaintiff’s delay, the court must reinstate plaintiff’s complaint against Chappell. February 13, 2020

2020 COA 23. No. 15CA2076. People v. Stone. Criminal Law—Voluntary Intoxication Defense— Burden of Proof—General Intent Crimes—Jury Instruction. Firefighters found defendant wandering the streets and agreed to give him a ride. He asked

them to drop him off at a “warming” station, but they let defendant out at a gas station. There, he entered a running car with a 4-year-old in the back seat and drove away. After leading police officers on a high-speed chase, defendant abandoned the car, commandeered a second car, abandoned the second car, and hijacked a third one. When his attempt to steal a fourth car was thwarted, he ran off. During the chase, defendant hit a trooper with a car, causing serious injuries. Officers later arrested him. Defendant was charged with various general intent crimes and raised a voluntary intoxication defense. The trial court barred him from introducing evidence that he was intoxicated at the time of the crimes based on CRS § 18-1804(1). A jury convicted defendant of attempted manslaughter, first degree assault, vehicular eluding, criminal mischief, six counts of leaving the scene of an accident, two counts of robbery,

two counts of child abuse, and three counts of aggravated motor vehicle theft. On appeal, defendant contended that CRS § 18-1-804(1) is unconstitutional because it lightens the prosecution’s burden to prove every element of a crime beyond a reasonable doubt and prevents a defendant from presenting a complete defense. CRS § 18-1-804(1) provides that an accused’s intoxication is not a defense to general intent crimes. It treats sober persons and voluntarily intoxicated persons as equally responsible for conduct and is therefore not unconstitutional. Further, CRS § 18-1-804(1) does not lighten the prosecution’s burden to prove the culpable mental state beyond a reasonable doubt. Defendant also contended that the trial court erred when it instructed the jury that voluntary intoxication was not a defense to any of the charged general intent crimes. However, there

was sufficient evidence of both consumption and intoxication to support the instruction. Further, when considered as a whole, the jury instructions properly instructed the jury on the prosecution’s burden to prove all the elements beyond a reasonable doubt and did not create an impermissible presumption that defendant possessed the requisite mental state. The judgment was affirmed. 2020 COA 24. No. 16CA1348. People v. Stone. Criminal Law—Sentencing—Restitution— Crime Victim Compensation Board—Burden of Proof—Permanent Partial Disability—Workers’ Compensation. This case concerns the convictions affirmed in 2020 COA 23. Over defendant’s objection, the trial court signed a written restitution order submitted by the prosecution in the amount of $252,027.69.

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On appeal, defendant contended that the trial court erroneously ordered restitution to the Crime Victim Compensation Board (the Board) for its payments to the injured trooper’s brother for his travel expenses to come to Colorado and to the trooper’s girlfriend for her lost wages, because they were not “victims” under the restitution statute. The restitution statute defines a “victim” as “any person aggrieved by the conduct of an offender.” The statute explicitly allows compensation to a deceased or incapacitated victim’s sibling or significant other, as well as a victim compensation board that has paid a victim compensation claim. Therefore, under the restitution statute, the Board could be compensated. Defendant also argued that even if the trooper’s brother and girlfriend were victims, the prosecution did not prove that defendant’s conduct proximately caused their losses. The

restitution statute required the prosecution to show that defendant’s conduct proximately caused the brother’s travel expenses and the girlfriend’s lost wages. Here, the prosecution met its burden by providing sufficient evidence that but for the trooper’s injuries, the expenses would not have been incurred. Thus, the court did not err in ordering restitution to the Board. Defendant also contended that the trial court erroneously ordered restitution to the workers’ compensation administrator for the trooper’s “permanent partial disability” because these benefits constitute a loss of future earnings, which are not compensable under the restitution statute. The restitution statute prohibits an award of restitution for “loss of future earnings.” However, the workers’ compensation case law is clear that permanent partial disability benefits do not compensate an employee for “actual wage loss that has already occurred or

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may occur in the future.” Rather, these benefits compensate an employee for a permanent impairment that impacts the employee’s present and future ability to compete in the labor market. Therefore, it was not error for the trial court to order restitution for the trooper’s permanent partial disability. Defendant also asserted that the case should be remanded for a new hearing because he had no notice of the prosecution’s request for restitution to the administrator for permanent partial disability benefits. While defendant did not have sufficient notice, any error in denying defendant notice was harmless based on the Court of Appeals’ resolution of defendant’s challenge to the order requiring him to pay restitution to the administrator for the permanent partial disability benefits that it paid to the trooper. Defendant further contended that the trial court erroneously ordered him to pay restitution to the trooper for the mother’s travel expenses. The court asked the prosecution to file a proposed order excluding mother’s travel expenses, but the prosecution’s order, which the court signed, did not do so. The prosecution conceded error. The parts of the order requiring defendant to pay restitution to the Board and to the workers’ compensation administrator were affirmed. The part of the order awarding the trooper his mother’s travel expenses was reversed and the case was remanded for the trial court to deduct that amount from the restitution order. 2020 COA 25. No. 17CA1558. People v. Brooks. Criminal Law—Burglary—Menacing—Jury Verdict—Special Interrogatory—Inconsistent Verdicts—Mutually Exclusive Verdicts. Defendant tried to enter M.U.’s front door while holding a gun. M.U. and her boyfriend struggled with defendant for the gun until police arrived. An officer found a gun underneath defendant, who was on the floor, and after transporting him in the police vehicle, an officer found a bag of cocaine on the backseat. Defendant was charged with first degree burglary, unlawful possession of a controlled substance, third degree assault, first degree criminal trespass, and two counts of menacing.

A jury found him guilty of all charges, but in the first degree burglary special interrogatory, the jury found that defendant did not use, or threaten to use, a deadly weapon during the burglary. Defendant moved for a judgment of acquittal on the burglary and menacing convictions, asserting they were inconsistent. The trial court found that the verdicts were not inconsistent but entered a judgment of acquittal on the first degree burglary count and sentenced defendant to three years in the custody of the Department of Corrections on the remaining charges. On appeal, the People argued that the trial court erred by concluding that the jury verdict for first degree burglary was inconsistent with the special interrogatory. Here, the jury was instructed that to convict defendant of first degree burglary it had to find that he used, or possessed and threatened to use, a deadly weapon, namely a firearm, during the burglary. By marking the verdict form guilty, the jury indicated it had done so. But on the special interrogatory form affiliated with that verdict, the jury explicitly found that defendant did not use, or possess and threaten to use, a deadly weapon during the burglary. By negating an element of first degree burglary, the special interrogatory response rendered the verdict on that charge ambiguous. The verdict was therefore infirm and could not stand. Unlike mutually exclusive verdicts, however, when an inconsistency within a single verdict negates an element, the remaining elements may nevertheless support a guilty verdict. Therefore, the proper remedy here was not acquittal, but entry of a conviction for the lesser included offense of second degree burglary. Defendant contended that the special interrogatory response negated an element of his menacing convictions. The response to the special interrogatory regarding the burglary, however, did not negate any element of the offense of menacing, nor vice versa. There is no irreconcilable conflict in the two crimes such that proof of all of the elements of first degree burglary necessarily means a failure to prove all of the elements of menacing. The judgment of conviction entered on the menacing counts was affirmed. The judgment

of acquittal on the first degree burglary count was reversed and the matter was remanded with instructions to enter a judgment of conviction for second degree burglary and sentencing on that count. 2020 COA 26. No. 18CA1540. IBM Corporation v. City of Golden. Taxation—Sales and Use Tax—Issue Preclusion—Sanctions. The City of Golden (Golden) audited IBM Corporation and assessed sales and use taxes against it for the 2003–05 tax period. The Jefferson County District Court (Jefferson court) upheld the assessment of those taxes and a 50% penalty for being delinquent without good cause as authorized by the Golden Municipal Code (GMC). The Jefferson court’s judgment was upheld on appeal. Golden then performed a second audit for tax years 2006–08 and 2009–12 and again assessed IBM sales and use taxes. A 50% penalty and interest were also imposed on IBM. IBM appealed to the Denver County District Court (Denver court). Golden moved for partial summary judgment, arguing that issue preclusion barred relitigating whether IBM had a reliable tax accounting system, and whether the variable charge and fixed management fee classifications contained any nontaxable transactions. The Denver court denied the motion, and after a trial, IBM largely prevailed. In a post-trial motion under CRCP 59, Golden asked the Denver court to assess a 10% penalty and 1% per month interest on the award, as required by the GMC. IBM agreed that it was liable for the 10% penalty and interest, but the Denver court did not rule on the motion within the 63-day time period under CRCP 59(j), so the motion was deemed denied On appeal, Golden argued that issue preclusion barred IBM from litigating the taxability of its transactions from the later audit period. Because the Jefferson court did not find that IBM’s entire tax accounting system was unreliable and did not specify which transactions were taxable, IBM was not precluded in the Denver case from arguing that it provided reliable tax information to Golden, nor was IBM precluded from using its tax information to argue that certain transactions were not taxable. Thus, the A PR I L 2 0 2 0

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Denver court correctly rejected the application of issue preclusion and allowed IBM to challenge the tax assessments on their merits. Golden also challenged the district court’s CRCP 37 ruling that precluded Golden from presenting evidence on the taxability of IBM’s software maintenance agreements. The Denver court did not abuse its broad discretion when it prohibited Golden from presenting evidence on this undisclosed argument. The Court of Appeals denied Golden’s request for reimposition of the 50% penalty because it did not reverse the Denver court’s determination that the penalty is unwarranted. But in the alternative, Golden requested remand for imposition of the mandatory 10% penalty, with 1% per month in interest. The Court granted this request based on IBM’s confession to Golden’s CRCP 59 motion regarding this assessment in the Denver court. The case was remanded to the Denver court to amend the judgment to include a 10% penalty on the amounts found due by the district court and to assess interest as provided by the GMC. In all other respects, the judgment was affirmed. 2020 COA 27. No. 18CA2345. Stanczyk v. Poudre School District R-1. Education—Teacher—Employment—Standing—Nonprobationary Portability—Contract Termination. Stanczyk is a licensed teacher who worked in the Thompson School District from 1995 through the 2015–16 school year. She attained nonprobationary status in that district in the 1998–99 school year. During her last year at Thompson School District, Stanczyk applied for several positions with the Poudre School District. The online application required her to waive her nonprobationary status if the job was offered and accepted. Stanczyk accepted the job, and at the end of the academic year, she was told that her contract with the school district would not be renewed. A week later, Stanczyk notified the school where she had worked that she wished to exercise her right to nonprobationary portability. The school denied her request. When her contract was not renewed, Stanczyk and the Poudre Education Association (Association), of which Stanczyk is a member, filed suit against the Poudre School District

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R-1 and Poudre School District R-1 Board of Education (collectively, defendants). Stanczyk and the Association pleaded six claims for relief: two for declaratory relief, one for mandamus relief, a breach of contract claim, a due process claim, and a constitutional claim. The parties cross-moved for summary judgment, and the court granted summary judgment to defendants. On appeal, defendants first argued that Stanczyk and the Association lacked standing to bring their claims. It is undisputed that defendants denied Stanczyk’s request for nonprobationary portability and therefore allegedly caused her injury. Thus, Stanczyk properly alleged an injury in fact and has standing to assert all of her claims. Further, the Association has associational standing to join three of Stanczyk’s claims, the two for declaratory judgment and the claim that defendants violated the Colorado Constitution’s Thorough and Uniform Clause, which provides for the establishment and maintenance of a thorough and uniform public school system statewide. Stanczyk and the Association contended that the district court erred in granting summary judgment to defendants. Stanczyk and the Association’s claims for declaratory judgment rest on their contention that defendants violated CRS § 22-63-203.5 because they improperly restricted Stanczyk’s ability to exercise the right of nonprobationary portability through the use of a job application and form employment contract that require teachers to relinquish the right to nonprobationary portability as a condition of employment (the Restrictions). In 2010, the Colorado General Assembly enacted CRS § 22-63-203.5, which granted teachers who had attained nonprobationary status the right to transfer that status from one district to another by submitting specified evidence of his or her effectiveness as an educator. School districts must provide nonprobationary status to qualified teachers who submit the required documentation, and a school district may not impose unreasonable restrictions on a teacher’s exercise of the right to nonprobationary portability. Here, it is undisputed that defendants used the Restrictions to require teachers to relinquish the right to nonprobationary portability as a condition of employment, and

even if teachers could apply for employment with the school district without agreeing to the waiver language in the application form, defendants would still retain, through the form employment agreement, the power to hire only teachers who surrendered their right to nonprobationary portability. Defendants’ use of the Restrictions is unreasonable because the Restrictions allowed defendants to decide unilaterally whether a teacher could obtain nonprobationary status. Accordingly, the Association is entitled to summary judgment on the first claim for declaratory judgment that defendants must grant Stanczyk and similarly situated teachers nonprobationary status if they provide defendants with the required documentation. However, Stanczyk is not entitled to summary judgment on this claim because disputed issues of fact exist on whether she provided the required documentation. Stanczyk and the Association are entitled to summary judgment on their second declaratory judgment claim that defendants’ use of the Restrictions is unlawful. As to the remaining claims, (1) because Stanczyk was entitled to summary judgment on the second declaratory judgment claim, she may not obtain mandamus relief; (2) the nonprobationary portability statute does not create a statutory contract between Stanczyk and the school district, so her claim to the contrary fails; (3) Stanczyk’s due process claim fails as a matter of law because a nonprobationary teacher has no vested property interest in continued employment; and (4) the claim that defendants’ refusal to allow teachers to exercise the right of nonprobationary portability violates the Thorough and Uniform Clause failed because Stanczyk and the Association did not provide any support for this position in their motion for summary judgment. The district court’s determination that Stanczyk has standing to assert all six of her claims and the Association has standing to join in Stanczyk’s declaratory judgment claims and claim arising under the Thorough and Uniform Clause were affirmed. The district’s court award of summary judgment in favor of defendants on Stanczyk’s claims for breach of statutory contract, due process, and mandamus relief were affirmed.

The district court’s award of summary judgment in favor of defendants on Stanczyk and the Association’s claim arising under the Thorough and Uniform Clause was affirmed. The district court’s award of summary judgment in favor of defendants on Stanczyk and the Association’s claims for declaratory judgment was reversed. The case was remanded for further proceedings consistent with this opinion, including entry of summary judgment in favor of the Association on the claims for declaratory judgment, entry of summary judgment in favor of Stanczyk on the second declaratory judgment claim, and a trial on the merits on the first declaratory judgment claim as to Stanczyk. 2020 COA 28. No. 18CA2454. Hajek v. Board of County Commissioners for Boulder County. New Water Use—Site Plan Review—Development Permit—Local Government Regulations.

Walter F. Pounds and Fair Farm, LLC (collectively, Fair Farm) sought to transition its property use from primarily grazing and hay production to an organic farm that would include structures for laying hens, egg production, and harvested crops. Construction of its proposed operation was subject to site plan review (SPR) under the Boulder County Land Use Code. Fair Farm submitted an SPR application to the Boulder County Land Use Department (the Department). The Department director conditionally approved the application. During a public comment period, Hajek, the owner of a parcel adjacent to the proposed operation, submitted written comments expressing concerns over, among other things, the adequacy of the water supply. The Department director then referred the application to the Board of County Commissioners for Boulder County (the Board), which finalized the conditional

approval without a hearing. Hajek challenged the Board’s decision under CRCP 106, and the district court affirmed. On appeal, Hajek contended that the Board failed to comply with CRS § 29-20-303(1) before approving Fair Farm’s SPR. The Board and Fair Farm contended that the statute does not apply to Fair Farm’s application because the proposed operation did not involve a “new water use” and therefore the Board’s SPR was not the approval of a “development permit.” The statute requires that before a local government approves a development permit involving a significant new water use, the local government must consider the adequacy of the development’s proposed water supply. The phrase “new water use” encompasses both the use of additional quantities of water and the use of a similar quantity of water for a different purpose. An operation that includes new water in an amount

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more than that used by 50 single-family equivalents requires an application to be reviewed as a development permit. Here, the proposed structures are intended to facilitate the operation, which includes water use, so building the new structures necessarily implicates any new water use associated with the operation. Because Fair Farm’s operation includes new water use, the Board was required consider whether the amount of water used exceeded the threshold of 50 single-family equivalents, and thus whether the Board had to review the application as a development permit under CRS § 29-20-303(1). Therefore, the Board abused its discretion by granting conditional approval of the application without considering the adequacy of the proposed water supply. The Board and Fair Farm argued that even if CRS § 29-20-303(1) applies to Fair Farm’s application, reversal is not required because the record evidence demonstrates that the proposed water supply is adequate. However, the application and other materials submitted to the Department did not indicate the amount of water necessary for the operation, nor does the record contain information about whether the new operation will require water of a different quality. Thus, the Board could not have considered the adequacy of the water supply. The judgment was reversed and the case was remanded to the trial court with directions to vacate the Board’s conditional approval and remand the case to the Board to determine whether the development’s water requirements exceed 50 single-family equivalents, and, if so, whether the applicant’s proposed water supply is adequate. 2020 COA 29. No. 19CA0638. Keysight Technologies v. Industrial Claim Appeals Office. Unemployment Insurance—Successor Employer—Transfer of Experience—Premiums—Timeliness. Keysight Technologies, Inc. (Keysight) was wholly owned by Agilent Technologies (Agilent). Keysight was spun off from Agilent in 2014; it acquired 75% of Agilent’s Colorado employees and half of Agilent’s infrastructure, and it became a Colorado statutory employer. Keysight applied for its own Colorado unem-

ployment compensation insurance account, and the Division of Unemployment Insurance (the Division) notified Keysight of its account number and premium rate in October 2014. In 2018, Keysight asked the Division to transfer Agilent’s “experience” (its claims history for purposes of calculating a statutory employer’s unemployment compensation insurance premium rate) to Keysight and revise Keysight’s unemployment tax rates. The Division denied Keysight’s request, and a panel of the Industrial Claim Appeals Office (the Panel) upheld the hearing officer’s order. On appeal, Keysight contended that the Panel incorrectly interpreted CRS § 8-76-104(2)(b) as applying only when the successor employer was an existing statutory employer before the trade or business was transferred to it. CRS § 8-76-104(2)(b) contemplates that the successor employer was an existing statutory employer before it acquired all or part of the predecessor employer’s trade or business. Here, because Keysight was not a statutory employer before it acquired part of Agilent’s trade or business, the Panel correctly concluded that the Division was not required to transfer Agilent’s experience to Keysight and recalculate its premium rate. Additionally, the record showed that Keysight waited more than three years to request the change in its premium rate, which exceeded the Division’s regulatory 20-day deadline. Consequently, Keysight’s untimely request provides a separate basis for upholding the Panel’s ruling. The Panel’s order was affirmed.

would be in the child’s best interests. However, the court determined that because an allocation of parental responsibilities (APR) to a paternal aunt was a viable less drastic alternative, it could not terminate parental rights. Upon remand from the appellate court, the district court terminated parental rights, finding that it was in the child’s best interests. As an initial matter, the Court of Appeals determined that father’s appeal was not barred by claim preclusion, because his current claim was not addressed in the first appeal, nor by the law of the case doctrine, because one division is not bound to an earlier decision of another division. Father contended that the juvenile court erred by terminating his parental rights. When a juvenile court finds that two options meet the child’s physical, mental, and emotional needs, including adequately providing for permanency, it must choose the option short of terminating the parent-child relationship. In this case, the juvenile court determined that both an APR and termination would serve the child’s physical, mental, and emotional needs, and would provide appropriate permanence. Once the juvenile court properly determined that an APR was a less drastic alternative that would adequately serve the child’s needs, it could not terminate the parent-child legal relationship. Thus, the juvenile court erred. The judgment was reversed and the was case remanded for entry of an APR to the paternal aunt. February 20, 2020

2020 COA 30. No. 19CA1406. People in re the Interest of A.M. Dependency and Neglect—Termination of Parent-Child Legal Relationship— Allocation of Parental Responsibilities. The Department of Human Services filed a petition in dependency and neglect after the newborn child’s umbilical cord blood tested positive for opiates, the child’s mother tested positive for drugs, and the child’s father tested positive for methamphetamine, THC, and alcohol. After a hearing, the juvenile court found that the parents were unfit and were unlikely to change within a reasonable time. The court also found that terminating the parents’ rights

2020 COA 31. No. 18CA1592. Kroesen v. Shenandoah Homeowners Association, Inc. Real Property—Subdivisions—Easement— Colorado Common Interest Ownership Act— Notice—Lost Profits—Damages—Intentional Interference with Contract. A developer divided property into two subdivisions, Shenandoah and Highlands, by recording declarations for each. The developer also recorded plats that depicted Colonial Road and Blue Ridge Road, portions of which follow the boundary between the two subdivisions. The plats created an easement that arguably allowed

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the owners of lots in Highlands Subdivision to access their properties over the roads. The developer established a homeowner’s association for each subdivision. The developer later filed another plat that created new tracts within Highlands Subdivision, including Tracts A and B, and the former owner of Tracts A and B recorded a plat consolidating these tracts into Tract AB. According to these plats, Tract AB is adjacent to Shenandoah Subdivision and abuts Blue Ridge Road. Before the former owner consolidated Tracts A and B, the Shenandoah Homeowners Association, Inc. (HOA) board of directors approved an easement over Blue Ridge Road to benefit Tract A, but no recorded document reflects the board’s approval of the easement. The HOA members did not ratify the board’s approval of the easement or otherwise authorize an easement to benefit Tract AB. The Kroesens purchased Tract AB and years later signed a contract to sell it. Before the closing, Burris, in his capacity as president of the HOA’s board of directors, told the Kroesens’ real estate agent that the Tract AB owners had no right to use either road to access their property. The purchasers refused to close after learning of the easement issue. The Kroesens filed claims against Burris and the HOA (collectively, defendants) for (1) a declaratory judgment that the Tract AB owners have an easement over the roads; (2) a permanent injunction enjoining the HOA from interfering with their access to Tract AB over the roads; (3) intentional interference with their purchase contract; and (4) slander of title. The district court granted summary judgment for the Kroesens on their declaratory judgment claim. After a bench trial, the court awarded the Kroesens damages on the intentional interference with contract claim to compensate them for their inability to sell the property pending litigation but did not award them lost profits. The court resolved the slander of title claim against the Kroesens because they had not proved the element of malice. The permanent injunction was dismissed. On appeal, defendants argued that under common law principles, the plats amending the declaration for Shenandoah Subdivision did not contain sufficient specificity to create

an easement over the roads benefiting Tract AB. The amendments to the declaration for Shenandoah Subdivision describe the nature of the easement with reasonable certainty. The plats also provide reasonable certainty as to the identity of the servient estate, Shenandoah Subdivision, where the roads are located. Although the language “adjacent subdivisions, and future subdivisions” in the plats amending the declaration for the Shenandoah Subdivision is a thin description of a dominant estate, the circumstances surrounding the easement’s creation, the purpose for which the easement was created, and the record notice in Shenandoah Subdivision’s chain of title describing the easement places good faith purchasers of tracts in Shenandoah Subdivision on notice of the easement. Under the common law test for creating an easement, Tract AB benefits from an easement over the roads.

Defendants also argued that the developer did not comply with the Colorado Common Interest Ownership Act (CCIOA) requirements for creating an easement. The developer reserved for itself a development right to “establish a non-exclusive easement and right of way [over] all or any portion of the [original property]” in the declaration for Shenandoah Subdivision and later exercised that right in plats amending the declaration. The CCIOA did not require the developer to expressly reference the easement in each plat, so the developer’s descriptions of the easement satisfied the CCIOA requirements. Thus, the district court did not err by granting summary judgment on the declaratory judgment claim. The Kroesens contended that the district court erred by holding they were not entitled to recover lost profits on their claim for intentional interference with contract. Here, the expert’s

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testimony was unclear as to the comparative value of Tract AB and the other lot, and the evidence showed that Tract AB retained market value and would eventually sell at or above the contract price specified in the terminated contract. Because the subject property had not become unmerchantable, the Kroesens were not entitled to recover lost profit damages. The judgment was affirmed. 2020 COA 32. No. 18CA2118. In re the Interest of Howard. Probate—Adult Guardianship— Petition to Remove—Hearing—Interested Party—Nonemergency. Howard suffers from dementia. Her husband cared for her at home with the assistance of professional caregivers for a time. After a disagreement between family members over Howard’s care, the probate court appointed a neutral third-party guardian. The guardian became concerned about the ward’s well-being and moved her to a skilled nursing facility over husband’s objections. Husband thereafter filed a petition to remove the guardian or modify her authority, which the probate court denied without a hearing. On appeal, husband contended that the court violated CRS § 15-10- 503(2) by summarily denying his petition to remove the guardian or modify her authority without a hearing. The plain language of CRS § 15-10- 503(2) requires the court to hold a hearing before ruling on a petition filed by an interested person to remove or modify the authority of a guardian in a nonemergency situation. This case involved a nonemergency situation, and the ward’s husband is an interested party with standing to petition the court concerning the guardian. Therefore, the court reversibly erred by denying the petition without a hearing. The order was reversed and the case was remanded for a hearing pursuant to CRS § 15-10-503(2). February 27, 2020

2020 COA 33. No. 18CA1121. People v. Pratarelli. Criminal Law—First Degree Kidnapping—Forcibly Seize and Carry—Mental Condition Evidence.

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Defendant and his wife separated and agreed to jointly parent their 3-year-old child, but they did not obtain a parenting time or custody order. Consistent with their arrangement, defendant picked up the child from daycare one afternoon. Later that evening defendant confronted wife on a phone call about text messages she had with another man. After the call, he put the child in his car and drove to wife’s house. When wife arrived home, defendant opened his car door, pushed her against the console, stunned her with a taser, grabbed her by the hair, and dragged her down the driveway. He then returned to his car and drove to Mexico with the child. Defendant stayed in communication with his wife by telephone and email. Subsequently, wife went to Mexico and returned to Colorado with the child. When defendant returned to Colorado he was convicted of first degree kidnapping, second degree kidnapping, use of a stun gun, and third degree assault. On appeal, defendant argued that the prosecution presented no evidence that he forcibly seized and carried his daughter and therefore the first degree kidnapping conviction must be vacated. A person commits first degree kidnapping when he forcibly seizes and carries any person from one place to another. Thus, the prosecution had to show that defendant used, or threatened to use, power, violence, or pressure against his child to seize and carry her, and he did so against opposition or resistance. At most, the evidence here showed that defendant took physical custody of his child at daycare under an agreed parenting time arrangement. And because he had physical and legal custody of the child, he didn’t need his wife’s permission to take her to Mexico. Therefore, insufficient evidence supported defendant’s first degree kidnapping conviction. Defendant also argued that the district court impaired his ability to investigate mental condition evidence and thus violated his constitutional right to present a defense. Here, defendant had the opportunity to develop evidence about his mental state, so the district court did not abuse its discretion by denying a second continuance. Further, the district court did not err by not requiring a court-ordered mental examination to allow defendant more

time to investigate a mental condition defense. And to the extent the court erred by restricting defendant’s testimony about his mental health concerns, the error did not substantially influence the verdict or affect the fairness of the trial. The conviction and sentence for first degree kidnapping was vacated and the case was remanded for entry of a judgment of acquittal on that count. The remaining convictions were affirmed. 2020 COA 34. No. 18CA2250. Woodbridge Condominium Association, Inc. v. Lo Viento Blanco, LLC. Adverse Possession—Prescriptive Easement—Exclusive Easement—Permissible Use—Scope of Acquired Easement. This case involves a 0.452 acre piece of property in Snowmass Village (the disputed parcel). In the 1970s, a construction company built several condominium buildings on a parcel that included, but was larger than, the disputed parcel. None of these buildings is on the disputed parcel. In 1975, the larger parcel, but not including the disputed parcel, was conveyed to Woodbridge Condominium Association, Inc. (Woodbridge). From that time through 2012, Woodbridge maintained and used the disputed parcel as if Woodbridge owned it. In 1992 Woodbridge offered to buy the disputed parcel but it received no response to its offer. No record owner of the disputed parcel used it for any purpose from 1975 until 2011. Lo Viento Blanco, LLC (Lo Viento) purchased the disputed parcel at auction from a bankruptcy estate in 2010, and in 2011 it presented plans to Woodbridge to build on the disputed parcel. Woodbridge then filed this case, claiming title to the disputed parcel by adverse possession. Alternatively, Woodbridge claimed to have a prescriptive easement over the disputed parcel. A prior Court of Appeals division held that Woodbridge had not acquired the disputed parcel by adverse possession. On remand, however, the trial court found that Woodbridge was entitled to a prescriptive easement over most of the disputed parcel, and it issued a detailed order setting forth the geographical bounds, permissible uses, and nature of that easement.

On appeal, Lo Viento challenged the trial court’s finding that Woodbridge is entitled to a prescriptive easement. Lo Viento relied on the prior division’s conclusion that Woodbridge’s June 1992 letter offering to buy the disputed parcel defeated Woodbridge’s claim for adverse possession because the letter rebutted the presumption of adversity raised by Woodbridge’s possession. A party claiming a prescriptive easement must show a nonpermissive or otherwise unauthorized use of property that interfered with the owner’s property interests. A prescriptive easement claimant that shows its use of the property was open and notorious and continuous for the statutory period is entitled to a presumption that its use was adverse. Here, Woodbridge consistently treated the disputed parcel as if it belonged to Woodbridge and did so without express or implied authorization. The prior division’s conclusions about the June 1992 letter addressed only the requirement of adversity in the adverse possession context, and only as to whether Woodbridge had asserted exclusive ownership. Thus, the prior division’s holding didn’t control Woodbridge’s prescriptive easement claim. Further, Lo Viento failed to rebut the presumption of adverse use. Therefore, Woodbridge is entitled to a prescriptive easement. Lo Viento also challenged the scope of the easement. The trial court properly applied the legal principles governing the determination of permissible use under a prescriptive easement and did not err in its determinations as to the four types of permissible uses. The Court also rejected as unsupported Lo Viento’s argument that Colorado law does not recognize exclusive easements. The judgment was affirmed. 2020 COA 35. No. 18CA2258. People in the Interest of K.R. Dependency and Neglect—Indian Child Welfare Act—Termination of Parent-Child Legal Relationship. The juvenile court terminated mother’s parent-child relationship with her children. Mother appealed the judgment based on noncompliance with the Indian Child Welfare Act (ICWA). A division of the Court of Appeals agreed and remanded the case to the juvenile court to, among

other things, ensure that appropriate notice was given to two Sioux tribes that did not respond to the earlier notice. After receiving that notice, the Oglala Sioux Tribe (Tribe) sent a letter indicating that the children were eligible for enrollment. Based on the Tribe’s response, the juvenile court found that ICWA’s protections were triggered. The appeal was then recertified and the parties directed to submit supplemental briefs. On review of the supplemental record, the Court was unable to determine whether the children are Indian children under the ICWA because while the Tribe’s response appears to indicate that the children have lineage that makes them eligible for tribal membership, the response does not indicate whether either parent is also a tribal member. Further, while the maternal grandmother indicated that the children have Sioux heritage, neither mother nor father identified a tribal affiliation.

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The judgment was vacated and the case was remanded with instructions for further proceedings to determine if the children are Indian children.

These summaries of published Court of Appeals opinions are written by licensed attorneys Teresa Wilkins (Englewood) and Paul Sachs (Steamboat Springs). They are provided as a service by the CBA and are not the official language of the Court; the CBA cannot guarantee their accuracy or completeness. The full opinions, the lists of opinions not selected for official publication, the petitions for rehearing, and the modified opinions are available on the CBA website and on the Colorado Judicial Branch website.

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Summaries of Published Opinions February 10, 2020

2020 CO 8. No. 17SC815. Juarez v. People. Criminal Law—Plea—Effective Assistance— Immigration. Juarez petitioned for review of the Court of Appeals’ judgment affirming the denial of his motion for postconviction relief. With regard to his challenge to the effectiveness of his counsel, the district court found both that defense counsel adequately advised his client concerning the immigration consequences of his plea of guilty to misdemeanor drug possession and that, in any event, there was no reasonable probability Juarez would not have taken the plea. The intermediate appellate court similarly found that counsel’s advice fell within the range of competence demanded of attorneys in criminal cases, but as a result of that finding, the appellate court considered it unnecessary to address whether counsel’s performance prejudiced Juarez. The Supreme Court affirmed, ruling that because Juarez conceded he was advised and understood that the misdemeanor offense to which he pleaded guilty would make him “deportable,” defense counsel’s advice concerning the immigration consequences of his plea correctly informed him of the controlling law and therefore did not fall below the objective standard of reasonableness required for effective assistance concerning immigration advice. 2020 CO 9. No. 19SA118. In re Chessin v. Office of Attorney Regulation Counsel. Subject Matter Jurisdiction—Jurisdiction of Courts—Attorney Discipline. In the lawsuit underlying this original proceeding, a complainant filed an action in district court under CRCP 106(a)(4) seeking an order compelling the Office of Attorney

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Regulation Counsel (OARC) to investigate the complainant’s allegations of attorney misconduct. After OARC moved unsuccessfully to dismiss the case for lack of subject matter jurisdiction, it sought relief under C.A.R. 21. The Court has long held that as part of its inherent powers, it has exclusive authority to regulate and supervise the practice of law in Colorado, including the structure and administration of attorney discipline proceedings. The Court’s rules governing attorney discipline proceedings do not contemplate district court review of OARC intake decisions. Accordingly, the Court held that the district court lacks subject matter jurisdiction to review OARC’s decision not to proceed with an investigation into allegations of attorney misconduct. The Court therefore made the rule to show cause absolute. 2020 CO 10. No. 18SC919. People in the Interest of A.R. Juvenile Court—Dependency and Neglect—Termination of Parent-Child Legal Relationship—Ineffective Assistance of Counsel. This case required the Supreme Court to decide a number of issues relating to claims of ineffective assistance of counsel in the context of a dependency and neglect proceeding. The Court first concluded that in a direct appeal from a judgment terminating parental rights, an appellate court may consider a claim of ineffective assistance of counsel based on counsel’s performance at an adjudicatory hearing only when the party claiming ineffective assistance did not have a full and fair opportunity to assert such a claim immediately after his or her child was adjudicated dependent and neglected. Next, the Court concluded that the proper test for prejudice in the context of a claim of ineffective assistance of counsel in a dependency and neglect proceeding is

the test for prejudice set forth in Strickland v. Washington, 466 U.S. 668, 694 (1984). Accordingly, to establish prejudice from counsel’s deficient performance in a dependency and neglect proceeding, a party must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Lastly, the Court concluded that an appellate court may vacate a juvenile court’s decision in a dependency and neglect proceeding on the ground of ineffective assistance of counsel without remanding for further fact-finding when either (1) the record is sufficiently developed to allow the appellate court to decide the question of counsel’s ineffectiveness, or (2) the record establishes presumptive prejudice under the standard set forth in United States v. Cronic, 466 U.S. 648, 656–62 (1984). Applying these determinations to the facts and claims before it, the Court concluded that respondent mother (1) had a full and fair opportunity to appeal the adjudication entered after the adjudicatory hearing and thus cannot now raise her claim that her counsel was ineffective at that hearing; (2) has not established a basis for presuming prejudice in this case and has not shown that her counsel was ineffective in allowing the Pueblo County Department of Human Services to proceed by way of an offer of proof at the termination hearing; and (3) has established that her counsel was ineffective in not properly litigating the issue of less drastic alternatives to termination, and therefore a remand for further proceedings is warranted and appropriate. Accordingly, the Court affirmed the judgment of the division below, albeit on different grounds, and remanded the case for further proceedings consistent with this opinion.

2020 CO 11. No. 19SC370. M.A.W. v. People in the Interest of A.L.W. Dependency and Neglect—Ineffective Assistance of Counsel— Standard of Review. This case is a companion case to People in the Interest of A.R., 2020 CO 10, __ P.3d __, decided the same day. For the reasons discussed at length in A.R., the Court concluded that the proper test for prejudice in the context of a claim of ineffective assistance of counsel in a dependency and neglect proceeding is the test for prejudice set forth in Strickland v. Washington, 466 U.S. 668, 694 (1984), and not a fundamental fairness test. Accordingly, to establish prejudice from counsel’s deficient performance in a dependency and neglect proceeding, a party must show that there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different. The Court further concluded that an appellate court may vacate a juvenile court’s decision in a dependency and neglect proceeding on the ground of ineffective assistance of counsel without remanding for further fact-finding when either (1) the record is sufficiently developed to allow the appellate court to decide the question of counsel’s ineffectiveness, or (2) the record establishes presumptive prejudice under the standard set forth in United States v. Cronic, 466 U.S. 648, 656–62 (1984). Applying these principles here, the Court concluded that the juvenile court correctly applied Strickland’s prejudice prong to father’s ineffective assistance of counsel claims and it did not abuse its discretion in rejecting those claims. Accordingly, the Court affirmed the judgment terminating father’s parental rights.

“residential land” as “a parcel or contiguous parcels of land under common ownership upon which residential improvements are located and that is used as a unit in conjunction with the residential improvements located thereon.” Thus, for undeveloped property to qualify as residential land, it must be: (1) contiguous with residential land; (2) used as a unit with residential land; and (3) under common ownership with residential land. In Mook, the Court considered the contiguity requirement and held that only parcels of land that physically touch qualify as “contiguous parcels of land.” In Hogan, the Court addressed the “used as a unit” requirement and held that a residential improvement isn’t needed on each contiguous and commonly owned parcel of land and that a landowner can satisfy this requirement by using multiple parcels of land together as a collective unit of residential

2020 CO 13. No. 19SC157. Ziegler v. Park City Board of County Commissioners. Property Taxation—Statutory Interpretation. The Supreme Court considered the “contiguous parcels of land” and “used as a unit” requirements of the “residential land” definition in CRS § 39-1-102(14.4)(a) (“‘Residential land’ means a parcel or contiguous parcels of land under common ownership upon which residential improvements are located and

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2020 CO 12. Nos. 18SC434, Mook v. Board of County Commissioners; 18SC499, Board of Assessment Appeals v. Kelly; & 18SC544, Board of County Commissioners v. Hogan. Property Taxation—Statutory Interpretation. In these three cases, the Supreme Court considered the definition of “residential land” in CRS § 39-1-102(14.4)(a). The statute defines

property. And in Kelly, the Court addressed the “common ownership” requirement and held that county records dictate whether properties are held “under common ownership.” Accordingly, the Court affirmed the Court of Appeals’ judgment in Mook, affirmed the Court of Appeals’ judgment in Hogan and remanded the case for further proceedings, and reversed the Court of Appeals’ judgment in Kelly.

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that is used as a unit in conjunction with the residential improvements located thereon.”). The Court held that vacant land must physically touch another parcel containing a residential improvement to satisfy the contiguity requirement. And the Court applied Board of County Commissioners v. Hogan, 2020 CO __, __ P.3d __, to reject as erroneous the legal standards the assessor and the Board of Assessment Appeals applied to determine whether the landowner’s property uses satisfy the “used as a unit” requirement. The Court reversed the order of the Board of Assessment Appeals and remanded the case for further action consistent with this opinion. 2020 CO 14. No. 17SC430. People v. Berry. Criminal Law—Abuse of Public Office—Embezzlement of Public Property—Official Misconduct. The Supreme Court considered two issues in this case. First, for the crime of embezzlement of public property, under CRS § 18-8-407, does “public property” include property that is in the government’s possession but not owned by the government? And second, for the crime of official misconduct, under CRS § 18-8-404, what is an act “relating to [an official’s] office?” Regarding the first question, the Court held that the statute prohibiting embezzlement of public property criminalizes only the embezzlement of property that is owned by the government. Concerning the second question, the Court concluded that the prohibition on official misconduct should be broadly construed to include circumstances in which an official uses the opportunities presented by his or her office to engage in improper conduct. The Court therefore affirmed the Court of Appeals’ decision. February 24, 2020

2020 CO 15. No. 18SC326. Howard v. People. Sentencing—Juvenile Law—Crimes of Violence—Probation. In this case, the Supreme Court considered whether the differences in sentencing guidance in the direct file statute, CRS § 19-2-517, and the transfer statute, CRS § 19-2-518, implicate a juvenile’s right to equal protection. Specifically,

the Court considered whether a juvenile who is subject to the direct file statute and convicted of a crime of violence is eligible for probation whereas a juvenile who is subject to the transfer statute and convicted of the same crime of violence would not be eligible for probation. The Court held that under these facts, there is no equal protection violation because the district court did not apply the mandatory minimum sentencing provisions in the crime of violence statute, and neither direct-filed juveniles nor transferred juveniles convicted of crimes of violence are eligible for probation. Accordingly, the Court of Appeals’ judgment was affirmed on different grounds.

These summaries of Colorado Supreme Court published opinions are provided by the Court; the CBA cannot guarantee their accuracy or completeness. Both the summaries and full opinions are available on the CBA website and on the Colorado Judicial Branch website.

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MEMBERSHIP PERKS Full details on all membership perks are available at www.cobar.org. For more information, contact Heather Folker at hfolker@cobar.org.

BUSINESS SERVICES ABA Books ■ CBA members receive a 15% discount on ABA books. Use code PAB8ECOB. Visit www.americanbar.org/products. Clio ■ Clio’s industry-leading, cloud-based solutions cover the entire legal client lifecycle. CBA members receive a 10% discount. Visit www.goclio.com/landing/ cobar. Discovery Genie ■ On-demand system for reviewing, organizing, indexing, and producing electronic files. CBA members save 20% on subscription charges. Visit www.discoverygenie.com. Use code CBAMEMBER. TheFormTool and Doxsera ■ Document assembly and automation software that can help you reduce documentation errors. Easy to use, wicked smart. Save 10% by visiting www. theformtool.com/links/cba.

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Indexed I/O ■ A premium eDiscovery solution, without the expensive price tag. Indexed I/O provides a scalable, cloud-based solution. CBA members receive a discount. Visit www.indexed.io/cobar. Konica Minolta ■ Law firms’ technology demands are critical. CBA members receive a rebate on hardware purchases. Contact Alyse Kochenberger at akochenberger@kmbs. konicaminolta.us. Lenovo ■ Lenovo designs technology with smart, intuitive features to transform the user experience. CBA members save up to 30% off the public web price with access to flash sales. Visit http://1800members. com/cobar. MGMT HQ ■ MGMT HQ offers access to monthly webinars, white papers, Affinity University, and more. Give your team the kind of practical, real-world training it needs to grow and thrive. Use code COBARMEMBER for a 100% discount. Visit www.cobar.org/lpm.

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MyCase ■ MyCase is a complete and powerful legal practice management solution designed to help law firms get organized, increase efficiency, and deliver an exceptional client experience. CBA members get a 10% lifetime discount. Visit https://www. mycase.com/coloradobar. Office Depot ■ Save up to 80% on office supplies. Visit http://1800members.com/cobar. Page Vault ■ On demand web content collections. Accurate and defensible. CBA members receive a discount. Visit page-vault.com/ partners/Colorado-bar-association. Practice Panther ■ The leading and most user-friendly provider of cloud-based practice management and billing software for law firms. Receive 15% off your first year. Visit www.cobar.org/perks#34081-businessservices. Ruby Receptionists ■ Save 6% on this virtual receptionist service. Call (866) 611-7829 or visit www. callruby.com.

Simple Law ■ Manage cases and a practice. Add your free attorney profile and start your free trial today. Visit www.simplelaw.com.

PERSONAL SERVICES

Smokeball ■ Legal productivity software that provides unmatched productivity tools. CBA members receive 50% off Smokeball’s onboarding process. Visit https://info. smokeball.com/colorado-bar-associationmembers.

the ART, a Hotel ■ This luxurious hotel creates an unparalleled experience. Call (303) 5728000 and use code negcodenbar for special room rates.

UPS ■ Save up to 25% on online print services. Visit http://1800members.com/cobar. The UPS Store ■ Save up to 25% on online print services. Visit http://1800members.com/cobar. WordRake ■ WordRake software instantly edits briefs, letters, and other documents for clearer, more concise writing. Save 10% with code COBAR. Visit www.wordrake.com.

FINANCIAL SERVICES ABA Retirement Funds ■ Providing affordable 401(k) plans exclusively to the legal community for 50 years. Call (866) 812-3580 for a free consultation or visit www.abaretirement. com. LawPay ■ Credit card processing for attorneys. CBA members receive three months of no program fee with subscription. Call (866) 376-0950 or visit www.lawpay.com/cobar. Options Credit Union ■ Options Credit Union was founded in 1979 by the Denver Bar Association. Visit www. optionscreditunion.com.

discount tickets for Disney World, Universal Studios Orlando, Sea World, and all Orlando-area theme parks and attractions. Visit www.orlandoemployeediscounts.com/ index-new.

Brooks Brothers ■ Receive a 15% discount when you sign up for a Brooks Brothers Corporate Membership Card. Call (866) 515-4747 or visit www. membership.brooksbrothers.com; use code 15201 and pin code 47841.

US Fleet Associates ■ “Simply the best way to buy a new car.” Typical savings $1,000–$7,100. Call (303) 753-0440 or visit www.usfacorp.com.

Car Rental Discounts ■ Avis: (800) 331-1212, account #A745900 ■ Dollar: (800) 800-4000, account # 3065062 ■ Hertz: (800) 654-3131, (800) 654-3131, account #2177879 ■ National: (800) 227-7368, account #5434894 ■ Thrifty: (800) 847-4389, account #3065063 Colorado Ballet and Colorado Symphony ■ Discount tickets are available with code COBAR. Visit www.coloradoballet.org and www.coloradosymphony.org. Core Power Yoga ■ Enjoy 20% off unlimited yoga and 10-class packs. Visit www.corepoweryoga.com/ company-partners. Guaranteed Rate, Inc., Mortgage Lending ■ CBA members receive substantial savings on a new home purchase or refinance. Contact Joey Abdullah at joeya@rate.com. Orlando Vacations ■ Save up to 35% on your Orlando vacation! Orlando Employee Discounts offers exclusive pricing on hotels and vacation homes in or near Disney World and Universal Studios Orlando, along with

Yoga Pod ■ Multiple studios. Membership for $89, normally $108. Ten-class packs for $140, normally $160. Contact joy.shanley@ yogapod.com.

INSURANCE ACSIA Partners ■ Premium discount on long-term care insurance to members, their families, and their staff. Email Nathan Blakely at nblakley@acsiapartners.com or call (888) 305-4582. Geico Insurance ■ Geico Insurance offers high-quality and trusted auto insurance. Visit www.geico. com or call (800) 368-2734. Guardian Life Insurance Co. ■ Disability, long-term care, life, and health insurance. The Guardian Life Insurance Company of America offers CBA members the highest quality disability income coverage and a 10% discount. Call David M. Richards at (303) 770-9020, ext. 3211, or (877) 402-0485; or visit www.cbadi.com. Lockton Affinity/ CNA Malpractice Insurance ■ Contact Casey MacDonald at (913) 6525713 to discuss your malpractice insurance needs.

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WRITING FOR

ENVIRONMENTAL LAW

Melanie J. Granberg (303) 572-0050, mgranberg@gcgllc.com EVIDENCE

Lawrence Zavadil (303) 244-1980, larry@lzavadillaw.com FAMILY LAW

Articles submitted for publication in Colorado Lawyer are reviewed and approved by coordinating editors before being scheduled for publication. Coordinating editors are attorneys and legal professionals who volunteer their time and expertise to solicit, review, and schedule articles for publication. If you are interested in writing an article for Colorado Lawyer or would like to submit a manuscript, please contact the appropriate coordinating editor to discuss your topic. Writing guidelines are available at cobar.org/tcl.

COORDINATING EDITORS FOR SUBSTANTIVE LAW ARTICLES

Curt Todd (Bankruptcy Law) (303) 955-1184, ctodd@templelaw.comcastbiz.net

ALTERNATIVE DISPUTE RESOLUTION

Marshall A. Snider msniderarb@comcast.net

CANNABIS LAW

ANIMAL LAW

Kate A. Burke (303) 441-3190, kaburke@bouldercounty.org

Graham Gerritsen (303) 993-5271, graham.gerritsen@gmail.com Hugh Ilenda (303) 324-8597, hilenda@hotmail.com THE CIVIL LITIGATOR

ANTITRUST AND CONSUMER PROTECTION LAW

Todd Seelman (720) 292-2002, todd.seelman@lewisbrisbois.com

Timothy Reynolds (303) 417-8510, timothy.reynolds@bryancave.com CONSTRUCTION LAW

Jim Bain (303) 290-6600, bainlawllc@gmail.com

APPELLATE LAW

Marcy G. Glenn (303) 295-8320, mglenn@hollandhart.com Christina F. Gomez (303) 295-8366, cgomez@hollandhart.com Stephen G. Masciocchi (303) 295-8000, smasciocchi@hollandhart.com

Mark Cohen (303) 638-3410, mark@cohenslaw.com CRIMINAL LAW

Judge Adam Espinosa adam.espinosa@denvercountycourt.org ELDER LAW

David P. Steigerwald (719) 634-5700, dps@sparkswillson.com

Rosemary Zapor (303) 866-0990, rose@zaporelderlaw.com

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GOVERNMENT COUNSEL

Mary Elizabeth Geiger (970) 947-1936, megeiger@garfieldhecht.com HEALTH LAW

Casey Frank (303) 202-1001, letters@caseyfrank.com Gregory James Smith (303) 443-8010, gjsmith@celaw.com IMMIGRATION LAW

David Harston (303) 736-6650, david.harston@EAHimmigration.com David Kolko (303) 371-1822, dk@kolkoassociates.com INTELLECTUAL PROPERTY LAW

K Kalan (720) 480-1500 or (571) 272-8516, kmkalan@yahoo.com William F. Vobach (303) 656-1766, bill@vobachiplaw.com

CONTRACT LAW

BUSINESS LAW

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Halleh T. Omidi (303) 691-9600, hto@mcguanehogan.com Courtney J. Leathers Allen (303) 893-3111, allen@epfamilylawattorneys.com

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JUVENILE LAW

Jennifer A. Collins (720) 944-6456, jennifer.collins@denvergov.org Sheri Danz (303) 860-1517, ext. 102, sheridanz@coloradochildrep.org LABOR AND EMPLOYMENT LAW

John M. Husband (303) 295-8228, jhusband@hollandhart.com

NATURAL RESOURCES AND ENERGY LAW

Jack Luellen (720) 866-7520, jluellen@dmclaw.com Charlotte Powers charlotte.powers@coag.gov

COORDINATING EDITORS FOR DEPARTMENT ARTICLES

MORE WAYS TO CONTRIBUTE

ACCESS TO JUSTICE

Kathleen M. Schoen (303) 824-5305, kschoen@cobar.org

“As I See It” Opinion Articles

PROFESSIONAL CONDUCT AND LEGAL ETHICS

Stephen G. Masciocchi (303) 295-8000, smasciocchi@hollandhart.com

Colorado Lawyer is now accepting opinion articles whereby members can express their ideas on the law, the legal profession, and the administration of justice. Please note that the publication is mindful of its role in promoting civility and professionalism and reserves the right to reject any article; submissions that include personal attacks, contain language that may be deemed defamatory, or are inconsistent with the objectives of the CBA will not be considered. Full guidelines are

AS I SEE IT

CL Opinion Articles Committee c/o sklein@cobar.org

REAL ESTATE LAW

Christopher D. Bryan (970) 925-1936, cbryan@garfieldhecht.com TAX LAW

Adam Cohen (303) 295-8000, acohen@hollandhart.com Steven Weiser (303) 333-9810, sweiser@fostergraham.com

JUDGES’ CORNER

Hon. Stephanie Dunn (720) 655-5235, stephanie.dunn@judicial.state.co.us LAW PRACTICE MANAGEMENT

Jeff Weeden (970) 819-1763, jlweeden@weedenlaw.com

TORT AND INSURANCE LAW

Jennifer Seidman (303) 779-0077, jseidman@burgsimpson.com

LEGAL RESEARCH CORNER

available at www.cobar.org/tcl.

Robert Linz (303) 492-2504, robert.linz@colorado.edu

General Interest Articles

TRUST AND ESTATE LAW

David W. Kirch (303) 671-7726, dkirch@dwkpc.net Emily Bowman (303) 671-7726, ebowman@dwkpc.net

Colorado Lawyer is interested in publishing general interest articles from our members. “The SideBar” is a place to: ■ share your unique experiences as a lawyer ■ discuss a helpful skill ■ talk about a law-related topic that is important to you ■ offer practical advice to fellow attorneys ■ share your law-related “war stories.” SideBar articles should take a lighter look at the law or talk about your perspective; articles on particularly divisive topics will not be considered.

MENTORING MATTERS

J. Ryann Peyton (303) 928-7750, r.peyton@csc.state.co.us MODERN LEGAL WRITING

WATER LAW

Kevin Kinnear (303) 443-6800, kkinnear@pbblaw.com

John Campbell (303) 871-6461, jcampbell@law.du.edu TECHNOLOGY IN THE LAW PRACTICE

WORKERS’ COMPENSATION LAW

Kristin A. Caruso (303) 297-7290, kristin.caruso@ritsema-lyon.com Thomas L. Kanan (303) 759-5066, ext. 226, tkanan@wgfs.org

Joel M. Jacobson (303) 800-9120, joel@rubiconlaw.com WELLNESS

Sarah Myers (303) 986-3345, smyers@coloradolap.org

YOUNG LAWYERS DIVISION

WHOOPS—LEGAL MALPRACTICE PREVENTION

Amanda T. Huston (970) 225-6700, ahuston@cp2law.com

Christopher B. Little (303) 773-8100, clittle@montgomerylittle.com

Please send articles or article ideas to Susie Klein at sklein@ cobar.org for consideration. Desired article length for these columns is between 1,000 and 3,000 words. Publication is at the discretion of the editorial staff.

If you would like to write an article in an area not listed on these pages, please contact Jodi Jennings at jjennings@cobar.org (substantive law articles) or Susie Klein at sklein@ cobar.org (department articles, columns, and special series).

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UNDER OATH | MEMBER SPOTLIGHT

Porya Mansorian Porya Mansorian is a trial lawyer and the current president of the Arapahoe County Bar Association.

PROFILE

Describe yourself in five words. Dad, husband, litigator, foodie, and entrepreneur. If you weren’t a lawyer, you’d be? Movie producer/director. I love storytelling.

Hometown: Hamburg, Germany Law School: Saint Louis University School of Law

Social media network of choice? LinkedIn. I know it’s not considered the “coolest,” but my friends and colleagues on LinkedIn share how they are changing the world instead of just posting never-ending selfies.

Lives in: Genesee, Colorado Works at: Mansorian Law Group Practice Area(s): Injury Law, Insurance Bad Faith CBA Member Since: 2005

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Favorite spot in Colorado: Any hike on Maroon Bells.

What advice would you give a new lawyer? Do what you say you will do. If you are not going to do it, do not say you will. Trust is everything.

Last movie you watched: Togo. My new favorite movie.

What do you consider your greatest achievement? My kids. They are the kindest, funniest people I know. What is your dream career? I am living it.

Would you like to be featured in Under Oath? Email Jessica Espinoza at jespinoza@cobar.org for a questionnaire.

Most random job you have ever had? Research assistant, as a biomedical engineer at Barnes Jewish Hospital, on a project involving pediatric cerebral palsy patients.

Favorite Denver restaurant: El Taco de Mexico on Santa Fe Drive.

Favorite month and why: July. Fireworks, grilling, hiking with family and friends.

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On your desk right now: The ONE Thing by Gary Keller.

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Why are you a dues-paying member of the CBA? I love my community, the amazing leaders I have had the pleasure to get to know, and what we do as a group for our fellow Coloradans.

PRICE 10 CENTS

BARRISTERS BENEFIT CANTEEN FRIDAY, MAY 1, 2020

LOCATION: Wings Over the Rockies Air & Space Museum, 7711 E Academy Blvd., Denver

TICKET

PRICING Attorney

$200

Judicial

$100

Young Lawyer

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Non-Lawyer

$100

Victory for Volunteers

METRO VOLUNTEER LAWYERS

BUY TICKETS ONLINE AT DENBAR.ORG

How many tickets shall I put you down for?

MON T H Y E A R

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