Colorado Lawyer: March 2020 by Colorado Lawyer

MARCH 2020

P U B L I S H E D B Y T H E C O L O R A D O B A R A S S O C I AT I O N

Continue Exploring Community CBA!

Collaborate Strike up conversations with members, share best practices, and upload documents and links.

Learn Find out about upcoming CBA and CLE events.

Network Request and make referrals, get insight from colleagues about legal issues, and expand your professional network.

Log on and explore community.cobar.org.

TABLE OF CONTENTS March | Vol. 49, No. 3 | 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

America’s Water Infrastructure Act

ADVERTISING

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

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 ALTERNATIVE DISPUTE RESOLUTION

Online Dispute Resolution A Digital Door to Justice or Pandora’s Box? Part 2

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

PROFESSIONAL CONDUCT AND LEGAL ETHICS

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

The Implied Attorney-Client Relationship

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

by Doug McQuiston and Sharon Sturges

A Trap for the Unwary

PAGE 32

by David N. Simmons and David H. Wollins

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

PAGE 46

Lindsay J. Miller Greenwood Village—(303) 773-8100 lmiller@montgomerylittle.com

ENVIRONMENTAL LAW

America’s Water Infrastructure Act

TRUST AND ESTATE LAW

by Timothy R. Gablehouse and Ashley L. Zurkan

Holding Closely Held Business Assets in Trust

PAGE 38

by Rebecca Klock Schroer and Morgan Wiener

Implications for Emergency Management

Jennifer Seidman Denver—(303) 792-5595 jseidman@burgsimpson.com Patrick R. Thiessen Arvada—(303) 420-1234 prthiessen@friearndt.com

PAGE 49

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

ON THE COVER: A short drive “up canyon” from Boulder lies the hidden gem of Boulder Falls, sometimes

referred to as the Yosemite of Boulder Canyon. Recently opened after repairs, a 100-yard walk opens up to this view, complete with the sound of rushing water. In winter, the scene is deserted, but don’t forget winter gear. This walk is short but icy! Laurel Witt is an attorney with the Colorado Municipal League, advocating for municipalities statewide.

M A RCH 2020

C OL OR A D O L AW Y E R

FROM THE COURTS

WELCOME 4

72 Court

CBA President’s Message by Sarah Myers

74 Office

of the Presiding Disciplinary Judge

DEPARTMENTS 6

Duncan the Debtbot: Leveraging Technology to Increase Access to Justice by Reagan Larkin

Legal Research Corner

by Lisa Schultz

Mentoring Matters

by J. Ryann Peyton

Can Entrepreneurial Principles Make You a Better Lawyer? Part 3

82 Colorado

Court of Appeals

95 Colorado

Supreme Court

Jessica Brown President-Elect John Vaught Immediate Past President Ryann Peyton Vice President First Region Alexis King Senior Vice President Second Region

ALSO IN THIS ISSUE 98 Attention

Photographers

100 Membership 102

COLUMN

Kathleen Hearn Croshal President

Summaries of Published Opinions

The InQuiring Lawyer

Court of Appeals for the Tenth Circuit

Summaries of Published Opinions

Mentoring Professional Identity: Expanding What it Means to be a Lawyer

OFFICERS

U.S.

Summaries of Selected Opinions

An Introduction to California Legal Resources

Executive Council

Disciplinary Case Summaries

Access to Justice

Business

Colorado Supreme Court Rules Committees

Help Wanted

Judson Hite Vice President Third Region

Perks

Writing for Colorado Lawyer

Cobea Becker Vice President Fourth Region

UNDER OATH

104

Keith Vance Vice President Fifth Region

Member Spotlight

Leslie German Vice President Sixth Region

by Ronald M. Sandgrund, Esq., InQ.

Leslee Balten Vice President Seventh Region

AROUND THE BAR 56 Bar

News

News From the CBA, Local Bars, and More

COUNCIL MEMBERS

by Jessica Espinoza

Melanie Bartlett At Large Member

Lawyers’ Announcements

Amanda Hopkins At Large Member

70 In Memoriam

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

M A RCH 2020

Mary Jo Gross Treasurer Amy Larson CBA Executive Director and CEO

C OL OR A D O L AW Y E R

WELCOME | CBA PRESIDENT’S MESSAGE

Every time you are tempted to react in the same old way, ask if you want to be a prisoner of the past or a pioneer of the future. —Deepak Chopra

L Help Wanted BY S A R A H M Y E R S

Introduction I’m handing over this month’s message to Sarah Myers of COLAP to address a topic that’s near and dear to my heart: lawyer wellness and the value of asking for help. If you’ve read my previous messages, you know that I’ve been a high school dropout, a teen mother, and a single parent. I’ve also gone through dissolutions of marriage and dealing with a large blended family—not to mention the loss of loved ones, job issues, and health issues. And I certainly haven’t dealt with all of these situations alone. In fact, over the years, I’ve learned that good counselors are worth their weight in gold. I’d like to share a personal story to illustrate the value of reaching out to a professional. When my husband Jim and I were first married, we struggled to communicate after a long workday. I would come home and immediately want to talk about some problem. He, being a good lawyer, would start analyzing the problem and giving advice on how to fix it. Then, I would put on my lawyer hat and start arguing with him about why his suggestions wouldn’t work for me. Now we were both angry! This scenario would come up in the other direction too: Jim would come home with a problem, and I would start taking on the role of his lawyer. A counselor gave us the following insight: we both wanted our spouse’s response, not a lawyer’s. When we found this routine playing out, we should make the sports time-out sign and say, “Dear, I know you’re a good lawyer, but right now I need my husband/wife.” We both learned this simple trick and it worked! We’ve been happily married for almost 33 years. —President Kathleen Hearn Croshal

C OL OR A D O L AW Y E R

M A RCH 2020

egal professionals often put the needs of their clients, firm, or employer above their own, and in some cases above the needs of coworkers, colleagues, family, and friends who might also need assistance. How to ask for help when we need it, or recognize when we might need assistance, isn’t taught in law school, nor is it modeled by most lawyers. After all, we’re a competitive bunch made up of mostly type-A perfectionists, and we’re extraordinarily hard on ourselves. Why We Suffer Masochism in the form of “suffering in silence” and putting work above our health, well-being, and social networks of family and friends has been a long-standing trend in our profession. In fact, research shows that many lawyers would rather struggle with their issues than ask for help due to concerns it might impact their license or make them appear weak. 1 Yet the ability to ask for support for personal or professional issues is a characteristic of successful individuals—it demonstrates both intelligence and resiliency.2 To understand the importance of getting help, we need to understand that the parts of the brain related to executive functioning, problem solving, creativity, and innovation work together by processing our experiences.3 But often when we’re faced with a difficult problem, our stress response (fight or flight) cannot be fully engaged, or the brain cannot process these experiences in a helpful way.4 We need others to calm down our nervous systems enough to figure out the problem. Despite the misperception that we should know everything because we solve problems for a living, we are just as human as everyone else, and it’s very difficult for the human brain to process problems, particularly our own, when we’re stressed, overwhelmed, anxious, depressed, or overusing psychoactive chemicals like alcohol that compromise problem-solving abilities.

The Reaction Facet To exacerbate the issue, many of us stop listening when we hear terms like depression, anxiety, behavioral health, mental health, substance use, and addiction. Likewise, when we observe colleagues, family, or friends exhibiting signs or symptoms of suffering that could be attributed to such issues, many of us make excuses for the behavior rather than expressing concern or offering assistance. Why is that? Historically, stigma was a major barrier to people getting treatment for mental health and substance use issues because society was, in general, ignorant about them, and that ignorance bred irrational fear and judgment. But that stigma has reduced over the years as the general public has gained a better understanding of these issues, and because we know that prevention and treatment save billions in societal costs. So why do we still tune out the conversation? Most likely it’s because we don’t believe these issues affect us, we don’t realize these issues relate to high levels of stress (which attorneys experience in abundance), or we don’t believe we can do anything to assist someone else with these issues. But we don’t have to be “diagnosable” to experience distressing behavioral health symptoms that impact our personal or professional lives. The practice of law is a demanding vocation. We are exposed to factors known to contribute to poor physical and mental health: unpredictability, contact with highly stressed or traumatized clients, long hours, and perfectionism. In addition, our skills are called upon in adversarial, fast-paced, and results-driven environments. This is not to mention the plethora of personal struggles and worries we might each be facing, such as financial stress, relationship issues, concern for children or aging parents, and so on. For many of us, these demands can lead to maladaptive coping strategies, from problematic self-medicating with substances like alcohol or prescription drugs to sabotaging professional or personal obligations or relationships to social withdrawal, isolation, and other forms of emotional numbing. Terms like a “functioning alcoholic” or “normal neurotic” might be used to describe someone who is experiencing a behavioral

health issue but who can make it through school, advance a career, and maintain relationships without severe consequences. But what about the internal suffering that person goes through, whether that relates to personal or professional problems? What if we find ourselves continuously stressed and we are restless, hypervigilant, irritable, obsessing about the negative or the past, and/or worrying or obsessively trying to plan for the future (i.e., anxiety)? Or if we are often exhausted, have difficulty concentrating, miss deadlines, experience sleep disturbances, and are persistently sad, pessimistic, and numb (i.e., depression)? Or what if we start self-medicating with alcohol or other drugs, experience blackouts, or compromise our personal relationships or professional reputation because of it? While these circumstances might feel insurmountable when we are dealing with them, they are not. In fact, we’ve all gone through difficult times in our lives and there are many resources available to get through them in ways that increase our resilience, grit, intelligence, and potential for success. Know the Signs Some signs that you, a family member, or a colleague could benefit from confidential assistance include: ■ eating or sleeping too much or too little; ■ pulling away from people and usual activities; ■ feeling numb or like nothing matters, or having low or no energy; ■ smoking, drinking, or using drugs more than usual; ■ feeling unusually confused, forgetful, on edge, angry, upset, worried, or scared; ■ exhibiting hostile, inappropriate, or readily tearful/overwhelmed behavior in personal or professional situations; ■ missing deadlines or appointments; ■ not returning calls; or ■ struggling with record-keeping, managing funds, and so on. As Eleanor Brown says, “Self-care isn’t selfish. You cannot serve from an empty vessel.”5 If the issues raised in this article resonate with you, or you think they relate to a colleague or family

member you are concerned about, you can speak confidentially with the Colorado Lawyer Assistance Program (COLAP). COLAP offers free and confidential consultations to members of the legal community about anything personal or professional impacting their well-being, or that of a colleague or family member. COLAP staff are behavioral health and legal professionals whose services are exclusively for lawyers, judges, law students, and their families. You can contact COLAP at (303) 986-3345 or go to our website for more information: www.coloradolap.org.

Sarah Myers is the executive director of the Colorado Lawyer Assistance Program (COLAP). She is a Colorado-licensed attorney, licensed marriage and family therapist, and licensed addiction counselor who specializes in stress management, psychoneuroimmunology, compassion fatigue, professional burnout, and behavioral health issues for legal professionals.

NOTE S

1. Krill et al., “The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys,” 46 J. of Addiction Medicine (Jan./Feb. 2016), https:// journals.lww.com/journaladdictionmedicine/ Fulltext/2016/02000/The_Prevalence_of_ Substance_Use_and_Other_Mental.8.aspx. 2. Weist, “8 Subtle Traits Of The Super Successful That You Should Learn From,” Forbes (Apr. 4, 2019), https://www.forbes. com/sites/briannawiest/2019/04/04/8subtle-traits-of-the-super-successful-thatyou-should-be-following/#6905d5a838bd; Ohlin, “5 Ways to Develop a Growth Mindset Using Grit and Resilience,” PositivePsychology (Nov. 19, 2019), https:// positivepsychology.com/5-ways-develop-gritresilience; Waters, “10 Traits of Emotionally Resilient People,” Psychology Today (May 21, 2013), https://www.psychologytoday.com/ us/blog/design-your-path/201305/10-traitsemotionally-resilient-people. 3. Grigonis, “The Science of Creativity: What Happens In Your Brain When You Create” (2019), https://www.creativelive.com/blog/ science-of-creativity. 4. Saunders, “How to Be Creative When You’re Feeling Stressed,” Harvard Bus. Rev. (Nov. 29, 2018), https://hbr.org/2018/11/howto-be-creative-when-youre-feeling-stressed. 5. Brown, Self-Care in NOT Selfish (Nov. 2, 2014), http://www.eleanorbrownn.com/blog2/ self-care-in-not-selfish.

M A RCH 2020

C OL OR A D O L AW Y E R

DEPARTMENT | ACCESS SUB TITLE TO JUSTICE

since 2002. CLS also relies heavily on funds raised during the annual Associates Campaign, discussed at the end of this article. Meet Duncan A recent technology initiative grant from LSC allowed CLS to develop a chatbot to help people in debt or being threatened with or facing legal action. CLS has affectionately dubbed the chatbot “Duncan the Debtbot,” after Duncan Honeycutt, the 2019 fellow who helped develop it. CLS launched Duncan the Debtbot for public use at the end of January 2020. The Debtbot is accessible through CLS’s website.3 Duncan the Debtbot was the brainchild of Molly French, CLS’s technology unit manager. French saw a chatbot demonstration at a conference and was inspired to create one for CLS. She believes the chatbot format has many potential uses in the legal aid field and hopes to develop them in the future using the Debtbot as a starting point.

Duncan the Debtbot Leveraging Technology to Increase Access to Justice BY R E AG A N L A R K I N

olorado Legal Services (CLS) is the only program in Colorado that provides free civil legal aid to indigent people in every county. Serving low-income and elderly Coloradans, CLS focuses on legal issues that have the greatest impact on basic human needs, including food, shelter, utilities, necessary medical care, adequate income, and freedom from domestic violence and abuse. Accordingly, CLS provides legal help in the areas of family law and domestic violence, consumer and finance, housing, income maintenance and employment, and health and individual rights.

C OL OR A D O L AW Y E R

M A RCH 2020

In 2018, CLS handled over 12,000 cases on behalf of over 25,000 low-income Coloradans and successfully obtained nearly $4 million in awards and benefits for its clients.1 Although CLS employs 60 attorneys in 13 offices across Colorado,2 it extends its reach to help even more low-income Coloradans by using technology to increase access to justice across the state. To fund new technology initiatives, CLS seeks grants from Legal Services Corporation (LSC), the federally funded entity that provides operating funds to legal aid organizations throughout the nation, including CLS. CLS has received 15 technology grants from LSC

Functionality In designing and developing the Debtbot, French and other CLS employees first sought to pinpoint the legal needs of low-income Coloradans living in rural areas. CLS staff interviewed attorneys, judges, advocates, and debtors in the Seventh and Twenty-First Judicial Districts (collectively, stakeholders) to determine relevant issues and legal needs, and then designed the Debtbot to address those issues and needs. Through guided navigation and artificial intelligence, Duncan the Debtbot educates debtors, allows them to evaluate their options for dealing with a debt-related legal problem, and provides them with meaningful information and trusted resources they may not have been able to find on their own. Although the Debtbot does not provide legal advice, its educational function is critical because so much of the information on the internet is outdated, irrelevant, inaccurate, or outright deceptive. Additionally, the Debtbot helps debtors avoid scams and fraud. The Debtbot can also help debtors complete legal forms. For example, if a debtor has been served with pleadings for debt collection,

the Debtbot directs the debtor to an answer form and then helps fill it out, walking the debtor through a series of questions and auto-populating the form based on the responses. The Debtbot can assist debtors in filling out additional legal forms related to debt collection, including a notice of exemption in response to garnishment documents. Key Objectives CLS hopes to achieve several goals with Duncan the Debtbot’s help. CLS’s overarching goal is to increase access to justice by meaningfully educating debtors about their options and the various outcomes they may experience. The Debtbot uses plain language that allows laypersons to easily understand legal processes and concepts without getting bogged down in legalese, and it defines and explains legal terms debtors may encounter.

CLS also seeks to provide defendants in collection-related actions with valid defenses to file answers, thereby giving them a voice in the legal process. This is a critical objective because so few debtors enter appearances in collection actions, either personally or through legal counsel, or file answers. According to the stakeholders, up to 98% of collection actions result in default judgments against defendants. Typically, debtors wait until their wages or bank accounts have been garnished or they discover a lien against their property before they engage in the legal process, and even then, engagement remains low. A third goal is to reduce barriers that may otherwise prevent debtors from seeking legal advice or engaging in the legal process. CLS learned from the stakeholders that specific concerns inhibit debtors from seeking legal advice or engaging in the legal process. Some

debtors are hesitant to seek legal advice or answer a debt collection complaint for fear of admitting liability for the debt. Undocumented or migrant workers may not be willing to provide their name, phone number, or location to CLS for fear that they may be targeted by U.S. Immigration and Customs Enforcement or some other government agency. With those concerns in mind, CLS designed the Debtbot to protect users’ anonymity. The Debtbot does not ask, collect, or save debtors’ names, financial information, or other private information, and it does not save legal forms that debtors create with its assistance. By eliminating the collection of private information, CLS has allayed significant worries that may prevent debtors from pursuing information or engaging in the legal process. Overall, CLS’s use of the Debtbot will help preserve CLS’s limited resources and funding;

Colorado lawyer assistanCe Program The Colorado Lawyer Assistance Program (COLAP) is an independent and confidential program exclusively for judges, lawyers, and law students. Established by Colorado Supreme Court Rule 254, COLAP provides assistance with practice management, work/life integration, stress/anger management, anxiety, depression, substance abuse, and any career challenge that interferes with the ability to be a productive member of the legal community. COLAP provides referrals for a wide variety of personal and professional issues, assistance with interventions, voluntary monitoring programs, supportive relationships with peer volunteers, and educational programs (including ethics CLEs).

We would love to share our success stories, but they are completely confidential. For more information or for confidential assistance, please contact COLAP at 303-986-3345. Visit our website at www.coloradolap.org.

M A RCH 2020

C OL OR A D O L AW Y E R

DEPARTMENT | ACCESS SUB TITLE TO JUSTICE

allow attorneys, paralegals, and other staff members to use their time to accomplish other, more substantive tasks; decrease duplication of efforts; and help low-income Coloradans locate meaningful legal information and resources. Accessibility The Debtbot is accessible on any device. At the outset, CLS recognized that phone accessibility of the Debtbot is crucial because 71% of lower-income Americans have smartphones and the number of lower-income Americans who rely on their smartphone for online usage has roughly doubled since 2013.4 Further, the Debtbot was designed with rural Coloradans in mind. The Debtbot allows people to access meaningful information without having to travel to a CLS office, which may be difficult or impossible on a limited income. Looking Ahead CLS views Duncan the Debtbot as a model on which to develop additional chatbots covering a variety of legal issues and topics, including, for example, chatbots for tenants experiencing eviction or people desiring to seal or expunge juvenile or criminal records. While Duncan was launched in English, French hopes to launch a Debtbot with additional language capabilities in the near future. CLS also noted that a live chat feature could potentially be added to the Debtbot. Of course, such features and options are dependent on CLS’s receipt of necessary and sustainable funding. Other Uses of Technology CLS has long used technology to make the best use of its limited resources and serve as many Coloradans as possible. In 2014, CLS launched an application feature through its website allowing those seeking CLS’s services to submit an application for legal aid electronically at their convenience. In 2019, over 10,000 applications were submitted to CLS online, demonstrating the high need for legal aid in Colorado and the importance of technology in this process. Electronic applications help make the intake process more efficient, allowing CLS to more quickly determine whether applicants are eligible for CLS’s services and whether CLS has

C OL OR A D O L AW Y E R

M A RCH 2020

the ability to help them with their particular legal issue. In 2016, with the help of two multiyear grants from LSC’s Pro Bono Innovation Fund, CLS launched five rural clinics that are accessible via videoconferencing or telephone. These clinics use technology to connect volunteer attorneys located in the Denver metro area with local partnerships in rural areas to provide those living outside of urban areas the legal advice they need. CLS also looks forward to developing a virtual courthouse tour. CLS staff have found that some low-income Coloradans are reluctant to engage in the legal process because they are intimidated at the thought of entering a courthouse. The virtual courthouse tour should help remove this barrier. French estimates that the virtual tour will launch in 2021. CLS’s use of technology to increase access to justice is limited by lack of adequate and sustainable funding. For example, CLS had a live chat application that connected pro bono attorneys with veterans experiencing legal issues. The application allowed veterans to obtain crucial legal advice in a quick, efficient, and cost-effective manner while increasing pro bono participation of attorneys by allowing them to work on pro bono matters remotely. CLS discontinued its use of the application due to a lack of necessary resources, although French hopes that the application can be revived in the future. Associates Campaign You can support CLS’s technology goals by contributing to the Legal Aid Foundation of Colorado’s (LAF) 16th Annual Associates Campaign for Justice, which kicks off on March 1. During this month-long campaign, associates from more than 60 firms across Colorado lead their firms in a friendly competition by educating their colleagues on the need for legal aid in our communities and encouraging them to donate to the campaign. Associates compete to out-fundraise their peers at similarly sized firms. Firms that raise the most money on a per capita basis earn “bragging rights” in their respective categories. Firms also receive recognition for 100% associate

participation and for non-associate giving, among other awards. Law firm partners, special counsel, and staff are also encouraged to participate in the fundraising efforts. The standings are announced throughout the competition, which encourages further fundraising efforts among firms. The Associates Campaign has proven extremely successful at raising funds and furthering the vital tradition of supporting legal aid in Colorado. In 2019, the Associates Campaign raised a record-setting $231,542.38 for CLS in just one month, and LAF is hoping to surpass this figure in 2020. The funds raised through the Associates Campaign and by LAF throughout the year are essential to CLS’s continuing efforts to assist low-income Coloradans with their legal needs. Associates are encouraged to make a difference by participating in their firm’s Associates Campaign or establishing a 2020 Associates Campaign at their office. To sign up, please contact Kelly Bossley, LAF associate director, at (303) 863-9544 or kelly@legalaidfoundation. org. Donations can also be made by visiting legalaidfoundation.org and selecting “Donate Now.”

Reagan Larkin serves on the Legal Aid Foundation’s Associates Advisory Board. She is a shareholder at Sweetbaum Sands Anderson PC, where she practices commercial litigation and real estate litigation—rlarkin@sweetbaumsands. com.

NOTE S

1. See “Legal Aid Foundation of Colorado 2018– 2019 Highlights: Supporting Justice Changing Lives Restoring Hope,” Legal Aid Foundation of Colorado, www.legalaidfoundation.org/ wp-content/uploads/LAF-Annual-Highlights2018-19-web.pdf. 2. Id. 3. https://www.coloradolegalservices.org. 4. See “Digital divide persists even as lower-income Americans make gains in tech adoption,” Pew Research Center (May 7, 2019), https://www.pewresearch.org/facttank/2019/05/07/digital-divide-persists-evenas-lower-income-americans-make-gains-intech-adoption.

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

$100

Non-Lawyer

$100

Victory for Volunteers

METRO VOLUNTEER LAWYERS

BUY TICKETS ONLINE AT DENBAR.ORG

How many tickets shall I put you down for?

M A RCH 2020

C OL OR A D O L AW Y E R

DEPARTMENT | LEGAL SUB TITLE RESEARCH CORNER

to the many state-specific resources that are available. Online Research Guides Online legal research guides are often a great starting point. These guides are prepared by law librarians and provide in-depth coverage of California legal resources. The guides produced by the following law libraries are excellent resources: ■ the Loyola Marymount University, Loyola Law School, Los Angeles library8 ■ the University of California, Los Angeles library9 ■ the University of Southern California library10 ■ the Georgetown University Law Library.11

An Introduction to California Legal Resources BY L I S A S C H U LT Z

n California, there’s a saying: “As California goes, so goes the nation.” As with all sayings, its veracity is up for debate. However, it is clear that while the nation may not ultimately “go” in the same direction, California’s laws often do at least inform the discussion. In its 2019 legislative session the California legislature enacted 870 bills.1 The impact of many of these new laws will be felt far beyond the borders of California. For example, California became the first state in the country to allow college athletes to be paid for endorsements and the use of their image. Within days, multiple states had similar bills introduced in their state legislatures.2 Colorado lawmakers have promised to introduce a bill in the 2020 session.3 Recently, California filed a lawsuit challenging the Trump administration’s move to roll back California’s vehicle emissions standards. Colorado adopted California’s low-emission vehicle standard4 and

C OL OR A D O L AW Y E R

joined the lawsuit.5 Additionally, the reach of California’s Consumer Privacy Act (CCPA), the groundbreaking data privacy law that went into effect on January 1, 2020, is still unclear, though experts expect it to have a nationwide impact.6 Due to the reach of California’s laws, Colorado legal researchers are likely to encounter a California legal research project.7 This article explores some California-specific resources and tools available to Colorado legal researchers who confront questions involving California law or a Colorado research problem that originated with a California law. All of the resources discussed in this article are free, except those within the section on California-specific secondary sources. Secondary Sources When researching an unfamiliar area of law, most researchers will begin in a secondary source. This section serves as an introduction

M A RCH 2020

California-Specific Secondary Sources Anyone tasked with researching substantive California law should be familiar with the following resources, which are searchable via paid subscription services: ■ Witkin treatises. The first stop for most new California attorneys. Includes California Criminal Law, California Evidence, California Procedure, and Summary of California Law. Published by Thomson Reuters. Available on Westlaw and LexisNexis. ■ California Jurisprudence, 3d. California’s general legal encyclopedia. Published by Thomson Reuters. Available on LexisNexis and Westlaw. ■ Rutter Group Practice Guides. A go-to resource for both California and federal issues, covering over 40 topics, from California criminal procedure to public sector employment litigation. Published by Thomson Reuters. Available on Westlaw. ■ Matthew Bender California Practice Guides. Set of 15 California-specific practice guides, covering family law to wage and hour law. Published by Matthew Bender & Company, Inc. Available on LexisNexis. ■ CEB resources. Over 100 practice guides and form books written by California attorneys. Extensive coverage with a focus on civil litigation, criminal law, estate

planning, business law, and property. Published by CEB. Available on CEB OnLaw12 (some titles also available on LexisNexis). Primary Sources There are a variety of free government websites that provide access to California primary law. While locating current laws is relatively simple, the researcher will have mixed success conducting historical research.

Figure 1. The UC-Hastings California Ballot Measures Database. www.uchastings.edu/academics/library/ca-ballots.

Figure 2. The California Legislative Information website, showing a recent Senate Bill. To locate legislative history information, click on the tabs labeled “Votes,” “History,” “Bill Analysis,” etc. leginfo.legislature.ca.gov/faces/billSearchClient.xhtm.

California Constitution The original California Constitution was adopted in 1849. In 1878, a second constitutional convention was held, and 152 delegates drafted the second, and current, California Constitution, which was adopted in 1879. The California Constitution can be found in the annotated California Codes (see below). A searchable version of the current constitution is also available on the California Legislative Counsel’s website.13 The California Constitution can be amended by legislative proposal, by elector-proposed or initiative-proposed amendment, or by constitutional convention. The UC–Hastings Law Library maintains a database of California ballot propositions and initiatives (1911–present).14 This database includes the full text and PDFs of the propositions and initiatives, as well as ballot pamphlets and related legal and legislative history. (See Figure 1.) California Statutes The laws of California consist of acts passed by the California legislature, as well as initiatives passed by the California electorate. The California Secretary of State’s website15 is a good source of information on ballot initiatives, providing data tables and summaries of initiatives from 1912 to 2018, as well as a detailed guide on the initiative process. There are two unofficial versions of California’s statutory codes, West’s Annotated California Codes, published by Thomson Reuters, and Deering’s California Codes Annotated, published by LexisNexis. The California Legislative Counsel publishes an official and authenticated version of the California codes online.16 Note that statutes enacted in one calendar year generally take M A RCH 2020

C OL OR A D O L AW Y E R

DEPARTMENT | LEGAL SUB TITLE RESEARCH CORNER

Legal researchers may also need to access administrative decisions, which can be a challenging process. Agency websites are often the best place to start. The California State government website provides an agency list27 that can be used to locate relevant agencies. (See Figure 3.)

Figure 3. CA.gov’s Agency Search. Locate California agencies by name or topic. www.ca.gov/ agencysearch.

effect on January 1 of the following year, unless the statute is an urgency measure or the terms of the statute state otherwise. California Legislative History Compiling a legislative history can be a time-consuming process, especially when researching legislation before the mid-1990s. This is true in Colorado and for federal statutes as well. In California, for bills passed in or after 1993, most major legislative history materials are available on the California Legislative Information website.17 (See Figure 2.) This website includes the bill’s history, votes, committee reports, bill summaries, and bill text. Additionally, the California State Senate provides a database of Senate Floor Sessions and Committee Hearings that have been televised (2005–present).18 For bills passed before 1993, the process is much more cumbersome. Legal researchers should consult one of the legal research guides mentioned above for the relevant steps. To compile a full legislative history on older bills, it’s usually necessary to consult a library that serves as a state depository. However, some material is available online, including:

C OL OR A D O L AW Y E R

■ California Statutes and Amendments to the Code (1850–2008)19 ■ California State Assembly and Senate Final History (1881–2013)20 ■ California State Assembly Journals (1849– 2011).21 The legal researcher may want to consider companies that specialize in compiling legislative histories for a fee. These companies include: ■ LRI History LLC22 ■ Legislative Intent Services.23 California Regulations California regulations are located in the California Code of Regulations (CCR). The official publisher is Barclays, a division of Thomson Reuters. There is a free online version of the official CCR.24 The California Regulatory Notice Register25 updates the CCR weekly and contains notices of proposed regulatory actions by state regulatory agencies. Note that the Building Code, Title 24, is not published as part of either the print or online version of the CCR. Title 24 is published every three years by the California Buildings Standards Commission and is available on its website.26

M A RCH 2020

California City and County Municipal Codes California is home to 482 municipalities and 58 counties. City or county codes can often be accessed on the official city or county website. However, when trying to locate the laws of more than one city, or if the city’s website is difficult to navigate, this route may be unnecessarily time-consuming. The Institute of Governmental Studies at the University of California at Berkeley maintains a large depository of local codes and charters issued by California cities and counties.28 Many city and county codes can also be found at the Municode website.29 Other Resources By law, each of California’s 58 counties maintains a county law library where the public can freely access legal materials.30 While this may not seem particularly helpful to Colorado residents, many of the libraries serving larger counties maintain websites with access to their catalogs, helpful research guides, and reference assistance.31 Conclusion This article provides just a brief overview of California legal resources. Beyond these resources, subscription databases offer many more specialized materials. However, the tools discussed above can give Colorado researchers a good starting point, and potentially provide a final answer, when confronted with a California legal research problem.

Lisa Schultz is a reference librarian and adjunct professor at Loyola Marymount University, Loyola Law School, Los Angeles—lisa.schultz@lls.edu.

Coordinating Editor: Robert Linz, robert. linz@colorado.edu

N OTE S

1. Office of Governor Gavin Newsom, Governor Newsom Takes Final Action of 2019 Legislative Season (Oct. 13, 2019), https://www.gov. ca.gov/2019/10/13/governor-newsom-takesfinal-action-of-2019-legislative-season. 2. Gregory, “How California’s Historic NCAA Fair Pay Law Will Change College Sports for the Better,” Time Magazine (Oct. 1, 2019), https:// time.com/5689548/california-ncaa-law. 3. Burness, “Colorado lawmakers promise 2020 bill to let college athletes make money,” Denver Post (Oct. 1, 2019), https://www.denverpost. com/2019/10/01/colorado-california-paystudent-athletes. 4. Chuang, “Colorado Votes 8-0 to Join California’s Low-Emission Vehicle Standard,” Colorado Sun (Nov. 15, 2018), https:// coloradosun.com/2018/11/15/colorado-votecalifornia-low-emission-vehicle-standard. 5. Complaint for Declaratory and Injunctive Relief, California v. Chao, No. 19-02826 (D.D.C. Sept. 20, 2019), https://oag.ca.gov/ system/files/attachments/press_releases/ California%20v.%20Chao%20complaint%20 %2800000002%29.pdf. 6. Roberts, “Here Comes America’s First Privacy Law: What the CCPA Means for Business and Consumers,” Fortune (Sept. 13, 2019), https://fortune.com/2019/09/13/what-isccpa-compliance-california-data-privacy-law; McIntosh, “Privacy Basics for Colorado Lawyers: The Colorado Consumer Data Privacy Act and the California Consumer Privacy Act,” 48 Colo. Law. 26 (Sept. 2019). 7. See, e.g., Hazel et al., “Colorado’s Outdoor Industry Products: What are the Warning Labels All About?” 48 Colo. Law. 42 (Jan. 2019). 8. LMU, Loyola Law School, Los Angeles, William M. Rains Library Legal Research Guides, http://guides.library.lls.edu/?b=g&d=a. 9. UCLA School of Law, Hugh & Hazel Darling Law Library Legal Research Guides, https:// libguides.law.ucla.edu/?b=g&d=a. 10. USC Gould School of Law, Asa V. Call Law Library Legal Research Guides, http:// lawlibguides.usc.edu/sb.php?subject_ id=103829. 11. Georgetown Law Library Legal Research Guides, https://guides.ll.georgetown.edu/ california. 12. CEB recently released a new platform called CEBPro to replace CEB OnLaw. See https:// store.ceb.com for product information. 13. California Legislative Information, California Constitution, http://www.leginfo.legislature. ca.gov/faces/codesTOCSelected.xhtml?tocC ode=CONS&tocTitle=+California+Constituti on+-+CONS. 14. UC Hastings College of the Law, California Ballot Measures, https://www.uchastings.edu/ academics/library/ca-ballots. 15. Alex Padilla, California Secretary of State, History of California Initiatives, https://www.sos. ca.gov/elections/ballot-measures/resourcesand-historical-information/history-californiainitiatives. 16. California Legislative Information, California

Law, http://www.leginfo.legislature.ca.gov/ faces/codesTOCSelected.xhtml. 17. For bills from 1993 to 2016, see California Legislative Information, Bill Information, http:// leginfo.ca.gov/bilinfo.html. For bills from 1999 to present, see California Legislative Information, Bill Search, http://leginfo.legislature.ca.gov/ faces/billSearchClient.xhtml. 18. California State Senate, Media Archive, https://www.senate.ca.gov/media-archive. 19. Office of the Chief Clerk, California State Assembly Statutes, https://clerk.assembly. ca.gov/archive-list?archive_type=statutes. 20. Office of the Chief Clerk, California State Assembly Histories and Indexes, https:// clerk.assembly.ca.gov/archive-list?archive_ type=histories. 21. Office of the Chief Clerk, California State Assembly Journals, https://clerk.assembly. ca.gov/archive-list. 22. LRI History LLC, http://www.lrihistory.com. 23. Legislative Intent Service, Inc., http://www. legintent.com. 24. Thomson Reuters Westlaw, California Code of Regulations, http://bit.ly/31owYiM.

25. Office of Administrative Law, California Regulatory Notice Register, https://oal.ca.gov/ publications/notice_register. 26. California Building Standards Commission, California Building Standards Code, https:// www.dgs.ca.gov/BSC/Codes#@ViewBag. JumpTo. 27. CA.gov, Agency Search, https://www.ca.gov/ agencysearch. 28. Institute of Governmental Studies, California Local Codes and Charters, https://igs.berkeley. edu/library/california-local-governmentdocuments/codes-and-charters. 29. Municode, California, https://library. municode.com/ca. 30. California County Public Law Libraries, Find Your Nearest California County Law Libraries, http://www.publiclawlibrary.org/law-libraries. 31. See, e.g., Bernard E. Witkin Law Library in Alameda County, http://lawlibrary.acgov.org; LA Law Library in Los Angeles County, http:// www.lalawlibrary.org; San Francisco Law Library in San Francisco County, https://sflawlibrary. org; and San Diego Law Library in San Diego County, https://sandiegolawlibrary.org.

M A RCH 2020

C OL OR A D O L AW Y E R

DEPARTMENT | MENTORING SUB TITLE MATTERS

Mentoring Professional Identity Expanding What it Means to be a Lawyer BY J. RYA N N PE Y T ON

ecoming a lawyer changes us. Research shows that simply preparing for the LSAT changes our brain structure,1 and the methodology of legal education changes the way our brains process fear and anxiety.2 At a psychological level, accepting the immense responsibility of solving the problems of others and protecting the rule of law means we must embody a new self upon entering the profession. This “professional” self or identity ultimately serves as the cornerstone of our professional values and behavior, our ethical decision-making, and our well-being as lawyers. The Importance of Professional Identity It used to be that in the legal profession, experienced lawyers would hand down a “professional

C OL OR A D O L AW Y E R

identity” to new lawyers, usually through apprenticeship or clerkship.3 Today, however, most new lawyers lack opportunities for face time with seasoned attorneys, and the notion of legal apprenticeships has all but disappeared.4 For many new lawyers, personal relationships with veteran lawyers who model professional identity and the attributes of a well-defined professional self may be inaccessible or unfeasible. As a result, new lawyers are at higher risk of developing a “thin professional identity” whereby they must bifurcate their personal values and professional behavior. Such bifurcation can result in new lawyers exhibiting higher moral neutrality and bleached out professionalism.5 Professional identity can mean different things to different people. For some, it incorporates virtuous character. For others, it promotes

M A RCH 2020

civil actions and behaviors. For many, it’s a combination of character and behavior. During his term as CBA president, Mark Fogg promoted a version of professional identity guided by public and community service. In addressing recent law grads, Fogg wrote: We take an oath. “I will use my knowledge of the law for the betterment of society and the improvement of the legal system. I will never reject the cause of the defenseless.” . . . We have the unique opportunity to provide services to others, which have the potential to have an incredible impact on their lives. This is a privilege not given to many.6 David Masters, who preceded Fogg as CBA president, emphasized a different facet of professional identity, equating it with competency as a lawyer: Most new lawyers are not well prepared for the practical aspects of practicing law, particularly because on-the-job training is not a condition of admission to the bar. . . . The legal profession needs experienced and respected lawyers to help novice lawyers acquire the practical skills and judgment necessary to practice in a highly competent manner.7 Embodying the attributes of a “citizen lawyer” and conducting oneself as a competent professional are of course important reasons

for any lawyer to consider professional identity. These attributes, however, are not the only reason to seek out a professional identity. At the Colorado Attorney Mentoring Program (CAMP), we believe that a professional identity is vital to improving public perception of the legal profession, creating and maintaining well-being, and generating professionals whose personal values intersect with and guide their professional behavior. Developing a Professional Identity “So, what do you do?” This question is asked hundreds of times during a typical networking event. The usual responses include: “I’m a lawyer.” “I’m a bankruptcy lawyer.” “I’m a partner at [insert big law firm].” “I’m a solo family law attorney.” “I’m a district court judge.” “I’m in-house at [insert corporation].” These responses may seem varied, but they are really the same iteration of a simplistic professional identity: a lawyer, who practices a certain type of law, in some type of setting. While one’s professional identity is of course much broader than a cocktail party sound bite, the repeated narrow description of “I’m a lawyer” in most social contexts can cause lawyers to eventually lose sight of their broader skills, values, ambitions, and identities. To combat this unconscious narrowing of identity, lawyers should instead consciously focus on locating and developing a broader professional identity among the other aspects and roles of their professional and personal lives. Shared Attributes As lawyers, we are a homogenous bunch. We all went to college. We all took the LSAT. We all went to law school. Most of us took the bar exam. Many of us are licensed to practice law. The skills needed to accomplish these undertakings include logic, confidence, competitiveness, critical thought and reason, attention to detail, and diligence. These are all “performance requirements” that every lawyer needs to make it past the threshold of earning a JD or a license to practice law. But while they may open the door to practicing law, they may not actually predict success in the profession and, as a result, shouldn’t be

the sole foundation of a lawyer’s professional identity. Yet all too often, a lawyer’s professional identity embodies only these core performance indicators of lawyering. Although these qualities don’t define us as individuals, they shape our identities and unnecessarily limit our perception of our professional strengths. Separating Yourself from the Herd Lawyers can begin to separate themselves from the proverbial herd. Professional identity can move a lawyer away from the self-limiting and universal identifying traits of all lawyers and toward those unique and expansive traits that make the lawyer successful as an individual professional. Consider the following steps to uncover your professional identity.

Step 1: Define Professional Success Describe what professional success looks like for you a month from today, a year from today, and 10 years from today. Although responses vary significantly from one lawyer to the next, it is likely that these questions may be more difficult to answer than you anticipate. Consider whether your definition of professional success is truly your own, or a regurgitation of a vision of success that has been conveyed to you by law school professors, family members, colleagues, the legal community generally, and so on. Next, consider how many qualities of your definition of success are focused on extrinsic rewards and client outcomes versus intrinsic rewards. A 2016 article in the Journal of Addiction Medicine considered the prevalence of substance use and other mental health concerns among American attorneys.8 The study concluded that attorneys experience problematic drinking that is hazardous, harmful, or otherwise generally consistent with alcohol use disorders at a rate much higher than other populations.9 Depression, anxiety, and stress are also significant problems for the lawyer population.10 While this study did not draw conclusions about why lawyers are at a heightened risk for depression and alcohol abuse as compared to the general population, the study found that young lawyers are particularly prone to problem

drinking. Specifically, 32% of lawyers under age 30 are classified as problem drinkers. 11 Additionally, problem drinking occurs in 31% of junior associates in private practice and 19% of solo attorneys. This is compared to problem drinking in 17% of law school students.12 This could indicate that something happens between law school and the first few years of practice that causes an increase in problem drinking and mental health concerns in new and young lawyers. At CAMP, we hypothesize that the lack of attention paid toward intrinsic definitions of success and the inability of lawyers to define professional success for themselves are some of the reasons for substance abuse, poor mental health, and professionalism issues among new and young lawyers. We believe there is a large disconnect between the new or young lawyer’s definition of professional success (or lack thereof ) and the experience the lawyer actually has upon entering practice. In response to this disconnect, new and young lawyers may experience negative outcomes in practice. As a result, it is critical for lawyers to create a realistic and meaningful definition of professional success for themselves—one that includes a balance of intrinsic rewards, extrinsic rewards, and positive client outcomes. This will serve as a foundation for the lawyer to develop a significant and achievable professional identity. Step 2: Identify Indicators of Success Once you have created a personal definition of professional success, the next step is to identify the unique indicators of success you bring to your practice. Not surprisingly, most lawyers will start with the routine list of performance indicators discussed earlier (logic, confidence, diligence, etc.). Your goal is to look beyond these common lawyer attributes to identify the personal characteristics that have helped you find success in other areas of your personal and professional life. Start by asking yourself the following questions: ■ What is a situation in which I felt like giving up? How did I persist? ■ What college and law school classes did I absolutely love? What made them so

M A RCH 2020

C OL OR A D O L AW Y E R

DEPARTMENT | MENTORING SUB TITLE MATTERS

enjoyable to me? How did I find success in those classes? ■ What do I do on Saturdays? Why do I choose those activities? How am I successful at these activities? ■ How do I relate to people? What makes me feel good about a social interaction with another person? ■ How do I prepare for competition of any kind? Why do I prepare that way? ■ What do I do only for myself? Why do I do those things for myself? ■ What do I do only for other people? Why do I only do these things for others? What do others see as my strengths? By answering these types of questions, you start to become aware of the traits and characteristics that are unique to you and to the strengths and successes of your life. These indicators of success generally will contain two important features. First, they will be substantive and transcend the practice of law—you’ll see these characteristics at play in almost every area of your life. Second, they will be innate to you—you won’t need to improve, train, or force yourself to embody these characteristics or skills. Indicators of success might include skills such as resiliency, relationship building, storytelling, or nimbleness. These personal indicators of success are the most likely skills to help you achieve your definition of professional success and will serve as a critical component to your professional identity as you face career challenges and opportunities.

A more expansive professional identity gives lawyers the agility to overcome professional challenges and experience professional success in a wider sense. Everyone will have a bad day or two as a lawyer. Everyone will make a mistake, lose a case, lose a client, or face adversity in practice. The strength of your professional identity can be the difference between going on to thrive in practice or succumbing to the obstacle. To that end, we encourage you to develop a professional identity that encompasses the entirety of who you are, including where you have come from professionally and where you are going professionally. By drawing on your personal definition of professional success and your personal indicators of success, you can embody a professional identity that is holistic, comprehensive, and portable. The Role of Mentoring in Creating a Professional Identity Professional identity cannot be created in a vacuum. It is through relationships, observation, and discussion with positive role models that we discover more about who we are and who we want to be professionally. A good mentor

helps us deal with adversity, take advantage of opportunity, learn from mistakes, better understand our strengths and weaknesses, and grow as leaders, managers, and human beings. By providing guidance and wisdom, mentors play a significant role in directing us along the journey of our lives. In addition, they help us internalize concepts of civility toward others in the profession, a true service mentality, and our unique obligation to assist underserved populations through pro bono work. A unique and comprehensive professional identity is a wonderful instrument in the lawyer’s toolbox. CAMP can assist you in creating a meaningful professional identity, regardless of where you are in your legal career. Join us now to develop personal and professional relationships with others in the Colorado legal community who can help you develop your own professional identity. If you are looking for community and peer guidance, you’ll find participating in the CAMP program to be a rewarding part of your professional journey. Visit www.coloradomentoring.org for more information or to join the program as a mentor or mentee.

J. Ryann Peyton is the director of the Colorado Attorney Mentoring Program and a seasoned consultant and advocate on diversity and inclusivity in the legal field. Before joining CAMP, Peyton focused her law practice on civil litigation with an emphasis on LGBT civil rights.

Coordinating Editor: J. Ryann Peyton, r.peyton@csc.state.co.us NOTES

Step 3: Take the “30,000 Foot” Point of View The final step in developing professional identity is to take a “30,000 foot” look toward your professional life. We are lawyers, of course. But not all of us will be lawyers for the entirety of our careers, nor will we be perfect lawyers every day of our practice. If your professional identity is narrowly defined as simply “lawyer,” it begs the question: What happens if you no longer want to be a lawyer? Similarly, what happens if you have a terrible day as a lawyer or experience a huge professional failure as lawyer? Will a narrow professional identity allow you to overcome such setbacks?

C OL OR A D O L AW Y E R

1. Sanders, “Intense prep for law school admission test alters brain structure,” Berkley News (Aug. 12, 2012), https://news.berkeley. edu/2012/08/22/intense-prep-for-law-schooladmissions-test-alters-brain-structure. 2. Patthoff, “This Is Your Brain on Law School: The Impact of Fear-Based Narratives on Law Students,” Utah L. Rev., vol. 2015, no. 2, art. 3 (2015), https://dc.law.utah.edu/ulr/vol2015/ iss2/3. 3. Smith, “The Old School: Would-Be Attorneys Learn the Law Lincoln’s Way, by Apprenticing,” LA Times (Nov. 26, 1992), https://www.latimes. com/archives/la-xpm-1992-11-26-we-1311-story. html. 4. Id. 5. Pearce et al., “A Challenge to Bleached Out Professional Identity: How Jewish was Justice Louis D. Brandeis?” 33 Touro L. Rev. 335 (2017), https://ir.lawnet.fordham.edu/

M A RCH 2020

faculty_scholarship/711. 6. Fogg, “Some Advice for the Law School Graduating Class of 2013 (and Anybody Else Who Will Listen),” 42 Colo. Law. 5 (May 2013). 7. Masters, “Fostering Civility, Respect for Lawyers, and Respect for the Law Through Mentoring,” 40 Colo. Law. 5 (Sept. 2011). 8. Krill et al., “The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys,” 10 J. of Addiction Medicine 46 (Jan./Feb. 2016), https://journals.lww.com/ journaladdictionmedicine/fulltext/2016/02000/ the_prevalence_of_substance_use_and_other_ mental.8.aspx. 9. Id. 10. Id. 11. Id. 12. Id.

M A RCH 2020

C OL OR A D O L AW Y E R

DEPARTMENT COLUMN | THE | INQUIRING SUB TITLE LAWYER

Can Entrepreneurial Principles Make You a Better Lawyer? Part 3 BY RON A L D M . S A N D GRU N D, E S Q. , I NQ.

The harder you work, the luckier you get.1 Good luck is when opportunity meets preparation, while bad luck is when lack of preparation meets reality.2

his is the seventh article series by The InQuiring Lawyer addressing a topic that Colorado lawyers may discuss privately but rarely talk about publicly. The topics in this column are explored through dialogues with lawyers, judges, law professors, law students, and law school deans, as well as entrepreneurs, journalists, business leaders, politicians, economists, sociologists, mental health professionals, academics, children, gadflies, and know-it-alls (myself included). If you have an idea for a future column, I hope you will share it with me via email at rms.sandgrund@gmail.com. This month’s article is the last of a three-part conversation about whether entrepreneurial principles can make better lawyers. Thanks to my friends Phil Weiser, Sue Heilbronner of MergeLane, and Dave DuPont of TeamSnap, who inspired me to put this piece together. And many thanks to Vincent Dimichele, a Colorado Law 2L, for his help with the dialogue and the thoughtful questions he raised during the editing process. Introduction to Part 3 In Part 1 we talked about a philosophy of entrepreneurship with Colorado Law Professor Brad Bernthal, director of the Entrepreneurship Initiative for the Silicon Flatirons Center; former

C OL OR A D O L AW Y E R

Denver Law Dean Marty Katz, chief innovation officer at Denver University; and Lisa HandGraves, former chief innovation officer at the Colorado Attorney General’s office. We learned that an entrepreneurial approach involves a growth mind-set, empathy, a polished interpersonal skill set, and a human-centered, trial-and-error toolset that fosters creative and agile thinking, calculated risk-taking, and a willingness to fail and learn. In Part 2, we visited with two lawyers, Rex O’Neal and Christina Saunders, who built successful law firms from the ground up by employing an entrepreneurial approach to their practices’ operations, marketing, and legal services. In Part 3, we find out whether a 40-year-old Houston lawyer with three children and a 16year book of business can reboot his career in Colorado by applying the same entrepreneurial principles. George Berg grew up in Texas riding in a pickup between drill sites with his dad, an oil and gas company employee. He went on to play college football, grow a successful Houston law firm, and then watch that firm get bulldozed by the savings and loan crisis. If changing horses in midstream is emblematic of an entrepreneurial spirit, George is that spirit’s personification. Later in Part 3, the InQuiring Lawyer passes the interview baton to Professor Brad Bernthal, who explores whether a dyed-in-the-wool insurance defense firm can reinvent itself as a plaintiff’s practice and whether an entrepreneurial mind-set can work for contingency fee lawyers who rarely represent the same client twice. With Brad’s help, my former law partner

M A RCH 2020

and I look back on over 35 years of practicing law together and try to puzzle out whether we can truly call ourselves entrepreneurs. Participants

George Berg is one of the four founding partners of Berg Hill Greenleaf & Ruscitti LLP. His practice of over 40 years emphasizes complex commercial transactions and litigation, personal and real estate litigation, real estate construction and development, banking, insurance coverage, business organization, antitrust, and bankruptcy. Brad Bernthal is an associate professor at Colorado Law. He studies startups, entrepreneurial law, and early-stage finance (such as angel investment and venture capital). He is also the founder and director of the Entrepreneurship Initiative at CU–Boulder’s Silicon Flatirons Center. Ron Sandgrund was a founder of and principal in Sullan 2 , Sandgrund, Perczak & Nuss, P.C. until its 2012 merger with Burg Simpson Eldredge Hersh Jardine P.C., where he is now of counsel with its Construction Defect Group. Ron is a frequent author and lecturer on construction defect, product liability, and insurance law, as well on the practical aspects of being a lawyer. He has taught Philosophy of Entrepreneurship and guest lectured on torts, contracts, and professional responsibility at Colorado Law. Along with his former law partner Valerie Sullan, Ron has handled some of Colorado’s largest construction defect lawsuits and class action settlements. Valerie Marie Sullan was a founder of and principal in Sullan 2 , Sandgrund, Perczak & Nuss, P.C. until its 2012 merger with Burg Simpson Eldredge Hersh Jardine P.C., where she is of counsel. She was

lead trial counsel in a number of landmark residential construction defect cases beginning in the 1990s, including one of the few Colorado class actions ever to be tried to a jury, and was appointed class and sub-class counsel multiple times. Valerie, along with her former law partner Ron Sandgrund, helped negotiate Colorado’s largest home builder construction defect related settlement on behalf of more than 12,300 homeowners, and also reached a $32.5 million settlement on behalf of the owners of more than 12,000 homes with defective and leaking windows. George Berg’s Entrepreneurial Journey Origins InQ: George, soon after our paths first crossed at a CLE many years ago, I learned that you had been a

partner in a prosperous Houston law firm for 16 years, but then moved your entire family to Boulder and started a new practice from scratch, eventually building a well-respected and successful 40-attorney firm. I always wondered about the backstory of that career trajectory, and this interview gives me the excuse to delve into that. Let’s start at the beginning: paint me a picture of your family life growing up. George Berg: I grew up in Houston. My mom had a year of college and did substitute teaching. My dad grew up as a farmer, joined the Army in WWII, and did not attend college. After the service he didn’t want to cotton-farm anymore, so he got into the oil field service business. I grew up going into the field with my dad. He would, among other things, put on oil and gas production equipment called “Christmas trees.” I met a lot of wildcatters and other lively char-

acters. “Wildcatter” is an apt term for folks who were willing to bet it all on one roll of the dice. InQ: Was your dad a small-business owner? George: No, he was an employee of a large oil and gas service company. InQ: What was one of your first jobs? George: As a kid, I sold soft drinks at college football games—folks used to pour a little whiskey in their cups, so the sodas sold fast in the high-dollar seats. I lagged coins with the other kids before the game, sold Cokes for a half, and then sat and watched the second half. I started working when I was 14 and basically worked whenever I wasn’t at school. I was always working a job in the summers and on holidays. Even between football or track season practices. InQ: What steered you to law school? George: I was recruited to play football at a number of universities and met some really great people during that process. College football

THE MIDWEST’S PREMIER ESTATE PLANNING EVENT At the KCEPS Annual Conference you’ll advance your career, earn

www.kceps.org

continuing education credits and gain knowledge and relationships that will help you better serve your clients and your company.

Thursday, April 23 and Friday, April 24, 2020 Overland Park Convention Center • Overland Park, KS

Presented in cooperation with the University of Missouri Kansas City School of Law

2020 Symposium Chairperson: Shellie A. Billau, Midwest Trust Company

Hear from leading experts, including: Prof. Sam Donaldson

Lauren Wolven

Bernard A. Krooks

Georgia State University College of Law, Atlanta, GA

Levenfeld Pearlstein, LLC Chicago, IL

Littman Krooks LLP New York, NY

For details visit KCEPS.org, or call 816-235-1648

AND MANY MORE!

Like us on Facebook Follow us on LinkedIn

M A RCH 2020

C OL OR A D O L AW Y E R

DEPARTMENT COLUMN | THE | INQUIRING SUB TITLE LAWYER

coaches obviously have to have a dynamic presence in recruiting. As part of the recruiting process, the coaches at Rice University had you meet up with alumni to talk about the avenues to attain success. I happened to draw a well-known federal judge, Phil Peden. At the time, I thought the smartest guys on earth were petroleum engineers, so I was looking at going into engineering and the petroleum business. But Judge Peden said that if you put a law degree on top of an engineering degree, you can do whatever you want. I was just so impressed by the judge’s ability to articulate his thoughts, his demeanor, and how he carried himself—he influenced me a lot. I never forgot that, and when I figured out that combining engineering with playing college football was complicated, I switched to accounting and business, with an idea of going to law school. When I got my LSAT score I decided to make a run at law school. By then, my college junior year, I was married. InQ: What was your first exposure to the practice of law? George: My wife’s father was an attorney and he had been in-house with a large gas pipeline company. Pretty much everybody in Houston seemed to be tied, one way or the other, to the oil and gas industry. I had him as a role model, along with his law partner, who had done a lot of real estate development. I started clerking for my father-in-law’s firm my first year at law school and then later spent a short time clerking with a large Houston litigation firm. InQ: At this point, did you start to form a vision like, After I leave law school, I’ll become an associate, then I’ll put my time in and become a partner in some big firm, or were you thinking I want to create my own firm, and I want to do that as a soon as possible? What was your ambition when you graduated? George: In my second year of law school, my mother-in-law passed away and my father-in-law stepped down from the firm. His law partner at the time, a very dynamic man, asked me to become a named partner at the end of my second year out of law school! In addition to his law practice, he also did real estate development, had a title insurance company, and had ownership interests in banks. He needed someone to

C OL OR A D O L AW Y E R

supervise the day-to-day business of the firm. InQ: You really hit the ground running—what was your first order of business? George: I became the day-to-day administrator and brought in additional lawyers as we needed help. I helped expand the real estate practice into a number of large Houston home builders. And those home builders were serviced by both the title company and lending institutions associated with the law firm itself. InQ: How did you feel about the responsibility with which you were entrusted? Did you feel competent as a lawyer with little experience? George: I don’t know that I’m particularly confident as a lawyer after 43 years! Yes—I was scared to death of what I didn’t know and making a mistake. Looking back, Rice University was a big step up for me academically from high school. I was a student-athlete and I was always afraid that I was sort of the back of the pack. I knew then that I had to have something that gave me a little bit of an edge in terms of gaining the knowledge that I didn’t have by committing to just the study of law. While in law school, I was literally working as a lawyer under a provision that said that as long as you were supervised by a licensed attorney after your first year in law school, you could go into court and participate in hearings and trials. So I actually argued before the Texas Court of Civil Appeals before I was out of law school. I always felt that what helped balance my lack of being the best law school student was my practical experience and taking advantage of opportunities to get exposure to business in a way that other students didn’t. InQ: Still, you had precious little legal experience, yet you were supervising a firm and growing a practice—what was your formula? George: One of the things that helped me was playing team sports. In sports you learn how to develop strong relationships with people that allow you to help them and them to help you. I became acutely aware of how important it is to associate yourself with quality people in terms of not just their mental capability but also their character and, importantly, with people who are willing to work hard. In my mind, nobody worked as hard as lawyers in Houston, because there wasn’t anything else to do. There weren’t

M A RCH 2020

mountains right outside your office or great places to go hiking or biking. And the first priority of the day was not, When am I going to get my workout in? The first priority of the day was the relationships I had with the people I was working with and moving the ball down the field in terms of being successful in the practice. I also had some really great mentors to watch and listen to who were quality trial lawyers. I got to work with some of the best trial lawyers I’ve ever seen in my life. And that was quite the enlightening experience. InQ: What made them good mentors? George: They understood the importance of gaining people’s trust, not just their client’s trust, but their young lawyers’ trust as well. They were truly interested in developing less experienced lawyers, and they were smart enough to appreciate that the faster those young lawyers developed, the better their support would be. They were committed to generating excellence in their young lawyers. Very smart. InQ: How did you get business from and gain the confidence of large home builders so early in your career? George: The title company we represented was the lead-in. Home builders need title companies. My wife had a good friend whose dad was a Houston home builder. Two of her brothers joined that home building business. We all became friends, hunting and fishing in South Texas—and they needed a title company. And it just so happened that our law firm came with a title company relationship. Eventually, we also did some development ourselves. InQ: How long did you work with that first law firm? George: 16 years. InQ: What did the firm look like at that point? George: We were 13 lawyers by 1989. Storm Clouds over Texas InQ: I understand that while supervising the firm for 16 years the legal landscape changed, as did your family responsibilities. What was happening and how did you respond? George: Yeah, the country was going through a fairly significant economic cycle in 1989. Major changes were occurring in the thrift, banking, and construction industries.

InQ: So that’s where you are nearing year 16 at your Houston firm. Then what happens? George: My dad passed away. My senior partner had decided to further expand his participation in the real estate development business. He had progressed significantly as a developer, while I was the younger guy running the day-to-day firm business and supporting the title company business. Vast land development was occurring in Southern California. There were savings and loans that were lending all over the country and, because of the removal of S&L restrictions, they became very aggressive in their loan practices. People were making deals so fast they couldn’t keep up with them appropriately. I literally would go to closings where there would be serial flip transactions, one right after the other, each with an increased price, and people were making money in between.

InQ: Sounds just like the run-up to the Great Recession of 2008. So, what happened in 1989? George: The problem was that the loans weren’t properly supported, resulting in the S&L crisis. Lots of people got caught up in it. This placed a tremendous amount of stress on me because real estate supported the firm and that industry collapsed. I was left to figure how to support 13 lawyers, and the staff that went with them, under very complicated circumstances. It became too much to say grace over in a severely declining market. And I thought, Okay, we’re going to have to go through a downturn economy, and I’m basically going to have to start over. And if I have to start over, I’d like to start over living where I’d like to live. So we sold our house, went to the closing ceremonies at the little league field, put the kids in the Suburban, and drove 1,100 miles to Boulder. InQ: How old were you then?

George: I was 40. InQ: How many kids did you have and how old were they? George: I had 3 kids—16, 15, and 13. InQ: Whoa—there’s a lot happening in your life. It seems that you had lived a couple of lawyers’ lifetimes in your 16 years in Houston, and now you’re starting over in Colorado. What are you thinking? George: Part of what I was thinking was that I’d rather tend bar than go back to Houston. Going forward, my goal was to associate myself with quality people so that I could take advantage of what I had learned the hard way. I had not only been a lawyer, I had also partnered in several businesses and been on several boards. I knew that what I had learned about running a business, both good and bad, also related to practicing law—both were transactional and involved litigation, raising money, and

C LTAF Announcement COLTAF was established in 1982 by the Colorado Supreme Court, in response to dramatic cuts in federal funding for civil legal aid. Since then, COLTAF has used the interest earned on COLTAF accounts to make grants of more than $40 million. Approximately 80% of these funds have gone to Colorado’s federally funded legal aid programs. The other 20% have gone to pro bono programs and other justice-related programs that advance one or more of the following purposes: • to assist in providing legal services to the disadvantaged; • to improve the delivery of legal services; • to promote knowledge and awareness of the law in the community; and/or • to improve the administration of justice.

Because COLTAF’s only regular source of revenue is the interest earned on COLTAF accounts, the funds available for grants vary from year to year, sometimes dramatically. Lawyers and law firms can help maximize the funds available for grants by banking at one of COLTAF’s Leadership Banks, which pay premium rates on COLTAF accounts, or by urging their bank to become a Leadership Bank. Applications for a 2020–21 COLTAF grant are due by July 31, 2020. Applicants for funding that did not receive a 2019–20 COLTAF grant must submit a Letter of Intent by March 31, 2020. COLTAF will decide whether a full grant application will be requested, based on the funds available and the relevant eligibility criteria,. Decisions in that regard will be made by May 1, 2020. For more information about COLTAF’s grant criteria and the required Letter of Intent, go to coltaf.org.

M A RCH 2020

C OL OR A D O L AW Y E R

DEPARTMENT | INQUIRING SUB TITLE LAWYER COLUMN | THE

government regulation. I thought all of those things would provide opportunities in Colorado as the economy emerged from the S&L crisis into the early ’90s expansion. InQ: I’m sure you had developed long-standing relationships with lawyers and staff in your Houston firm. I know that I, as a law firm owner, felt very responsible for everyone in my firm: I’ve been to their weddings; they’re raising kids; they’ve got mortgage payments to make. All this stuff is now part of my life and suddenly I’m feeling super responsible for them. George: Yep. I made sure that every single person who worked for our Houston law firm got a job somewhere else before I left. As I was winding down the firm and finding places for all these people, I would fly from DIA to Houston on Monday morning, working to wind down that practice and completing outstanding business for my Texas clients, and then I would fly back to Boulder Thursday night. I would leave my wife the money she needed for the week and I’d go down to Houston and try to make enough money to support life in Boulder when I returned. Growing a Law Firm from Scratch InQ: George, before I get into the nitty-gritty of how you started over in Boulder, let’s give the readers a preview of where you are today with your firm. George: The firm today consists of 40-plus lawyers, about half of whom are shareholders, and about 30 staff members. We have a broad business litigation practice, a patent and intellectual property group, a tax and estate planning group, M&A folks, and real estate and construction groups. We also do insurance coverage litigation, land development, banking, government entity work, and a significant criminal defense practice. Basically all the standard practice areas other than domestic relations. We have offices in Boulder, Denver, Los Angeles, and Cheyenne. InQ: How did you scratch things out in Boulder to get to this point? George: During the transition from Houston, I met through a mutual friend two Boulder attorneys, Gary Berg—no relation—and Karen McMurray, who were Boulder real estate, tax, and securities lawyers. Karen was writing real

C OL OR A D O L AW Y E R

estate private-placement offering memoranda, and I said to her, “Look I’m going to be going down to Houston Monday through Thursday, but Friday, Saturday, and Sunday I can come here and do the real estate analysis and title, mineral, and entitlement work to help with due diligence for the offerings.” I was working seven days a week, and flying back and forth in between. InQ: George, take me through the various law firm iterations you inhabited until you formed your current firm? George: From ’93 to ’96 I was with Berg and McMurray. In ’96, I helped form a new firm, Porzac, Browning, and Johnson, with four outstanding lawyers from what was then Holme, Roberts, and Owen. They asked me if I would be interested in coming in as a partner and doing real estate and related litigation while helping with small firm management. My time with that firm lasted three years. InQ: What led to your departure? George: Shortly after that firm’s formation I got involved in a lawsuit involving a large commercial farm in Northeast Colorado. I got pulled in because I had a Texas board certification in farm and ranch real estate law. I spent a lot of time on this case working it up and then attending a multi-week trial. The result was significantly favorable, and that case was a game changer for me in Colorado. The trial involved many colorful characters at all levels, including parties, witnesses, jurors, and an outstanding jurist. The case just snowballed and was accompanied by lots of local media attention and notoriety. Suddenly, I started getting litigation referrals. InQ: Sounds good so far. George: In many ways, yes. It took the firm in new directions, in a litigation way, but not everybody wanted to see it grow from a very tightly controlled water, land use, and real estate practice into a commercial litigation firm. InQ: Was the concern the multiplication of overhead, personalities, and personnel issues? George: More like a loss of control. Growth of a law firm is complicated. Not because it’s particularly hard to do, but because there are sideline issues that come along with the loss of direct control. The more people you have, the more voices you have from people who

M A RCH 2020

are capable of expressing their opinions, and the more complicated it becomes. The single most important element is collegiality and the ability to hold it together with the glue that is the relationship among the partners. My partners were all tremendous lawyers and extraordinary people, to say the least, but I believed I needed to move on to pursue the new opportunities resulting from an expanding litigation practice. InQ: What was your next step? George: The way the firm seemed to be growing, there was a need for more office space, but not everybody wanted to go that way. So I did a one-year interim move where I left with a small group of lawyers and started a new firm. Then, within a year, I left that firm and put together our current firm with Giovanni Ruschitti, Dave Hill, and Rick Greenleaf. InQ: And these new partners—had you previously eyeballed them in the legal community? George: Yes. They were all outstanding lawyers and people, each with unique skill sets, with whom I shared many core values, and who all had connections to the segments of the economy that were not going to go away: Real estate doesn’t go away. Litigation doesn’t go away. Water doesn’t go away. Estate planning doesn’t go away. And governmental work, good times and bad times, it’s always there. So the foundation we were trying to build going forward was one in which we could always have a certain level of ability to keep the doors open and then, when the opportunities came along for big litigation, we would have the capacity to do it. We wanted to build a recession-proof law firm with flexibility to pursue what, to me, was significant litigation. And we were fortunate to serve amazing clients, both loyal and smart, whose trust we cherish. The Entrepreneurial Lawyer’s Secret Sauce InQ: So, as BHGR grew, what was your team’s secret sauce in keeping your firm’s people together, especially when times got tough? George: Being your neighbor’s keeper. Meaning, making sure everybody had enough on their plate, had enough to do, even if this meant sharing client contact. Also, I believe that collaboration allows you to recognize what is necessary to provide sound representation because no one

knows everything. You need to find partners who want to see you succeed as much as they want to see themselves succeed. Generosity is a huge word in our firm’s vocabulary and it doesn’t have to do with money so much as it has to do with opportunity and time. It’s easier to save money than it is to save opportunity and time. InQ: There’s nothing more complicated than the human personality and nothing more difficult to manage than human relationships. Any rules of thumb that you followed there? George: Yes. Be willing to admit it when you may have been wrong. Apologize and promise to try to do better. InQ: Yeah, I’ve tried to follow those rules myself. How important is empathy to a successful legal career? George: Probably the most important thing. If you can’t feel somebody else’s pain, nobody’s ever going to trust you.

The Sullan/Sandgrund Entrepreneurial Journey Origins InQ (Brad Bernthal): Val, before law school, what was your background? Valerie Sullan: I was born outside Chicago. My father was an architect and my mother was a homemaker. When I was 5 we moved to South Florida, where my father designed single-family homes. We returned to Chicago seven years later and my father became a principal at a very large architectural firm that focused on hospitals and high-rise buildings, like the Standard Oil Building and the First National Bank Towers in downtown Chicago. From a very young age I grew up around blueprints. My dad had a drafting table in the dining room. I would fool around with the drawings with him and came to understand what they

meant, how buildings were put together, at a rudimentary level. But one thing that remained with me as an adult was that I could see the plans in 3-D; I didn’t just see flat lines on a page. Later, I went to college and I worked as a carpenter’s apprentice—I got an education on what large construction projects were all about. I went to my dad at one point in college and said, “I figured out what I want to be. I want to be an architect!” And my dad—who was not a particularly nice guy in some ways—looked at me and said, “You’re not good enough. Pick something else!” So that was the end of my architectural aspirations. When I went to law school, I brought to the table a pretty solid background in construction. InQ: Any work experience before law school other than carpentry? Val: I had my first job at 13 working at a gun range loading the machines. During high school,

CLE ABROAD 2020 Open to Members and Friends of the Colorado Bar Association

PORTUGAL

MOROCCO

Experience Portugal’s Old World allure and New World splendor, exploring Lisbon’s and Porto’s rich history, diverse wines and culinary scenes. Our immersive program will engage with local scholars, attorneys and artists who will shed light on Portuguese and EU legal and political systems, international relations, art history and architecture.

Morocco’s location at the crossroads of Europe and Africa has endowed the country with a rich culture and heritage. Be part of our journey through Casablanca, Fes, Rabat and Marrakesh to sample Morocco’s diverse food and music, learn about Morocco’s social fabric and political systems, and gain a better understanding of its culture.

2 Departures March 26–April 1, 2020 October 11–16, 2020

2 Departures October 22–30, 2020 November 12–20, 2020

Pre-Register for Fall 2020 to hold your spot. No deposit is required. • Portugal (October), mail chi.mp/cle-abroad/portugal • Morocco (October), mail chi.mp/cle-abroad/morocco-october • Morocco (November), mail chi.mp/cle-abroad/morocco-november

M A RCH 2020

C OL OR A D O L AW Y E R

DEPARTMENT COLUMN | THE | INQUIRING SUB TITLE LAWYER

I worked in a factory for four hours every day after classes for an operation that produced a million and a half pieces of mailers every night. You can blame me a little bit for all the junk mail that you may have received back then. After graduating from CU, I was a ski bum in Aspen while sharpening and mounting skis. After a year I realized that if I didn’t get out of Aspen I was going to be there forever. So I took the LSAT on a whim and did okay, not great, given that I hadn’t studied for it, and I got into a startup law school in Southern Illinois that didn’t even have a real law school building—classes were held in three abandoned frat houses. The students were concerned the school would lose its certification because there was no actual law school building. InQ: Any other work? Val: During the summers, we had the full three months off. So I started my own house-painting

C OL OR A D O L AW Y E R

business, with my brother and a close friend, and it actually did quite well. So I had that background in terms of starting my own local business and continuing that into college where I managed a ski shop and moonlighted doing ski sharpening and binding mounting ancillary to going to school and as a way to make money. I had from a very early age the desire to be my own boss instead of working for someone else. InQ: Super interesting. Ron, same question to you. Ron Sandgrund: Both my parents were children of the Great Depression, during which my dad’s family faced significant financial hardship. He did not go beyond high school, although he was incredibly well-read and passed a love of learning on to his four children. My mom was part of one of the earliest classes of women admitted to Brooklyn College; I think she grad-

M A RCH 2020

uated around 1938. During the Second World War, my dad was employed in a camouflage fabric factory with a work deferment for several years; the war ended the day he was called up. After the war, he started and successfully ran an electrical appliance store in New York City for about 10 years, but had to close its doors soon after one of the first “big box” stores (E.J. Korvette) opened around the corner. That began a several-year period of raising a family while being underemployed and unemployed, during which we had to rely on some friends and extended family to keep us afloat. He eventually found regular employment lasting over 25 years managing several large apartment buildings. My mom worked at home raising our family, but shortly before I was born—I was the youngest of four children by 10 years—she returned to graduate school to earn her master’s in teaching, and became a substitute school teacher to help support us. My dad impressed me with the advantages of being your own boss. Both my mom and my dad really emphasized education, and I always expected to attend graduate school, probably medical school. But once in college, I didn’t do great in my pre-med courses, nor was I enjoying them. I ended up double majoring in English literature and psychology, with a biology minor. I completed most of my college credits in three years, so I spent my last year doing graduate-level work in psychology and English. Although the schoolwork was interesting, I couldn’t see either leading me to a workable career path. I had taken the law boards and applied to law schools figuring that if I didn’t like what I was seeing in my graduate work, I would go to law school, which to me was just a place holder. All I knew for sure was that the last thing I would ever be was a trial lawyer. I didn’t like speaking in front of people. I would rather just stick my nose in a book. InQ: What about your work experience? Ron: For four summers during high school and college I worked as a laborer and lab technician for the Bluepoint Clam and Oyster Company in West Sayville, New York, a commercial shellfish dredging operation. I helped grow clams and oysters for seeding sections of the Great South Bay floor after they had been farmed out. I also

found work as the world’s worst bartender for a year, and I did retail tenant finish work—rough carpentry, drywall, mudding, and painting. Unlike Val, I had no natural aptitude for the construction work. While in law school, I clerked for Dean Vanatta’s law firm, where Val was a second-year associate. The firm was unable to offer me a job out of law school, so I was back to square one. I took the bar exam and waited for the results when some good fortune came my way—Val’s good fortune too. Dean Vanatta’s firm broke apart, and Val, Dean, and Lee Polk started their own firm, and they needed an associate. I joined the firm, which briefly merged with another larger firm, but that only lasted about a year. At that point, Dean, Val, and I decided to stay small and grow in our own way, slowly. The three of us stayed together for 30-plus years. I was given trial and appellate responsibilities very quickly, and soon I realized I loved doing

both. I ended up handling loads of jury trials and arguing many appeals during my first 16 years, but I needed to assume a somewhat different role after that. The Entrepreneurial Mind-Set InQ: Ron, Val embraced an entrepreneurial mind-set early in her life. What about you? Ron: I can unequivocally say that I did not have an entrepreneurial mind-set. Or, if I had one, it was inchoate. Dean Vanatta had that mind-set. For Val, an entrepreneurial mind-set was part of her core being—it was in her DNA. Her every fiber looked toward growth and opportunity. I realized early on that I needed to work with somebody who had those characteristics. I had my own skill set that I brought to the table, but I was always playing catch up with Val’s entrepreneurial spirit. InQ: Can you expand on that?

Ron: Intellectually, I understood the value in Val’s innovative approach to both the business and the practice of law. I guess I must’ve had a little bit of it in me because, ultimately, I was able to embrace it. Val and Dean tried to take entrepreneurial steps in the early 1990s to respond to the consolidation of the legal services industry as mega-insurance and mega-manufacturing firms arose from various mergers, and those companies began sending the bulk of their work to law firms much larger than our three-person firm, despite the fact I believed that we were getting better results than our competitors and charging less money. We lost that battle—and we lost 85% of our revenue stream in less than 18 months—just as our mentor Dean began winding down toward retirement. It was then, when we started doing plaintiff’s contingency fee work, that Val’s entrepreneurial genius was able to be fully realized. I played my part—I was

M A RCH 2020

C OL OR A D O L AW Y E R

COLUMN | THE DEPARTMENT | INQUIRING SUB TITLE LAWYER

a foil in many ways to Val. She knew we needed to spend money to take and win big cases; I was the guy with the green eyeshade. She knew we had to think out of the box to overcome industry defenses that had prevailed for years; I wore the yellow jersey when we worked up our cases, playing the devil’s advocate. She could take the pulse of the jury before voir dire began; I could reframe her wilder legal theories into more palatable arguments for the court. After we started taking a lot of contingency fee cases, leaving our hourly insurance and product liability defense work behind, Val noted, “If we had taken every case that I wanted to take, we would’ve gone bankrupt. And if we had turned away every case that you wanted to turn away, we would’ve gone bankrupt. Together, we make one good lawyer.” No truer words. Val: Yes, it was that yin and yang thing that worked out so perfectly for us. I had this riverboat

gambler side and confidence that we could make things work, even if I couldn’t quite see how we would make them work. Ron had the foresight to see the things that really weren’t ever going to work. I think Ron’s upbringing with a Depression-era father and mother taught him to be fairly conservative in his risk-taking. A Shared Vision InQ: Val, in forming your firm with Dean and bringing Ron on board, what elements did you guys bake in from the start that were in some respects maybe a reaction to what you did not like about the previous firms? Val: Well, one thing that was borne from the breakup of the two firms preceding the formation of our small firm that lasted for over 30 years was that at the start of every year we decided by consensus how we were going to split up the profits, and that was it. We never argued

Join us for our inaugural sessions this summer in Boulder, Colorado • Compliance training for entry- to senior-level professionals • Entrepreneurship in emerging industries • Attorneys can earn up to 30 hours of CLE credit, including ethics, per program • Custom programs tailored to your organization’s needs For practicing attorneys and business professionals

colorado.edu/law/executive

C OL OR A D O L AW Y E R

M A RCH 2020

about it. We were a true partnership: everyone pitching in; everyone rooting for each other’s success; everyone sharing credit. Ron: I agree. I don’t know of too many law partnerships that truly operate as “partnerships” in the colloquial sense. Val: I can honestly say that in all the years I worked with Ron we never had a single argument about financial matters. That’s not to say that Ron and I didn’t argue strenuously about the law and case strategy and evaluation. I’m sure the staff sometimes thought we were going to kill each other. But those were intellectual arguments that I enjoy—at least when Ron wasn’t being completely obtuse. Seriously, I mean those kinds of arguments strengthened our cases. Frankly, I don’t know how solo practitioners do it without having somebody to bounce an idea off of or say to them, “Well that’s incredibly stupid. You’re going to lose that argument.” We

had those kinds of discussions—but what we baked into the cake was we’re just not going to argue about financial stuff. We’ll just figure that out. InQ: Ron? Ron: Well, when I started clerking, Val was older than I and she had several years more experience as a lawyer, and before that, as a clerk for the Colorado Court of Appeals. So, during the first few years, 95% of the firm’s philosophy was ingredients that were already baked in by Dean and Val. I had a few things to say, and I was never discounted, but I really didn’t have a lot to offer at that point. But the working understanding between Dean and Val that I saw appealed to me very much. One event stands out. InQ: What’s that? Ron: While I was clerking, when the old firm was about seven lawyers, at some point the firm was paying a chunk of the partners’ salaries out of lines of credit. That was never our firm’s philosophy; if we couldn’t cover our own salaries, then we needed to reduce our wages or not take a salary. What we wouldn’t do was borrow money to pay ourselves. I really identified with that philosophy. Different Perspectives on Risk InQ: What about Val’s self-described “riverboat gambler’s” perspective, and your feelings about risk? Ron: Val is right—when we started out, and continuing through much of our contingency fee practice, I was very risk intolerant when it came to money. I also agree it had a lot to do with my parents’ history and my not growing up in a wealthy household—although I never wanted for anything. I have assumed other kinds of risks in my life, like backpacking the Maze for a week, canoeing the Yukon and the Little Missouri, circumnavigating Isla Espiritu Santo and transiting Desolation Sound in a sea kayak, stuff like that, which I loved. Also, regardless of the stakes, I never blinked when trying a case. But as soon as things turned to the hot button of my own money, it was not good for me. I needed to defer to Dean and Val on how to manage the firm’s money and I followed their lead. When they made me

managing partner, all I ever saw was liability and exposures and money going out the door. I was the quintessential bean counter. I did know, however, that for us to be successful in the long run and to achieve some of the things we wanted to achieve as lawyers and people, I needed to embrace a more risk-taking outlook. And so I let myself go there. InQ: How so? Ron: For me, it was like jumping into the deep end of the pool. I thought, Okay, I’m just going to go where Val takes me because I know she’s right, but I simply can’t pull the trigger on some of this financial stuff. I’ll just let her pull the trigger. Still, there was always that little Jiminy Cricket on my shoulder going, Should we really do this? Do we really have the money to do this? Can’t we save some money by not doing this? And Val’s philosophy was to do a great job, to spend the money necessary to do a great job, and to hire outstanding people and the best expert witnesses and take all the necessary depositions to do a great job. No cutting corners. And if we were fortunate enough to obtain some really big judgments and settlements—don’t be afraid to reinvest our fees into the next level of cases. Admittedly, it was tough for me to go along—especially the reinvestment piece. But I did. From the Ashes InQ: Val, Ron says all he saw was financial risk, and that he didn’t like what he saw. What were you seeing? Val: Let’s back up. Ron has described how we lost over 85% of our revenues over a very short time due to upheavals in the legal services industry. I recall a 1992 meeting downtown with the new general counsel of one of our main clients, a large insurance company. He sat in an office chair with his legs hanging over the armrest and he informed us that he had gone to law school with a friend who worked at one of the carrier’s several other defense firms in town, and that’s where a lot of the referrals were going to go from now on. So in the span of an hour we lost nearly all of our business. We returned to the office and let go two very fine associates and three very fine paralegals, none of whom had done anything wrong. We had to

cut off the arm to save the body. We reduced our personal salaries to $30,000 a year—less than any of our few remaining staff members made. Since then, so long as Ron and I owned the firm, our salaries remained at $30,000 a year. After a time, we also got end-of-the-year bonuses, but those were our salaries—as a reminder of the uncertainties in life. InQ: What did you do then? Ron: We sat down and we talked about how to change our business model. In other words, we needed to pivot. For a couple of years, we took every case that came in the door; we signed up for “4-Lawyer” TV referrals; and we plumbed our areas of legal expertise—employment, civil rights, disability, insurance, construction, transactional work, you name it—to keep the doors open while we searched for opportunity. The three of us decided not to seek employment with a larger firm because we valued our autonomy and partnership. Somehow, we kept the doors open. Val: We struggled. We had one piece of luck come our way. There were 14 consolidated construction defect cases from the same neighborhood situated on expansive, that is, swelling clay soils that had come to me through a friend of Dean’s because I was a person who knew construction. We shared the representation with this lawyer-friend. Those cases were working up nicely from both a liability and insurance standpoint, and we were closing in on a respectable settlement. Ron: In addition to Val’s firm grasp on the construction defect issues, we discovered that our long experience working for insurance companies gave us a leg up in challenging their denials of coverage for construction defects. Val: Then I had an epiphany of sorts while driving on I-25, one that never would have struck me if we were still heavily into our insurance and product liability defense work. I was thinking about novel approaches to these expansive soils cases as well as new avenues of growth for the firm. One issue that was troublesome and potentially dangerous in these cases was the defense strategy of focusing on something the homeowner allegedly did wrong, like rooting a tomato plant too close to the house and watering it. We knew that this was baloney; no matter

M A RCH 2020

C OL OR A D O L AW Y E R

DEPARTMENT COLUMN | THE | INQUIRING SUB TITLE LAWYER

what you did or did not do the homeowners’ basement slabs were likely going to heave differentially, crack, and damage interior finishes. During that drive to work I thought, These are class actions cases—all the soils reports said, in essence, “Due to the presence of expansive soils, do not use basement concrete slabs for habitable living space.” And virtually all of the builders in town were marketing their basements as suitable for finishing as living space. They even had roughed-in plumbing so that bathrooms could be built later, and they installed egress windows for bedroom construction. And I thought, These cases all share a commonality and could support a class action. In practice, this approach virtually eliminated the “homeowner at fault” defense, as we were developing evidence of many houses that had all been maintained differently and yet all had the same heaving basement floors—so, by necessary inference, it was not the homeowners’ fault. Ron: I remember Val’s epiphany clearly today. I figured she’d get over it by the next day. Sounded risky and expensive to me. Val: You have to understand that the phrase “class action” to defense lawyers like us at that time was a little bit like speaking of mystical potions to be cast upon the waters by those far more knowledgeable in some faraway city called New York or San Francisco. Certainly not something lawyers ginned up in small firms in towns like Denver. But I came in and I pitched the idea to Ron and Dean. And, true to form, Ron said, “No chance—we can’t do it.” And Dean said, “Well, maybe—let’s do some research.” Eventually, we all came around and got on board, and within the span of less than 18 months, we had instituted multiple class action suits involving about 16,000 Colorado homes. The first suit was filed in 1992. The rest is history, so to speak. InQ: So the major innovation was to see this as a potential vehicle by which to take more cases forward, building on what you had learned from that first lawsuit. Tell me about some of the risk factors that had to be addressed as you guys adopted this model. I’ll have Ron take first swing at this and see what the skeptic has to say, and then I’ll have you add some color, Val. Ron: I want to roll back this discussion just a 28

C OL OR A D O L AW Y E R

little bit: when we learned we were going to lose most of our revenues, there was one small saving grace. While we weren’t going to get any new cases, we did have existing cases from which the insurer couldn’t drop us without spending extra money on new lawyers and dealing with the associated disruption. So we had about a year and a half to two years of a diminishing revenue stream that gave us a tiny bit of breathing room. Of course, once we filed a multimillion dollar class action against one of the carrier’s longtime insureds, our departure date accelerated. The weekend after Val’s “epiphany,” I went to the law library and pulled out Newberg on Class Actions. None of us knew anything about class actions. I won’t say I read every page of Newberg’s 15 volumes, but I thumbed through its entirety over the weekend, focusing on the aspects we needed to understand. I came back on Monday and said that I had done some research and that it looked like there might be a kernel of an idea in what Val had described. Both Val and Dean looked at me and said, in substance, “Yeah, we knew that already. Thanks for your support.” We then started earnestly going down the class action road. I thought that by far the biggest risk factor was that class actions can take a very long time to resolve, which raised two questions: First, how are we going to keep the doors open? And second—and I didn’t fully appreciate the gravity of the second point—how are we going to fund the anticipated substantial litigation costs, which we had to advance from our own pockets? I thought that maybe we could borrow $100,000. From my vantage point, we faced a lot of risk. In the end, we took out of our collective pockets well over a million dollars over a four-year period to finance just the first of those class actions. If somebody had told me we were going to do that when Val had her epiphany, I would have laughed and said, “We’re obviously not going to go down that road!” It was simply a miracle we were able to collect enough money along the way to fund that first class action. Fortunately, we also developed a great number of individual homeowner cases that went well and helped us fund the bigger stuff—cases that came to us as a result of the publicity of filing that first class action lawsuit.

M A RCH 2020

InQ: It sounds like you were uncomfortable with the risk and did not fully appreciate the extent of it. Ron: I remember going home and talking to my wife Cheryl about the situation. Coincidentally, she had recently accepted a job with a startup that was going to recycle tires. She was getting no salary, maybe some equity down the line. On the plus side, we had a 1,240-square-foot starter home and no kids (just our dog, Cleo). If everything went to hell in a handbasket, we’d survive. Meanwhile, Val had three young kids and a beautiful new home in Morrison. When I thought about the risk she was taking, I decided I didn’t want to be a big baby and tell her I couldn’t deal with the risk. So, Cheryl and I agreed to start down these new career paths together, hoping that one or both would work out. And the risks multiplied over time. As successful as we were, we also were taking on more and bigger cases that sucked out more money; we just kept plowing most of the profits back in. For me, there was sort of a dark cloud that hung over my head from 1992 until 2007, when the firm bought me out at my request because I didn’t want to be an owner anymore. That was my Independence Day. In contrast, for Val, the risks associated with these cases were like her life’s blood. In the end, however, there was a great deal of reward, and ultimately freedom, accompanying all that risk we assumed. Not just monetary reward, but also professional satisfaction and a sense that we did something with our lives that helped other people when nobody was willing to step up for them. Until we began our efforts in the 1990s, few people were suing builders and developers. The industry had an incredibly successful record against these kinds of claims. InQ: Val, how did you think about the risk factors? Val: Certainly there was business risk, but business risk hasn’t particularly bothered me so long as I had done a careful analysis of the business proposition and believed in the case. To me, these lawsuits were no different than starting a new business every time we took a case. And you have to remember that unlike many lawyers’ practices, we had skin in the game—every

one of them involved our investment of high six-figures, if not seven-figures. And that’s just our money, not our time. I’m talking cash out of pocket. Still, it’s never bothered me as long as I believe the business proposition, meaning the case, was worthy of the risk. In fact, it excited me. The first class action case was a seminal moment in both Ron’s and my lives. Unknown to us when we filed the case, the defendant was the subsidiary of a large cigarette manufacturer who feasted on class action litigation. The lawyers we faced were among the very best we ever had worked against. But I believed in the case; I believed in what we were doing. We put every bit of our lives into that case through the day the jury announced its verdict. As I rode back home after the verdict, my kids—who were very young, who had barely seen me for months, and who had been in the courtroom with my wife—asked me what happened. They knew something exciting had happened, but they weren’t sure what it was. And I said to them, “I’m not sure, but I think our lives just changed.” And they did. News of that case and the other class actions we handled reverberated through the local newspapers and television, offering the firm publicity we could never have afforded to buy. For months after that the phones were ringing off the hook. But the risks we assumed up to that point were huge: we risked our careers and all the money we had invested. If this was a poker game, we were “all in.” Ron: Shortly after that, I remember reluctantly calling the in-house counsel for our last-remaining corporate client, an international elevator and escalator manufacturer our firm had defended at below-market rates for decades, and telling him that our plaintiff’s work had exploded so much I could no longer provide him legal services. He chuckled, thanked us, and said warmly, “I loved working with you—and I can’t believe it took you so long to make this call!”

because Denver’s very capable defense bar, the building industry’s lobbying efforts, and liability insurers’ desire to stop cutting us checks by limiting coverage presented new challenges every year. Val found other defects worth pursuing, including inadequate pier foundations; rotting structural wood floors; bad EIFS, stucco, siding, and other exterior claddings; leaking roofs; houses lost to landslides, collapsible soils, and sinkholes; multi-family defect litigation; construction material failures; and so on. She also identified new class actions involving defective windows and poorly built community-owned roads—although the vast majority of our cases going forward were not class actions. And she innovated creative trial stratagems against well-worn industry defenses.3 She made sure we combined our efforts with homeowner advocacy groups and consumer-rights oriented legislators to fight bad legislation and expand

homeowner protections. She insisted, somewhat counterintuitively, that I offer, at no charge, to help write briefs with other lawyers handling their own construction defect cases to help effect good law for homeowners. She convinced me to commit hundreds of thousands of dollars of firm money to sponsor a ballot initiative preventing builders from disclaiming their implied warranties of workmanlike construction, habitability, and building code compliance. In the face of a multimillion dollar negative television and print ad campaign focused on Val, the so-called “suing machine,” the initiative got slaughtered on Election Day, but the industry’s multimillion dollar negative ad campaign turned into a multimillion dollar publicity campaign for the firm, and our phones rang off their hooks for months. It is also critical to point out that Val’s and my efforts were joined by those of Val’s brother Curt

A Growth Mind-Set Ron: I think it is important to point out that Val’s creative approach to construction defect litigation didn’t begin and end with our firm’s attacks on the use of slab-on-grade concrete floors. Val was always looking years ahead M A RCH 2020

C OL OR A D O L AW Y E R

DEPARTMENT COLUMN | THE | INQUIRING SUB TITLE LAWYER

Sullan, and by two seasoned trial lawyers who later joined the firm, Mari Perczak and Craig Nuss, as well as Joe Smith, Leslie Tuft, and Jenn Seidman. Curt, Mari, and Craig all came from insurance defense backgrounds, while Joe left an architectural practice and Leslie and Jenn arrived from respected 17th Street firms. Every one of them, as well as our incredibly dedicated staff members, embraced Val’s entrepreneurial vision with vigor, imagination, and their own unique skills. We, in turn, strove to share the fruits of our combined labors with all of them. While Val and I have stepped back quite a bit from the front lines since the firm’s merger with Burg Simpson, the other lawyers remain highly engaged and have maintained the practice’s high standards and success, while adding like-minded, highly skilled attorneys to the effort. Also, we had so many amazing clients who had faith in us and our dogged approach to these cases and who were willing to bear the delays and stress of prolonged and sometimes contentious litigation. The trusting relationships that we built with those clients concerning what for nearly all of them involved the biggest and most important investment of their lives—their homes—led to countless word-of-mouth, neighbor-to-neighbor referrals. InQ: I want to drill down into another risk factor implicit in what you two are describing: the legal risk that this lawsuit model had not been rolled out before, particularly in Colorado. Tell me a little bit about that. Val: I was confident we could get through the legal thicket. But, no, I didn’t know for sure. Certifying a mass tort case is a whole different kettle of fish from certifying a securities case. It’s one thing to have bright ideas and have a lot of confidence; it’s another to have the legal arguments to back them up. And that’s where Ron’s brilliance was the core of getting me to my first construction defect closing argument. While I had a lot of ideas and we talked it through, the briefs that were written, the legal analysis that ultimately applied, all that was Ron’s forte. And that’s where, together, we made one good lawyer. Ron: Val is too kind. She is a brilliant trial lawyer and strategist, and she deserves the lion’s share of the credit.

C OL OR A D O L AW Y E R

InQ: Ron, regarding this legal creativity that Val describes, is that a version of entrepreneurship to you? Ron: I think entrepreneurial thinking is at its core a creative endeavor. Val had some very imaginative and inspired ideas about how we should go about proving our cases based on what the law should be. Val had an incredibly good instinct for the equities, which frequently drive the court when there isn’t controlling law. Often I would say, “I think we might lose this motion,” and Val would say, “We can’t lose this motion because . . .” And she’d give three or four reasons why it would be unjust or unfair, and then tie it to the case facts. And I had to agree, “It would be unjust and unfair.” I needed to plumb the law in a way that would use those facts as the lodestar that would, hopefully, guide the court to the result we sought. In the 1990s, there wasn’t tons of developed residential construction defect law in Colorado, so that added to the uncertainty. But it also meant we weren’t always bound by precedent, and that, perhaps, we could shape the law. InQ: A quick follow up: With startups you’re often resource constrained. Both you and Ron highlighted the mismatch in resources between you and your first class action defendant, a subsidiary of a cigarette maker with lots of experience defending class actions and a war chest beyond imagination. Did you get help from the outside? Val: We had none. Ron: When we started our transition from defense to plaintiff ’s work, but before Val’s class action epiphany, we took my friend John Holland out to lunch. He was and remains an extremely successful and skilled civil and individual rights plaintiff’s lawyer. We laid out where we were and how we hoped to build some kind of contingency fee practice, and we asked him how to do it. As I recall, he looked at us, smiled, and said, “You’re both very bright. You’ll figure it out. And you’ll be doing good for lots of folks.” In retrospect, he was exactly right. We were naïve to think there was some sort of formula or model to becoming a successful plaintiff’s firm. Such firms are, at their root, entrepreneurial, agile ventures. As one of the lawyers to whom we lost our major insurance

M A RCH 2020

defense client said to us years later: “We thought we won. After a couple of years, we realized you had won.” He went on to switch sides himself and become one of the Colorado’s most gifted and successful mass tort plaintiff lawyers. Conclusion Eyeing the disparate career paths of Marty Katz, Brad Bernthal, Lisa Neal-Graves, Rex O’Neil, Christina Saunders, George Berg, Valerie Sullan, and myself, certain conclusions about the entrepreneurial mind-set can be drawn. First, an entrepreneurial mind-set—a growth mind-set—may be present in one’s DNA, but it also can be cultivated through study and experience. Second, an entrepreneurial mind-set is characterized by empathy, creativity, resilience, perseverance, tolerance, agile thinking, collaboration and teamwork, an appetite for calculated risk, foresight, authenticity, a preference for networks over hierarchies, recognition of one’s unconscious biases, introspection, and the ability to view a “miss”—a so-called “failure”—as a learning experience. And finally, while these qualities have lain far outside the traditional law school curriculum, possessing them can improve the chances of building a successful legal career and a more effective legal practice. In short, cultivating an entrepreneurial mind-set can make all the difference in finding success as a lawyer and happiness as a person.

Ronald M. Sandgrund is of counsel with the Construction Defect Group of Burg Simpson Eldredge Hersh Jardine PC. The group represents commercial and residential property owners, homeowner associations and unit owners, and construction professionals and insurers in construction defect, product liability, and insurance coverage disputes. He is a frequent author and lecturer on these topics, as well as on the practical aspects of being a lawyer, and has taught Philosophy of Entrepreneurship at Colorado Law. NOTE S

1. Kularia, “Luck and entrepreneurship: Is there a connection?” Entrepreneur (Jan. 19, 2016), https://www.entrepreneur.com/article/269756. 2. Attributed to Eliyahu Goldratt. 3. See, e.g., Hildebrand v. New Vista Homes II, LLC, 252 P.3d 1159 (Colo.App. 2010).

M A RCH 2020

C OL OR A D O L AW Y E R

FEATURE | TITLE ALTERNATIVE DISPUTE RESOLUTION

Online Dispute Resolution A Digital Door to Justice or Pandoraâ&#x20AC;&#x2122;s Box? Part 2 BY D OUG MC QU I ST ON A N D SH A RON ST U RGE S

C OL OR A D O L AW Y E R

M A RCH 2020

This three-part series takes a deep dive into the future of online dispute resolution in Colorado. Part 2 discusses ODR applications that use artificial intelligence to facilitate quick resolution of conflicts.

art 1 of this article discussed videoconference-based mediation, a form of online dispute resolution (ODR). The next jump in sophistication when using ODR is artificial intelligence (AI)-assisted ODR, which is the focus of this Part 2. Why Use AI-Assisted ODR? For conventional mediations, web-based videoconferencing is an excellent solution to the logistical challenges of trying to assemble all participants in one physical location. But conventional and videoconference mediation aren’t appropriate for all types of disputes. For example, the amount at stake may be insufficient to justify the cost of a human mediator, even the lower cost of a human mediator who appears via videoconference. Pro se litigants, who commonly appear in small claims, county court, and family law matters, might be reluctant to proceed without counsel at a mediation, and thus not see a conventional mediation as an option. And scheduling a mediation presents the same challenges, whether it occurs in brick and mortar or virtual conference rooms. AI-assisted ODR offers an efficient, user-friendly dispute resolution solution for such litigants. It offers benefits such as time asymmetry, which allows parties to log in any time they are available, post their position or request, and get a response from any other party or the mediator at their convenience. The tools discussed here are currently used extensively in Canada, and elsewhere, including in some U.S. state court systems. They are coming to Colorado too. The Colorado courts statewide Office of Dispute Resolution recently obtained a Pew Charitable Trust grant to develop

a package of ODR applications that will include AI-assisted ODR. These applications will be designed for use in smaller damages disputes (county court and small claims money judgment matters) and domestic dockets throughout the state. Thus, if you represent commercial or family law clients, you will likely find yourself handling a dispute funneled into one of these tools. And the use of these tools will likely be expanded to other types of disputes within a few years. “Smart” Systems Guide Litigants Several centralized, court-sponsored ODR applications are already in commercial and public use or will be onboarded in the near future. Some of the more powerful ODR tools use “artificial narrow intelligence” features, which have user interfaces that apply algorithmic progressions for “smart” question-and-answer dialogue. Like TurboTax and other software packages, these AI-assisted tools provide easy and secure web login and ask users detailed questions about

their dispute, collecting data points about the case along the way. The “smart” part of the tool then uses this data to steer participants toward appropriate procedural tools, display pop-up information guides, and offer forms such as demand letters, response letters, and court documents. The tools even guide negotiations. When the negotiation results in a resolution, the tools assist the litigants in completing the necessary settlement agreements and court dismissal paperwork. These ODR tools are already in use in British Columbia courts for both domestic and smaller-dollar civil disputes, as discussed below. Several jurisdictions in Australia use these tools extensively with domestic dockets and traffic matters. The tools are commonly designed for pro se litigants, to improve their access to civil justice. But when a pro se litigant sues a party represented by counsel, the represented defendant can involve his or her counsel in the online tool as they would in court. The more powerful AI-assisted ODR tools use algorithmic data mining of all disputes in their system, completely anonymously. They gather data on offer and demand progressions, case settlement ranges, and court judgment ranges in all of the disputes that use the tool, based on the facts input by the users. They “learn” from this data to determine how typical disputes with similar fact patterns are being resolved. The tools solicit input from each user on the range of amounts they are willing to pay or accept to resolve a dispute. The parties can change these numbers as the case progresses. The tools offer users pop-up suggestion boxes in real time, based on learned data on how other cases have been resolved, telling users whether

M A RCH 2020

C OL OR A D O L AW Y E R

FEATURE | TITLE ALTERNATIVE DISPUTE RESOLUTION

their numbers are consistent with resolutions of similar disputes. A “real world” version of similar AI-assisted software is AI-assisted data-aggregating and algorithmic systems, such as online car buying services. Many of these tools gather detailed information from the user about make, model, options, color, mileage, etc., then state what consumers in a given area code are paying for similar cars. AI-assisted tools rely on user input throughout to steer the online process, first through negotiation and later through mediation with a human mediator, if the parties request it. They use familiar alternative dispute resolution (ADR) techniques by pointing litigants to information clouds educating them on the legal elements of their claim, or document-generation tools to assist them in crafting a demand letter, complaint, or other document, all while retaining the ability to “go back” to the other tools whenever the user wants. They learn from each case, whether resolved or not, to gain deeper insight into case values, likely settlements, pinch points that derail litigants, or other issues the system encounters. The software developers (and court system end-users) can then use this information to update or modify the tool’s approach to keep it current, user-friendly, and efficient. Some ODR tools can even generate an AI-derived suggested range, the tool’s algorithmic calculation of a reasonable settlement amount, bond amount, traffic ticket fine, or property division, all without a human mediator’s intervention unless a user calls for it. The numbers suggested are, for now, merely algorithmically derived “median” numbers, and the systems clearly caution that they are intended as suggestions only.

the wrong search result. It will neither recoil in horror nor ask, in a wounded tone, “why are you angry?” Instead, it might deliver its standard eerily calm response, “Hmm . . . not sure about that.” But that may change in the not-too-distant future. The folks who created Alexa, Siri, and “Hey Google” are currently spending billions of dollars

Navigating System Limitations Even the most sophisticated tools have their limitations. They cannot know whether a user is technologically proficient or legally astute. And AI cannot read or deliver emotional cues. AI-assisted ODR tools simply lack the emotional acuity professionally trained human mediators use all the time to understand and deal with human emotions and work through emotional responses. For example, try raising your voice or yelling at Amazon Echo when it delivers

to develop next-generation AI tools that will not only understand and relate to, but also display, a wide array of human emotions. These new features will inevitably find their way into ODR tools. (We’ll pause now to collectively shudder at the notion that friendly online assistants will soon display emotional acuity.) Another limitation of AI-assisted ODR tools is their tendency to deviate to the mean. These tools use data aggregation and algorithmic cues to develop “steps” in their processes. They

C OL OR A D O L AW Y E R

“

AI-assisted tools rely on user input throughout to steer the online process, first through negotiation and later through mediation with a human mediator, if the parties request it.

”

M A RCH 2020

simply aggregate data and spit out what they conclude is the most likely or most relevant result. AI systems cannot discern shades of gray in disputes, nor can they evaluate the fairest, best, or most sustainable solution for a specific dispute. This is in contrast to a human mediator, who can guide and shape a mediation using a variety of methods that work best for particular parties at each stage of a specific case. Many conventionally mediated cases hide the key to their resolution in the very shades of gray that current generation AI tools cannot see as clearly as trained human mediators. Of course, even with these limitations, the tools can work effectively to guide parties to a resolution, moving volumes of cases to an effective conclusion without trial, especially those with discrete but ongoing family law issues, such as temporary changes in parenting time agreements. They also work well in cases that lend themselves to a “deviation to the mean” solution, such as smaller dollar commercial or consumer disputes. Off-Ramps AI systems designers understand the limits of AI with respect to ODR tools and have built in flexibility to remedy the shortcomings mentioned above. They counterbalance the machine-based shortcomings with multiple “off-ramps” allowing litigants to access a human mediator, either online by videoconference or in person, at any point. Pop-up information guides are another offramp innovation. Litigants who need assistance navigating a tool, or who have questions about how to present a claim, can click on pop-up buttons that open small information balloons explaining, for example, what the jurisdictional limits of the court are, how to structure a demand letter (including a link to a sample fillable demand letter), or other information needed to keep moving a dispute toward a resolution. The off-ramps also allow litigants to leave the settlement mode altogether and present the dispute as an online claim, which will then be placed on the court docket and litigated (in some cases, while remaining within the online tool) by a court magistrate. If online litigation doesn’t appeal to the parties, either party may

bail out of the online process altogether and go old-school to a brick-and-mortar courthouse with their dispute. A single party can elect this; agreement is not required. And even the tools with built-in decisional authority allow for conventional court appeal of any results. Unbundled Legal Assistance AI-assisted ODR may help clients save thousands of dollars in litigation costs. Counseling against these tools may be counterproductive for both attorneys and clients. The more practitioners understand AI-assisted ODR, the better positioned we are to offer clients unbundled legal assistance with their disputes. Practitioners who add this knowledge to the range of legal services they offer may attract and keep more clients. Further, access to justice has become a critical and growing priority for Colorado courts, and attorneys are being called on to be part of the solution. Knowing how to use AI-assisted ODR, and how to help clients access and use these tools, is a way to help clients resolve their disputes efficiently and to streamline the practice of law by reserving litigation for cases that cannot be resolved otherwise. Use the Right Tool for the Job AI-assisted ODR is a powerful dispute resolution tool, but attorneys, judges, and other dispute resolution professionals must evaluate its propriety for use on a case-by-case basis. For example, as with conventional mediation, power imbalance issues may impact the decision to use these tools. And AI-based ODR tools don’t work well for parties who have technology limitations or who have difficulty clearly describing their dispute in terms that fit within the algorithm’s boxes. Finally, these tools aren’t yet suited for complex, high-stakes cases; cases requiring extensive discovery; or cases with complex legal issues, such as serious personal injury, professional negligence, complex, commercial, or multiparty litigation. And the tools likely would not work well for contested dissolution proceedings involving complicated property division, maintenance issues, or pension claims. The current generation of AI-assisted ODR tools do not pick up on nuance, and the con-

troversies mentioned above are drowning in nuance. They turn on the ability of the attorneys and decision makers to discriminate among very close shades of gray, which AI is unable to comprehend or act on. But where AI-assisted

“

But where AIassisted tools are appropriate, their use will enhance access to justice, facilitate dispute resolution for attorneys and clients, and free up significant amounts of court time for judges and court personnel to devote to disputes that only they can resolve.

” tools are appropriate, their use will enhance access to justice, facilitate dispute resolution for attorneys and clients, and free up significant amounts of court time for judges and court personnel to devote to disputes that only they can resolve.

The British Columbia Experience As stated above, AI-assisted ODR solutions are in use right now in court systems in Canada and Australia.1 British Columbia’s Civil Resolution Tribunal (CRT) is a good example.2 The CRT is used to resolve smaller, simple disputes, such as consumer money disputes, basic landlord-tenant disputes, and employment and pay disputes. It offers more than ADR; while it has negotiation and mediation portals, it also provides a decision portal for rulings on a dispute by human magistrates. British Columbia is a massive province with few large cities and many smaller towns, villages, and settlements scattered throughout. Many towns and villages are more than a full-day’s drive from each other. It used to be that a disputant in one of the more remote towns or settlements who, for example, made a purchase from a Victoria or Vancouver business was essentially left without a remedy if a dispute arose—it would be impractical, if not impossible, for the purchaser to spend days driving to court, filing the dispute, and then returning a few months later to try it. The power of AI-assisted ODR in such situations is clear. Disputants who face geographic or time obstacles, or those who cannot find or afford an attorney to handle their smaller disputes, are now only a click away from “court.” They can log onto online systems with familiar-looking user interfaces, answer some questions, upload relevant scanned documents, and handle the process of negotiating, mediating, and resolving their disputes, on their own. A traffic ticket recipient can log on and navigate her way through negotiating a plea agreement and pay the fine online using a credit card, thus avoiding the loss of time spent in court waiting for a turn in front of the judge. Canada has spent hundreds of billions of dollars in recent years on public-private partnerships to extend speedy broadband and 4G LTE wireless coverage throughout their far-flung provinces, which greatly facilitates systems such as the CRT. Further, litigants can use these tools on their own schedules. And if they don’t have a computer or lack bandwidth at home, they can access a local library’s internet service, desktops, and scanners.

M A RCH 2020

C OL OR A D O L AW Y E R

FEATURE | TITLE ALTERNATIVE DISPUTE RESOLUTION

The CRT employs private mediators (called “facilitators” in the British Columbia system) who contract with the courts to be placed in a queue to handle CRT disputes according to their availability. Facilitators can thus maintain their in-person practices while using the online systems to turn slack time into productive time by jumping in when it is convenient. The CRT system sends facilitators a notice, usually by text or email, that they have been assigned a dispute. They can then log into the system, navigate to the dispute via the texted link, and instantly see all the documents, the status of prior negotiations, and the logjam that prompted their assignment. They can then speak with the parties via web chat, text, or email. They can also use the tool to schedule a videoconference or telephone conference to keep the process moving to a resolution, or even conduct an online mediation if desired. The CRT system offers easy access to offramps (called “pull-outs”) with information about applicable law, procedures, limitations, and other issues, so users can best assemble their documents and data to maximize their dispute resolution experience. The goal in Colorado is to deploy a tool at least as robust as CRT. The intent is to take pressure off Colorado county courts that presently handle smaller cases but will be managing more complex disputes following the recent increase in jurisdictional limits, and to relieve pressure on overworked family law courts. AI-Assisted ODR in Australia Australia has begun to develop ODR for property division, custody and visitation agreements and disputes, and other family law matters that often ensnarl litigants in protracted, costly litigation. While most of its tools are still in pilot phase or development, there are also nonprofit “community organizations” developing ODR tools in the family law arena focused on resolving parenting, property division, and financial issues. One such nonprofit-based tool is being developed by “Relationships Australia,” a non-court-affiliated nonprofit group that has provided family law advisory services in Queensland for 60 years.3 As these Australian state court (and nonprofit) systems roll out, the plan is that litigants

C OL OR A D O L AW Y E R

will be able to log into portals in the Australian provincial courts and access ODR tools to craft separation agreements, financial and property settlements, custody and visitation plans, modification stipulations, and orders. The tools will guide the litigants through each step, formulating the issue at stake, identifying the parties’ desired outcomes, and offering pop-ups to highlight legal requirements. The tools will then place negotiated agreements before a human magistrate for review and ruling. Like the British Columbia CRT system, the Australian provincial courts’ tools will provide pull-outs for parties to get before a magistrate or mediator, either conventionally or online, if they hit a roadblock in negotiations. One privately operated ODR site in Australia, “Immediation,”4 has been developed by Melbourne, Australia-based barrister Laura Kelly. It is designed primarily for resolution of commercial disputes and can be used by lawyers and nonlawyers alike. The tool is a hybrid AI-assisted ODR and videoconference mediation platform that allows users to create a dispute, invite the other party to participate, and access “experts” (the site’s term for its contracted attorney/mediator specialists) to either guide negotiations or provide specialized early neutral evaluations, then continue with the online process to a full videoconference mediation if needed. Online arbitration is also available, with decisions enforceable via contract. Immediation is currently in use but is still in the beta phase. It is a fee-based system and not connected with any court system. The company promises full confidentiality in the process, and (as the name implies) offers companies and disputants the possibility of quick dispositions (in as little as 30 days) if the dispute lends itself to such quick determination. As similar systems (both court-based and perhaps private fee-based) come to Colorado, attorneys will likely appreciate these tools. Far from taking their business away, practitioners, especially family law attorneys, may find that the tools allow clients, on their own, to quickly resolve many smaller issues that pop up. The clients gain by having lower cost assistance while attorneys avoid client calls for minor

M A RCH 2020

issues that are often not billable. Therefore, practitioners can better manage their practices. The Secret Weapon AI-assisted ODR is coming to Colorado. When it gets here, it will be here to stay. Used properly, these ODR tools will offer a powerful way to deliver justice effectively and efficiently to more people. And therein lies a hidden secret: ODR tools will not make attorneys or mediators obsolete, but may well liberate us to focus on what we do best. By learning what AI-assisted ODR tools have to offer, practitioners can render a service that clients will surely remember when a need for dispute resolution arises in the future.

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

NOTES

1. Other countries using these tools include the United Kingdom and New Zealand. 2. https://civilresolutionbc.ca. 3. https://www.raq.org.au/services/onlinedispute-resolution. 4. https://www.immediation.com.

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. Visit www.cobar.org/Casemaker. 2. Select “Click here to Enter Casemaker.” 3. Select “Colorado.” 4. Select “The Colorado Lawyer.” 5. 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.

M A RCH 2020

C OL OR A D O L AW Y E R

FEATURE | TITLE ENVIRONMENTAL LAW

Americaâ&#x20AC;&#x2122;s Water Infrastructure Act Implications for Emergency Management BY T I MO T H Y R . G A BL E HOUSE A N D A SH L E Y L . Z U R K A N

C OL OR A D O L AW Y E R

M A RCH 2020

America’s Water Infrastructure Act makes significant changes to emergency planning in connection with drinking source water protection. This article analyzes this Act, focusing on how it affects local emergency planning and community water systems.

merica’s Water Infrastructure Act (AWIA or the Act) was signed into law on October 23, 2018.1 An omnibus bill with broad bipartisan support, the Act aims to revitalize and repair water infrastructure throughout the United States. Significantly, the Act imposes new requirements on community water systems and state and local agencies to report and coordinate on releases of hazardous chemicals to the water supply. This article explores how the Act evolved and highlights its salient features. AWIA Overview The AWIA passed as omnibus legislation with many sponsors and scattered debate. Although it incorporates language from bills that failed in previous sessions, the Act passed through an amendment to a courthouse naming bill, S. 3021.2⁠ House and Senate leadership replaced the text of H.R. 8, the Water Resources Development Act of 2018, and an amendment by the Senate Committee on Environment and Public Works with a negotiated bill that would revise S. 3021.3 The negotiated text included provisions from other bills, namely H.R. 8, S. 2800, and H.R. 3387.4 As a result, the Act’s provisions and priorities are somewhat opaque, but are informed by environmental events and congressional intent. The Elk River Disaster: A Triggering Event Early in the morning on January 9, 2014, residents reported an odor to the West Virginia Department of Environmental Protection. Air quality inspectors eventually discovered a tank farm 1.5 miles from the water supply intake of West Virginia American Water where gallons of 4-methylcyclohexanemethanol (MCHM)5 had escaped secondary containment and

“

One witness testified that ‘[r]arely, if ever, are public water systems provided or privy to specific data about the chemicals upstream that, if released, could affect the water system.’

” flowed into the Elk River.6 When authorities were alerted to the accident, they discovered that then available chemical safety data sheets7 provided almost no information for emergency responders. The West Virginia governor declared a state of emergency and a “Do Not Use” order was issued to the public. Over 300,000 people in nine counties boiled their water and drank from bottles, as authorities struggled to follow their emergency management plans.8 The consequences of the accident and impact to the public were magnified by the

lack of reliable information, particularly on safe levels of MCHM.9 The material safety data sheet (MSDS) was incomplete, listing toxicity data as “not available” more than two dozen times. 10 In the immediate aftermath of the spill, public health officials operated from this incomplete information and thereby created confusion.11⁠ A report commissioned after the Elk River disaster recommended that Tier II data sheets12 be made available to local emergency planning committees (LEPCs) for more targeted emergency planning.13⁠ Tier II data sheets are forms that U.S. organizations and businesses storing hazardous chemicals above certain quantities are required to complete and submit annually to local fire departments, LEPCs, and state emergency response commissions (SERCs) to help those agencies plan for and respond to chemical emergencies. Analysts noted that chemical manufacturers could have kept MSDSs up-to-date and publicized toxicity information earlier. Congress held hearings on the spill. The chief concern during the Elk River hearings was the lack of public confidence in the emergency response and information disseminated. Senators reflected that the “Do Not Use” order was premature but could not get a confident answer from the utility that the water was safe, even weeks after the incident.14⁠ One witness testified that “[r]arely, if ever, are public water systems provided or privy to specific data about the chemicals upstream that, if released, could affect the water system.”15⁠ Senator Boxer noted in a hearing that the lack of data for many chemicals stemmed from the inappropriate invocation of the confidential business information exemption for trade secrets by facilities.16 The Act’s amendments to section 312 of the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA), requiring

M A RCH 2020

C OL OR A D O L AW Y E R

FEATURE | TITLE ENVIRONMENTAL LAW

expanded disclosure to LEPCs and the public, are likely intended to address this problem, as opposed to more comprehensive intervention by the U.S. Environmental Protection Agency (EPA) as contemplated, for example, by Senator Manchin in proposed S. 1961, discussed below. Indeed, the majority of the Senate Committee on Environment and Public Works observed that while existing mechanisms of the Clean Water Act and the Safe Drinking Water Act (SDWA) appropriately manage confidential business information, there is a need for increased public disclosure of chemical data.17⁠ Congress repeatedly heard from witnesses that management of information received from facilities under statutory reporting requirements imposed burdens on LEPCs and SERCs that should be limited due to their resource capacity.18 For example, experts noted that volunteers and local officials who staff LEPCs, such as firefighters, have collateral duties.19⁠ Thus, the legislative priority should be to improve coordination among facilities and emergency managers and provide funding rather than to expand testing or management practices.20 Rather than increasing federal regulation, legislators appeared concerned with providing local governments with the resources needed to fulfill their existing responsibilities. Witnesses at a Senate hearing testified that no major overhaul of toxics regulation was necessary, with one observing that “existing West Virginia Law expressly provided a requirement which, if honored, would have prevented the incident.”21 Where local agencies lack the funding to carry out these duties on their own, they should be empowered “with information, training, responsibility, and tools to address the needs of their citizens.”22 Congressional Debate In response to the Elk River accident, Congress debated more onerous measures than those that made it into the AWIA, including EPA reviews of all chemicals in commerce.23⁠ A competing bill, S. 1961, clarified that the EPA and the states should not duplicate regulations; it directed the EPA and states with primary enforcement authority for public water systems to consider excluding from the regulatory program tanks

C OL OR A D O L AW Y E R

that are already regulated by state and federal standards and tanks that do not pose a risk to public water systems.24 In the end, Congress created a more modest solution in the AWIA, focusing on funding the existing responsibilities of states and the EPA. But the rejected bills provide useful context for understanding the Act overall. Senator Manchin of West Virginia introduced S. 1961, the Chemical Safety and Preparedness Act, contemporaneous with Representative Capito’s H.R. 4024, the Ensuring Access to Clean Water Act of 2014. 25 Both contained provisions to enhance information-sharing at the local level, but neither passed out of the 114th Congress. S. 1961 would have set federal standards for state programs encompassing all stored chemicals.26 In this plan, facilities would notify utilities directly of any chemicals stored on site. H.R. 4024 established oversight and inspection standards for all upstream chemical facilities.27 In hearings on the Elk River disaster, some witnesses blamed the proximity of chemicals to drinking water, while others blamed human error.28⁠ S. 1961 responded by requiring the EPA to study all chemicals in commerce, aiming to end the ad hoc study approach that led Elk River to wait over a year for information.29⁠ S. 1961 also required either the EPA or the governing state to make available to public water systems inventory on each chemical held, along with toxicity information.30⁠ This scope is wider than the modest amendments that ended up in the AWIA; it would have broadened the definition of storage tanks and potentially increased compliance burdens drastically.31 Water Source Protection AWIA § 2018, titled Source Water, was ultimately drawn, with encouragement from Representative Tonko, from the Drinking Water System Improvement Act of 2017, H.R. 3387.32 H.R. 3387 was reported from the House Energy and Commerce Committee in November 2017 with one unrelated amendment and only voice votes, leaving it unclear which members of the committee ultimately supported the language. It was clear, however, that there were no significant objections as the AWIA eventually incorporated

M A RCH 2020

this bill. Section 2018 of the AWIA addresses source water protection by amending EPCRA.33⁠ EPCRA EPCRA was passed in response to a deadly toxic gas leak in Bhopal, India in 1984.34 Considered the world’s deadliest chemical release, the Bhopal disaster killed about 25,000 people, while another 500,000 have lingering health problems.35 EPCRA’s purpose was to develop emergency plans and empower local communities with information about hazardous chemicals in their areas to improve community preparedness.36⁠ By creating a network of officials and mandating comprehensive emergency planning, EPCRA decentralizes the process and empowers local communities to tailor plans to their needs. Pursuant to EPCRA, governors appoint a SERC to establish procedures for public communication and requests.37⁠ SERCs supervise emergency planning districts in their implementation and emergency planning duties, which may be managed by existing state agencies.38⁠ SERCs also appoint LEPCs from local representatives, media, and safety experts to implement these plans.39 The Colorado SERC is the Colorado Emergency Planning Committee.40 LEPCs primarily process requests from the public and maintain information according to procedures set by each SERC.41 LEPCs are often small and composed of volunteers, and have limited budgets and an informal structure.42 EPCRA regulates facilities that store certain hazardous substances above specified threshold amounts. It requires facilities to identify themselves to their SERC and comply of their own initiative.43 While fire departments have a statutory right to inspect facilities,44 facility compliance is largely effected through a facility’s written disclosures and chemical inventories. Facility owners may use trade secret protections to shield some of this information, but only with sufficient justification.45⁠ In no event can chemical information be kept from health or emergency personnel as needed for public safety. The EPA manages copies of this data, but information is largely maintained at the local level. While LEPCs and SERCs have enforcement power to obtain chemical inventory information

from regulated facilities,46 this authority is seldom used due to of a lack of resources. Instead, regulated facilities compile and annually send their chemical inventory reports to the SERCs, LEPCs, and emergency response agencies.47 When a release of a hazardous substance occurs, EPCRA’s notification requirements under § 304 become operative.48⁠ Section 304 requires that if a release of an “extremely hazardous substance” at or above its applicable reportable quantity occurs, the facility must notify the SERC and LEPC for any areas likely to be affected by the release. In Colorado, additional release reporting obligations may apply whether or not EPCRA is triggered.49 For any release that would require notice under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) § 103(a), immediate notice must be given to the LEPC for any area likely to be affected and to the SERC of any state likely to be affected, or reported to 911 if the substance is spilled during transportation.50⁠ Changes to this notice system contained in the AWIA require SERCs to notify the state drinking water regulatory agency of any reportable releases and to provide community water systems, which are public water systems that supply water to the same population year-round, with chemical inventory data.51 While seemingly modest, these amendments have important implications and unintended consequences for SERCs and LEPCs. Many SERCs and drinking water regulatory agencies will be required to modify existing release notice procedures to conform, such as call trees and local divisions of responsibility. The AWIA amendments to EPCRA are intended to empower community water systems to react promptly to emergencies like the Elk River spill.52⁠ Elsewhere in the AWIA, grants and technical assistance are made available to community water systems and LEPCs so they can improve their resilience to contamination.53 Indeed, drafters expressed a general unwillingness to give the federal government more control at the expense of local authority, regardless of admitted disparities in capacity.54⁠ The general sense of Congress was to empower communities through increased public participation.55⁠ The recognition that communities lack funding

prompted other AWIA provisions, including the Revolving Loan Fund and consumer confidence reporting, which would supplement local resources.56⁠ The Safe Drinking Water Act The SDWA is the primary vehicle for source water protection. It was significantly amended in the AWIA,57 which attempts to integrate source water protection by combining amendments to the SDWA with the EPCRA amendments. State agencies are directed to forward any notifications or information they receive under EPCRA § 304 to community water systems. AWIA § 1433 requires community water systems to perform risk and resilience assessments, including an assessment of “the use, storage, or handling of various chemicals by the system.”58 These assessments must be certified by the EPA and regularly reviewed, at least every five years.59⁠ Further, community water systems are directed to prepare or revise emergency response plans in coordination with LEPCs.60⁠ To facilitate this improvement of the preparedness of community water systems, the AWIA creates a Drinking Water Infrastructure Risk and Resilience Program fund (DWIRRP),61 which provides funding to improve physical security and assist in the planning, implementation, and design of the required emergency response plans. These emergency preparedness changes to the SDWA apply to public water systems with at least 15 service connections or who regularly provide service to 25 individuals.62 Community water systems are a subclass of those public water systems that either serve 15 or more connections used by year-round residents of the area served by the system or 25 year-round residents.63 Source water protection areas (SWPAs) are designated by states under SDWA § 1453 to implement state source water assessment programs (SWAPs).64 SWAPs are intended to identify, to the extent practicable, the origins within each delineated area of all regulated contaminants for which monitoring is required and thus determine the susceptibility of public water systems to contamination.65 Through this process, the state identifies facilities storing extremely hazardous substances and certain other hazardous chemicals for monitoring and

ACRONYM KEY AWIA: America’s Water Infrastructure Act CAMEO: Computer-Aided Management of Emergency Operations CBO: Congressional Budget Office CERCLA: Comprehensive Environmental Response, Compensation, and Liability Act DWIRRP: Drinking Water Infrastructure Risk and Resilience Program Fund EPA: U.S. Environmental Protection Agency EPCRA: Emergency Planning and Community Right-to-Know Act of 1986 LEPC: Local Emergency Planning Committee MCHM: 4-methylcyclohexanemethanol MSDS: Material Safety Data Sheet SDWA: Safe Drinking Water Act SERC: State Emergency Response Commission SWAP: Source Water Assessment Program SWPA: Source Water Protection Area

inclusion in emergency plans. Under the AWIA, SWPAs are regulated and formed in the same manner as SWAPs for purposes of notification. The Act defines an “affected community water system” as one that receives supplies of drinking water from a source water area in which a facility that is required to prepare and submit an inventory form is located.66 The Act thus combines the EPCRA definition of facilities with the SDWA framework for water quality, requiring increased coordination between community water systems and such

M A RCH 2020

C OL OR A D O L AW Y E R

FEATURE | TITLE ENVIRONMENTAL LAW

facilities. At the same time, the Congressional Budget Office (CBO) predicted there would be no significant cost increases as a result of compliance with these changes.67 Congress, therefore, assumed that these entities are already capable of communication and integration. Congress recognized that limited resources might threaten the implementation of the Act’s notice scheme. Community water systems are “relatively small,” with most serving fewer than 3,300 people.68 Merely providing “reams of paper” will not solve the resources problem without assistance in risk-assessment.69 The DWIRRP is intended to mitigate this resource gap and bolster community water system planning, even though money is not provided to LEPCs or SERCs. Emergency Notice Provisions One major category of changes under the Act affects emergency notice procedures under EPCRA § 304.70 Congress amended § 304 to include community water systems in the spill response scheme. The primary drinking water agency in a given state should receive information collected under §§ 304(b)(2) and 304(c) and forward these notices to community water systems.71 In general, this information is intended to assist state and local officials in developing emergency response plans.72 The AWIA expands the notification process, but does not change its structure, by including community water systems. The legislative history suggests that LEPCs and SERCs should direct information to community water systems in an emergency; it does not suggest that these entities must affirmatively research and react to spills differently than they did pre-AWIA. If the spill-reporting system does not reach the proper actors in time, there is little advantage to these amendments. A Congressional Research Service report following the Elk River spill noted that a critical emergency response failure was the assumption “that state and local emergency responders would notify all affected entities and individuals.”73 LEPCs should be integrated into the emergency response plan for all spills to ensure they can coordinate using critical information at the outset. But LEPCs’ and SERCs’ ability to notify community water

C OL OR A D O L AW Y E R

systems depends on their possession of the required information. To be effective, they must already possess or be able to obtain without written correspondence the data they need. Thus, compliance resources may become a consideration for smaller communities lacking the customer base to spread costs.74 Facilities Covered Facilities that were previously subject to EPCRA remain subject under the AWIA. While Congress looked at expanding the facilities subject to regulation by referring at various times to bulk chemical storage facilities, the EPCRA amendments do not expand the universe of regulated facilities.75 Members of Congress also spoke of facilities in general terms and in the context of several federal frameworks, including the Toxic Substances Control Act.76 While Congress may have considered covering all chemical storage facilities in the omnibus bill, no discussion of expanding the Tier II list was evident, so it is reasonable to infer that Congress intended facilities exempt from EPCRA to be regulated through other provisions. Transportation versus Fixed Facility Spills Confusion will likely arise from EPCRA’s treatment of transportation spills as opposed to fixed facility spills. Read alone, EPCRA § 327 exempts substances or chemicals in transportation or being stored incident to transportation from the requirements of the Act.77 However, § 327 specifically carves out § 304 notices from this exemption.78 Section 304 broadens the definition of a facility to include motor vehicles, rolling stock, and aircraft.79 Congress’s intent to prepare for all chemical spills supports a broad interpretation of “facility,” but its decision to rely on existing frameworks and definitions is instructive. The AWIA makes no specific mention of transportation; it merely adds community water systems to existing notification lists. Thus, while Congress’s general desire to increase information-sharing is clear, the process by which fixed facilities report spills is materially different from the process for transit spills. Seemingly, Congress expressed no wish to overhaul right-to-know reporting,

M A RCH 2020

but, as happened at Elk River, this process is prone to failure. Thus, if past performance is a predictor of future results, this system has a high risk of failure due to the lack of real-time, centralized spill reporting and communication systems in most states. Transportation spills are reported to 911 and processed through a notification list that is focused on the information necessary for emergency response agencies. Drinking water agencies may receive reports as a result of this process, but not always promptly or directly, because the notification lists often do not include direct intake water systems. Only limited areas of a few states have a notification list that includes the headgates for direct-intake water systems, and many of these systems are not related to drinking water such as agricultural ditches. In Colorado, this reporting loop does not include Colorado’s SERC.80 Fixed facility spills are reported to 911 as well, but this process will not always result in a report to LEPCs and SERCs. The AWIA has not resolved concerns that these reports are not timely enough to truly inform or empower community water systems in an emergency. The reporting process failed in West Virginia. When 911 received calls, first responders were dispatched but unable to contact the utility.81 When the West Virginia Department of Environmental Protection was given Tier II reports, they were for the wrong plant and incomplete.82 The utility had insufficient information and reported that the calls were never received.83 Enforcement and Compliance Under the AWIA, responsibility for emergency notification and Tier II inventory remains with LEPCs. Their responsibilities remain mostly unchanged, except for a requirement that LEPCs and SERCs share information with community water systems and the state drinking water agencies. Responsibility for enforcement remains with the EPA, which has primary responsibility for enforcement of EPCRA, unless an LEPC is inclined to retain counsel and pursue a direct enforcement action. Administrative, civil, and criminal penalties may apply to noncompliant facilities, with violations fined up to $25,000 per day.84 Citizen lawsuits can compel facilities

to pay these fines to the government as well as injunctive relief.85 SERCs and LEPCs, however, are not empowered to assess penalties under federal law. Congress was silent on this or any other enforcement mechanism, suggesting that LEPCs have no new tools to effect compliance. Yet Congress was aware that LEPCs and SERCs would be unable to perform their duties with current levels of funding.86 As a leader of the information-gathering effort, LEPCs are only equipped to communicate what information they have and coordinate emergency planning. To lighten the burden of paperwork management, the EPA and the National Oceanic and Atmospheric Administration have developed Computer-Aided Management of Emergency Operations (CAMEO)87 tools, which are freely available to LEPCs and emergency responders. CAMEO is a software suite that allows chemical emergency planners and responders to access, store, and evaluate information. It also aids regulatory compliance by facilitating user reporting of chemical inventories. While gathering information on chemical inventories without relying on the voluntary cooperation of regulated facilities may seem unrealistic, voluntary cooperation is generally high as various industry guides suggest that the costs of noncompliance are a poor public image and future facility siting opposition.88 Facility owners and operators are subject to fines and penalties for failing to provide Tier II data.89 If an LEPC exercises its legal authority to obtain the data, courts may impose compliance obligations on the facility to provide the desired information. However, this process is lengthy and would either require costly preemptive record-keeping maintenance by the LEPC or be too late to address spills. Given the history of the Act, it is unlikely that reactive legal action was the reform Congress envisioned. Unavailable Data Congress was concerned with the inadequacy of Tier II and other chemical information in the wake of the Elk River spill. The AWIA approach is to allow water systems to access more information so they may react accordingly. If the requested Tier II information is unavailable from an LEPC, the LEPC must obtain it from the

facility.90 An LEPC has 45 days to respond to a request, but a facility has only 30 days to respond to a request from an LEPC.91 Theoretically, this should be adequate for the LEPC to react to inadequate data or to provide such data to the community water system. The AWIA amends EPCRA to direct either the SERC or LEPC to request chemical inventory data from a facility owner when Tier II data is not in its possession, and this information “shall” be furnished to a community water system upon request.92 The legislative history offers little guidance on how a community water system should use its authority to obtain this chemical inventory data, other than that Congress was aware of the problem in the aftermath of the Elk River spill. United Water executive Brent Fewell observed in his Senate testimony that “these systems simply cannot monitor for the thousands of chemicals that could potentially impact water supplies.”93 Because community water systems are responsible for drinking water safety, this gap has left their systems vulnerable. Without the Tier II data, community water systems cannot implement the planning procedures in the AWIA. Federal Assistance Congress appropriated funds to assist states with drinking water systems and emergency planning. Specific appropriations include “$4.4 billion over three years for the state drinking water revolving loan fund program, aid to states and utilities with compliance and asset management, updates to antiterrorism and resilience measures at public water systems, and improv[ing] transparency for consumers about the quality of their drinking water.”94 A state may use up to 4% of its allotment to provide technical assistance to public water systems.95 For FY 2020, the AWIA authorizes $1.3 billion for capitalization grants to states, tribes, and territories, equaling 14% additional subsidization.96 A state may make expenditures from these grants to delineate and assess source water protection areas under SDWA § 1453.97 The EPA’s Circuit Rider program also provides critical assistance to LEPCs and community water systems. The program was established in the SDWA with $12.7 million for technical support, though controversy remains over

the appropriation of these funds.98 The Circuit Rider program offers technical experts who are available to help rural communities with local issues, such as delineation of source water areas. The technical experts are shared among rural areas and help these communities avoid the expense of consultants.99 The EPA also provides passive tools that will facilitate AWIA compliance for LEPCs. Online tools such as Tier II Submit, RMP Comp, and CAMEO help LEPCs manage their data.100 The EPA is to develop electronic access to this data through memoranda of understanding, as well as promote awareness of reporting and planning obligations among regulated facilities.101 Finally, EPA is developing online EPCRA training modules and response guidance materials for SERCs and LEPCs.102 The Chemical Facility Safety and Security Working Group developed these programs following the issuance of President Obama’s Executive Order 13650 in the wake of the explosion at West Texas.103 Presumably, the EPA will clarify the AWIA amendments through regulations and other guidance. Budget Projections Budget projections for drinking water safety measures indicate the scope of changes to regulatory administration. The CBO estimated in 2017 that H.R. 3387, the Drinking Water System Improvement Act, might cost as much as $156 million annually in non-government unfunded mandates, as defined under the Unfunded Mandates Reform Act.104 However, the cost of compliance for SERC and LEPC notification activity is unlikely to increase, as the CBO estimates that their actions will be substantially similar to the status quo. The National Rural Water Association commented that Title II of the AWIA would not ultimately include an additional regulatory burden on small communities.105 Given this assessment and the provision of technical assistance, Congress most likely intended compliance efforts to be led at the local and community level with minimal guidance and information-sharing from the EPA. The local burden is something that the Revolving Loan Fund is intended to balance, as aggressive data collection by LEPCs is possible.

M A RCH 2020

C OL OR A D O L AW Y E R

FEATURE | TITLE ENVIRONMENTAL LAW

LEPCs could make “zero threshold” requests for Tier II data, ignoring EPA’s reporting quantity thresholds, which could make preemptive data-mining highly onerous.106 Legal commenters have noted that “a facility that may not have to provide a planning notice under § 302 because it handles only a small amount of a hazardous substance may nevertheless have to provide a § 304 notice if it releases just a small amount of the substance.”107 Therefore, to the extent LEPCs receive any funding, they should consider using it for education and administration efforts.

Conclusion The AWIA seeks to promote drinking water safety and water infrastructure integrity. Its primary tool in this effort is new requirements for the reporting and sharing of information among community water systems and state and local entities on releases of hazardous chemicals to the water supply. All entities involved in maintaining safe water supplies and responding to hazardous spills should ensure that their procedures comply with the Act.

Disclosure Changes In the event of a hazardous chemical release, the AWIA does little to change the requirements for disclosure to parties other than community water systems. The language describing the requirements for disclosure to community water systems is in a different section of the Act than that governing the public’s access to this information.108 If Congress meant to distinguish disclosure to the public from disclosure to community water systems, the Act’s legislative history contains no evidence of such intent. But, consistent with its overall scheme, the Act should be interpreted to empower community water systems and allow broad information disclosure to community water systems. The provision that these systems may have access to Tier II information is analogous to the “state or local official acting in his or her official capacity” requirement in EPCRA § 312(e)(2).109 This is important as EPCRA specifically controls access to information collected under EPCRA authorities. The AWIA intends to expand access to information, but the amended statute distinguishes requests from community water systems from requests from the public. While all information on a Tier II form should be forwarded to community water systems and government authorities, public inquiries must be particularized and limited in scope. Additionally, LEPCs are empowered to deny certain public requests, unlike all others.110 This limitation on public disclosure, along with the preexisting protection of trade secrets, should comfort facility operators who may otherwise question what information to share and track.111

NOTES

C OL OR A D O L AW Y E R

1. America’s Water Infrastructure Act of 2018, Pub. L. 115-270. 2. Id. 3. Cong. Research Serv., R45212, Water Resources Development Act of 2018 and America’s Water Infrastructure Act of 2018: An Overview (July 18, 2018), https://crsreports. congress.gov/product/pdf/R/R45212/6. 4. Id. 5. MCHM is a clear, colorless liquid that is reported to smell like licorice. It is used in the coal industry in the separation of usable coal from rocks, debris, and coal dust. U.S. Nat’l Library of Medicine, https://pubchem.ncbi. nlm.nih.gov/compound/4-Methylcyclohexyl_ methanol. 6. Field Hearing: The Charleston, West Virginia Chemical Spill Before the H. Comm. on Transp. and Infrastructure, 113th Cong. (2014) (hereinafter Field Hearing), http://bit.ly/371kcYT. 7. For a general description of safety data sheets, see https://www.epa.gov/sites/ production/files/2018-12/documents/fact_ sheet_and_qsas_for_reporting_new_hazard_ categories_on_tier_ii_form_12-03-18.pdf. 8. Field Hearing, supra note 6 at 3. 9. Id. (comments of Reps. Rahall and Capito). 10. Rizzuto, “Elk River Provides Tangible Illustration of Deficiencies in Public Data on Chemicals,” Bloomberg Law (Mar. 5, 2014), https://news.bloomberglaw.com/bloomberglaw-news/elk-river-provides-tangibleillustration-of-deficiencies-in-public-data-onchemicals. 11. U.S. Chemical Safety and Hazard Investigation Board, Investigation Report: Chemical Spill Contaminates Public Water Supply in Charleston, West Virginia, Report No. 2014-01-I-WV at 4 (Feb. 2017), https://www. csb.gov/assets/1/20/final_freedom_industries_ investigation_report_(5-11-2017).pdf?15829. 12. Tier II data sheets are required by 42 USC § 11022(2). 13. Hansen et al., The Freedom Industries Spill: Lessons Learned and Needed Reforms at 12 (Downstream Strategies Jan. 20, 2014). 14. Examination of the Safety and Security of Drinking Water Supplies Following the Central

M A RCH 2020

Timothy R. Gablehouse is a founding member of Gablehouse Granberg LLC in Denver. He focuses his environmental law practice on environmental compliance, emergency planning, and corrective action projects—tgablehouse@ gcgllc.com. Ashley L. Zurkan is a law clerk at Gablehouse Granberg LLC—azurkan20@law. du.edu. Coordinating Editor: Melanie Granberg, mgranberg@gcgllc.com

West Virginia Drinking Water Crisis Before the S. Subcomm. on Water and Wildlife, Envtl. and Pub. Works Comm., 113th Cong. (2014) (hereinafter Examination), https://www.govinfo. gov/content/pkg/CHRG-113shrg97583/pdf/ CHRG-113shrg97583.pdf. 15. Id. at 60 (statement of Brent Fewell, United Water). 16. Id. at 7 (remarks of Sen. Boxer). 17. Id. at 77 (written testimony of Michael McNulty, gen. manager, Putman Pub. Serv. Dist.). 18. Preventing Potential Chemical Threats and Improving Safety: Oversight of the President’s Executive Order on Improving Chemical Facility Safety and Security Before the S. Comm. on Env’t and Pub. Works, 113th Cong. (Mar. 6, 2014) (testimony of Billy Pirkle, senior dir. of Env’t, Health and Safety at Crop Prod. Serv.), https://www.govinfo.gov/content/pkg/ CHRG-113shrg97586/pdf/CHRG-113shrg97586. pdf (hereinafter Chemical Threats); West Fertilizer, Off the Grid: The Problem of Unidentified Chemical Facilities Before the Comm. on Homeland Security, Subcomm. on Cybersecurity, Infrastructure Prot., and Sec. Tech., 113th Cong. (2013), http://www.gpo.gov/ fdsys (hereinafter West Fertilizer). 19. Federal Risk Management and Chemical Threats Before the S. Comm. on Env’t and Pub. Works (2013) (testimony of Rafael Moure-Eraso, Ph.D., chairperson, U.S. Chem. Safety Bd.), http://www.gpo.gov/fdsys. 20. Examination, supra note 14 (testimony of Brent Fewell). 21. Id. (testimony of Richard O. Faulk, senior dir., Initiative for Energy and the Env’t, George Mason University School of Law). 22. Id. 23. 161 Cong. Rec. S7131-02, S7143-44 (2015) (remarks of Sen. Manchin). 24. S. Rep. No. 113-238, 9 (2014), https://www. congress.gov/113/crpt/srpt238/CRPT-113srpt238. pdf. 25. Chemical Safety and Preparedness Act, S. 1961, 114th Congress (2014); Ensuring Access to Clean Water Act of 2014, H.R. 4024, 114th Congress (2014). 26. S. 1961 §§ 2, 14 (2014).

27. H.R. 4024 §§ 2, 4 (2014). 28. Examination, supra note 14 (testimony of Richard O. Faulk and Brent Fewell). 29. 161 Cong. Rec. S7131-02, S7143-44 (2015) (statement of Sen. Manchin). 30. S. 1961 § 1476(a). 31. S. 1961 § 1471(2). 32. Buonanno, “Tonko Talks Infrastructure During Capital Region Visit,” The Saratogian (Feb. 22, 2018); H.R. Rep. No. 115-380 (2017) (Conf. Rep.). 33. 42 USC §§ 11001 et seq., Pub. L. 99-499, Title III, 100 Stat. 1729 (1986). 34. EPA, What is EPCRA?, https://www.epa.gov/ epcra/what-epcra. 35. Mandavillia, “The World’s Worst Industrial Disaster is Still Unfolding,” The Atlantic (July 10, 2018). 36. H.R. Rep. No.99- 962 (1986) (Conf. Rep.), as reprinted in 1986 U.S.C.C.A.N. 3276, 3374. 37. 42 USC § 11001(a). 38. 42 USC § 11001(b). 39. 42 USC § 11001(c). 40. CRS §§ 24-33.5-1501 et seq., -1614(3.5). 41. 42 USC § 11001(c). 42. EPA Office of Emergency Mgmt., 2008 Nationwide Survey of Local Emergency Planning Committees at 13 (2008), http://www. epa.gov/osweroe1/docs/chem/2008lepcsurv. pdf. 43. 42 USC § 11002(c). 44. 42 USC § 11022(f). 45. 42 USC § 11042. 46. 42 USC § 11045. 47. 40 CFR Part 470; 8 CCR 1507-42. 48. 42 USC § 11004. 49. CRS § 29-22-102(2). 50. 42 USC § 11004(a)–(b). All releases under CERCLA § 302(a) require immediate notice except those for a federally permitted release under § 101(10), which is below EPA’s threshold, or one that does not occur in a manner that would require notification under § 103(a). If the substance has a reportable quantity established under CERCLA § 102(a) or is over a pound, notice is also required. All releases that result in exposure to persons solely within the site or sites of the facility are exempted. 42 USC § 11004(a)(4). 51. EPA, America’s Water Infrastructure Act: Amendments to the Emergency Planning and Community Right-to-Know Act—A Guide for SERCs, TERCs, and LEPCs (EPA Fact Sheet Dec. 2019). A public water system may be publicly or privately owned. 52. 164 Cong. Rec. 8175–76 (Sept. 13, 2018) (statement of Rep. Tonko). 53. 162 Cong. Rec. 5585, 5592 (Sept. 13, 2016) (statement of Rep. Capito). 54. Welsch, “Elk River Spill Aftermath: Do We Need New Regulations and From Whom?” Vermont J. Envt'l L. (Feb. 10, 2014) (quoting Sen. Manchin). 55. 164 Cong. Rec. 6807-01 (Oct. 11, 2018) (statement of Sen. Van Hollen).

56. AWIA § 2015; H. Comm. on Energy and Commerce Press Release, Pallone’s Remarks at Full Committee Markup of Autonomous Vehicles, Drinking Water, and Health Bills (July 27, 2017). 57. 42 USC §§ 300f et seq. 58. AWIA § 1433(a)(1)(A)(v). 59. AWIA § 1433(a)(2) to (4). 60. AWIA § 1433(b), (c). 61. AWIA § 1433(g). 62. 42 USC § 300(f)(4)(A). 63. 42 USC § 300(f)(15). 64. 42 USC § 300j-13(a). 65. Id. 66. 42 USC § 300(f)(15); 42 USC § 300j-13. 67. H.R. Rept. No. 115-380, 17 (2017). 68. Id. 69. Examination, supra note 14 (statement of Brent Fewell). 70. 42 USC § 11004. 71. 42 USC § 11004(b)(2). 72. Cong. Research Serv., R44952, EPA’s Role in Emergency Planning and Notification at Chemical Facilities (Sept. 18, 2017); Rep. Tonko, Investments in Our Nation’s Water Systems, 164 Cong. Rec. H8175–76 (Sept. 13, 2018). 73. Copeland and Tiemann, Cong. Research Serv., R43441, S. 1961 and H.R. 4024: Legislative Responses to Chemical Storage Facility Spill at 2 (Aug. 12, 2014). 74. Hearing on S.__, America’s Water Infrastructure Act of 2018 Before the S. Comm. on Env’t and Pub. Works at 29 (May 9, 2018) (statement of Dennis Sternberg, exec. dir., Arkansas Rural Water Ass’n). 75. Examination, supra note 14 (statement of Brent Fewell). 76. 161 Cong. Rec. S2770-01 (May 12, 2015). 77. 42 USC § 11047. 78. 42 USC § 11004(d), 11047. 79. 42 USC § 11049(4). 80. Colo. Dep’t of Pub. Health and Env’t, Envt’l Spill Reporting (June 2018), https://drive.google. com/file/d/1vqdR4JjnNdNFHCp5WWORcRa4f7 1bkM-c/view. 81. Field Hearing, supra note 6 (statement of Gordon Merry, dir., Cabell County Office of Emergency Servs.). 82. Id. (statement of Dale A. Petry, dir., Kanawha Cty. Envt'l Dep’t of Homeland Security and Emergency Mgmt.). 83. Id. (statement of Jeffrey L. MacIntyre, president, West Virginia American Water). 84. 42 USC § 11045. 85. Id. 86. Chemical Facility Safety Before S. Comm. on Env’t and Pub. Works, 113th Cong. (Mar. 6, 2014) (hereinafter CFSP) (statement of Mathy Stanislaus, asst. admin. of the Office of Solid Waste and Emergency Response at EPA), https://www.epw.senate.gov/public/index. cfm/2014/3/full-committee-hearing-entitledpreventing-potential-chemical-threats-andimproving-safety-oversight-of-the-presidents-

executive-order-on-improving-chemical-facilitysafety-and-security. 87. https://www.epa.gov/cameo. 88. Right-to-Know Planning: Facility Audits, Right-to-Know Planning Guide, 8200 (Bloomberg Law Reports) (available with subscription). 89. 42 USC § 11045. 90. 42 USC § 11022(e). 91. 42 USC § 11022(e)(3)(D); 40 CFR § 370.33. 92. 42 USC § 11022(e)(4)(A). 93. Examination, supra note 14 (statement of Brent Fewell). 94. H. Comm. on Energy and Commerce, Press Release, House & Senate Committee Leaders Announce Water Resources Infrastructure Agreement (Sept. 11, 2018), https:// energycommerce.house.gov/newsroom/pressreleases/house-senate-committee-leadersannounce-water-resources-infrastructure. 95. 40 CFR § 35.3535 (2019). 96. H.R. Rep. No. 116-100 at 97 (2019). 97. 40 CFR § 35.3535(e)(1)(v). 98. Legislative Hearing on S. ___, America’s Water Infrastructure Act of 2018: Before the S. Comm. on Env’t and Pub. Works, 114th Cong. 77 (May 9, 2018) (statement of Dennis Sternberg, exec. dir., Arkansas Rural Water Ass’n). 99. The Needs of Drinking Water Systems in Rural and Smaller Communities: Hearing Before the H. Comm. on Energy and Commerce, Subcomm. on Env’t and the Econ., 114th Cong. (2015) (statement of Mayor Joe Keegan, Village of Castleton). 100. CFSP, supra note 86. 101. West Fertilizer, supra note 18 at 62. 102. CFSP, supra note 86. 103. Occupational Safety and Health Admin., Chemical Facility Security and Safety Working Group, http://www.osha.gov/ chemicalexecutiveorder. 104. Cong. Budget Off. H.R. 3387: Drinking Water System Improvement Act of 2017 (2017). 105. Booth, “NRWA Appreciates the Beneficial Water Provisions in the ‘America’s Water Infrastructure Act of 2018,’’’ Nat’l Rural Water Ass’n (Oct. 12, 2018). 106. “There is a ‘zero’ threshold (i.e., no minimum quantity) for ‘Tier II’ reporting for which a SERC, LEPC, or local fire department may require additional information from the facility owner or operator about the presence of a hazardous chemical present at the facility.” Cong. Research Serv., R44952, EPA’s Role in Emergency Planning and Notification and Chemical Facilities at 5 (Sept. 8, 2017). 107. Novick and Stever, Routine and intermittent reporting by covered facilities: Chemical disclosure and the public’s right to know— Section 304 emergency notifications, 2 L. of Envt'l Prot. § 14:156 (Envt’l L. Inst. Nov. 2018). 108. 42 USC § 11022(e)(3), (4). 109. 42 USC § 11022(e). 110. 42 USC § 11022(e)(3). 111. 42 USC § 11042.

M A RCH 2020

C OL OR A D O L AW Y E R

FEATURE | TITLE PROFESSIONAL CONDUCT AND LEGAL ETHICS

The Implied Attorney-Client Relationship A Trap for the Unwary BY DAV I D N. SI M MONS A N D DAV I D H . WOL L I NS

An implied attorney-client relationship can be created when an individual reasonably believes he or she is represented by a lawyer. This article considers the conflict of interest that may result in this situation.

any lawyers are unaware that an implied attorney-client relationship can exist in the absence of a formal agreement for representation and payment of a retainer. Even less understood is the fact that once an implied attorney-client relationship exists, the duties described in the Colorado Rules of Professional Conduct (the Rules) govern the representation. One of the duties that may cause an unwary lawyer trouble is the duty to avoid conflicts of interest under Rule 1.7. This article aims to help lawyers identify and avoid such conflicts of interest.

C OL OR A D O L AW Y E R

Creating an Attorney-Client Relationship Rule 1.7 generally describes conflicts of interest in the lawyer-client relationship. It begins with the admonition that “a lawyer shall not represent a client if the representation involves a concurrent conflict of interest.” But what is “representation”? Put another way, how is an attorney-client relationship created? Unfortunately, while the Preamble to the Rules recognizes the importance of this question, it does not answer it, stating instead, “for purposes of determining the lawyer’s authority and responsibility, principles of substantive law external to these Rules determine whether a client-lawyer relationship exists.”1

M A RCH 2020

However, the Preamble provides some guidance by clarifying that ‘‘[m]ost of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so.’’2 This is similar to the oft-cited answer to the question in the Restatement (Third) of the Law Governing Lawyers: A relationship of client and lawyer arises when: (1) a person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; and either

(a) the lawyer manifests to the person consent to do so; or (b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services . . . .3 The Implied Attorney-Client Relationship The answer above approaches the representation question from the lawyer’s perspective. Clients, however, may not answer the question in the same scholarly fashion. As a result, both courts and ethics committees have recognized and enforced an “implied” attorney-client relationship. This implied relationship is far more nebulous than the formal relationship recognized by scholars. As one commentator noted: “It appears that no comprehensive study of the implied attorney-client relationship exists, probably because the relationship depends very much on what an individual court says it is.”4 Seattle lawyer and ethics lecturer Evan L. Loeffler captured the essence of the implied attorney-client relationship when he wrote: Life would be a lot simpler if there was theme music or a gong that would sound when something momentous occurs. Even if there were such a cue, there would be a lot of variation from case to case on when the attorney-client relationship started. Many attorneys take the position that the attorney-client relationship commences only after the attorney agrees to representation. Others say it only occurs after a client interview takes place, a fee agreement is signed, and a retainer or fee deposit check has cleared the bank. Unfortunately, it’s more complex than that. The relationship begins when there is a mutual understanding that the client is going to confide in the attorney and the attorney is going to listen. The attorney-client relationship may commence even if there is nothing in writing. The relationship may commence even if no money has changed hands.5 As this passage indicates, under the applicable case law and other authorities, whether an implied attorney-client relationship exists is

“

Because the test is subjective, and the client’s belief that an attorney-client relationship exists is an important factor, a non-client could assert that she believed an attorney-client relationship existed, even if one did not. Such claims may also arise where there is a dispute concerning the duration of the relationship, for example, when the lawyer believes the relationship has been terminated but the client claims it has not; or when there is a dispute concerning the scope of the relationship, such as where the lawyer believes the representation does not encompass a particular issue, but the client claims it does.8

As one commentator noted: ‘It appears that no comprehensive study of the implied attorneyclient relationship exists, probably because the relationship depends very much on what an individual court says it is.’

Testing the Client’s Belief The Tenth Circuit added an important caveat to the Bennett test. In an unpublished decision, it noted that while under Bennett “the alleged client’s belief is an important factor,” “the alleged client’s subjective belief must be reasonable.”9 If no reasonable person in the putative client’s position could believe that he was seeking and obtaining legal advice from the lawyer, no attorney-client relationship exists.10

” evaluated from the perspective of the client, not the lawyer. An implied attorney-client relationship thus has both subjective and objective elements. The Client’s Subjective Belief In People v. Bennett, the Colorado Supreme Court stated that, in determining whether an attorney-client relationship exists, “[t]he proper test is a subjective one, and an important factor is whether the client believes that the relationship existed.”6 Further, once an attorney-client relationship is formed, it gives “rise to a continuing duty to the client unless and until the client clearly understands, or reasonably should understand, that the relationship is no longer to be depended on.”7

Enter Rule 1.7 One way to create an implied attorney-client relationship is through informal communications between lawyers and others. In some cases, this may create a conflict under Rule 1.7. For example: One illustration of just how such an informal communication can sneak up on a law firm involved a communication from a friend of an associate at the firm. The associate’s friend asked how to force a landlord to return a security deposit. The associate replied with the appropriate citations to the law governing security deposits and the language needed for a legal demand. The associate’s friend then forwarded the email to the landlord. As it turned out, the landlord was the law firm’s largest client. The associate had not followed any of the law firm’s conflict of interest identification and resolution procedures. Undoubtedly, if the associate had done so, the conflict would have been easily identified and avoided. However, the associate didn’t do so, and the consequences were serious.11

M A RCH 2020

C OL OR A D O L AW Y E R

FEATURE | TITLE PROFESSIONAL CONDUCT AND LEGAL ETHICS

An implied attorney-client relationship can also be created where a lawyer is involved with multiple parties. For example, immigration lawyers frequently represent two parties, a petitioner and a beneficiary. In a family case, the petitioner is required to submit an affidavit of support on behalf of the beneficiary.12 This affidavit creates obligations between the parties, and between the petitioner and the government. If the petitioner’s income is insufficient to meet the obligation, a cosponsor’s affidavit is required. This affidavit also creates obligations between the cosponsor and the beneficiary, and between the cosponsor and the government. This situation can easily create conflicts of interest. The unwary lawyer who thought he was only representing the petitioner and the beneficiary may find that an implied attorney-client relationship exists between the lawyer and the cosponsor, and that a conflict now exists.13 Pennington v. Fields is an illustrative case, though it involves a different field of law and a different result.14 In Pennington, the majority shareholders of a closely held business forced the buy-out of the minority shareholder, and litigation ensued. Later, the minority shareholder sued the majority shareholders’ lawyer and alleged that he committed legal malpractice by failing to advise the minority shareholder to protect his interests against the majority’s possible misconduct. The lawyer moved for summary judgment, alleging that he owed the minority shareholder no fiduciary duty because he never represented him. The trial court granted the motion. The shareholder appealed, but the appellate court affirmed, noting: “An attorney-client relationship is not created with the individual owner simply because the owner discusses matters with the lawyer that are relevant to both the owner’s and the entity’s interests.”15 The lawyer had been careful to document that he represented only the corporation in corporate legal matters as required by the board of directors.16 Avoiding the Trap Without careful documentation, the corporation’s lawyer in Pennington could have found himself facing both liability and possible disci-

C OL OR A D O L AW Y E R

plinary action. Pennington illustrates that it is the lawyer’s responsibility to avoid conflicts and to make it clear when there is no attorney-client relationship. If there is a reasonable possibility that the client may perceive the creation of an attorney-client relationship, the lawyer should err on the side of caution and communicate in writing with the non-client. This communication should state that (1) the attorney does not represent the non-client (e.g., “Please be advised that I am not your lawyer”); and (2) the non-client should retain separate counsel (e.g., “You should seek and retain your own legal counsel”). Otherwise, a fact finder could conclude that the lawyer knew or reasonably should have known that the identified person

was relying on the lawyer to provide services. The fact finder could then conclude that an implied attorney-client relationship had been formed and the corresponding ethical obligations had been created. Conclusion Lawyers should not be misled into thinking that receiving payment or signing an agreement is necessary to create an attorney-client relationship. Lawyers should pay close attention to the possibility of creating an unintended, implied attorney-client relationship. It is good practice to always check for possible conflicts and clearly communicate to the non-client, in writing, that the lawyer does not represent the non-client.

David N. Simmons practices immigration law at The Immigration Law Office of David N. Simmons in Denver—dnsimmons@davidnsimmons.com. David H. Wollins of David H. Wollins P.C. serves clients in the Denver metro area. His practice is focused on litigation of civil, construction, employment, and personal injury matters—dhwollins@dhwpc-law.com. Coordinating Editor: Steve Masciocchi, smasciocchi@hollandhart.com

NOTES

1. Colo. RPC Preamble, ¶ 17. 2. Id. 3. Restatement (Third) of the Law Governing Lawyers § 14 (American Law Institute 2000). See also Kurtenbach v. TeKippe, 260 N.W.2d 53, 56 (Iowa 1977); People v. Morley, 725 P.2d 510, 517 (Colo. 1986). A salient discussion of the “Subjective Belief of Client” is found in 7A C.J.S. Attorney & Client § 253 (Sept. 2019). 4. Schnell, “Don’t Just Hit Send: Unsolicited E-Mail and the Attorney-Client Relationship,” 17 Harv. J.L. & Tech. 533, 539 (2004) (citing Folly Farms I, Inc. v. Trs. of the Clients’ Sec. Tr. Fund of the Bar of Md., 387 A.2d 248, 254 (Md. 1978) (“What constitutes an attorney-client relationship is a rather elusive concept.”)). 5. Loeffler, “How To Avoid the Surprise Attorney-Client Relationship,” 27 GPSolo 18 (July/Aug. 2010). 6. People v. Bennett, 810 P.2d 661, 664 (Colo. 1991). 7. Id. (quoting In re Weiner, 586 P.2d 194, 197 (Ariz. 1978)). 8. See Ellis, “Liability to Non-Clients: How to Mitigate Risk,” 46 Colo. Law. 18 (Aug./Sept. 2017). See also People v. C. de Baca, 862 P.2d 273 (Colo. 1993). In C. de Baca, a woman believed she was represented by a lawyer. The lawyer had no file on the client’s case and there was no fee agreement. The lawyer asserted that, at the time of their initial meeting, he did not agree to represent the client. The lawyer claimed he told her that he would not handle

M A RCH 2020

her case because he had been unable to locate an accident report and would have difficulty proving her injury. She and her daughter testified, however, that they believed he had agreed to represent her on a contingent fee basis. The lawyer was suspended for 90 days. 9. Monus v. Colo. Baseball 1993, Inc., 103 F.3d 145 at *8 (10th Cir. 1996). See also Int’l TeleMarine Corp. v. Malone & Assocs., 845 F.Supp. 1427, 1433 (D.Colo. 1994). 10. Monus, 103 F.3d 145 at *8. 11. This example is from Klevens and Clair, “Casual Advice Can Be Binding,” Dentons US LLP (Mar. 2016), http://bit.ly/2UA85iG. 12. For details on family-based immigration, see Simmons, “Immigrating to the United States Based on Family Status,” 40 Colo. Law. 45 (June 2011). 13. Simmons, “Rule 1.7 of the Rules of Professional Conduct and I-864 Joint Sponsors: Conflicts According to the Perspective That Counts,” Bender’s Immigration Bulletin vol. 21, no. 16 (Lexis Nexis Matthew Bender Aug. 15, 2016). 14. Pennington v. Fields, No. 05-17-00321-CV, 2018 Tex. App. LEXIS 6601 (Tex.App. Aug. 21, 2018). 15. Id. 16. For a case where the lawyer was not so careful, see In re Disciplinary Action against Giese, 662 N.W. 2d 250 (N.D. 2003) (lawyer suspended).

FEATURE | TRUST AND ESTATE LAW

Holding Closely Held Business Assets in Trust BY R E BE C CA K L O C K S C H ROE R A N D MORG A N W I E N E R

Trustees face challenges when administering trusts that own closely held business assets. This article discusses the standard of care that applies to trustees when making business decisions, the duty to inform and report, and the duty to diversify a concentrated position in a closely held business asset.

trustee or personal representative is often confronted with the possibility or necessity of holding and/or controlling a closely held business as part of the administration of an estate or trust.1 When a trust holds an interest in a closely held business asset such as a partnership, limited liability company (LLC), or corporation, the trustee may end up acting in multiple roles, for example, as both the trustee of the trust holding the business and an officer or partner in the business. This article discusses a few of the many considerations for trustees in this situation, including (1) the standard of care

that generally applies (fiduciary standard versus business judgment rule), (2) the duty to inform and report about the business, and (3) the duty to diversify a large holding in a business. Because Colorado law frequently does not address these issues directly (or at all), this article also discusses instructive case law from other states. The Power to Hold Business Interests Colorado law specifically allows a trustee to hold interests in a business or enterprise.2 The trustee is allowed to continue the business, create a successor business, and take any action that may be taken by shareholders, partners, or

members.3 Furthermore, the trustee can vote or give proxies to vote with respect to stock and other securities.4 Finally, Colorado statutes specifically permit a trustee to become a general or limited partner pursuant to the terms of the will or trust and partnership agreement.5 Colorado law, however, does not address many of the issues that may arise as a result of a trust holding interests in a business. Trusteeâ&#x20AC;&#x2122;s Duty of Loyalty One of a trusteeâ&#x20AC;&#x2122;s fundamental duties is the duty of loyalty, which requires a trustee to act solely in the interests of the beneficiaries and

M A RCH 2020

C OL OR A D O L AW Y E R

FEATURE | TITLE TRUST AND ESTATE LAW

to properly manage or avoid any conflicts of interest.6 When a trust holds an interest in a closely held business, a conflict of interest could arise for a trustee, particularly if the trustee also holds a separate individual interest in the same company. In such case, the trustee must be careful not to favor his or her individual interests over the interests of the trust. Colorado law addresses these conflicts of interest; a conflict is presumed when a trustee enters into a transaction with a corporation or other enterprise in which the trustee, or a person who owns a significant interest in the trustee, has an interest that might affect the trustee’s best judgment.7 As with other conflicts, the conflict can be overcome if the trust document authorizes the transaction, the beneficiaries consent after full disclosure, the court approves the transaction, the transaction involves a contract entered into before the trustee became a trustee, or the statute of limitations for challenging the transaction expires.8 Standard of Care: Fiduciary Standard or Business Judgment Rule? When a trustee holds an interest in a business that includes voting rights, a directorship, a managerial role, or other interests that require the trustee to make business decisions, the question arises whether the trustee’s conduct with respect to the business is governed by the higher fiduciary standard of care applicable to a trustee or the business judgment rule. The standard of care applicable to fiduciaries under Colorado law is generally set forth in the Colorado Uniform Trust Code (CUTC), CRS §§ 15-5-101 et seq.9 In broad terms, a trustee must “administer the trust in good faith, in accordance with its terms and purposes and the interests of the beneficiaries, and in accordance with” the provisions of the CUTC.10 In adhering to the proper standard of care, a trustee must act in accordance with a variety of fiduciary duties, including, among others, the duties to act prudently,11 loyally,12 impartially,13 and in the best interests of the beneficiaries.14 The standard of care for a fiduciary is among the highest standard under the law and is perhaps stated best in the oft-quoted case Meinhardt v. Salmon:

C OL OR A D O L AW Y E R

Many forms of conduct permissible in a workaday world for those acting at arm’s length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. . . .15 This higher duty of care for a trustee exists because of the imbalance of power between trustees and beneficiaries, which does not exist in an arm’s length business relationship. In addition to being held to a high standard of care, and despite the reality that trustees frequently work with a variety of professional advisors in administering a trust and discharging their duties, a trustee typically may not invoke a good faith reliance on the advice of counsel as a defense to a breach of fiduciary duty claim.16 This is because a trustee always has the option to seek instructions from the court about a course of action, rather than relying on the advice of counsel, in determining how to proceed.17 The business judgment rule, in contrast, is relatively more lenient and provides some measure of protection to corporate officers and directors acting on behalf of the business. Under Colorado law, “officers, directors, and controlling shareholders of a corporation have a fiduciary duty to act in good faith and in a manner they reasonably believe to be in the best interests of the corporation and all of its shareholders.”18 In addition, officers and directors must act with care and are entitled to rely on certain information provided by advisors and experts.19 In particular, officers and directors may rely on information, opinions, reports, and statements, including financial information, provided by officers or employees reasonably believed to be competent with respect to the information; or legal counsel, accountants, or other persons retained by the business as to matters involving expertise or skills reasonably believed to be within that person’s competence.20 The business judgment rule shields officers and directors who have adhered to this standard from liability and “bars judicial inquiry into actions of corporate directors taken in good faith and in the exercise of honest judgment in the lawful and legitimate furtherance of corporate

M A RCH 2020

purposes.”21 The rule “reflects the reality that courts are ill equipped and infrequently called on to evaluate what are and must be essentially business judgments.”22 The standard for liability under Colorado’s business judgment rule is codified in CRS § 7-108-402, which provides that there is no liability unless the plaintiff establishes that an act, omission, or decision was, among other things, ■ not in good faith; ■ not rationally believed to be in the best interests of the business; ■ at least grossly negligent, unless the governing documents change the standard of liability to something less than gross negligence; or ■ one to which the director failed to make an appropriate inquiry in light of particular facts or circumstances that would have alerted a reasonably attentive director of the need for an inquiry.23 The business judgment rule does not apply, however, to transactions in which the director has an interest.24 In this respect, the rule is similar to the fiduciary standard of care, which also imposes a higher level of scrutiny on self-interested transactions.25 While Colorado law on the different standards of care is relatively well developed, there is no Colorado law directly addressing which standard of care applies to the trustee’s conduct when a trust owns closely held business assets and the trustee is serving in dual roles. The limited statutory authority touching on this issue is potentially conflicting. On the one hand, the CUTC provides some guidance as to the applicable standard of care and states that the corporate form cannot shield a trustee from the duty to act in the best interests of the beneficiaries: In voting shares of stock or in exercising powers of control over similar interests in other forms of enterprise, the trustee shall act in the best interests of the beneficiaries. If the trust is the sole owner of a corporation or other form of enterprise, the trustee shall elect or appoint directors or other managers who will manage the corporation or enterprise in the best interests of the beneficiaries.26

The comments to the Uniform Trust Code § 802 state that “[t]he trustee may not use the corporate form to escape the fiduciary duties of trust law.” For example, the trustee cannot hide behind corporate discretion to avoid the duty of impartiality.27 The trustee’s responsibility is heavier if the trustee holds a large proportion of shares in a corporation or is in control or substantially in control of the corporation.28 This position follows from the position taken in the Uniform Trust Code that if the trust holds the entire corporation, the “corporate assets are in effect trust assets.”29 On the other hand, Colorado law also provides that the business judgment rule applies when a fiduciary forms a successor entity for a family business: A fiduciary may vote and otherwise deal with respect to interests in the family business as the fiduciary believes in the good faith exercise of the fiduciary’s business judgment, under the business judgment rule, to be necessary or appropriate to complete such formation on such a favorable basis.30 The business judgment rule also specifically applies when a trustee, in the formation of a successor entity, accepts a reduction in equity, voting, or control in the successor entity.31 There is no Colorado case law directly on point, but case law from other states follows two main approaches. One approach is that the trustee will be held to the higher standard of a fiduciary even when acting in a business capacity. This approach is illustrated by the New York case In re Shehan.32 In Shehan, the fiduciary served not only as the personal representative under the decedent’s will, but also as an officer and director of a related corporation and as a voting trustee of voting trusts with control of the corporation.33 The court examined the precedent and concluded that, regardless of whether the trust, estate, or fiduciary at issue owns a majority stake in the corporation, a fiduciary who serves in dual roles will be held to the higher fiduciary standard of care when acting with respect to the business.34 The court explained its understanding of the precedent as holding that “a trustee whose conduct as officer and director is motivated by self-interest, to the

injury of beneficiaries whose welfare should be his sole concern, is guilty of a breach of trust . . . [and the holding] does not depend on majority ownership. . . . The corporate entity has always been disregarded where necessary to prevent fraud.”35 The court then allowed broad discovery into the fiduciary’s conduct as an officer and director of the corporation with respect to the conduct in dispute.36 Georgia takes a different approach. Building off New York case law, in the Rollins v. Rollins series of cases, the Georgia courts developed an exception to the position that the fiduciary standard governs actions taken by the trustee acting in a business capacity where (1) the settlor indicates an intent that the corporate standard of care should control, and (2) the trust owns a minority interest in the business. In such a situation, the corporate standard of care will apply to the fiduciary’s corporate actions and duties.37 The Georgia Supreme Court later made clear that the appropriate standard of care should be determined based on the capacity in which the fiduciary was acting and that both standards of care can apply to the same person in a given transaction depending on the particular role the trustee is playing.38 For example, in the breach of fiduciary duty at issue in Rollins, the defendants served both as partners of a family partnership in their individual capacities and as partners in their capacities as trustees of certain trusts.39 The defendants amended the partnership agreement to name themselves as managing partners and change the distribution scheme. In addressing the issue, the court found that, with respect to a claim that defendants breached their duties when they voted in their individual capacities to amend the partnership agreement, their conduct would be judged by the corporate standard of care.40 On the other hand, with respect to a claim that they breached their duties when they voted as trustees of the trusts to amend the partnership agreement, their conduct would be judged by the trustee standard of care.41 In reaching this decision, the Rollins court looked to the settlor’s intent and the nature of the business interest to determine what standard of care applied to a fiduciary acting in a corporate role.

Based on the Rollins decisions, if a settlor wants the business judgment rule to apply to decisions made by the trustee acting in a corporate capacity, the safest course of action may be for the drafting attorney to include language to that effect in the trust. Given the deference to the settlor’s intent found throughout Colorado law, including such language in a trust may be persuasive to a Colorado court considering the issue. However, it is also important to remember that, while the provisions of the CUTC are generally default provisions that can be altered by the terms of the trust, the trustee always has a duty under Colorado law “to act in good faith and in accordance with the terms and purposes of the trust and the interests of the beneficiaries,”42 at least with respect to actions taken in his or her capacity as trustee. Trustee’s Duty to Monitor Management of the Business A trustee may face a difficult decision if the business entity owned by the trust is being managed incompetently. While the trustee must be cognizant of the duty of loyalty and try to avoid potentially creating a conflict of interest by getting too involved in management, the trustee may also have a duty to interfere to protect the interests of the beneficiaries from a poorly run business.43 Colorado does not have any case law directly on point, but other states have addressed this issue. In the Mississippi case Wilbourn v. Wilbourn, for example, a mother and son were co-trustees of a marital trust that held interests in a holding company that gave the family a controlling interest in a bank.44 The son’s actions in his roles as chair of the holding company board and bank board created friction with the bank and its employees, interfered with the bank’s daily management, and damaged the family’s relationship with the bank.45 The holding company removed the son as chair, and his mother later successfully pursued court removal of him as co-trustee.46 On appeal, the court upheld the removal order because, among other things, the son had taken actions in his own best interests and used the trust to ensure his position on the holding company board.47

M A RCH 2020

C OL OR A D O L AW Y E R

FEATURE | TITLE TRUST AND ESTATE LAW

A further complication may arise when the trustee holds an interest in a company and a beneficiary holds a position individually within that company. In this case the trust may have the power to elect or to remove and replace the beneficiary within the business entity. For example, in the New Jersey case In re Koretzky’s Estate, the vast majority of the company was held by the estate.48 The estate’s executors allowed the election of beneficiaries (or spouses of beneficiaries) to the board of directors despite their knowledge that the directors had engaged in fraud.49 In addition, the executors did not make sufficient investigation into the management of the company, including investigation into the officers’ increased compensation during a period when the company’s income was declining. For these and other reasons, the court affirmed the removal of the executors.50 Under Koretzky, if election of a beneficiary to a position within the company is not in the best interests of the trust, the trustee should not elect the beneficiary to the position (or allow the beneficiary to continue serving in that position), even though the beneficiary may wish to hold the position. Similarly, in In re Hearthside Baking Co., a bankruptcy case, a trust was created for the decedent’s three children. The trust held the vast majority of the interests in a company and therefore had sole voting control. 51 In addition to being beneficiaries of the trust, one child was the CEO and another was the president of the company. The president urged the co-trustees to investigate the CEO’s actions and presented the co-trustees with evidence of the CEO’s possible misconduct.52 The co-trustees had the sole power to remove and replace the officers and directors of the company, but failed to act.53 The court held that it was a breach of fiduciary duty for the co-trustees to put their heads in the sand and fail to investigate.54 The lesson of these cases is that a trustee cannot simply acquiesce to a beneficiary’s wishes to hold a position in a company if the beneficiary is not qualified to hold the position or demonstrates an inability to properly perform the job. Instead, under these circumstances, a trustee’s duties may require action adverse

C OL OR A D O L AW Y E R

“

The lesson of these cases is that a trustee cannot simply acquiesce to a beneficiary’s wishes to hold a position in a company if the beneficiary is not qualified to hold the position or demonstrates an inability to properly perform the job.

” to a particular beneficiary to ensure the proper management of the business. Personal Liability of Trustee Holding Business Assets Generally, a trustee is not personally liable for contracts properly entered into in the trustee’s fiduciary capacity, provided that the fiduciary capacity has been disclosed in the contract.55 However, because this protection may not automatically extend to the trustee who enters into contracts while acting for a business entity owned by a trust, the CUTC provides some specific protection to a trustee who is acting as a general partner. Under the CUTC, the trustee is protected from personal liability for contracts entered

M A RCH 2020

into or torts committed by a general or limited partnership when the trustee is acting as general partner of the partnership and is not personally at fault.56 To have this protection, the trustee’s fiduciary capacity must be disclosed in the contract or pursuant to the Colorado Uniform Partnership Act or its predecessor act.57 This protection only applies to a trustee who holds the business interest in a fiduciary capacity and does not apply to interests owned by the trustee in an individual capacity or by the trustee’s family members.58 The protection also does not apply to the trustee of a revocable trust who owns an interest as a general partner; in that case, the settlor is personally liable for partnership contracts as if the settlor were the general partner.59 This specific protection for trustees holding a general partnership interest is necessary because the partnership structure does not provide the same protections from liability for partners as the LLC structure does for holders of a manager or membership interest, or as the corporate structure does for shareholders.60 Accordingly, the CUTC only addresses partnerships. Duty to Inform and Report When a Trust Holds a Business Asset When a trust owns a closely held business, a question arises as to the trustee’s duty to inform and report when a beneficiary requests not only information about the trust, but also information about the business entity owned by the trust. Colorado law addresses a trustee’s duty to inform and report to the beneficiaries generally and provides that a trustee of an irrevocable trust must respond to a qualified beneficiary’s request for trustee’s reports and other information reasonably related to the administration of a trust.61 However, there is no Colorado law directly addressing the duty to inform and report about a business entity the trust owns. While not directly on point, Colorado statutory law implicitly recognizes at least some measure of difference between information related to a business owned by a trust and information about other trust assets by providing rules specifically relating to the treatment of

business information. First, the law provides that a trustee may withhold information from the beneficiaries when acting pursuant to a settlor’s intent to retain an interest in a family business and forming a successor entity; the trustee, acting under the business judgment rule, may form a successor entity without notifying the beneficiaries “where disclosure is forbidden by law” or where the trustee in good faith believes “that nondisclosure is necessary to complete such formation on such a favorable basis.”62 Second, a trustee who conducts a business as a proprietorship or single-member LLC may opt to account for the business separately, and may maintain separate accounting records for business transactions, if the trustee determines that it is in the best interest of the beneficiaries to do so.63 Finally, the comments to Uniform Trust Code § 813 allow that a trustee is justified in not providing . . . advance disclosure [of a transaction involving a company owned by the trust] if disclosure is forbidden by other law, as under federal securities laws, or if disclosure would be seriously detrimental to the interests of the beneficiaries, for example, when disclosure would cause the loss of the only serious buyer.64 In sum, Colorado law recognizes that there are circumstances under which disclosure of information about the business could be detrimental and may not be appropriate. Cases from other states have addressed the topic, but there is not a national consensus on the scope of a trustee’s duty to provide information about the business entity. As explained by Bogert’s treatise on trust law, many cases have held that beneficiaries of the trust are entitled to information about the business entity, especially when the trustee is an officer or director of the entity or, with the trust’s interests, controls the entity, while other cases have held beneficiaries are not entitled to such information or have limited their right to receive it.65 Among the cases allowing for limited disclosure of business information are the Rollins cases out of Georgia and Jones v. Hagans out of Washington, D.C. While the Georgia Supreme Court in Rollins did not articulate a standard for

when business information must be disclosed, it did recognize that there may be circumstances where limited disclosure may be appropriate. In reversing a court of appeals decision finding that the trial court erred by not ordering an accounting of the business entities controlled by the trustees, the supreme court found that the court of appeals “failed to give due deference to the discretion of the trial court” and noted that “in determining whether a trustee’s accounting is sufficient under a given set of circumstances, an appellate court must consider whether a trial court properly exercised its equitable discretion; and the decision of the trial court should be sustained where such discretion has not been abused.”66 In Hagans, the appellate court found that the trial court did not abuse its discretion by not ordering the personal representatives to disclose the financial records of a corporation wholly owned by the estate where (1) there were no allegations that the transaction in question was a self-dealing transaction, (2) there were no allegations that the estate was negatively impacted by the transaction, (3) the information would not have allowed the beneficiary to void the transaction, and (4) there were no allegations of fraud.67 Many of the cases that have addressed this question come from New York and largely support the position that a trustee has an obligation to disclose at least certain information about the business. In Matter of Witkind, the court discussed the rules for disclosure when an estate wholly owns a corporation versus when an estate holds only a minority interest in a corporation.68 Where the estate wholly owns the corporation, the fiduciaries may be required to account for the corporate transactions. In contrast, if the estate only owns a minority interest and does not have access to the full financial records of the business, the fiduciary may not be required to account for corporate transactions because he or she cannot be ordered to do what is impossible.69 The fiduciaries in Witkind came to control a corporation when the estate’s interest was added to their own interests in the corporation. They were, therefore, obligated to account because they had the ability to do so.70 The fiduciary whose actions were at issue in Witkind

controlled the estate’s one-third interest in the corporation in addition to his own individual interest, so he had the advantage of holding the balance of power over the corporation. Accordingly, he could not rely on distinguishing his individual interest to avoid accounting for the business where he was positioned to derive an individual profit from the business as a result of his fiduciary position.71 Similarly, in another New York case, the court held that if trustees become directors of a corporation due to the trust’s ownership interest, they must account for their actions as directors.72 This is true even if as directors they would not have to account unless they were charged with wrongdoing. The court reasoned that this rule was necessary because otherwise the directors’ wrongdoing would be concealed and they would be relieved from any substantial accountability.73 New York case law also seems to hold the opposite in certain circumstances—if the interest of the fiduciary as an individual can be separated from the interest held by the estate or trust, the court cannot compel the individual to account for the business. If the estate holds less than a controlling interest in the corporation’s stock, there is a strong inference of fact that the only authority the fiduciary possesses in a representative capacity is the typical authority to receive dividends.74 Further, if the trustees obtained information about a corporation due to their roles in their individual capacities, a beneficiary cannot require that they disclose such information when the trust owns only a minority interest in the same corporation.75 In Shehan, yet another New York court addressed the result when fraud is involved.76 When considering the fiduciary’s obligation to account, the court summarized the precedent as, “before a trustee must account or submit to examination regarding the general business affairs of a corporation, he must be dependent upon the estate stock for his connection with the corporation.”77 However, because there was a claim of fraud against the fiduciary (who served as personal representative, as officer and director of a related corporation, and as a voting trustee of voting trusts with control of the corporation), the court concluded that there was no reason to insist upon this showing,

M A RCH 2020

C OL OR A D O L AW Y E R

FEATURE | TITLE TRUST AND ESTATE LAW

and even though the estate did not wholly own the corporation, the court concluded that the fiduciary must produce the corporate books and records for the time during which he was acting as executor and trustee.78 A review of Colorado statutory law and other state case law addressing a trustee’s obligation to inform and report shows that whether the trustee will be required to disclose information about the company depends on a number of factors, including the facts and circumstances of the case, the positions held by the trustee, the transactions at issue, and the claims in the case. Duty to Prudently Invest The Colorado Uniform Prudent Investor Act (UPIA) generally requires trustees to diversify investments; balance risk and return; and consider the terms, distribution provisions, and purposes of the trust when making investment decisions.79 Accordingly, holding a large interest in a single closely held business may run afoul of the UPIA. The UPIA can, however, be altered by the terms of the trust, and/or a settlor may direct the trustee to retain a certain asset regardless of the duty to diversity.80 Colorado law specifically contemplates a settlor’s direction to a fiduciary to retain an interest in a family business entity and allows the fiduciary to maintain the business in any form of entity or successor entity.81 A settlor may also specifically direct the trustee to retain the business and may provide very specific information about succession, either in the trust or the documents governing the business. Although a trustee may desire or be directed to retain the closely held business interest, the occasion may nonetheless arise where the trustee desires to or must sell the business interest. When this occurs, the sale will be governed by both the business documents and the trustee’s fiduciary duties. This rule is illustrated by Rippey v. Denver U.S. National Bank, which involved a dispute over the sale of the closely held shares of the Denver Post, Inc.82 The court found that a trustee has a duty to obtain the highest price available when selling stock.83 Where the trustee knew there was another highly motivated shareholder interested in the stock and did not explore that option, the trustee breached its fiduciary duties

C OL OR A D O L AW Y E R

and caused damages to the trust.84 This was true even though the trust document gave the trustee broad powers to sell the shares in a private sale and the sale price was fair in relation to the actual value of the shares. Accordingly, when a trustee is considering retaining or selling an interest in a closely held business, the trustee must consider all applicable fiduciary duties and cannot allow improper motives or conflicts of interest to affect the decision. Whether it is appropriate to retain a large interest in a closely held business or to sell the interest, and whether the terms of the sale are appropriate, will depend on the terms of the trust and the facts and circumstances of each case.

Conclusion Trustees are presented with a number of challenges when a trust holds an interest in a closely held business, all of which make the fiduciary relationship potentially more complicated. When faced with this situation, the trustee is well-advised to identify and consider a number of issues, including the nature of the business interest held by the trust, all of the roles that the trustee serves, any potential conflicts of interest, whether holding a concentrated position in the business is prudent, whether the trustee has the duty to disclose information about the business to the beneficiaries, and what standard of care applies to the trustee’s actions in each of his or her roles.

Rebecca Klock Schroer and Morgan Wiener are attorneys in the Trust and Estate Litigation Group at Holland & Hart LLP. Their practices focus on the representation of fiduciaries, heirs, and beneficiaries in trust and estate litigation—rkschroer@hollandhart.com, mmwiener@hollandhart.com.

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

NOTES

1. The term “trustee” is used throughout this article synonymously with “fiduciary,” which would also include a personal representative. 2. CRS § 15-5-816(1)(f); CRS § 15-1-804(2)(l). 3. CRS § 15-5-816(1)(f). 4. CRS § 15-5-816(1)(g)(I). 5. CRS § 15-1-701. 6. CRS § 15-5-802. 7. CRS § 15-5-802(3)(d). 8. CRS § 15-5-802(2). 9. CRS § 15-12-703 (“A personal representative is a fiduciary who shall observe the standards of care applicable to trustees. . . .”). 10. CRS § 15-5-801. 11. CRS § 15-5-804 (“A trustee shall administer the trust as a prudent person would, by considering the purposes, terms, distribution requirements, and other circumstances of the trust. In satisfying this standard, the trustee shall exercise reasonable care, skill, and caution.”) 12. CRS § 15-5-802 (providing that “[a] trustee shall administer the trust solely in the interests of the beneficiaries” and addressing conflict of interest transactions). 13. CRS § 15-5-803 (“If a trust has two or more beneficiaries, the trustee shall act impartially in investing, managing, and distributing the trust property, taking into account any differing interests of the beneficiaries.”). 14. See CRS §§ 15-5-801 through -804. See also Destefano v. Grabrian, 763 P.2d 275, 285 (Colo. 1988) (en banc) (“A fiduciary has a duty to deal with utmost good faith and solely for the benefit of the beneficiary. A fiduciary’s obligations to the beneficiary include, among other things, a duty of loyalty, a duty to exercise reasonable care and skill, and a duty to deal impartially with beneficiaries.”) (internal citations and quotation omitted). 15. Meinhardt v. Salmon, 164 N.E. 545, 546 (N.Y. 1928). 16. In re Matter of Trust of Franzen, 955 P.2d 1018, 1022 (Colo. 1998) (en banc). 17. Id.

M A RCH 2020

18. Polk v. Hergert Land & Cattle Co., 5 P.3d 402, 405 (Colo.App. 2000). See also CRS § 7-108-401, which was amended in 2019, with the amendments to be effective as of July 1, 2020. All citations to CRS § 7-108-401 are to the amended version effective as of July 1, 2020. 19. CRS § 7-108-401. 20. Id. 21. Curtis v. Nevens, 31 P.3d 146, 151 (Colo. 2001) (en banc). 22. Id. (internal quotation omitted). 23. CRS § 7-108-402. This section was substantially rewritten in 2019, and the amended version is effective as of July 1, 2020. The revisions to this section are intended to codify and clarify Colorado law on the business judgment rule and are not intended to reflect a change in the law. Lowenstein and Lidstone, “2019 Colorado Business Law Updates,” 48 Colo. Law. 26, 29 (Nov. 2019). All citations to CRS § 7-108-402 in this article are to the revised version effective as of July 1, 2020. 24. Kim v. Grover C. Coors Trust, 179 P.3d 86, 95 (Colo.App. 2007). 25. See CRS § 15-5-802. 26. CRS § 15-5-802(7). 27. Uniform Trust Code § 802 cmt. See also CRS § 15-5-803 on the duty of impartiality. 28. Restatement (Second) of Trusts § 193 cmt. a (1959) (cited in the Uniform Trust Code § 802 cmt.). 29. Uniform Trust Code § 802 cmt. 30. CRS § 15-1-702(3)(b). 31. CRS § 15-1-702(3)(c). 32. In re Shehan, 285 A.D. 785 (N.Y.App.Div. 1955). 33. Id. at 787. 34. Id. at 794. 35. Id. 36. Id. at 795. 37. Rollins v. Rollins, 755 S.E.2d 727, 731 (Ga. 2014). 38. Rollins v. Rollins, 780 S.E.2d 328 (Ga. 2015); Rollins v. Rollins, 790 S.E.2d 157 (Ga.Ct.App. 2016) (applying the rule). 39. Rollins, 780 S.E.2d at 336. 40. Id. at 337. 41. Id. at 336. 42. CRS § 15-5-105(2)(b). 43. In re Hearthside Baking Co., Inc., 402 B.R. 233 (Bkrtcy. N.D.Ill. 2009); Wilbourn v. Wilbourn, 106 So. 3d 360 (Miss.Ct.App. 2012). 44. Wilbourn, 106 So. 3d at 364. 45. Id. at 365–66. 46. Id. at 367–68. 47. Id. at 372. 48. In re Koretzky’s Estate, 86 A. 2d 238 (N.J. 1951). 49. Id. at 248. 50. Id. See also In re Estate of Baldwin, 442 A. 2d 529 (Me. 1982). 51. Hearthside, 402 B.R. at 240–41. 52. Id. at 248.

53. Id. at 246. 54. Id. at 248. 55. CRS § 15-5-1010(1). 56. CRS § 15-5-1011. See also Uniform Trust Code § 1011 cmt. 57. CRS § 15-5-1011(1). 58. CRS § 15-5-1011(3). 59. CRS § 15-5-1011(4). 60. Uniform Trust Code § 1011 cmt. 61. CRS §§ 15-5-813(1) and -105(2)(i). 62. CRS § 15-1-702(3)(d). 63. CRS § 15-1-413 and cmts. The comments also acknowledge a degree of independence for the governance of a corporation that is wholly owned by a trust, noting that “the board of directors of a corporation owned entirely by the trust would decide the amount of the annual dividend to be paid to the trust.” 64. Uniform Trust Code § 813 cmt.; CRS § 15-5-813. 65. Bogert et al., Bogert’s The Law of Trusts and Trustees § 962 (Thomson Reuters 2019). 66. Rollins, 755 S.E.2d at 730. 67. Jones v. Hagans, 634 A. 2d 1219, 1222–24 (D.C. 1993).

68. Matter of Witkind, 167 Misc. 885 (N.Y.Cty.Ct. 1938). 69. Id. at 893. 70. Id. 71. Id. at 894. 72. Farmers’ Loan and Trust Co. v. Pierson, 130 Misc. 110 (N.Y.Sup.Ct. 1927). 73. Id. at 121. 74. Matter of Sullivan, 169 Misc. 16, 18 (N.Y.Surr. Ct. 1938). 75. In re Sylvester’s Estate, 5 A.D.2d 970 (N.Y.Surr.Ct. 1958). 76. Shehan, 285 A.D. 785. 77. Id. at 793. 78. Id. at 795. 79. CRS § 15-1.1-102. 80. CRS § 15-1.1-101(b). 81. CRS § 15-1-702. 82. Rippey v. Denver U.S. Nat’l Bank, 273 F.Supp. 718, 723 (D.Colo. 1967). 83. Id. at 739. 84. Id. at 739–42.

Affinity University — Your FREE Member Benefit What You Get… An Affinity University Subscription gives your entire firm access to training on the programs your business uses every day. With over 100 courses covering more than 30 different products, your team will have anytime, anywhere access to the training they need. n Practice Management n Document Management n Microsoft Office

n Time Billing and Accounting n PDF n Affinity Educational Webinars

Visit affinityuniversity.com and create your FREE account. Access over 150 training videos. Use code CoBarMember for a 100% discount.

M A RCH 2020

C OL OR A D O L AW Y E R

TITLE AROUND | THE SUB TITLE 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.

Amy Larson is CBA’s New Executive Director and CEO The Joint Management Committee (JMC) of the Colorado and Denver Bar Associations has voted unanimously to appoint Amy Larson as the new executive director of both organizations. Larson previously served the CBA and DBA as deputy executive director and COO as well as interim executive director and CEO. The JMC makes studies and recommendations for all problems involving the joint operations of associations, including the hiring of the executive director. Larson has more than 25 years of experience in a variety of association, corporate, and inter-governmental leadership roles and has significant experience in organizational structure and decision-making, especially during times of change. Over the past 14 years, she has become strategically immersed with the CBA’s goals, leadership structure, budgetary resources, communications, and external partnerships, first as CBA’s contract lobbyist and then as deputy executive director and COO. Previously, she was the director of public affairs for Storage Technology Corporation; the executive director

for the American Electronics Association; a marketing and public relations professional for Price Waterhouse, LLP in its Dispute Analysis and Corporate Recovery practice group; and the manager of government affairs at the Institute of Certified Financial Planners. Larson is a graduate of the University of Southern California, where she received her BA in English with a political science minor, and her MBA with a specialization in intergovernmental management. Amy was selected to participate in the University of Colorado’s Leeds School of Business “50 for Colorado,” which recognizes leaders and emerging leaders of Colorado committed to learning more about the Colorado economy and how it impacts industries across the state. She has served on numerous boards, including the Metro Denver Network Board of Governors, American Electronics Association—Colorado, Front Range Community College President’s Advisory Council, YMCA Boulder Valley Board of Directors, Colorado Association of Commerce and Industry Board of Directors, Governor’s Taskforce on Information Privacy, and Foundation for Boulder Valley Schools Board of Directors.

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.

C OL OR A D O L AW Y E R

On January 28, the CBA/DBA Diversity and Inclusivity Steering Committee hosted a meeting at the CBA offices to discuss future ideas and goals for diversity and inclusivity at the bar associations. Presenters were the co-chairs of each of the committee’s four teams: Ryann Peyton, Catherine Chan, Courtney Holm, Mario Trimble, Melissa Schwartz, Patricia Jarzobski, John Baker, and Amy Larson.

CBA Past President Dick Gast, current President Kathleen Hearn Croshal, and Past President Patricia Jarzobski discuss diversity and inclusivity initiatives.

CONTRIBUTE

Diversity and Inclusivity Steering Committee

M A RCH 2020

Kathleen Hearn Croshal Visits the BCBA CBA President Kathleen Hearn Croshal visited the Boulder County Bar Association on January 9. Croshal shared her experiences as a judge and spoke about the importance of civic duties with the local legal community.

Velveta Golightly-Howell to be Inducted into Colorado Women’s Hall of Fame Sam Cary Bar Association member Velveta Golightly-Howell, a committed civil rights, social justice, and equal opportunity advocate, is among the Colorado Women’s Hall of Fame (CWHF) Inductee Class of 2020. She and nine other extraordinary and inspiring women will be inducted into the CWHF on March 18 at the Hyatt Regency Convention Center. Golightly-Howell has been an exceptional role model for African American women and girls. She is the eighth African American female graduate of the University of Colorado Law School and the first woman of color appointed as Colorado’s Deputy District Attorney. She has served as director of the Office of Civil Rights for the U.S. Environmental Protection Agency and has led the U.S. Department of Health and Human Services Civil Rights and HIPAA operations in the Rocky Mountain Region. She also founded the Colorado Chapter of the National Association of Black Women Attorneys to provide diverse law students mentoring, employment opportunities, training, and judicial internships. And she served on the Colorado Supreme Court ad hoc Diversity in the Law Committee; CBA Steering Committee on Minorities in the Law; Commission on Judicial Performance, Second Judicial District; CU Law School’s Health Law Advisory Committee; Colorado Blue Ribbon Healthcare Reform Commission Vulnerable Populations Task Force; Victim Assistance Law Enforcement Board, Second Judicial District; and Robert Wood Johnson Turning Point Initiative.

2 1 Court of Appeals Judge Craig Welling, BCBA President Jennifer Lorenz, and Colorado Supreme Court Justice Richard Gabriel attend the president’s discussion. 2 Kathleen Hearn Croshal visits with members and fellow judicial colleagues.

M A RCH 2020

C OL OR A D O L AW Y E R

AROUND BAR | BAR NEWS TITLE | THE SUB TITLE

MVL and the DBA YLD Recognize Outstanding Volunteers The Metro Volunteer Lawyers and the DBA Young Lawyers Division met for a fun evening of celebration and service at the Tap Fourteen Ballpark. Together they recognized six attorneys for their service and dedication to MVL and volunteer programs. The honorees were: ■ Joey Mark, Fundraising ■ Joe O’Leary, Family Law Court Program volunteer ■ Justin Bertron, Denver Indian Clinic volunteer ■ Rhonda Povich, Referral Program volunteer ■ Katy Lum, Post Decree Consultation Program volunteer ■ Lara Zarzecki, Power of Attorney Program volunteer. MVL and the DBA YLD thank each of the recipients for their time and dedication to improving Denver and for demonstrating that pro bono work is a worthwhile effort.

2 1 2 3

Jacqueline Rowley, Anthony Pereira, Anne Zogg, Ivonne Esparza, Liz Jones, Toni-Anne Nuñez, and Virginia McClerkin. Josh Fitch, Nick Peppler, and Jessica Espinoza. Ivonne Esparza, Anthony Pereira, Justin Bertron, and Anne Zogg.

C OL OR A D O L AW Y E R

M A RCH 2020

Theresa Wardon Benz Recognized with 2019 Davis Award Theresa Wardon Benz was honored on January 16 with the 2019 Davis Award. The prestigious award is presented annually to a Denver lawyer under the age of 40 who has demonstrated excellence as a lawyer and exemplifies the character and promise of Richard Marden Davis at that stage of his career. A graduate of the Northwestern University School of Law and Boston College, Benz joined Wheeler Trigg Oâ&#x20AC;&#x2122;Donnell in 2009 following her clerkship to The Honorable Neil M. Gorsuch, then of the U.S. Court of Appeals for the Tenth Circuit. She represents leading companies in complex commercial, class action, and product liability trials, litigation, and appeals. She has served on winning trial teams in Arizona, Florida, and Ohio, and has briefed and argued winning appeals in the Colorado Supreme Court and the Colorado Court of Appeals. Recently, she authored her first amicus brief to the U.S. Supreme Court. In selecting Benz, the awards committee recognized her outstanding civic and charitable leadership and commitment to pro bono service. Benz has partnered with the Rocky Mountain Immigrant Advocacy Network to represent asylum seekers fleeing extreme violence in their home countries. She has served as a longtime board member and steward for The Gathering Place, which serves women, children, and transgender individuals experiencing poverty and homelessness. And she serves as a mentor to aspiring lawyers through the Law School . . . Yes We Can program.

CBA SECTIONS Weâ&#x20AC;&#x2122;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.

DBA President Kevin McReynolds presents the Davis Award to Theresa Wardon Benz.

M A RCH 2020

C OL OR A D O L AW Y E R

TITLE AROUND | THE SUB TITLE BAR | LAWYERS’ ANNOUNCEMENTS

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

Half page horizontal ■ 7.75" wide x 4.25" tall ■ $400 CBA members; $525 nonmembers Full page ■ 7.75" wide x 8.875" tall ■ $750 CBA members; $900 nonmembers

C OL OR A D O L AW Y E R

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.

LAWYERS’ ANNOUNCEMENTS DEADLINES ISSUE

DEADLINE

January

December 1

February

January 1

March

February 1

April

March 1

Payment ■ By check: payable to Colorado Bar Association, mailed to Colorado Lawyer, Attn: CBA Accounting Dept., 1290 Broadway, Ste. 1700, Denver, CO 80203. ■ By credit card: contact Alexa Drago at advertising@cobar.org.

May

April 1

June

May 1

July

June 1

August/ September

July 1

October

September 1

November

October 1

Questions? Contact Jessica Espinoza at advertising@ cobar.org.

December

November 1

M A RCH 2020

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

MVL would like to thank Cory Gallagher (from Gallagher Law Office, LLC) for his dedication to Pro Bono work. Over the last 2 years he has donated over 200 hours of his time to helping low-income applicants through their family law cases. Both through MVLâ&#x20AC;&#x2122;s post decree clinical program as well as taking on a full cases. MVL is only as good as its volunteers and with volunteers like Cory, MVL can be great.

Thank you Cory.

M A RCH 2020

C OL OR A D O L AW Y E R

TITLE AROUND | THE SUB TITLE BAR | LAWYERSâ&#x20AC;&#x2122; ANNOUNCEMENTS

C OL OR A D O L AW Y E R

M A RCH 2020

Firms talk about it.

We're doing it. Succession. Continuity. Alacrity. We are pleased to announce the arrival of our next generation of equity shareholders Jennifer Alldredge Tim Shea Kim Bruetsch Chad McShane Also, we welcome our new lateral who also joins us as an equity shareholder Steve Segal

An Independent, Locally-Owned, Full-Service Business Law Firm Serving Clients Nationwide Denver Office · 1099 18th Street, Suite 2600 · Denver, CO 80202 · 303-297-2600 Telluride Office · P.O. Box 2636 · 119A West Colorado Avenue · Telluride, CO 81435 · 970-728-3029 www.rwolaw.com · Founded 1977

M A RCH 2020

C OL OR A D O L AW Y E R

TITLE AROUND | THE SUB TITLE BAR | LAWYERS’ ANNOUNCEMENTS

We are pleased to announce our new office location. Same building, new suite.

1600 STOUT STREET SUITE 1900 DENVER, CO 80202 303.534.4499 ph 303.893.8332 fax www.allen-vellone.com We look forward to seeing you at our new office in March 2020.

Congratulations to Sean McAllister and Daniel Garfield for being recognized for the 5th year in a row as Top Cannabis Lawyers by 5280 Magazine. Sean anchors the firm’s administrative law and litigation work and Dan anchors the firm’s transaction work, giving the firm a unique value proposition of merging both areas of law in this new industry.

720.722.0048 501 S. Cherry Street, Suite 480 Denver, CO 80246

C OL OR A D O L AW Y E R

M A RCH 2020

The ﬁrm welcomes associate attorney Daniel Hamilton to work on a mix of transaction and regulatory matters.

www.mcallistergarfield.com Colorado | California | Oregon | Michigan

Announcing:

National Receivers, Ltd. Receivers Bankruptcy Trustees www.NationalReceivers.net Plaza of the Rockies Box 76651 Colorado Springs, Colorado 80970 Information@NationalReceivers.net Tel. 719-470-2181

M A RCH 2020

C OL OR A D O L AW Y E R

TITLE AROUND | THE SUB TITLE BAR | LAWYERS’ ANNOUNCEMENTS

Proudly announces that W. BENJAMIN KING has joined the firm as an attorney. As a litigator and mediator, Mr. King focuses his practice on domestic rel relations matters and serves clients throughout Colorado.

MontgomeryLittle.com 66

C OL OR A D O L AW Y E R

M A RCH 2020

is pleased to announce that

CANDICE SAXON has joined the firm as an Associate Attorney. Candice will focus her practice on family law. Litvak Litvak Mehrtens and Carlton, P.C. 4582 South Ulster Street, Suite 1400 Denver, CO 80223 (t) 303.837.0757 | (f) 303.839.9826 www.familyatty.com

Katie Roush

Jason Spitalnick

Steve Wienczkowski

We are pleased to announce that the firm has elected three new partnersKatie Roush, Jason Spitalnick and Steve Wienczkowski. All three attorneys are in our litigation practice group.

360 South Garfield Street, Suite 600 Denver, CO 80209 P: 303.333.9810 | WWW.FOSTERGRAHAM.COM | F: 303.333.9786

M A RCH 2020

C OL OR A D O L AW Y E R

TITLE AROUND | THE SUB TITLE BAR | LAWYERS’ ANNOUNCEMENTS

Hernandez & Associates, P.C. Immigration Law & Criminal Defense

Ms. Hernandez’ specializes in Immigration and Naturalization Law with a focus on Removal Defense, Federal Litigation & Immigrant Advocacy. 1801 York Street, Denver, CO 80206 (303) 623-1122 | www.hdezlaw.com

C OL OR A D O L AW Y E R

M A RCH 2020

C OL OR A D O L AW Y E R

TITLE AROUND | THE SUB TITLE BAR | IN MEMORIAM

In Memoriam Raymond J. Cody March 10, 1927–December 1, 2019 Raymond “Ray” Joseph Cody was born on March 10, 1927 in Dubuque, Iowa to Anna C. Jansen and Thomas J. Cody. He died peacefully in his sleep on December 1, 2019 in Denver. Raymond served in the Coast Guard during World War II and served as an Army captain in the Korean War, where he received a Silver Star, a Bronze Star, and a Purple Heart. He later received his JD from the University of Denver. Raymond then served as a municipal judge for the city of Arvada. He practiced law and handled arbitrations. Raymond is survived by his partner of 25 years Lynda Miller, daughters Chris Thompson and Constance Rust, and son Michael Timothy Cody. He is also survived by eight grandchildren and four great-grandchildren. He was preceded in death by his sister Mildred Catherine Leibfried, his brother Merlin “Bill” Cody, and his son Thomas F. Cody. His family, loved ones, and friends will miss him dearly. Donations in Raymond’s memory can be made to the Korean War Veteran Scholarship Fund, https://kwva.us/?post=announce_scholarship_2019. David Robert Parker November 15, 1939–January 16, 2020 David Robert Parker, 80, of Boulder died on January 16, 2020 after bravely fighting a yearlong battle against brain cancer. Dave was born on November 15, 1939 in Sioux Falls, South Dakota

C OL OR A D O L AW Y E R

to Gerald and Lucile (Gleich) Parker. Dave grew up in Superior, Nebraska, graduating from Superior High School in 1957. After high school, Dave attended and graduated from the University of Colorado–Boulder in 1962 with a BA in English. He attended CU on an ROTC scholarship and actively served in the Marines (1962–67), earning the rank of captain. Upon returning to civilian life, he attended the University of Nebraska College of Law, during which time he served as editor in chief of the Nebraska Law Review. After graduating from law school in 1970, he became a partner in Nelson and Harding in Lincoln and later established and worked in its Denver office. Following his nine-year tenure with the firm, Dave returned to Lincoln, where he served as vice president and general counsel of Crete Carrier Corporation and affiliated companies (1979–85). Dave then returned to private practice as a partner in the Lincoln law firm of Rembolt, Ludtke, Parker, and Berger until 1996. While working in private practice, he became actively involved in the ownership and management of a trucking company, and served as chair of JTI, Inc. and affiliated companies (1985–97) and as vice president of Active Transportation Co. and affiliated companies (1995–96). With the change in ownership of JTI, Inc., Dave became the executive vice president–administration of U.S. Xpress Enterprises, Inc. in 1997 and continued in that role through the end of 2004. From 2005 to 2019, he served as senior legal counsel for Great West Casualty Co. and Great West Risk Management, both trucking insurance companies. Dave was active in professional and civic organizations. Most recently he chaired committees within the Federal Motor Carrier Safety Administration, and he was an active member and held leadership positions within a number of trucking associations, including American

M A RCH 2020

Trucking Associations, Truckload Carriers Association, Nebraska Trucking Association, Transportation Lawyers Association, and Canadian Transport Lawyers’ Association. Dave was a proud member of the Founders of the Marine Corps Heritage Foundation and served as vice chair of the Marine Corps Heritage Foundation Board of Directors. Dave was also an active member of the Colorado and Nebraska Bar Associations and an active member and leader within a number of Lincoln organizations, including the Food Bank of Lincoln, Inc.; Lincoln Foundation, Inc.; Lincoln United Way; Lincoln Chamber of Commerce; Leadership Lincoln Alumni Association; and Nebraska Wesleyan University. He also served as a delegate to the Japan–American Conferences of Mayors and Chamber of Commerce Presidents. Most important to Dave was his family. He is survived by his wife of 57 years, Nancy (Geddes) Parker; their daughter Julie (Michael) Karavas and son Eric (Mary) Parker; and their grandchildren Adam and Alex Karavas, and Macie Parker. Dave is also survived by his sister Joanne (Robert) Howard, brother Dr. Richard Parker, brother-in-law Bill (Susan) Geddes, sister in law Ann (Chuck) Lennon, and many nieces and nephews. In addition, numerous friends Dave considered family. Donations in Dave’s memory may be made to the Marine Corp Heritage Foundation, www. marineheritage.org. Susan Marie Thevenet April 6, 1950–December 8, 2019 Susan “Suzy” Marie Thevenet passed away on December 8, 2019 after a two-year fight a ga i n s t p e r i t o n e a l (ovarian) stomach cancer. She died peacefully

in the loving arms of her husband at her home in Boulder. Suzy was born on April 6, 1950 in San Antonio, Texas. She grew up an Army brat and liked to joke that she was from a “little bit of everywhere.” She graduated from Highland Falls High School in 1968 while her father was stationed at the U.S. Military Academy at West Point. Suzy attended Penn State University, graduating in three years with a BA in English in 1971. She was a proud and active member of the Kappa Alpha Theta sorority. Suzy went on to earn a Master’s in English literature at Georgetown University in 1973. After a brief stint on Capitol Hill in Washington, D.C. as a lobbyist for the American Dental Association, Suzy attended law school at the University of Iowa, earning her JD in 1978. In her final academic year, Suzy served as the first female editor in chief of the Iowa Law Review. After law school, Suzy moved to Denver and was admitted to the U.S. District Court in Colorado in 1979. In 1991, she was admitted into the U.S. Court of Appeals for the Tenth Circuit. In 1995, she was appointed to the Panel of Arbitrators for the American Arbitration Association and served with distinction up to the time of her death. She also served in a similar capacity for FINRA, the regulatory agency for the financial broker/dealer industry, during the same time. Suzy was also active in the fight against cancer. She participated for many years with the Cancer League of Colorado and served a one-year term as president of the organization. Suzy loved being a lawyer! Her entire legal career was governed by honesty, integrity, and high standards of personal and professional ethical behavior, and her quest for professional excellence was never-ending. Suzy was a CBA member since 1979 and a longtime member of its Attorney Regulation Committee. She thoroughly enjoyed attending CLE classes and reading Colorado Lawyer, and she never lost her desire to learn more about the law and how it impacted her life and the lives of others. If it happened outdoors, Suzy was part of it. She loved her daily trail runs up Mt. Sanitas in Boulder, completed 15 consecutive years of the 10K Boulder Bolder race, notched 38

of Colorado’s 14ers, and was a regular on the many camping and hiking trails throughout the Rocky Mountains of Colorado, New Mexico, and Wyoming. One of her favorite accomplishments was completing, with her husband Tim, the 370-mile bike ride from downtown Pittsburgh to Washington, D.C. on the Great Allegheny Passage and C&O Canal Towpath trail system. Suzy also loved to travel and never missed a cultural icon or a site of historical significance in any country she visited. With friends and colleagues galore at home and abroad, she never lacked a place to have a glass of wine, a great meal, or stimulating conversation. She was a great cook and a seeker of gourmet dining and top-notch lodging. Suzy is survived by a large family, including her husband, Timothy Chutz; five sisters, Michelle Thevenet Hughes, Renee Thevenet Rodbell, Margot Thevenet, Adrienne Jochum,

and Monique Balboa; and her only brother, Howard Thevenet. She was preceded in death by her mother, Marie T. Walker; her father, Stanley Edward Thevenet; and two sisters, Robin I. Thevenet and Lise Thevenet Clark. Donations in Suzy’s memory may be made to TRU Community Care, www.trucare.org.

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.

CBA ETHICS HOTLINE 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.

M A RCH 2020

C OL OR A D O L AW Y E R

FROM TITLETHE | SUB COURTS TITLE | COURT BUSINESS

Colorado Supreme Court Rules Committees

Notice of Public Hearing and Request for Comments Colorado Rules of Criminal Procedure

Note: The proposed amendments can be found on the Courtâ&#x20AC;&#x2122;s website at https://www.courts.state.co.us/Courts/ Supreme_Court/Rule_Changes.cfm

Hearing to be Held: Tuesday, April 14, 2020 at 3:00 p.m. Deadline for Comments: Friday, April 3, 2020 at 4:00 p.m. The Colorado Supreme Court will conduct a public hearing on proposed Rule 55.1 of The Colorado Rules of Criminal Procedure on Tuesday, April 14, 2020 at 3:00 p.m. in the Colorado Supreme Court Courtroom, 2 East 14th Avenue, Denver, Colorado. Persons wishing to speak at the hearing should notify the Clerk of Court, Cheryl Stevens, by email, cheryl. stevens@judicial.state.co.us, or by telephone, (720) 625-5150, no later than Monday, April 6, 2020 at 4:00 p.m. The Colorado Supreme Court also requests written public comments by any interested person on the proposed Rule 55.1 of The Colorado Rules of Criminal Procedure. Written comments should be submitted to Cheryl Stevens, Clerk of the Supreme Court. Comments may be mailed or delivered to 2 East 14th Avenue, Denver, CO 80203, or emailed to cheryl.stevens@judicial. state.co.us and received no later than 4:00 p.m. on Friday, April 3, 2020. The Clerk will post written comments on the Colorado Supreme Courtâ&#x20AC;&#x2122;s website. By the Court: Carlos A. Samour, Jr. Justice, Colorado Supreme Court

C OL OR A D O L AW Y E R

M A RCH 2020

Rule 55.1. Access to Court Records in Criminal Cases (a) a. Court records in criminal cases are presumed to be accessible to the public. Unless a court record or any part of a court record is otherwise inaccessible to the public pursuant to statute, rule, regulation, chief justice directive, or court order, the court may deny the public access to a court record or to any part of a court record only in compliance with this rule. (1) 2. Motion Requesting to Limit Public Access. A party may file a motion requesting that the court limit public access to a court record or to any part of a court record by making it inaccessible to the public or by allowing only a redacted copy of it to be accessible to the public. A party seeking to limit public access to a court record or to any part of a court record must file a motion pursuant to this rule and serve it on any opposing party. An opposing party must file any response within 7 days after service of the motion unless otherwise directed by the court. The body of the motion, the body of any response(s), and the body of any accompanying materials shall be inaccessible to the public until otherwise ordered by the court. The court may sua sponte make a court record inaccessible to the public or order that only a redacted copy of it be accessible to the public. If the court

does so, it must notify the parties and comply with paragraphs (a)(5), (a)(6), (a)(7), (a)(8), and (a)(9) of this rule. In its discretion, the court may hold a hearing before sua sponte ordering a court record or any part of a court record inaccessible to the public. (2) 3. Contents of the Motion. A motion to limit public access shall identify the court record or any part of the court record that the moving party wishes to make inaccessible, state the reasons for the request, and specify how long the information identified should remain inaccessible to the public. (3) 4. Limited Access to Records Already Filed. A party may file a motion requesting that the court limit public access to a court record already filed or to any part of that court record by making it inaccessible to the public or by allowing only a redacted copy of it to be accessible to the public. Such a motion must be served on any opposing party. Upon receiving the motion, the court shall immediately make the subject court record inaccessible to the public until otherwise ordered by the court. The body of the motion, the body of any response(s), and the body of any accompanying materials shall also be inaccessible to the public until otherwise ordered by the court. After being fully apprised of the circumstances, the court shall resolve the motion in accordance with the provisions of this rule. (4) 5. Hearing. The court may conduct a hearing on a motion to limit public access. Notice of the hearing shall be

provided to the parties. The hearing shall be closed to the public, unless the court in its discretion determines otherwise. (5) 6. When Request Granted. The court shall not make a court record or any part of a court record inaccessible to the public pursuant to this rule without a written order. When a request to limit public access is granted, the court’s order shall: (A) A. specifically identify one or more substantial interests served by making the court record inaccessible to the public or by allowing only a redacted copy of it to be accessible to the public; (B) B. explain how taking such action serves the interest(s) identified; (C) C. explain why there would be a substantial probability of harm to the interest(s) identified; (D) D. find that no less restrictive means than making the record inaccessible to the public or allowing only a redacted copy of it to be accessible to the public exists to achieve or protect the identified interest(s); and (E) E. conclude that the identified interest(s) outweigh(s) the right of public access to the court record or to an unredacted copy of it. (6) 6. Duration. Any order limiting public access to a court record or to any part of a court record shall indicate how long the order will remain in effect. (7) 7. Access to the Court’s Order. The court’s order limiting access to a court record or to any part of a court record pursuant to this rule shall be accessible to the public, except that any information deemed inaccessible under this rule shall be redacted from the order. (8) 8. Review. The court shall review any order issued pursuant to this rule at the time of the expiration of the order or earlier upon motion of one of the parties. The court may postpone the

expiration date of the order issued pursuant to this rule if it determines that the findings previously made under paragraph (a)(5) of this rule continue to apply or if it makes new findings under paragraph (a)(5) of this rule justifying postponement of the expiration date. (9) 9. Access to the Original Court Record. If a court limits access to a court record or to any part of a court record pursuant to this rule, only the court, the court’s staff, authorized Judicial Department staff, the parties to the case, and the attorneys of record and their agents shall have access to the original court record. (10) 10. Effective Date. This rule shall be effective on _______________.

Visit the Supreme Court’s website for complete text of rule changes, including corresponding forms and versions with highlights of revisions (deletions and additions), which are not printed in Court Business. Material printed in Court Business appears as submitted by the Court and has not been edited by Colorado Lawyer staff.

CBA Find A Lawyer is now TRUSTED

We’ve added more categories and eased searchability so that your practice is more visible to a wider range of clients. Be sure to log into LicensedLawyer.org/CO using your FindALawyer password to update your bio. Email memberhsip@cobar.org or call 303-860-1115, ext. 1 for questions and support.

M A RCH 2020

C OL OR A D O L AW Y E R

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

Disciplinary Case Summaries No. 19PDJ053. People v. Frazier. 12/30/2019. The Presiding Disciplinary Judge approved the parties’ conditional admission of misconduct and suspended James Frazier (attorney registration number 48979) for one year, four months to be served and eight months to be stayed upon successful completion of a twoyear period of probation. The suspension was effective on February 3, 2020. The probationary

requirements include completing an ethics course, trust account school, and continuing legal education on unbundled legal services, and adhering to practice monitoring conditions. In one client matter, Frazier failed to appear in person at a hearing and did not communicate with his client that her case had therefore been dismissed. In a second client matter, Frazier was compensated for his services by the client’s

DUI? WE CAN HELP• . ,•

TIFTICKJIAN LAW F I RM , P. C.

JAY TIFTICKJ Recognized in

The Best Lawyers in America 2018-2020 Law Week Colorado's Best DUI Lawyer 2012 - 2019

303-DUl-5280

DUl5280.COM

DENVER (303) 991-5896 74

C OL OR A D O L AW Y E R

M A RCH 2020

mother and stepfather without obtaining his client’s informed consent. Frazier also disclosed confidential information to his client’s parents. Further, Frazier called his client’s mother a vulgar name in a text message. Finally, Frazier did not maintain a business or operating account until May 2019, took cash withdrawals out of his trust account, and deposited into his trust account monetary gifts from his father. Through this conduct, Frazier violated Colo. RPC 1.3 (a lawyer shall act with reasonable diligence and promptness when representing a client); Colo. RPC 1.4(a)(3) (a lawyer shall keep a client reasonably informed about the status of the matter); Colo. RPC 1.6(a) (a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent); Colo. RPC 1.8(f ) (a lawyer shall not accept compensation for representation from someone other than the client unless the client gives informed consent); Colo. RPC 1.15A(a) (a lawyer shall hold client property separate from the lawyer’s own property); Colo. RPC 1.15(B)(a)(2) (a lawyer in private practice shall maintain a business account into which the lawyer shall deposit funds received for legal services); Colo. RPC 1.15C(a) (a lawyer shall not withdraw cash from a trust account); and Colo. RPC 8.4(g) (in representing a client, a lawyer shall not engage in conduct that exhibits or is intended to appeal to or engender bias against a person based on the person’s race, gender, religion, national origin, disability, age, sexual orientation, or socioeconomic status, when such conduct is directed to anyone involved in the legal process). The case file is public per CRCP 251.31. No. 20PDJ002. People v. Smelser. 1/14/2020. The Presiding Disciplinary Judge approved the parties’ conditional admission of misconduct and publicly censured Curtis R. Smelser (attorney registration number 41689). Smelser represented a client who was under contract to sell his residence. About a month before the closing, Smelser was alerted to an error in the property’s legal description of the quit claim deed. To sell the residence, respondent’s client needed a correction deed from his ex-wife. Smelser contacted the ex-

wife’s lawyer on at least four occasions over the course of two weeks. Although the lawyer eventually responded to Smelser, he was not able to obtain the ex-wife’s signature on the correction deed. Frustrated by the situation, Smelser sent an email directly to the ex-wife, without copying the lawyer, asking her to sign the correction deed. Through this conduct, Smelser violated Colo. RPC 4.2 (restricting the circumstances in which a lawyer may communicate about the subject of a client representation with a person the lawyer knows to be represented by counsel in the matter). 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.

WORKPLACE & SCHOOL

INVESTIGATORS

MARK

FLYNN

Attorney/Investigator mflynn@emfig.com

JODY

LUNA

Attorney/Investigator jluna@emfig.com

DAVID

VOGEL

Attorney/Investigator dvogel@emfig.com

JIM

LONG

Attorney/Investigator jlong@emfig.com

SUZANNE

PARISER

CHERI

Attorney/Investigator spariser@emfig.com

VANDERGRIFT Attorney/Investigator cvandergrift@emfig.com

Dedicated to integrity in workplace and school investigations, related training services, consultation, and mediation services. 2373 Central Park Blvd., Suite 100 | Denver, CO 80238 | 303-803-1686 | www.emfig.com

M A RCH 2020

C OL OR A D O L AW Y E R

TITLE | SUB TITLE

CLE Annual Pass Unlimited access to world-class training and resources so you remain a leader in your practice

Get the best education for your practice ■ ■ ■

■ ■ ■ ■

The nonprofit educational arm of the Colorado Bar Association and the Denver Bar Association.

We’ve got discounted bundles for you no matter where you are in your career. Whether you're a recent graduate or a seasoned lawyer over the age of 65, a solo practitioner or with a large firm, we have what you need for your practice. ■ ■

■ ■

• Go to www.cba-cle.org/clepass

C OL OR A D O L AW Y E R

M A RCH 2020

Key case law and legislative updates Colorado content More than 150 live programs and webcasts a year in our state-of-the-art classroom Knowledgeable and experienced faculty Access to thousands of homestudies 24/7 25 years of CLE course materials archives 10% discount on all CBA-CLE published books

New Lawyer Edge – For attorneys in their first 5 years of practice CLE Pass – Discounted or free live seminars, unlimited access to CLE catalogue and more Law Firm Pass – Deeper discounts for firms with 3 attorneys or more Classic Pass – For attorneys age 65-72

• Call (303) 860-0608 • Toll-free (888) 860-2531

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

Summaries of Selected Opinions No. 18-1449. United States v. Rodriguez. 12/23/2019. D.Colo. Judge McHugh. Supervised Release Violation—U.S. Sentencing Guidelines— Past Drug Convictions—Alternative Ground for Decision. Defendant was arrested for violating his supervised release. At his sentencing, he admitted to possession and use of a controlled substance. Over defendant’s objection, the district court determined that his conduct constituted possession of cocaine under Colorado law, an offense punishable by more than one year’s imprisonment, and was therefore a Grade B violation of his supervised release conditions. The court sentenced defendant to 21 months’ imprisonment, which was the government’s recommended sentence at the low end of the Grade B range. On appeal, defendant argued that the district court misapplied Colorado law when it determined the grade of his offense under the U.S. Sentencing Guidelines because it wrongly determined that his conduct was punishable by a term of imprisonment exceeding one year under Colorado law. Rather than resolving the proper application of Colorado law, the Tenth Circuit exercised its discretion to affirm on the alternative ground that defendant’s conduct was punishable for more than one year under federal law. The Tenth Circuit held, for the first time in a published opinion, that a district court may consider recidivist enhancements based on a supervisee’s prior criminal offenses when determining the grade of a supervised release violation. The sentence was affirmed. No. 19-7006. United States v. Mendenhall. 12/23/2019. E.D.Okla. Judge Tymkovich. Res-

titution Order—Offense of Conviction—Plain Error—Mandatory Victims Restitution Act. A pawn shop was burglarized, and an inventory showed that 62 firearms were among the stolen property. Though evidence suggested defendant committed the burglary, he was instead charged with knowingly possessing, receiving, and concealing a stolen firearm. The indictment stated this violation occurred with

respect to three firearms that were recovered and returned to the pawn shop. Defendant pleaded guilty to knowingly possessing and concealing the firearms listed in the indictment. The presentence investigation report (PSR) calculated the advisory sentencing range by incorporating upward adjustments of defendant’s base offense level because the offense “involved 25–99 firearms” and defendant used or possessed a firearm “in connection with another felony offense.” The district court ordered defendant to pay restitution under the Mandatory Victims Restitution Act, 18 USC § 3663A, in the amount recommended by the PSR for, among other things, the loss of firearms that were not recovered. On appeal, defendant contended that the district court plainly erred in ordering restitution because the loss underlying the restitution order was not caused by the of-

Colorado Lawyers Helping Lawyers Have you ever wondered what to do when a colleague needs help with an addiction? Do you know where to turn for confidential peer support? Colorado Lawyers Helping Lawyers, Inc. offers free and confidential support to lawyers, judges, and law students experiencing problems with substance abuse and mental health issues.

For more information, call 303-832-2233 or visit our website clhl.org.

M A RCH 2020

C OL OR A D O L AW Y E R

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

fense of conviction. Here, the three firearms listed in the indictment were recovered and returned, and the remaining losses arose from the pawn shop burglary, not from defendant’s possession, receipt, or concealment of the stolen firearms. The restitution order was thus outside the bounds of § 3663A and the district court plainly erred. The order as related to restitution was vacated and the case was remanded for entry of an order consistent with this opinion. No. 18-4049. Mountain Dudes v. Split Rock Holdings, Inc. 12/27/2019. D.Utah. Judge Ebel. Fed. R. Civ. P. 50—Sufficiency of the Evidence—Sua Sponte Entry of Judgment as a Matter of Law. Plaintiff sued defendants for fraudulent transfers under Utah law. During the trial, both sides made Fed. R. Civ. P. 50(a) motions for judgment as a matter of law, challenging the sufficiency of the other side’s evidence. The district court reserved ruling on these motions until the trial’s conclusion. After trial, the jury was deadlocked. The parties filed post-trial Rule 50(b) motions. The district court invoked Rule 50(b) to grant defendants judgment as a matter of law on grounds neither party had raised, but rather on grounds that the court raised sua sponte after the jury’s deliberations. On appeal, plaintiff challenged the district court’s decisions to grant defendants judgment as a matter of law and to deny plaintiff judgment as a matter of law. Judgment as a matter of law under Rule 50 is appropriate only where the evidence points one way and no reasonable inferences could support the nonmoving party’s position. Rule 50 provides that a party challenging the sufficiency of an opponent’s evidence must give the opponent notice of the challenge and an opportunity to correct any evidentiary deficiency before the case is submitted to the jury. A party can renew its motion after the jury returns a verdict or after the jury is discharged without reaching a verdict, but only on the same grounds first asserted. District courts may grant judgment as a matter of law only on grounds raised by the parties and, when deciding Rule 50(b) motions, may grant judgment as a matter of law only

C OL OR A D O L AW Y E R

M A RCH 2020

on grounds a party previously raised in a Rule 50(a) motion. Here, the district court’s grant of judgment to defendants deprived plaintiff of an opportunity to correct any evidentiary deficiency. Further, neither plaintiff nor defendants are entitled to judgment as a matter of law on the grounds they raised because disputed factual issues exist that a jury must resolve. The judgment for defendants was reversed. The denial of plaintiff ’s Rule 50(b) motion was affirmed and the case was remanded for a new trial. No. 19-4037. Caballero v. Fuerzas Armadas Revolucionarias de Colombia. 12/27/2019. D.Utah. Judge Kelly. Registration of a State Court Judgment in Federal Court—Full Faith and Credit—Federal Jurisdiction—Terrorism Risk Insurance Act. Plaintiff obtained a multimillion dollar judgment in a Florida state court. He filed an action in Utah federal district court requesting entry of a judgment and authorization for collection procedures, asserting that he expected to proceed against defendants under the Terrorism Risk Insurance Act of 2002 (TRIA). Plaintiff served defendants with process in the federal suit, but none answered or otherwise participated in the action. The district court registered the judgment under 28 USC § 1963, rather than under 28 USC § 1738 as plaintiff requested, but denied all other relief because plaintiff did not establish personal jurisdiction over defendants. Plaintiff filed a motion to alter or amend the judgment pursuant to Fed. R. Civ. P. 59(e) seeking entry of a new federal judgment. The district court denied the motion. On appeal, plaintiff argued that § 1963 is limited to registration of a federal judgment in another federal court, and he is entitled to a new judgment that would allow him to use collection remedies. The Tenth Circuit held that § 1963 applies only to registration of federal court judgments in federal courts. The district court thus erred in registering the Florida state court judgment. Plaintiff also argued that 28 USC § 1738, the Full Faith and Credit Clause, provides jurisdiction for his case. This clause does not provide federal subject matter jurisdiction. However, plaintiff

M A RCH 2020

C OL OR A D O L AW Y E R

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

may be able to establish federal subject matter jurisdiction under TRIA if he is permitted to amend his complaint. The judgment was reversed and the case was remanded with instructions. No. 18-1392. Murphy-Sims v. Owners Insurance Co. 1/7/2020. D.Colo. Judge Kelly. Bad Faith Breach of Contract—Fed. R. Civ. P. 50—Issue Preservation—Pretrial Order. Plaintiff was involved in a car accident with a driver who was insured by defendant (the driver). The driver was at fault. When defendant did not settle plaintiff’s claim, plaintiff sued the driver. Plaintiff and the driver entered into an agreement under which the driver assigned to plaintiff his bad faith claims against defendant. Plaintiff sued defendant for bad faith breach of contract. A jury ultimately determined that defendant did not breach the contract. The jury

did not reach the bad faith claim because it was instructed that it need not consider bad faith in the absence of a breach of contract. On appeal, plaintiff argued that the district court erred by denying her Fed. R. Civ. P. 50(a) motion for judgment as a matter of law. However, plaintiff failed to file a Rule 50(b) motion following entry of the jury verdict, so this issue was not properly preserved for appeal. Further, even if plaintiff’s Rule 50 challenge was appropriately raised on appeal, it relied on a separate theory that fell outside the four corners of the final pretrial order. Thus, the district court did not err in denying her motion. Plaintiff also challenged the jury instruction that the jury need not reach her bad faith claim if it found no breach of contract, asserting that defendant acted in bad faith by failing to settle her claim against the driver. However, this theory was not included in the final pretrial order,

so the instruction was not in error. The Tenth Circuit declined to reach plaintiff’s remaining arguments because they relied on this same theory. The judgment was affirmed. No. 19-2020. United States v. Gaspar-Miguel. 1/16/2020. D.N.M. Judge Briscoe. Illegal Entry into United States—8 USC § 1325(a)(1)—Constant Surveillance—Official Restraint. Defendant was part of a group of people who crossed the border from Mexico into the United States by walking around a fence. A border patrol agent watched the group through binoculars continuously from the time of their crossing until they were apprehended by other agents. Defendant was convicted of entering the United States in violation of 8 USC § 1325(a)(1). On appeal, defendant argued that the district court erred by concluding that she “entered” the United States within the meaning of § 1325(a) because she was under official restraint through constant surveillance from the time she entered until her arrest. However, continuous surveillance by border patrol agents, by itself, does not constitute official restraint. The judgment was affirmed.

The Office of the Child’s Representative (OCR) is accepting applications in March 2020 for contract attorneys to serve as Guardians ad litem in all 22 of Colorado’s Judicial Districts in a variety of case types (Dependency, Delinquency, Adoption, Paternity, Mental Health, Truancy, and Probate).

Apply to become an OCR contract att tto orney at tin ti nyurl.com/ApplyOCR by March 31, 2020. Learn more at www.coloradochildrep.org. “My Guardian ad litem is a positive person in the community, and is always willing to help. Those kinds of people make a huge diff ffeerence in the world. In all my years of being in court and DHS, I've never had someone that vouches for me like my GAL does.” - A young client

C OL OR A D O L AW Y E R

M A RCH 2020

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.

SAVE THE DATES

■ May 28-29, 2020 18th Annual Rocky Mountain Intellectual Property & Technology Law Institute Westin Westminster Hotel, Westminster, CO

■ June 4-6, 2020 40th Annual Estate Planning Retreat Park Hyatt, Beaver Creek, CO

■ June 10-12, 2020 2nd Annual Colorado Solo-Small Firm Institute

Network with your colleagues and revitalize your practice by hearing from some of the most preeminent legal leaders at our upcoming CLE institutes.

■ July 16-18, 2020 38th Annual Real Estate Symposium Vail Marriott Mountain Resort, Vail, CO

■ August 20-22, 2020 2020 Annual Family Law Institute Vail Marriott Mountain Resort, Vail, CO

■ August 27-29, 2020 12th Annual Rocky Mountain Regional Elder Law Retreat Grand Hyatt Vail, Vail, CO

Cheyenne Mountain Resort, Colo. Springs, CO

www.cba-cle.org • Call (303) 860-0608 • Toll-free (888) 860-2531 The nonprofit educational arm of the Colorado Bar Association and the Denver Bar Association

M A RCH 2020

C OL OR A D O L AW Y E R

FROM THE COURTS TITLE | SUB TITLE | COLORADO COURT OF APPEALS

Summaries of Published Opinions January 2, 2020

2020 COA 1. No. 15CA0648. People v. Dominguez-Castor. Constitutional Law—Fourth Amendment—Warrant—Searches and Seizures—Exclusionary Rule—Independent Source Doctrine—Authentication—Hearsay—Impeachment—Prosecutorial Misconduct. Police seized two cell phones from defendant during a search incident to his arrest. Police subsequently obtained a warrant to search the phones and discovered an incriminating message that was sent via Facebook Messenger. Police then obtained a warrant for Facebook and orders for production of records to cell phone providers. Defendant moved to suppress the search warrant and the evidence seized under the warrant and orders. The trial court granted the motion. Police later obtained another warrant and re-downloaded information from defendant’s phone. Defendant again moved to suppress the evidence. The trial court denied the motion on grounds that the second warrant to search the phones satisfied the independent source doctrine. A jury convicted defendant of first degree murder (both after deliberation and felony murder), aggravated robbery, and related crimes. The trial court adjudicated him a habitual criminal and sentenced him accordingly. On appeal, defendant contended that the trial court erroneously applied the independent source doctrine to allow the prosecution to circumvent the first suppression order. The independent source doctrine allows for the admission of unconstitutionally obtained evidence if the prosecution establishes that the evidence was also discovered by means

C OL OR A D O L AW Y E R

independent of the illegality. This doctrine can apply to evidence seized under a valid warrant issued after the evidence was first discovered during execution of an invalid warrant if the prosecution shows that the second warrant was truly independent of information obtained from the initial search. The record here supports the trial court’s findings that the second warrant was not based on facts learned in the unlawful search, and the officer’s decision to seek the second warrant was not motivated by information obtained during the unlawful search. Therefore, the trial court’s denial of the suppression motion was proper. Defendant also argued that the prosecution failed to authenticate the Facebook evidence (including his apparent confession) and claimed the evidence was inadmissible hearsay. Here, the record includes evidence that the sending account belonged to defendant, messages referred to travel plans that only he knew, the “confession” message originated from a phone he owned, and only he had access to the phone when the message was sent. Therefore, the prosecution sufficiently authenticated the Facebook messages. Further, the content of the messages was not hearsay because it included defendant’s statements and other statements that provided context for defendant’s statements. Defendant further argued that the trial court violated his constitutional rights to present evidence and to confront the prosecution’s evidence by excluding evidence he offered to impeach a witness’s credibility. However, defendant did not challenge the trial court’s ruling that the document he wished to admit was inadmissible hearsay, and he failed to demonstrate that any evidentiary error rose

M A RCH 2020

to the level of constitutional error. As a result, there was no constitutional violation. Defendant further contended that the trial court erred by excluding a ledger that was admissible under the business records exception to the hearsay rule. The ledger was cumulative of other evidence, so there was no constitutional error. Defendant next argued that the trial court reversibly erred by permitting the lead investigator to state her opinion that the motive for the murder was robbery. Here, the challenged statement was an isolated one in a lengthy trial that did not substantially influence the verdict or affect the fairness of the trial. Thus, the trial court did not err. Defendant also alleged prosecutorial misconduct. The prosecutor’s rock-paper-scissors analogy in reference to the jury’s decision making process was not so prejudicial as to cast serious doubt on the reliability of the conviction. Defendant also contended that the trial court erred by denying his motion for mistrial after a juror fainted while viewing autopsy photos of the victim. The record supports the trial court’s determination that the jury, including the juror who fainted, would not base its decision on sympathy toward the victim or prejudice against defendant. The trial court did not err in denying the motion for mistrial. Lastly, defendant argued for the first time on appeal that Colorado’s habitual criminal statutes are unconstitutional on their face and as applied because they authorize a judge, rather than a jury, to make the factual findings necessary for a habitual criminal adjudication. This claim is foreclosed by Colorado Supreme Court precedent. Further, the alleged error was not obvious given the many cases rejecting this claim. The judgment of conviction and sentence were affirmed. 2020 COA 2. No. 17CA1755. People v. Rios. Criminal Law—Menacing—Accessory to Crime—Plea Agreement—Evidence—Admissibility—Fifth Amendment. During a large fight at a park, Vigil pointed a BB gun at the victim and threatened to shoot

him. A police officer responding to the scene saw a person, later identified as defendant, walk away from the fight and put an object into a trash can. Another officer subsequently searched the trash can and found a BB gun. Vigil was arrested and pleaded guilty to menacing. Defendant was arrested and charged as an accessory to Vigil’s menacing. At trial, the court admitted evidence of Vigil’s plea agreement, and defendant was found guilty as charged. On appeal, defendant contended that the trial court erred by permitting the People to use Vigil’s conviction as substantive evidence of defendant’s guilt during opening statement, the prosecution’s case-in-chief, and closing argument. The general rule barring the use of a codefendant’s guilty plea as substantive evidence of the defendant’s guilt does not apply, however, where the defendant is charged only with acting as an accessory to the codefendant’s offense. Thus, there was no error. Defendant next contended that the trial court erred by denying repeated requests for a mistrial based on the prosecutor’s references to his refusal to talk to a police officer at the scene. Defendant was not under arrest or in custody when he told police he did not want to answer questions, and his pre-arrest silence could be used to impeach him. Further, the trial court sustained defense counsel’s objection to an investigating officer’s testimony about defendant’s silence, and defense counsel declined the trial court’s offer to further instruct the jury. Therefore, the trial court properly denied the motions for mistrial. Defendant also argued that the prosecutor committed misconduct during closing argument by commenting on his lack of response to the investigating officer. However, the parties stipulated that defendant refused to give his name. Thus, there was no plain error. Alternatively, defendant argued that the aggregate impact of the trial court’s errors warrants reversal under the cumulative error doctrine. Because there was no error here, there can be no cumulative errors. The judgment was affirmed.

Procedure—Record on Appeal—Materiality— Effective Assistance of Counsel—Termination of Parent-Child Relationship. Father’s parent-child legal relationship with the children was terminated after he failed to comply with his treatment plan. Father appealed and designated 32 hearing transcripts for the appeal. The juvenile court was not able to produce two of the transcripts, and the appellate court ordered father to file his opening brief without these transcripts. On appeal, father contended that the Court of Appeals violated his due process rights when it ordered him to file his opening brief without access to the two transcripts. The appellate court has the discretion to limit the record on appeal to its material portions, and father did not demonstrate that the missing transcripts were material. The Court had ample information to determine father’s one claim on appeal.

Father also argued that the Court violated his due process rights when it ordered him to address the materiality of the missing transcripts in his opening brief. He asserted that the lack of these transcripts prevented his counsel from providing effective assistance on appeal and rendered the process fundamentally unfair. Here, the record was sufficiently complete; it included the case file, full transcripts of the termination hearing, and minute orders of the hearings that were not transcribed. Further, the juvenile court did not rely on the untranscribed hearings in its termination order, and father made no showing that the unavailability of the complete record resulted in deficient performance by his appellate counsel. Accordingly, father’s due process rights were not violated. Father also contended that the juvenile court reversibly erred when it found that there was no less drastic alternative to termination. The

2020 COA 3. No. 18CA2158. People in the Interest of Z.M. Dependency and Neglect—Appellate M A RCH 2020

C OL OR A D O L AW Y E R

FROM COURTS TITLE THE | SUB TITLE | COLORADO COURT OF APPEALS

record supports the juvenile court’s findings that father did not comply with his treatment plan and was unfit, and after taking the children’s physical, mental, and emotional conditions and needs into account, there were no less drastic alternatives to termination. The judgment was affirmed. 2020 COA 4. No. 18CA2165. American Multi-Cinema, Inc. v. City of Aurora. Taxation—Tangible Personal Property—Use Tax. American Multi-Cinema, Inc. (AMC) generates revenue by exhibiting motion pictures and selling admission tickets to the public. AMC’s master licensing agreements (MLAs) authorize it to exhibit motion pictures for a licensing fee, and AMC then pays distributors a percentage of its admission sales. AMC paid the City of Aurora (City) a use tax on its MLA fees since it began operation. AMC applied for two refunds

P P A

with the City for periods of time during which it used digital files, as opposed to 35-millimeter film reels, to exhibit motion pictures. The City and the City’s finance director denied AMC’s refund claims, and the district court upheld the City’s use tax. On appeal, AMC argued that the district court erred by concluding that the true object of the MLAs was to obtain tangible personal property. AMC did not dispute that the data files are tangible personal property but argued that the true object of the MLAs is to obtain the nontaxable intangible rights to exhibit motion pictures. However, without the transfer of the actual film, the license to exhibit it would be valueless. Here, the true object of the licensing agreements is to obtain, for the designated timeframe, tangible personal property (the date files) that is inseparable from its intangible attributes.

PEER PROFESSIONALISM ASSISTANCE

Are you troubled by rude and unprofessional attorneys? Call Peer Professional Assistance for FREE one-on-one intervention. PPA has been sponsored by the Denver Bar Association since 1994. Call 303-860-1115, ext. 1, for more information. All inquiries are confidential.

C OL OR A D O L AW Y E R

M A RCH 2020

AMC also argued that it is exempt from the use tax because, even assuming that the true object of the MLAs is to obtain the tangible data files, the purpose of the MLAs is to acquire the data files for resale to its movie patrons. A theater’s exhibition of motion pictures is not a resale; AMC does not resell the digital files but exhibits motion pictures for profit. Thus, it is the final consumer and is not exempt from the City’s use tax. The judgment was affirmed. 2020 COA 5. No. 19CA0198. People in the Interest of S.B. Dependency and Neglect— Termination of Parent-Child Legal Relationship—Indian Child Welfare Act—Ineffective Assistance of Counsel. Father admitted that his child was dependent and neglected, and the juvenile court adopted a treatment plan for him. Father was later arrested on several offenses and under a plea agreement was sentenced to six years in the custody of the Department of Corrections. Father’s parental rights were thereafter terminated. On appeal, father contended that the juvenile court failed to comply with the Indian Child Welfare Act (ICWA). Here, father indicated that the child didn’t have any Indian heritage. The Montrose County Department of Health and Human Services (Department) communicated with the child’s maternal grandfather, who said he was a registered member of a Choctaw tribe. The Department then sent notices to the three federally recognized Choctaw tribes. Two of those tribes responded that grandfather wasn’t a member or eligible to be one, and the third tribe did not respond. The Department also sent information to the Bureau of Indian Affairs, but it responded that it couldn’t identify a tribe. Grandfather later clarified that he was enrolled in a federally unrecognized tribe. While the juvenile court’s inquiry and notice procedures were insufficient under the ICWA, the errors were harmless because grandfather’s claim to be a registered member of a Choctaw tribe was the sole basis for having reason to know that the child possibly had Indian heritage, and when grandfather clarified his enrollment in a federally unrecognized tribe, further notice wasn’t required.

Father also contended that his trial counsel rendered ineffective assistance. However, father did not allege with any specificity how counsel’s performance prejudiced him or what evidence counsel should have elicited that would have resulted in a different outcome to the proceeding. Thus, counsel’s conduct can’t be the basis for a valid ineffective assistance of counsel claim. The judgment was affirmed. January 9, 2020

2020 COA 6. No. 19CA0037. People in the Interest of N.G.G. Dependency and Neglect— Grandparent Visitation—Uniform Dissolution of Marriage Act—Due Process—Relocation. The Mesa County Department of Human Services (Department) initiated a dependency and neglect case based on concerns that the children’s primary legal custodian, their paternal grandmother, had provided inadequate care. The juvenile court placed the children in mother’s custody under the Department’s protective supervision, adjudicated the children dependent and neglected, and adopted a treatment plan for the parents and the grandmother. After a hearing, the juvenile court determined that mother had successfully complied with her treatment plan and issued a permanent allocation of parental responsibilities (APR) judgment granting mother sole decision making authority for the children and primary parenting time. The court also granted grandmother supervised visitation, granted father supervised parenting time, and gave mother permission to relocate with the children without father’s agreement if he becomes incarcerated. On appeal, mother contended that the juvenile court denied her substantive due process by ordering grandparent visitation. She contended that the court failed to apply the presumption that her decisions were in the children’s best interests and denied her the discretion to determine the amount of time grandmother spent with the children. In proceedings between a parent and nonparent, the parent is entitled to a constitutional presumption that she acts in the child’s best interests, including her determination that she should have sole discretion to decide when a

nonparent may visit the child. An order adjudicating a child dependent and neglected as to the parent overcomes this presumption. However, the presumption is restored when the court later finds that the parent has successfully complied with a treatment plan and is able to safely parent the child. Here, following the adjudication, the juvenile court found that mother had complied with her treatment plan and was able to safely parent the children. The court then awarded mother primary parenting time and sole decision-making authority for the children, but it did not accord mother the presumption when it ordered grandparent visitation, and it did not identify any special factors to support entry of an order contrary to mother’s wishes. Accordingly, mother was denied due process. Father argued that the juvenile court erred by allowing mother to relocate with the children

without his agreement if he is incarcerated. The Uniform Dissolution of Marriage Act requires that a party who intends to relocate with a child to a place that substantially changes the geographical ties between the child and the other party must provide the other party written notice of the intent to relocate and a proposed revised parenting time plan. When determining whether a parenting time modification is in the child’s best interests, the court must consider all relevant factors, and its determination of the child’s best interest must be based on circumstances existing at the time of the proceeding. Here, the court’s order did not afford father a meaningful opportunity to be heard and violated the requirement that the relocation determination be based on circumstances existing at the time of the proposed relocation. The order permitting relocation is thus premature and contrary to the governing statute. Accordingly, the court must

M A RCH 2020

C OL OR A D O L AW Y E R

FROM COURTS TITLE THE | SUB TITLE | COLORADO COURT OF APPEALS

reconsider the judgment’s relocation provision. The judgment was reversed and the case was remanded for further proceedings. January 16, 2020

2020 COA 7. No. 16CA0347. People v. Knobee. Criminal Law—Voir Dire—Burden of Proof— Reasonable Doubt—Constitutional Law—Due Process—Kidnapping—Jury Instruction. Defendant was found guilty of second degree kidnapping involving sexual assault, second degree kidnapping with a deadly weapon, sexual assault of an at-risk victim, aggravated motor vehicle theft, and third degree assault of an at-risk victim. On appeal, defendant asserted that the prosecution’s evidence was insufficient to prove that he was guilty of kidnapping. The prosecution presented evidence that defendant

sexually assaulted the victim after he pulled a knife from the knife block in the kitchen, pointed the knife at her, and forcefully moved her down the stairs into a basement bedroom, where he pushed her onto a bed and sexually assaulted her. Viewing the evidence in the light most favorable to the prosecution, the evidence was sufficient to support a conviction for kidnapping. Defendant also contended that during voir dire the trial court erred by making comments that trivialized the prosecution’s burden of proof and his presumption of innocence. Here, the judge compared reasonable doubt to doing “important things” such as buying a home or choosing doctors. The trial court’s description of the reasonable doubt standard trivialized the prosecution’s burden of proof by comparing the decision jurors make in a criminal case to decisions they make in their everyday lives.

Are you a lawyer asking yourself

“How can I help my community?” Are you a legal services provider wondering

“Where can I find volunteer lawyers?” Succession to Service answers those questions by connecting lawyers who want to volunteer their time with the organizations that need them — at no cost to either the lawyers or the nonprofits. Stemming from the Access to Justice Commission, the goal of the Succession to Service platform is to establish a structured, statewide pro bono program for Colorado’s experienced lawyers and judges to partner with nonprofit legal services organizations. The Succession to Service platform will serve as Colorado’s new pro bono pipeline!

C OL OR A D O L AW Y E R

M A RCH 2020

The platform will launch in early 2020. For more information now and to learn how you can get involved, visit successiontoservice.org and join our mailing list!

Because the trial court’s error impermissibly lowered the burden of proof, the error was structural and requires reversal. Defendant further argued that the jury instruction on second degree kidnapping was improper. The instruction failed to track the applicable statutory language because it did not state that to convict defendant of kidnapping with a deadly weapon, the kidnapping had to be “accomplished by” the use of a deadly weapon. Defendant also contended that the Colorado Sex Offender Lifetime Supervision Act of 1998 (the Act) is unconstitutional. The Court of Appeals found no reason to depart from the decisions of other divisions that consistently upheld the constitutionality of the Act. The judgment was reversed and the case was remanded for a new trial. 2020 COA 8. No. 17CA1056. People v. Viburg. Criminal Law—Driving under the Influence— Felony—Prior Convictions—Elements of Offense—Jury—Burden of Proof. Defendant was convicted of driving under the influence (DUI) and careless driving. At a post-trial hearing, the judge found by a preponderance of the evidence that defendant had three prior convictions for driving while ability impaired (DWAI) or DUI. Based on that finding, the court elevated defendant’s misdemeanor DUI conviction to a class 4 felony and sentenced him accordingly. On appeal, defendant contended that the trial court violated his constitutional rights by convicting him of a class 4 felony based on its own finding that he had three prior convictions for DUI or DWAI. Prior convictions required to convict a person of felony DUI are elements of the offense and must be proved to a jury beyond a reasonable doubt. The conviction was reversed and the case was remanded for further proceedings. 2020 COA 9. No. 18CA1908. Pella Windows & Doors, Inc. v. Industrial Claim Appeals Office. Workers’ Compensation—Independent Contractor. Claimant worked as a service technician for Pella Windows & Doors, Inc. (Pella). He was laid off but later entered into a Master Service

Subcontract Agreement to work for Pella as an independent contractor. Claimant took numerous steps to establish himself as an independent contractor, including forming and registering his own business. While on a work assignment for Pella, claimant fell from a second story window and suffered a compression fracture of his spine and now suffers from paraplegia. Despite telling doctors and others that he was a self-employed independent contractor, several months after his injury claimant filed a claim for workers’ compensation. Pella and its insurer contested on the grounds that claimant was an independent contractor at the time of his injury. An administrative law judge (ALJ) found that the nine statutory factors that establish an independent contractor’s independence from a prospective employer, enumerated in the Workers’ Compensation Act, all weighed in Pella’s favor. The ALJ thus found that claimant

was an independent contractor. A panel of the Industrial Claim Appeals Office (the Panel) set aside the ALJ’s order because she failed to follow Industrial Claim Appeals Office v. Softrock Geological Services, Inc., 2014 CO 30, which expanded the independent contractor analysis beyond the nine statutory factors. On remand, the ALJ analyzed the case under Softrock and entered an order in November 2015 concluding again that claimant was an independent contractor. The Panel found the ALJ’s conclusions unsupported by substantial evidence in the record and again rejected her reasoning. In a second remand, another ALJ reversed the prior ALJ’s order and awarded claimant benefits. Pella sought further review and the Panel upheld the award. On appeal, Pella contended that the Panel erred by applying Softrock. The Panel did not err when it determined the ALJ should have

considered the Softrock factors in weighing whether claimant’s business was independent of Pella, and the Panel correctly remanded the matter to the ALJ for consideration of the Softrock factors. But once an ALJ has weighed the statutory and Softrock factors, the ALJ’s findings and determinations regarding independent contractor status cannot be set aside if substantial evidence supports them. Here, substantial evidence supported the ALJ’s factual findings and credibility determinations. The Panel therefore should not have set aside the November 2015 order. The Panel’s orders were set aside and the case was remanded with directions to reinstate the ALJ’s November 2015 order. 2020 COA 10. No. 18CA2098. Spiremedia Inc. v. Wozniak. Civil Procedure—Default Judgment—CRCP 55—CRCP 121.

M A RCH 2020

C OL OR A D O L AW Y E R

FROM COURTS TITLE THE | SUB TITLE | COLORADO COURT OF APPEALS

Spiremedia Inc. filed a complaint against Wozniak for breach of contract and treble damages for a dishonored check. Four days after filing, the district court issued a delay reduction order (DRO) stating that failure to comply with the DRO could result in case dismissal. Wozniak failed to respond to the complaint after he was served, and Spiremedia filed a motion for default judgment under CRCP 55. The district court denied the motion for noncompliance with CRCP 121, § 1-14, but did not explain how the motion was deficient. Two days later Spiremedia refiled the motion for default judgment with an affidavit stating Wozniak was not a minor, incompetent, or a service member. The district court found the second motion “substantially identical” to the first and denied it without explanation. The district court stated that plaintiff violated the DRO by twice filing the motion in improper

format and dismissed the case. Spiremedia filed a motion for reconsideration of the dismissal order, which the district court denied. On appeal, as an initial matter, the Court of Appeals determined it had jurisdiction because the dismissal order did not state that the case was dismissed with prejudice and the statute of limitations had run. Further, the notice of appeal was timely filed. Spiromedia asserted its second motion for default judgment complied with CRCP 121, § 1-14, and thus the district court erred by denying it. Here, Spiremedia’s attorney fees request was deficient because it did not set forth the matters required by Colorado Rule of Professional Conduct 1.5 and it was unsupported by an affidavit of counsel. The district court did not err by concluding that the motions were deficient. However, a court must provide an explanation of how a motion

Financial Assistance for Colorado Lawyers

WATERMAN Fund

Provides financial assistance for “aged, infirm, or otherwise incapacitated lawyers who have practiced in Colorado for a minimum of ten years.” Denver Bar Association Waterman Fund 1290 Broadway, Ste. 1700 | Denver, CO 80203 | 303-824-5319

denbar.org/members/waterman-fund 88

C OL OR A D O L AW Y E R

M A RCH 2020

for default judgment is deficient such that a party can identify and attempt to correct the deficiencies before the case is dismissed. Here, the district court failed to provide a sufficient explanation of how the motions failed to meet the requirements of Rule 121, § 1-14 and did not afford Spiremedia the opportunity to correct those deficiencies. It thus erred by dismissing the case. The judgment of dismissal was reversed. The complaint was reinstated and the case was remanded with instructions. January 23, 2020

2020 COA 11. No. 18CA2342. In re Marriage of Wright. Dissolution of Marriage—Spousal Maintenance—Property Division—Attorney Fees—Sanctions. The district court entered a property division award, ordered husband to pay maintenance, and entered an attorney fees sanction against husband in the parties’ dissolution of marriage. On appeal, husband contended that the property division was inequitable. Here, there was conflicting and imprecise evidence regarding values for the personal property, so the court did not abuse its discretion in finding that it was equitable for each party to retain his or her property. Further, the court properly omitted the Jamaica home that was wife’s premarital property where there was no evidence regarding any increase in value and thus no marital value for the court to divide. There was also no abuse of discretion in the unequal but equitable division of debts divided in proportion to the parties’ incomes. Finally, the court did not err in dividing the husband’s 401(k) equally between the parties, given their economic circumstances. Husband also contended that the district court abused its discretion by awarding wife spousal maintenance without applying the required statutory factors. Contrary to the statute governing maintenance requests, the district court first considered whether wife qualified for maintenance, and then gave the guideline amount presumptive effect and failed to make sufficient findings in support of its decision. The court thus abused its discretion.

ESSENTIALS FOR ESTATE PLANNERS Orange Book Handbook: Colorado Estate Planning Handbook, Seventh Edition A comprehensive desk reference for attorneys, regardless of experience level. This treatise is the how-to guide to accompany our forms book, Orange Book Forms: Colorado Estate Planning Forms.

Orange Book Forms: Colorado Estate Planning Forms, Eighth Edition A remarkable compilation of estate planning forms designed and written by the Orange Book Forms Committee of the CBA Trust & Estate Section. A must-have for every estate planning attorney, it contains a variety of will and trust forms, including a marital deduction will and trust, pourover wills for single persons and couples, joint revocable trusts, irrevocable life insurance trusts, and more. The book also includes forms for powers of attorney, appointment of guardians, client letters and intake questionnaires, and various drop-in provisions for special situations in estate planning. New for 2019 is a marital agreement.

Colorado Probate System, Sixth Edition Includes everything attorneys and paralegals need for estate administration, including a Master Information List with numerical designations for all information obtained regarding the decedent’s estate, plus annotated forms and letters using the numerical designations from the Master Information List. Additionally, useful letters and checklists are provided, as well as supplementary information, such as the Colorado Rules for Magistrates and the Department of Regulatory Agencies’ Cost of Living Adjustment information sheet.

Wade Parks - Colorado Law of Wills, Trusts, and Fiduciary Administration, Ninth Edition For decades, James R. Wade’s phenomenal treatise has been the go-to book for Colorado trust and estate attorneys. This edition contains statutory and case law updates, including discussions of jurisdiction over non-probate assets, use of 529 plans, and claims based on marital agreements. Extensive discussion pertains to the Colorado Uniform Trust Code, which became effective January 1, 2019.

The Green Book, 2019 Edition Contains the entire Title 15, Colorado Revised Statutes, updated through the 2019 legislative session, plus selected statutes dealing with taxes and other matters touching on trusts and estates. The Colorado Rules of Probate Procedure and additional selected rules are also included, as well as relevant Colorado State Judicial Department Forms and Practitioner Forms (PF Forms are developed by the CBA Trust & Estate Section’s Rules and Forms Committee and are not approved by the Colorado Supreme Court). Readers will find the complete Colorado Real Estate Title Standards as part of the electronic version of the book.

1290 Broadway, Suite 1700 Denver, CO 80203

Browse Our Full Library at www.cle.cobar.org/cba-cle-books M A RCH 2020

C OL OR A D O L AW Y E R

FROM COURTS TITLE THE | SUB TITLE | COLORADO COURT OF APPEALS

Husband further argued that it was error for the trial court to award wife attorney fees as sanctions. Despite husband’s cursory statement that he complied with disclosures, the record shows that he provided wife with limited financial information, which prompted wife’s motion to compel. In addition, husband did not cooperate in drafting the Trial Management Certificate, which resulted in needlessly incurred expenses. Therefore, the district court did not abuse its discretion by imposing this sanction against husband. Lastly, husband contended that the permanent orders must be reversed because the district court’s bias and prejudice against men and his religion were evident in its rulings. When read in the context of the evidence presented, the comments about husband’s church do not reflect a bias or prejudice about husband’s gender or religion but instead reflect the court’s opinion,

based on the evidence, that husband made poor decisions to withhold money, parenting time, and proper living quarters from the child because he was upset with mother. The comments did not rise to the level of unreasonable or unfair bias against husband. The portion of the judgment regarding maintenance was reversed and the case was remanded for further proceedings. In all other respects, the judgment was affirmed. 2020 COA 12. No. 19CA0439. People in the Interest of S.R.N.J-S. Juvenile Law—Dependency and Neglect—Termination of Parent-Child Legal Relationship. The Denver Department of Human Services (Department) removed the children shortly after their births because mother was using controlled substances. A year later the Department returned the children to mother and closed the case.

SOLACE is Here to Help SOLACE offers crisis support to judges, lawyers, paralegals, legal assistants, law firm and court employees and their family members. When a legal professional’s work is impacted by a potentially life-altering event such as serious illness or injury, SOLACE’s convenient and confidential system will match them with volunteers who can provide assistance.

Visit

cobar.org/SOLACE

C OL OR A D O L AW Y E R

M A RCH 2020

Contact

solace@cobar.org

The Department later initiated this case due to mother’s possible methamphetamine use and reported domestic violence and abuse. The children’s guardian ad litem moved to terminate the parents’ parental rights, and the Department opposed the motion. After a 12-day hearing, the juvenile court terminated both parents’ parental rights. On appeal, the parents asserted that the juvenile court erred by not making findings to support termination of their parental rights. To terminate parental rights, a juvenile court must find by clear and convincing evidence that (1) a child was adjudicated dependent and neglected; (2) the parent didn’t comply with a court-approved treatment plan or the plan wasn’t successful; (3) the parent is unfit; and (4) the parent’s conduct or condition is unlikely to change within a reasonable time. Here, the evidentiary facts found by the juvenile court were clearly erroneous and do not support a conclusion that the parents were unfit. The need for permanency alone wasn’t sufficient to terminate parental rights. The judgment was reversed and the case was remanded. 2020 COA 13. No. 19CA0760. People in the Interest of M.B. Juvenile Law—Dependency and Neglect—Paternity—Due Process—Equal Protection. In January 2018, the Arapahoe County Department of Human Services (Department) filed a petition in dependency and neglect concerning two of B.B.’s biological children and a third child, M.B., as to whom B.B. was the “presumed father.” The Department later amended the petition to name J.G. as M.B.’s alleged biological father. In June 2018, based on genetic testing results, the court adjudicated J.G. as M.B.’s biological father. In March 2019, the juvenile court found that J.G. was M.B.’s legal father and excused B.B.’s counsel from the hearing. Neither mother nor B.B. appeared at the hearing. On appeal, the Court of Appeals declined to review B.B.’s unpreserved due process and equal protection contentions because B.B.’s due process argument did not implicate a miscarriage of justice and the record is inadequate to address equal protection as applied.

18TH ANNUAL ROCKY MOUNTAIN

Intellectual Property and Technology Law Institute May 28-29, 2020 – AND –

IP Institute Fundamentals Academy

One-day optional pre-Institute training in patent, trademark, licensing and copyright basics, taught by best-in-class instructors – May 27, 2020 Featured Games

•• •• •• •• •

A Conversation with Waymo on Driverless Cars and AI The Rise of Big Data and What it Means for Everyone and Everything Mark Lemley interviewing Federal Circuit Judge Kathleen O’Malley and USPTO Director Andrei Iancu Double Jeopardy – an Ethics Game Show to close the Institute!

Pick from the Deck — Choose Your Topics as You Go

Updates Across the Board

•

Don't miss the most preeminent intellectual property conference in the Rocky Mountain region

Patent Prosecution and Litigation Trademark/Copyrights Licensing, Tech Transactions, E-commerce In-House Counsel Panels and Discussions Skills-based Experiential – Transactional and Advanced Patent Prosecution

Patent, Trademark, Copyright, Trade Secret, and Data Privacy, Licensing, and PTAB

PLUS, Wine and Beer, Ice Cream Socials, After-hours Networking,

Breakfasts, Lunches, Music, Special Surprises, Trash-talk and more! At the Westin Westminster Hotel, Westminster, CO Co-sponsored by the Intellectual Property Law Section of the Colorado Bar Association, Stanford Law School, Stanford Program in Law, Science and Technology, the Copyright Society of the USA, and the ABA Section of Intellectual Property Law, and in cooperation with the Rocky Mountain Regional Office of the U.S. Patent and Trademark Office

M A RCH 2020

C OL OR A D O L AW Y E R

FROM COURTS TITLE THE | SUB TITLE | COLORADO COURT OF APPEALS

B.B. argued that the court erred by finding that J.G. is M.B.’s legal father. He contended that the court violated the Uniform Parentage Act (UPA) by failing to hold a timely paternity determination hearing. The UPA requires an informal hearing to be held “[a]s soon as practicable after an action to declare the existence or nonexistence of the father-child relationship has been brought” if the court determines that holding a hearing is “in the child’s best interest.” Even assuming that the “as soon as practicable” requirement applies in a dependency and neglect proceeding, the UPA’s mandate applies only after an action is brought to declare the existence or nonexistence of the father-child relationship, and a dependency and neglect proceeding is not such an action. Further, the juvenile court timely held a paternity hearing and the record supports the finding that J.G. was M.B.’s legal father. The court acted within its

discretion in finding that J.G. is M.B.’s biological father. The order was affirmed. January 30, 2020

2020 COA 14. No. 15CA0040. People v. Tallent. Constitutional Law—Searches and Seizures— Exclusionary Rule—Exceptions—Motion to Suppress—Remand. Defendant was arrested and searched, which led the police to discover stolen property. The officers also discovered that defendant had an outstanding warrant for his arrest on a parole violation. Defendant moved to suppress the evidence and statements obtained as a result of his arrest. The district court initially granted and then partially denied the motion after reconsideration. A Court of Appeals division reversed the denial of the motion to suppress.

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.

C OL OR A D O L AW Y E R

M A RCH 2020

On remand, the trial court concluded that some evidence obtained after defendant’s arrest was admissible either because the People proved that it was sufficiently attenuated from the illegal arrest or officers would have inevitably discovered the evidence through lawful means. A jury convicted defendant of theft, second degree burglary, second degree criminal trespass, and theft by receiving. He was later adjudicated a habitual criminal and sentenced to 48 years in the custody of the Department of Corrections. On appeal, defendant contended that the trial court erred in permitting the People to make new arguments on remand regarding the admissibility of the evidence obtained after his illegal arrest. A trial court should engage in a two-step analysis when the prosecution seeks to argue new theories to oppose a defendant’s motion to suppress on remand. First, the court must exercise its discretion to determine whether to allow the prosecution to advance new arguments on remand by considering whether allowing new arguments would unfairly prejudice a party, whether the party proposing the new argument is at fault for not preserving it in an earlier proceeding, and any other factor the court deems relevant. If the court determines that new arguments against suppression are proper on remand, it may proceed to the second step by ruling on the substance of the new arguments. Here, the trial court did not articulate its exercise of discretion in permitting the prosecution to present new arguments on remand. The judgment was reversed and the case was remanded to allow the trial court to make further findings consistent with this opinion. 2020 COA 15. No. 18CA0841. Igou v. Bank of America, N.A. Creditors and Debtors—Promissory Note—Acceleration of Debt—Notice—Foreclosure—Statute of Limitations. Igou executed a promissory note with a creditor in exchange for a loan to buy a home. The note was secured by a deed of trust. The promissory note required Igou to make monthly payments for 30 years and provided that if Igou defaulted by failing to make any of the monthly payments, the creditor could accelerate the debt and require immediate payment of the loan’s entire remaining balance. The deed of

trust provided that if the debt was accelerated the creditor could also foreclose on the home. Bank of America, N.A. (BOA) later acquired the promissory note. Igou defaulted in June 2010. In August 2010 BOA sent a notice of intent to accelerate the debt requiring the default to be cured by September 5, 2010. Igou failed to cure the default. In June 2012 BOA filed, but later withdrew, a notice of election and demand for sale by the public trustee. In April 2016 BOA sent Igou a notice of intent to accelerate and right to cure, and Igou again failed to cure the default. In December 2016 BOA filed another notice of election and demand for sale by the public trustee. BOA thereafter filed a CRCP 120 motion seeking the district court’s authorization for a foreclosure sale based on the 2016 notice, which was granted by the court. Igou then filed a claim for a declaratory judgment that BOA’s CRCP 120 motion was barred by the six-year statute of limitations, and a second claim for injunctive relief to prevent foreclosure. The district court granted Igou a preliminary injunction and the case was tried. The district court ruled that BOA’s CRCP 120 motion was timely and it dismissed Igou’s claims with prejudice. On appeal, Igou argued that the district court erred by ruling that BOA’s CRCP 120 motion was timely. BOA’s action under CRCP 120 was governed by the statute of limitations in CRS § 13-80-103.5(1)(a), which required that BOA file it within six years of its accrual. Because BOA’s action sought to recover a debt, it accrued on the date the debt became due. Here, when BOA accelerated Igou’s debt on September 5, 2010, a claim to foreclose the home accrued and the statute of limitations began to run. But BOA then abandoned that acceleration by withdrawing the notice of election and demand for sale it had filed and recording that withdrawal. BOA then reaccelerated the debt in May 2016, triggering a new limitations period and rendering the CRCP 120 motion filed in December 2016 timely. BOA argued that appeal was moot because the home was already sold at a foreclosure sale. However, it was undisputed that Igou’s action was filed before the foreclosure sale, so the appeal was not moot. The judgment was affirmed.

2020 COA 16. No. 18CA1143. In re the Marriage of Weekes. Family Law—Child Support Modification—Retroactive Application—Change in Physical Care. The parties’ marriage ended in 2001. In 2008, father took over physical care of his child from mother. After the child became emancipated in 2011, mother sought approximately $85,000 in unpaid child support, over half of which represented interest. Father failed to respond to mother’s motion and the district court entered judgment for mother in the amount requested. In 2016, father moved pro se to set aside the judgment. The district court denied his motions. In 2017 father retained counsel who moved to modify the support order retroactive to the child’s 2008 change in residence. A magistrate denied the motion as untimely and the district court affirmed the magistrate’s decision. On appeal, father contended that the dis-

trict court’s retroactive application of CRS § 14-10-122(5)’s five-year limitation period was unconstitutionally retrospective. CRS § 14-10-122(5) prohibits the district court, as of the amendment’s January 1, 2017 effective date, from modifying child support for any time before the five years preceding the filing of a motion to modify. The amendment was intended by its plain language to apply to motions filed after its effective date, even if the change in physical care predated the amendment. Further, there is no vested right in remedies. Father’s right to retroactively modify his child support payments to the date of the change in the child’s physical care exists only by operation of CRS § 14-10122(5). Thus, there is no vested right in the remedy, and it can be abolished or changed. Therefore, the district court’s application of the January 2017 amended statute did not violate the constitutional prohibition on retrospective laws.

40 years of combined experience LITIGATION • TRANSACTIONS • MEDIATION

Providing a full range of ADR services to parties and counsel in the Front-Range and Western Slope

(303) 906-3709 // Hope-Mediation.com

KENNETH R. HOPE ATTORNEY - MEDIATOR // ken@hope-mediation.com

M A RCH 2020

C OL OR A D O L AW Y E R

FROM COURTS TITLE THE | SUB TITLE | COLORADO COURT OF APPEALS

Stay

TUNED... Alternatively, father contended that even if the five-year limitation provision applied to his motion, the district court erred in analyzing the applicability of the statutory exception. The exception applies where imposing the limitation provision would be “substantially inequitable, unjust, or inappropriate.” Whether to apply the statutory exception involves a fact-intensive inquiry. However, neither the magistrate nor the district court appeared to consider father’s arguments that might have supported the exception’s application. Accordingly, the district court erred. The order was reversed and the case was remanded for the district court to conduct an evidentiary hearing to determine whether it would be substantially inequitable, unjust, or inappropriate to apply the CRS § 14-10122(5)’s five-year limit to bar father’s motion to retroactively modify child support. 2020 COA 17. No. 18CA1347. Emmons v. Colorado Department of Revenue. Driver’s License—Jurisdiction to Revoke—Rescheduling Revocation Hearing. Emmons was arrested on suspicion of drunk driving. Subsequently, the Department of Revenue, Division of Motor Vehicles (Department) issued her a license revocation notice and she requested a hearing. The hearing was delayed and held more than 60 days after the Department received the hearing request. A hearing officer ultimately found that Emmons had driven within two hours of having a blood alcohol content above .08 and revoked her driver’s

C OL OR A D O L AW Y E R

license. Emmons appealed to the district court, which affirmed. On appeal, Emmons argued that the Department lacked jurisdiction to revoke her license because her revocation hearing took place more than 60 days after the Department received her hearing request, and the Department did not show that the hearing was rescheduled at the earliest possible time a hearing officer was available. The time frame in CRS § 42-2-126(8) (a) within which a revocation hearing must be held is jurisdictional. The statute requires the Department to hold the hearing within 60 days of receiving a licensee’s request, unless certain exceptions exist that justify rescheduling the hearing at the earliest possible time the hearing officer is available. Here, the bomb threat and the original hearing officer’s calling in sick, taking vacation, and resigning mid-vacation were just cause for rescheduling the hearing. However, there was no record evidence that the hearing was rescheduled at the earliest possible date. Therefore, the Department lacked jurisdiction to revoke Emmons’s license. The judgment was reversed. 2020 COA 18. No. 19CA0091. Harvey v. Centura Health Corp. Hospital Lien—CRS § 38-27101(1)—Medicare—Medicaid. Harvey suffered injuries when her vehicle was rear-ended by a truck driven by an employee of Gibbons Erectors (the driver). Centura Health Corporation and Catholic Health Initiatives (collectively, Centura) provided Harvey medical services. At the time, Harvey was a Medicare

M A RCH 2020

beneficiary and a Medicaid recipient and she presented Centura with proof of her eligibility for these benefits. Harvey and the driver also had other insurance. Centura billed Harvey for its services, and after it did not receive payment, it assigned the bill to a collection agency. Neither Centura nor the collection agency ever billed Medicare or Medicaid. The collection agency subsequently filed a hospital lien on Centura’s behalf against Harvey. Harvey filed this action alleging that by filing the lien before billing Medicare and Medicaid, Centura violated CRS § 38-27-101(1). Centura moved to dismiss. The court treated the motion as one for summary judgment and granted it. On appeal, Harvey argued that Centura violated CRS § 38-27-101(1) by creating a lien for the cost of her medical care without first billing Medicare and Medicaid. CRS § 38-27-101(1) requires a hospital, before creating a lien, to submit reasonable and necessary charges for hospital care to the property and casualty insurer and the primary medical payer of benefits available to and identified by the injured person. Centura was not required to submit charges to Medicare because given the existence of other insurance in this case Medicare is considered a secondary payer under 42 USC § 1395y(b)(2). Harvey also argued that Centura was required to bill Medicaid as a primary payer before creating a lien. However, where an injured person has other sources for the payment of benefits, Medicaid is a payer of last resort and not a primary payer. Therefore, Centura was not required to bill Medicaid before creating a lien. The judgment was affirmed.

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.

FROM THE COURTS | COLORADO SUPREME COURT

Summaries of Published Opinions January 13, 2020

2020 CO 1. No. 19SA44. Graham v. Executive Director of Colorado Department of Corrections. Habeas Corpus—Parole Revocation— Statutory Interpretation. In this habeas corpus appeal, the Supreme Court considered whether subsection (11)(b) of the parole revocation statute, CRS § 17-2-103, as it existed between August 9, 2017 and August 7, 2018, authorizes a parolee’s confinement for the remainder of his parole period. The Court concluded that it does not. Rather, under subsection (11)(b), the parole board is only authorized to order a parolee confined for up to 90 days. Because the parolee in this case has been confined well beyond the 90 days authorized, the Court held that the district court erred in denying his habeas petition. Therefore, the Court reversed the district court’s order and remanded the case to the district court with directions to grant the writ of habeas corpus, make the writ permanent, and order that the parolee be immediately released to parole. 2020 CO 2. No. 18SC436. In re Parental Responsibilities Concerning W.C. Family Law—Parenting Responsibilities—Appeals— Continuing Trial Court Jurisdiction. Absent a specific statute or rule stating otherwise, trial courts are divested of jurisdiction over issues that are material to a perfected appeal. In this case, the Supreme Court applied this rule to father’s motions to modify parenting responsibility orders and first concluded that CRS §§ 14-10-129(1)(a)(I) and -131(2) do not specifically grant trial courts jurisdiction to modify parenting responsibility orders while an appeal of the orders is pending. Next, the Court

concluded that father’s motions to modify were material to his appeal. Thus, the Court held that the trial court did not have jurisdiction to rule on father’s motions to modify while those orders were on appeal. Accordingly, the Court disapproved of the Court of Appeals’ order. 2020 CO 3. No. 18SC482. Martinez v. People. Statutory Interpretation—Probation Revocation—DUI Sentencing.

In this opinion, the Supreme Court reviewed a district court’s judgment affirming a county court’s interpretation and application of CRS § 42-4-1307. The Court concluded that the sentence imposed by the county court when it revoked defendant’s probation for a second time was illegal because it exceeded the statutory maximum amount of jail time. Under CRS § 42-4-1307(7), the Court held that the maximum cumulative amount of jail time a sentencing court may impose for probation violations stemming from a second or subsequent alcohol- or drug-related misdemeanor driving offense is 365 days. Because defendant had served more than 365 days in jail as of the filing of this appeal, the Court reversed the district court’s judgment and remanded the case with instructions to vacate the sentence, resentence him under CRS § 42-4-1307(6) and (7), and correct the mittimus.

Our Courts is a joint activity of the Colorado Judicial Institute and the Colorado Bar Association that provides nonpartisan information programs to adult audiences around the state to further public knowledge and understanding of the state and federal courts in Colorado.

For more information or to schedule a presentation, visit ourcourtscolorado.org. M A RCH 2020

C OL OR A D O L AW Y E R

FROM COURTS TITLE THE | SUB TITLE | COLORADO SUPREME COURT

webinars Free to CBA Members from Noon to 1 p.m. Microsoft Word and PDFs: What You Need to Know to Properly Prepare a Document for E-Filing March 3 Leveraging Your Website for Today’s Clients March 17

Visit cobar.org/lpm 2020 CO 4 No. 19SA129. In re Rademacher v. Greschler. Attorney-Client Privilege—Implied Waiver—Statute of Limitations. In this proceeding brought pursuant to C.A.R. 21, plaintiff challenged the district court’s ruling that she impliedly waived her attorney-client privilege by filing a legal malpractice complaint close to the expiration of the two-year statute of limitations and by then contesting defendant’s statute of limitations defense. The Supreme Court concluded that on the facts presented, plaintiff did not assert a claim or defense that either focused or depended on advice given by her counsel or that placed any privileged communications at issue. Accordingly, the Court further concluded that plaintiff did not impliedly waive her attorney-client privilege in this case. The court therefore made the rule to show cause absolute. 2020 CO 5. Nos. 19SA88 & 19SA89. In re Ballot Title #74; In re Ballot Title #75. Title Setting— Single Subject Requirement—Jurisdiction—Ballot Initiatives—Motion for Rehearing.

C OL OR A D O L AW Y E R

This original proceeding arose from the Title Board’s determination that it lacked jurisdiction pursuant to CRS § 1-40-107(1)(c) to consider petitioner’s motion for a second rehearing proceeding regarding Proposed Ballot Initiative 2019–2020 #74 and Proposed Ballot Initiative 2019–2020 #75. The Supreme Court held that the statement in the statute governing ballot title setting that “[t]he decision of the title board on any motion for rehearing shall be final, except as provided in subsection (2) of this section, and no further motion for rehearing may be filed or considered by the title board” means that a proposed initiative is subject to only one rehearing proceeding before the Title Board. The Board correctly determined that it lacked jurisdiction to consider a motion for a second rehearing. Accordingly, the title board’s actions were affirmed. 2020 CO 6. No. 19SA191. In re People v. Kilgore. Criminal Law—Discretion in Ordering Disclosure. In this original proceeding, the Supreme Court considered whether the district court was authorized to order defendant to disclose his exhibits before trial. The Court concluded that it was not. Because the district court’s order found no support in Crim. P. 16 and arguably infringed on defendant’s constitutional rights, the Court made the rule absolute. January 27, 2020

2020 CO 7. No. 18SC772. In re Marriage of Durie. Post-Decree Motion to Allocate Assets and Liabilities under CRCP 16.2(e)(10)—Particularity—Allegations Based on Information and Belief—Burden of Proof—Entitlement to Discovery—District Court’s Discretion. In this domestic relations case, the Supreme Court considered the standards and procedures that govern a CRCP 16.2(e)(10) post-decree motion to allocate material assets or liabilities allegedly misstated or omitted in pre-decree disclosures. The Court held that CRCP 12(b)(5) and the plausibility standard in Warne v. Hall, 2016 CO

M A RCH 2020

50, 373 P.3d 588, do not apply to Rule 16.2(e) (10) motions. Rule 12(b)(5) and the plausibility standard apply to motions to dismiss a claim for relief in a pleading, and a Rule 16.2(e)(10) motion is not a pleading. Instead, the Court held that, consistent with CRCP 7(b), which controls motions practice in civil cases, a Rule 16.2(e) (10) motion must “state with particularity” the grounds on which it is premised (i.e., the reasons why relief is warranted). But the Court held that this does not preclude allegations that are based on information and belief when the moving party lacks direct knowledge about those allegations. So long as the motion satisfies the particularity requirement in Rule 7(b)(1), it may include such allegations. Lastly, the Court held that a party is not automatically entitled to conduct discovery to support his or her Rule 16.2(e)(10) motion. Rather, the district court, in its discretion, may allow discovery or schedule a hearing (or both) if it concludes that the facts asserted in the motion are sufficient to justify doing so. In making this determination, the district court should be mindful that the moving party must satisfy Rule 7(b)(1)’s particularity requirement and ultimately bears the burden of demonstrating by a preponderance of the evidence that he or she is entitled to relief. In the event the district court finds that the facts asserted in the motion are not sufficient to justify a hearing or even discovery, it may deny the motion outright. The division’s judgment was affirmed, albeit on other grounds, and the case was remanded with instructions to return the case to the district court for additional proceedings. On remand, the district court should allow wife to conduct whatever discovery it deems appropriate and then determine whether to hold a hearing.

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.

M A RCH 2020

C OL OR A D O L AW Y E R

Unleash your inner photographer. Colorado Lawyer would like to consider your photograph for its cover.

We welcome photos of Colorado landscapes, buildings, landmarks, and animals, as well as photographs of original artwork. People may be in the photo, but they should not be identifiable. Send original, high-resolution jpeg files to Kate Schuster at kschuster@cobar.org. Only photographs taken by active or retired CBA members, Colorado law students, or lawrelated administrative staff will be considered.

C OL OR A D O L AW Y E R

M A RCH 2020

METRO VOLUNTEER LAWYERS MAKE A DIFFERENCE Through the Family Law Court Program, volunteers assist clients with uncomplicated, uncontested dissolution of marriage or allocation of parental responsibility cases. There are two stages where we are in need of volunteers: (1) Client Meetings, where volunteer attorneys, law students, and paralegals assist clients in filling out the documents needed to initiate their cases, and (2) Permanent Orders Hearings, where volunteer attorneys meet with clients to prepare the final documents needed to submit to the court, and then represent the client solely for the duration of the hearing that same day.

Volunteer with MVLâ&#x20AC;&#x2122;s

FAMILY LAW COURT PROGRAM

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

M A RCH 2020

C OL OR A D O L AW Y E R

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.

100

C OL OR A D O L AW Y E R

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.

M A RCH 2020

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. 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. 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.

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.

M A RCH 2020

C OL OR A D O L AW Y E R

101

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

C OL OR A D O L AW Y E R

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

102

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

M A RCH 2020

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

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

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).

M A RCH 2020

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. 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.

C OL OR A D O L AW Y E R

103

UNDER OATH | MEMBER SPOTLIGHT

Mark Berry Mark Berry is a real estate attorney focusing on affordable housing and a former Army JAG officer and HUD attorney. He also played piano and sang in a piano bar in San Francisco and now enjoys singing in the Denver Law Club.

PROFILE

What do you like the most about your practice area? Working in real estate gives me the flexibility as a sole practitioner to be mission-driven and to help nonprofits, housing authorities, and other developers provide housing to those in need.

Hometown: Cedar Rapids, Iowa Law School: Iowa College of Law Lives in: Ken Caryl Ranch near Littleton

What is one of the most positive experiences you’ve had as a lawyer? My seven years’ active duty and five years’ reserves duty as a Judge Advocate General’s Corps attorney serving in Germany, San Francisco, Seattle, and Colorado Springs, defending those who defend America, and working as an assistant U.S. attorney on civil and criminal cases. What is your favorite memory from law school? Playing piano for our law school musical show in which the words of popular songs were changed to relate to navigating through awkward legal issues and difficult cases.

Works at: The Law Office of Mark Berry Practice Area(s): Real Estate CBA Member Since: 1994

What organizations are you involved in? Various nonprofit boards, HOAs, real estate groups, and the Denver Law Club, a great group of fun lawyers. We have speakers present on various law subjects and put on musical spoofs regarding legal ethics so lawyers can earn CLE credits while having fun! Who is your hero and why? My dad, because he always just wanted those around him to be happy, whoever they were and wherever he was, even if it was at his own self-deprecating expense.

Would you like to be featured in Under Oath? Email Susie Klein at sklein@ cobar.org for a questionnaire.

104

C OL OR A D O L AW Y E R

M A RCH 2020

What is your favorite place to escape to in Colorado? The hogback behind our house or Steamboat. Both offer peace and serenity and an opportunity to reflect and get away from work. What do you consider your greatest achievement? Being a dad to three great kids. What’s the best advice you’ve ever been given? “Do all you can with what you have, in the time you have, in the place you are.” I heard this in a song by Robert Anderson from Devotion. He was quoting Nkosi Johnson, and Theodore Roosevelt said something very similar. What advice would you give a new lawyer? It’s more important and satisfying to find an area of law you are passionate about and can make a difference in than it is to work in an area that is easily available, more lucrative, or only just suits your skill set. So, keep training and learning about your passion area, and be ready when the opportunity presents itself. What is an unconventional lesson you’ve learned about the practice of law? I always used to tell people they should work to live and not live to work, but as I get older these concepts seem to blend together. I believe we all search more for real purpose and a legacy in life toward the end of our career.

The CBA has partnered with Affinity Consulting Group to bring you a year-round portal offering: Monthly webinars | Technology tutorials and resources Checklists, tech reviews and recommendations | Plus a whole lot more Ability to ask questions via cba community

Visit cobar.org/mgmtHQ Iâ&#x20AC;&#x2122;m looking for more

online CLEs

Give me new tactics and strategies on

building my client base

Help me keep up with

technology

MON T H Y E A R

C OL OR A D O L AW Y E R

105