Colorado Lawyer: November 2020

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TABLE OF CONTENTS November | Vol. 49, No. 10 | www.cobar.org

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

EDITORIAL OFFICES

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

Jessica Espinoza-Murillo advertising@cobar.org

Your First Vaccine Injury Case

MEMBERSHIP SERVICES/ ADDRESS CHANGES

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

Chris Levkulich, Chair Denver—(303) 861-4154 clevkulich@lektax.com Kathryn Starnella, Immediate Past Chair Denver—(303) 813-6539 kstarnella@warllc.com Joseph G. Michaels, Chair-Elect Denver—(720) 508-6460 joseph.michaels@coag.gov

PAGE

64

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

FEATURES CRIMINAL LAW

Sealing Criminal History Records for Convictions under CRS §§ 24-72-701 et seq.

Damian J. Arguello Broomfield—(303) 427-2454 damian@cilc.law

PROFESSIONAL CONDUCT AND LEGAL ETHICS

John Hiski Ridge Fort Collins—(206) 919-6708 john.ridge@outlook.com

Former-Client Conflicts

by Gordon P. Gallagher

Lawyer Disqualification under Colo. RPC 1.9(a)

PAGE 32

by Evan Stephenson and Kristen Ferries

Keith M. Olivia Boulder—(720) 310-7760 kolivia@onkuretherapeutics.com

PAGE 56 FAMILY LAW

Parenting Plans for the COVID-19 Pandemic Era

Joel M. Pratt Colorado Springs—(719) 473-0884 joel@lisamdailey.com

TORT AND INSURANCE LAW

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

Your First Vaccine Injury Case

by Joan McWilliams and Stephanie E. Dankel

A Primer on Handling Claims

PAGE 40

by Gurney F. Pearsall III

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

PAGE 64

Jami Vigil Colorado Springs—(719) 452-5400 jami.vigil@judicial.state.co.us

GOVERNMENT COUNSEL

Follow the Money Federal COVID-19 Funding and the Inevitable Wave of Government Enforcement

Juan G. Villaseñor Fort Collins—(970) 672-7498 juan.villasenor@judicial.state.co.us Amy Larson CBA Executive Director and CEO

by Jennifer Lake

PAGE 48

ON THE COVER: Brent T. Johnson took this photo of a pair of blue herons nesting at Kountz Lake in March 2019. He used a Panasonic G9 camera with a 100-300mm lens at 300mm. Johnson is an employment lawyer at Fairfield and Woods, P.C.

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ARIZONA

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FLORIDA

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NEVADA

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NEW MEXICO

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OHIO

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WYOMING

FROM THE COURTS

WELCOME 4

President’s Message

82

Court Business

Leading the Way to Attorney Well-Being

by Jessica Brown

Just Joined

92 Office

14

by Ric N. Morgan and Sabra Janko

24

Judges’ Corner

Dispositive Motions Practice in Colorado: Best Practices and Challenges amid the Pandemic

by R. Brooke Jackson and John L. Wheeler, with contributions

by Brooke H. Meyer

28

Technology in the Law Practice

What is OSINT?

by Erin Beffa

Executive Council

Disciplinary Case Summaries 98

Access to Justice

Pro Bono Support to Communities in Need: A Survey of Free Monthly Statewide Clinics for Self-Represented Parties

Colorado Supreme Court Rules Committees

of the Presiding Disciplinary Judge

Welcome New Members

DEPARTMENTS 16

OFFICERS

US

Court of Appeals for the Tenth Circuit

Jessica Brown President Joi Kush President-Elect

Summaries of Selected Opinions 104 Colorado

Court of Appeals

110 Colorado

Supreme Court

Kathleen Hearn Croshal Immediate Past President

Summaries of Published Opinions

Ryann Peyton Vice President First Region

Summaries of Published Opinions

Adam Hepp Vice President Second Region

ALSO IN THIS ISSUE 114 Attention

Photographers

116 Membership 118

Judson Hite Senior Vice President Third Region

Perks

Writing for Colorado Lawyer

Kyle Aber Vice President Fourth Region

UNDER OATH 120

Keith Vance Vice President Fifth Region

Member Spotlight

Leslie German Vice President Sixth Region

AROUND THE BAR 72 Bar

News

Leslee Balten Vice President Seventh Region

News From the CBA, Local Bars, and More

by Jessica Espinoza-Murillo

74 Profiles

COUNCIL MEMBERS

Kevin McReynolds DBA President

in Success

Award of Merit Recipient Judge Alfred Harrell: A Catalyst for Change

by Haley Hemen

78

Lawyers’ Announcements

Spencer Rubin CBA YLD Chair Zaki Robbins Diversity Bar Representative Edwin Felter Section Representative

80 In Memoriam

Robin Rossenfeld Section Representative Bonnie Schriner Section Representative Kevin Cheney At Large Member Amanda Hopkins At Large Member Ian McCargar At Large Member

©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.

Jon Olafson At Large Member

Permission to print and make limited copies for personal use or within Colorado Bar Association (CBA) members’ law firms of material printed in Colorado Lawyer (CL) is hereby granted, provided that the copyright notice appear in all copies and that the material is used only for informational, educational, and noncommercial purposes. Without the express written permission of the CBA, readers are prohibited from making copies or reproductions of any kind for distribution other than for personal use, or within CBA members’ law firms, of material contained in this publication. Contact the editorial office to acquire the appropriate form. The information in this publication is intended for general guidance and is not meant to be a substitute for professional legal advice. The CBA accepts no responsibility for loss occasioned to any person acting or refraining from action as a result of using any material in this publication. Readers may wish to ask the advice of a lawyer. The CL logo is unavailable for use by any individual or entity other than the CBA. The price of an annual subscription to members of the CBA ($50) is included in their dues as part of their membership and cannot be billed separately.

The cost of CL is $150 (annual subscription) or $15 (per issue) for nonlawyers, nonresident lawyers who are not licensed in Colorado, and for-profit organizations (including law firms and law firm libraries); and $50 (annual subscription) or $5 (per issue) for nonprofit organizations and libraries, plus tax and postage if mailed. Changes of address must reach the CBA Membership Services Department by the fifteenth day of the month prior to publication. Appearance of advertisements in CL does not constitute an endorsement or recommendation by CL or the CBA of goods and services offered. CL and the CBA do not independently investigate, evaluate, or authenticate advertiser claims. Articles and advertisements appearing in CL do not necessarily reflect the official position of the CBA; their publication does not constitute an endorsement of views that may be expressed or products or services advertised. Accuracy of citations in articles is the sole responsibility of the authors. For writing guidelines or to submit an article, contact a member of the editorial staff.

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Mary Jo Gross Treasurer Amy Larson CBA Executive Director and CEO

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WELCOME | CBA PRESIDENT’S MESSAGE

Leading the Way to Attorney Well-Being

BY J E S SICA BROW N

I

n my August/September President’s Message, I discussed my Lawyers as Leaders theme for the year and explained how the two pandemics (COVID-19 and racially motivated violence) have intensified the need for lawyers to step up and lead in a variety of ways. In the October issue, I talked about how lawyers can lead by providing pro bono services to individuals and small businesses, particularly minority owned businesses, that are struggling economically.

But what about individuals—including lawyers—who are struggling mentally or emotionally? What factors are contributing to those challenges, particularly in 2020? What resources are available for employers and individuals facing them? And who are some of the leading lawyers and other professionals making those resources available?

A Bleak Winter Ahead?

Some medical professionals are predicting a bleak winter, in part as a result of the toll COVID-19 is taking on mental health. Even during “good” times, approximately 10 million Americans suffer debilitating psychological symptoms every winter that can interfere with their lives at work and home.1 Seasonal affective disorder (SAD) is a form of clinical depression that results from shorter days, less sunlight, and decreased ability to be outdoors.2 The problem is not only seasonal, of course.

According to the World Health Organization, depression afflicts 254 million people globally and is one of the leading causes of disability.3 Indeed, depression and anxiety together cause the global economy to lose $1 trillion every year.4

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Moreover, it is well established that lawyers tend to be particularly stressed and anxious.

Even lawyers who are not among the millions who suffer from clinical depression or anxiety are prone to burnout and often feel a great deal of pressure to be available and responsive 24/7; to meet billable hours requirements, even during an economic downturn; to avoid mistakes in an adversarial and excessively detail-oriented profession; and to anticipate and guard against problems of all kinds.5 Lawyers are sometimes described as “paid worriers,” trained to see problems everywhere, even where they don’t exist.6 This outlook can take a toll on our emotional well-being.

According to a frequently cited 2016 study conducted by the Hazelden Betty Ford Foundation and the ABA Commission on Lawyer Assistance Programs, 28% of lawyers experience symptoms of depression, 19% of

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Lawyers are sometimes described as “paid worriers,” trained to see problems everywhere, even where they don’t exist. This outlook can take a toll on our emotional well-being. lawyers experience anxiety, and 23% experience chronic stress.7 I’m no expert, but I suspect those numbers would be even higher if the study were repeated today.

First, the pressure to be constantly available has only increased, given the perception that we are always close to our computers and couldn’t possibly have other plans. Lawyers have reported experiencing even more evening and weekend demands than they did before the pandemic, and they say they are finding boundaries between work and life even harder to maintain. In July 2020, a survey of 284 employees revealed that 69% were experiencing symptoms of burnout working from home.8 Second, parents of younger children are being stretched and stressed in new ways.

They may be gaining valuable family time as employers allow greater work flexibility, but with many support services unavailable, working parents are sacrificing even more sleep than usual to meet their practice demands and additional parenting responsibilities.

For many, these new responsibilities include serving as schoolteacher and tech support for their school-aged children.

Third, on top of our work-related stresses, many of us worry about the impact of the economic crisis on ourselves, our family members,

and those in our community who have lost jobs, health insurance, and perhaps even a stable home. We also may be concerned that we or someone we know will contract the coronavirus or that someone who has it won’t recover.

Many of us, and diverse lawyers and judges in particular, experience stress and anxiety relating to the racial justice issues that came to the fore this summer, as well as the loss of some our nation’s most prominent social justice leaders.

And because this is an election year, political divisiveness is a major stressor for many as well.

So combatting depression, stress, and anxiety would seem to be especially challenging in 2020.9 But being outdoors has been helpful to boost well-being and is something many Coloradans have embraced even more than usual this year, because it appears the virus is much less likely to spread outdoors.10 Notwithstanding the wildfires (another potential source of stress in 2020), I frequently work in my backyard. My husband and I have been trying to walk at least once per day in lieu of going to the gym. I have also scheduled several socially distant “walk ‘n’ talks,” my favorite way to hold in-person meetings. I have socialized in person almost exclusively by going for walks with friends.

And we have enjoyed a few hikes and outdoor movies as a family as well.

I have felt the boost that walking and being outside as much as possible provides to my mental health. Studies have proven that even the smallest bit of nature—a single tree, a small patch of flowers, a house plant—can improve mental health.11 Shorter, darker, colder days are coming, however, and with them, for many, will come SAD or the (milder but even more common) winter blues.

Loneliness is the New Smoking With the added requirement this year of self-isolating by working from home or, for students, attending online school, emotional well-being is an even greater concern than usual.12 Isolation and loneliness have a strong link to emotional health and well-being.13 Isolation can both cause mental health issues, and be a mechanism for coping with them.14 The same is true of substance abuse and overeating.15

Due to the pandemic, some of us face feelings of isolation from living alone or our inability to gather with extended family and friends. Experts even advise foregoing family gatherings for the holidays this winter.16 A 2020 trends report from Ford Motor Company found that loneliness is also becoming a global epidemic and its impact on physical health is comparable to obesity or to smoking 15 cigarettes per day.17 And going online for social interaction may not be the best solution: 43% of millennials and Gen Zers reported that social media often makes them feel lonely.18 Indeed, a recent survey found that more than 60% of Americans are lonely.19 And a recent study suggests that the nation’s emotional pain

Studies have proven that even the smallest bit of nature—a single tree, a small patch of flowers, a house plant—can improve mental health.

and suffering could result in as many as 75,000 “deaths of despair” in the United States over the next decade.20 Of course, in less than one year we already have lost far more lives to COVID-19.21 And many others have been afflicted by the virus in ways that may impact their lives for years to come.22 So we need to adhere to physical and social distancing protocols and follow all other public health and safety guidelines.23 Keeping our distance from others is an unusual but important choice we are making for the benefit of our communities’ physical well-being.24 But we also need to recognize this mental health issue and seek to combat loneliness and isolation—as well as the other stresses and pressures that may

be impacting lawyers’ emotional well-being—in a way that is safe for our communities.

Addressing Emotional Well-Being Issues at Work Even in a work-from-home environment, employers can play a role in addressing these issues, and should be motivated to do so. Employees’ emotional distress can manifest in numerous ways and impact their work and productivity.25 For example, emotional distress can result in sleep disruption, fatigue, lack of concentration, slowed cognition, forgetfulness, irritability, and self-medication, all of which can in turn result in tardiness, procrastination and distractibility, indecision and project delays, errors and omissions, strained work relationships, missed deadlines, and absenteeism. 26 Lost productivity due to chronic health problems costs US businesses over $225 billion per year,27 and the cost of alcohol use is $249 billion per year, with lost productivity accounting for 72% of that amount.28 Moreover, an individual’s experience at work can have a significant impact on their emotional well-being and quality of life.29 Law firm leaders and others in charge of legal organizations should be mindful of this fact and try to address these issues in an intentional way.

First, employers should consider communicating frequently and being as transparent as possible with their workforce. “Every leader knows that communication during a crisis is critical,” and when leaders “communicate with urgency, transparency, and empathy, it helps people adjust to the constantly changing conditions crises bring.”30 Employers should address job security concerns explicitly and provide safe channels for employee feedback.31 Employers can also facilitate and encourage support groups and networks among coworkers.

Second, employers can be intentionally respectful of employees’ nights and weekends when possible, or find other ways (such as offering “mental health days” and encouraging vacations and staycations) to help employees make time for themselves.32 Third, employers can focus on getting to know their employees’ goals, strengths, and talents and taking them into consideration in

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WELCOME | CBA PRESIDENT’S MESSAGE

making work assignments. “If employers can help employees feel valued and align their work with the right roles that suit their personalities and life objectives, that could have a positive impact on their performance, lower risk and attrition,”33 and increase their well-being—a win-win for both parties.

In addition, larger employers with resources can develop programmatic efforts to increase awareness about mental health issues, launch anti-stigma campaigns, and train managers and supervisors to better respond.34 ABA Well-Being Campaign and Pledge In early 2019, my large law firm, Gibson Dunn, became an inaugural signatory to the American Bar Association’s (ABA) Well-Being Pledge in connection with its Well-Being Campaign.35 The campaign was launched to improve the mental health landscape of the legal profession.36 The

campaign’s primary vehicle was the pledge, which called upon legal employers (law firms, corporations, government agencies, legal aid organizations, etc.) to (1) recognize that mental health problems represent a significant challenge for our profession, and acknowledge that more can and should be done to improve the health and well-being of lawyers; and (2) pledge to support the campaign and work to adopt and prioritize its seven-point framework for building a better future.37 To that end, Gibson Dunn embarked on an ambitious plan to address not just the well-being of our lawyers but the well-being of our entire support staff as well. “The effects of stress on law firm staff has often been overlooked,” even though, as reported in The National Law Review about a year ago, “a number of law firm [non-attorney] professionals ha[d] recently died by suicide.”38

Our firm created a new department with a dedicated well-being director and manager at the beginning of this year. Then we implemented a firmwide global wellness program that encourages each employee to design and move toward a personal vision for well-being. The wellness topics the program addresses include sleep health, proper hydration, live workouts, and stress management. Participation is entirely voluntary. The program’s mission is to help improve life quality through new and existing resources, enabling attorneys and staff to define and achieve their own wellness goals.

The firm also sponsors an Employee Assistance Program, which offers 24/7 counseling to all employees and their family members to support our employees’ well-being. Additionally, Gibson Dunn covers a One Medical membership for all US personnel and their spouses/domestic partners and dependents.

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.

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One Medical provides primary care for children and adults, including group visits and COVID-19 testing.

All firm employees also are eligible for a Journey Meditation subscription, which provides access to live and archived meditations. In addition to meditations on reducing stress and self-care, some meditations are designed for the entire family. Plus, our global wellness program advances a “work-life synergy” through convenience-care referral services for daily life needs at no charge, including referrals for local professionals (e.g., electricians, plumbers, house cleaners), car purchases, and travel resources.

At the time, we had no idea what 2020 would bring or the acute need that would arise for these services. But ours is far from the only well-being program or approach. I mention it as an example of what some large law firms are doing to improve attorneys’ mental health and also because our wellness director, James Keshavarz (jkeshavarz@ gibsondunn.com), and manager, Melissa Ann de Carvalho (mdecarvalho@gibsondunn.com), are very generous in sharing ideas with employers who are interested in doing something similar.

That said, a uniform approach to these issues won’t work across diverse workforces.39 Organizations must customize their well-being programs based on what they are experiencing.40 Collecting qualitative data from employees and leaders within organizations, through interviews or focus groups, can help organizations understand employees’ needs regarding mental and emotional well-being.41 Colorado Task Force on Lawyer Well-Being Another excellent resource for large and small employers, as well as individuals including law students and judges, is the Colorado Task Force on Lawyer Well-Being. Justice Monica Márquez chairs this task force, and many of the Bar’s other leading lawyers also are involved, including former CBA President Mark Fogg, Colorado Hispanic Bar Association Past President Christine Hernandez, CBA President-Elect Joi Kush, and CBA Executive Council member and CAMP Director Ryann Peyton.42 The Colorado Task Force is modeled after the National Task Force on Lawyer Well-Being,

which Colorado’s former Attorney Regulation Counsel Jim Coyle co-chaired in 2016 with the modest goal (not really) to change the culture of the profession. The National Task Force produced a report called “The Path to Lawyer Well-Being.”43 It also developed a robust Well-Being Toolkit that is, as Justice Márquez aptly described it, “chock full of ideas for lawyers and legal employers.”

This toolkit and a whole host of articles and other helpful information are available on the Colorado Task Force webpage.44 Like the National Task Force, the Colorado Task Force views lawyer well-being as “part of a lawyer’s ethical duty of competence. It includes lawyers’ ability to make healthy, positive work/ life choices to assure not only a quality of life within their families and communities, but also to help them make responsible decisions for their clients.” Indeed, Colorado Rule of Professional Conduct 1.16(a)(2) provides that a lawyer must not represent a client or must withdraw from representation if the lawyer’s mental or physical condition materially impairs the lawyer’s ability to carry out the representation.

The Colorado Task Force has been meeting and working since September 2018. Members broke into five working groups focused on: 1. law students; 2. judges (whose roles are especially isolating and for whom the stigma attached to help-seeking behaviors is even more acute);45 3. data collection; 4. connecting resources; and 5. the business case for large law firms to buy in.

Each group is working diligently to put together concrete recommendations in a final report. The plan had been to release the report this spring in connection with a late-April in-person event—but 2020 had other plans. The task force regrouped this summer and will be releasing its report soon, perhaps even before this Message is published.

Additional Well-Being Resources for Colorado Lawyers In addition to the foregoing resources for large and small employers, we are fortunate to have a number of programs in Colorado designed to

help lawyers who may be struggling mentally or emotionally. The lawyers leading these programs are providing an invaluable service, particularly during these tumultuous times.

The Colorado Lawyer Assistance Program The Colorado Lawyer Assistance Program (COLAP) is one of our longest-standing and most important resources for emotional and mental well-being in Colorado. Established in 2011, COLAP is a free, confidential, and independent program for Colorado lawyers, judges, bar applicants, and law students. COLAP’s mission is to promote well-being, resiliency, and competency by assisting members of the Colorado legal community with personal and professional issues that compromise their practice, efficacy, and quality of life. 46 COLAP protects the interests of clients, litigants, and the general public by educating the bench, bar, and law schools about well-being and impairment issues, and by providing confidential assistance to the legal community.

COLAP Executive Director and leading lawyer Sarah Myers is a Colorado-licensed attorney, marriage and family therapist, addiction counselor, and post-graduate level teacher as well as a certified trauma and abuse psychotherapist. She has more than 20 years of experience specializing in stress management, psychoneuroimmunology, compassion fatigue, professional burnout, and behavioral health issues for legal professionals as a program director, therapist, clinical supervisor, educator, and author. Likewise, COLAP staff are attorneys and legal professionals with behavioral health credentials and experience with well-being issues including stress management, substance use, and a broad range of mental health issues.

They are available to consult about personal as well as professional issues and concerns.

Lawyers who are experiencing stress, depression, anxiety, or burnout are encouraged to contact COLAP for a free, confidential, and virtual consultation about stress management, return-to-work anxiety, supporting colleagues and employees, addiction and substance abuse, and other timely topics. Importantly, COLAP is separate and independent from the Office of Attorney Regulation Counsel. Office visits are

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by appointment only, and all communication with COLAP is confidential. COLAP cannot release any information without a signed release.

COLAP has a list of “quick tips” for well-being on its website: http://coloradolap.org/ wp-content/uploads/2020/06/Quick-Ways-toImprove-Happiness.pdf. To contact COLAP, call (303) 986-3345 or email info@coloradolap.org.

Colorado Attorney Mentoring Program CAMP is another resource for lawyers seeking emotional well-being. Mentoring is an antidote to the loneliness and isolationism described above. 47 As CAMP Director Ryann Peyton notes, mentoring relationships provide a safe space to discuss feelings, connect lawyers to resources that build resiliency, and offer peace of mind personally and professionally. That emotional support is vital as lawyers do their best to navigate this demanding profession.

Mentoring also has been championed as a proven method to implement diversity and inclusion goals, close opportunity gaps, and retain lawyers within the profession.

CAMP generates meaningful and relevant mentoring relationships through 15 formal and informal mentoring programs. Each program encourages mentoring pairs to incorporate principles of professional identity and lawyer well-being into every mentoring relationship.

CAMP also hosts educational speaking engagements for community partners across the state and produces monthly in-house professional development webinars through uniquely tailored CLE courses spanning topics related to professionalism and wellness.

The CAMP approach is to catalyze the power of collaboration among individuals with different perspectives, backgrounds, and areas of expertise to foster training and education with meaningful positive influence on legal practice and lawyer well-being in Colorado.

CAMP cultivates an environment of thoughtful and informed professionalism and invests in the long-term intellectual, professional, and social growth of Colorado lawyers.

To connect with a CAMP mentor (or to become one—giving back is another way to improve emotional well-being48), visit https:// coloradomentoring.org.

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Lawyers who are experiencing stress, depression, anxiety, or burnout are encouraged to contact COLAP for a free, confidential, and virtual consultation about stress management, return-to-work anxiety, supporting colleagues and employees, addiction and substance abuse, and other timely topics.

CBA Young Lawyers Division Wellness Committee The CBA Young Lawyers Division (YLD) has a Wellness Committee that is focused on bringing relaxation, movement, and safe socialization to younger lawyers statewide.

A Pew Research study found that younger adults have been the hardest hit emotionally

by COVID-19. 49 According to the data, the emotional effects are greatest for those aged 18 to 29, with 42% of that demographic reporting anxiety and 36% reporting depression.50 People aged 30 to 39 were the next most emotionally affected group, with 34% reporting anxiety and 28% reporting depression.51 Older people, who are at greater risk for being hospitalized with and even dying from COVID-19, were far less likely to report emotional reactions.52

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The YLD is seeking to address the mental health impacts of the pandemic on younger lawyers, who may be finding it especially difficult to step away from their computers and meet other lawyers. In May 2020, the YLD launched its wellness series to enable CBA members to gather in a safe way, share thoughts about the major changes we all are experiencing as a result of COVID-19, and continue to build personal and professional relationships, for greater well-being.

Each series has included three to four events, including online and in-person outdoor yoga, high-intensity interval training and other fitness classes, and in-person hikes. The YLD also hosted an online cooking class, and they have undertaken a fall foliage tour around the state.

The YLD has scheduled an online nutrition seminar for November 4, 2020, to provide members with insight into meal preparation, healthy snacking, and immunity-building diets as we move into the generally stressful holiday season. The instructor also will provide stress-management strategies like stretches and breathing exercises that members can use daily as a quick reset.

In addition, the YLD hosted a virtual Tedstyle talk moderated by YLD Chair Spencer Rubin and featuring young attorneys Lauren Concepcion, Kiki Council, and Jason St. Julien.53 Recognizing the connection between diversity and inclusion on the one hand and attorney well-being on the other,54 the YLD program acknowledged the ways in which diverse lawyers have been particularly impacted by specific stressors arising from work, the pandemic, and their desire to spend time engaging in social justice efforts. The panelists offered young, diverse lawyers coping strategies, many of which focused on the importance of self-care.

To join in for the YLD’s wellness activities, contact a YLD Wellness Committee Co-Chair: Kaela Zihlman (kaela@willoughbylaw.com), Karen Hen (karen@parkerlipman.com), or Raquel Hernandez (raquel@drexler.law).

CBA Modern Law Practice Initiative The CBA Modern Law Practice Initiative (MLPI) is also working to address emotional well-being issues by changing the way lawyers

YLD members during a recent outing to Silver Dollar Lake in Idaho Springs.

practice.55 Recognizing that too many lawyers feel disconnected and unfulfilled in their practices, MLPI seeks to empower lawyers to build customized practices that complement each lawyer’s professional and personal needs. MLPI provides the tools, mentorship, and inspiration necessary to help lawyers build thriving law practices that expand access to justice. By embracing the notion of doing well by doing good, the MLPI community aligns personal values with professional goals. Practicing in alignment minimizes stress and maximizes fulfillment from the outset, thereby preventing many well-being concerns before they even start. To connect with this growing community of modern lawyers, visit the MLPI’s Community Page at https://www.cobar.org/For-Members/ Modern-Law-Practice-Initiative.

Colorado Lawyer Self-Assessment Program The Colorado Lawyer Self-Assessment Program56 is designed to help lawyers better serve clients and simplify their professional lives, which in turn reduces stress. The program arose from a multi-year initiative of a subcommittee of the Colorado Supreme Court’s Advisory Committee.

This subcommittee of over 50 practicing lawyers and other professionals identified 10 areas of self-assessment that allow lawyers to reflect on practice strengths and weaknesses. The self-assessments emphasize high-quality client service, efficient law office management, and compliance with professional obligations, and they identify resources ranging from template forms to advisory opinions to articles on professionalism. One of the self-assessments is specifically focused on wellness and inclusivity.

Lawyers completing the assessment can claim up to three general and three CLE ethics credits.

The program, including answers to the self-assessment questions, is confidential.

The Waterman Fund Finally, as I mentioned in my last President’s Message, the Denver Bar Association Waterman Fund is a charitable trust that provides financial assistance to elderly, infirm, or incapacitated members of the Colorado bar who have practiced law in Colorado (not just Denver) for at least 10 years. Financial concerns are “far and away Americans’ leading source of stress.”57 Studies have found that people experiencing financial stress are at greater risk for insomnia and depression as well as relationship problems.58 The Waterman Fund may be able to

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relieve some of that stress for certain attorneys.

To be eligible for financial assistance from the Waterman Fund, lawyers must be “in good repute and standing.” All information about applicants and awards from the Fund is strictly confidential. An application can be downloaded from the Waterman Fund page: http://denbar.org/Members/Waterman-Fund.

Direct questions or a completed application to Lori Krupske at (303) 824-5331 or lkrupske@ cobar.org.

Conclusion While nearly everyone is feeling the strain of 2020 on some level, we are not all affected similarly, and the potential solutions are not one-size-fits-all. Fortunately, leading lawyers and other professionals are focusing on emotional well-being in our profession, resulting in the varied resources and approaches described above.

In addition to these Colorado-specific resources, the ABA also has a list of mental health resources for the legal profession at https://www.americanbar.org/groups/ lawyer_assistance/resources/covid-19--mentalhealth-resources.

Of course, if a mental health crisis rises to the level of an emergency, the best resource will be 911. But, as Justice Márquez notes, most of us are not even in crisis most of the time. Instead, we are stressed, anxious, burnt out, or exhausted, and we cannot be our best selves—best lawyers, best parents, best judges, best anything we strive to be—unless we take care of ourselves and one another.

People talk about silver linings from COVID-19, and I have written about some in my President’s Messages. Could one additional silver lining from COVID-19 be to de-stigmatize mental and emotional struggles, given how we all seem to be experiencing them in 2020, at least sometimes and on some level? There is no shame and should be no stigma in reaching out to any of the resources mentioned here or just to a friend, colleague, or employer for support. We can get through this, even if it is an especially “bleak” winter ahead, by leading the way toward attorney well-being and doing it together.

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NOTES

1. Lakhani, “Many Americans face bleak winter as Covid takes toll on mental health,” The Guardian (Sept. 6, 2020), https://www.theguardian.com/us-news/2020/sep/06/seasonalaffective-disorder-sad-coronavirus-americans.

2. Mayo Clinic, Seasonal Affective Disorder, https://www.mayoclinic.org/diseases-conditions/ seasonal-affective-disorder/symptoms-causes/syc-20364651.

3. One Brief, “Impacts of Mental and Emotional Health on Employee Wellbeing” (June 24, 2020), https://theonebrief.com/impacts-of-mental-and-emotional-health-on-employeewellbeing.

4. Id. 5. See Gordon, “How lawyers can avoid burnout and debilitating anxiety,” ABA J. (July 1, 2015), https://www.abajournal.com/magazine/article/how_lawyers_can_avoid_burnout_and_ debilitating_anxiety.

6. Id. 7. Krill et al., “The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys,” J. of Addiction Med. 46 (Jan./Feb. 2016), https://journals.lww.com/ journaladdictionmedicine/Fulltext/2016/02000/The_Prevalence_of_Substance_Use_and_ Other_Mental.8.aspx.

8. Fox, “Remote work burnout is growing as pandemic stretches on. Here’s how to manage it,” CNBC (July 28, 2020), https://www.cnbc.com/2020/07/28/remote-work-burnout-is-growingas-coronavirus-pandemic-stretches-on.html.

9. See Hamblin, “How We Survive the Winter,” Atlantic (Sept. 18, 2020), https://www.theatlantic. com/health/archive/2020/09/how-america-can-survive-the-winter/616401.

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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

Contact

solace@cobar.org

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 MVL’s

FAMILY LAW COURT PROGRAM

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

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10. See, e.g., id.; Advisory Board, “Are outdoor gatherings safe? Here’s what experts say” (July 17, 2020), https://www.advisory.com/ daily-briefing/2020/07/17/outdoor-gathering.

11. See Ma, “Dose of nature at home could help mental health, well-being during COVID-19,” UW News (Apr. 16, 2020), https://www. washington.edu/news/2020/04/16/dose-ofnature-at-home-could-help-mental-healthwell-being-during-covid-19.

12. Hamblin, supra note 9.

13. One Brief, supra note 3.

14. Id. 15. See id.

16. Hamblin, supra note 9.

17. Ford Motor Co., “Looking Further with Ford: 2020 Trends” at 4 (Dec. 2019), https:// media.ford.com/content/fordmedia/fna/us/ en/news/2019/12/11/ford-releases-2020global-trend-report.html.

18. Id. 19. One Brief, supra note 3.

20. Lakhani, supra note 1.

21. See Centers for Disease Control and Prevention (CDC), COVID-19 Weekly Updates, https://www.cdc.gov/nchs/nvss/vsrr/ covid_weekly/index.htm.

22. O’Donnell and Pineda, “Long-lasting COVID symptoms from lungs to limbs linger in coronavirus ‘long haulers,’” USA Today (July 25, 2020), https://www.usatoday. com/in-depth/news/health/2020/07/25/ covid-19-long-haulers-fight-months-lingeringsymptoms/5420534002.

23. See, e.g., OSHA, https://www.osha.gov/ SLTC/covid-19; CDC, https://www.cdc.gov/ coronavirus/2019-ncov/community/workersafety-support/index.html.

24. Id.

32. See, e.g., Fox, supra note 8.

33. One Brief, supra note 3.

34. Id. 35. ABA, Working Group to Advance WellBeing in the Legal Profession (Sept. 10, 2018), https://www.americanbar.org/groups/lawyer_ assistance/working-group_to_advance_wellbeing_in_legal_profession.

36. Id. 37. Id. 38. “Stress Impacting Mental Wellbeing of Law Firm Marketing and Business Staff: Report,” Nat’l L. Rev. (Oct. 1, 2019), https://www.natlawreview.com/article/ stress-impacting-mental-wellbeing-lawfirm-marketing-and-business-staff-report.

See also AON, “Advancing the Law Firm Emotional Fitness Journey,” https://www.aon. com/getmedia/e679180b-c8e1-4ba7-916cf3e24536ab82/Aon-Professional-Services-HB-2019-Law-Emotional-Fitness-MS-10-15-2019. aspx (outlining the “potential costs of lawyer and staff impairment” (emphasis added)).

39. One Brief, supra note 3.

40. Id. 41. Id. 42. For the complete roster of leaders, see https://www.coloradosupremecourt.com/ PDF/Complaints/Task%20Force%20Roster. pdf.

43. Nat’l Task Force on Lawyer Well-Being, “The Path to Lawyer Well-Being: Practical Recommendations for Positive Change” (Aug. 2017), www.lawyerwellbeing.net.

44. http://www.coloradosupremecourt.com/ Current%20Lawyers/TaskForceWellBeing. asp#:~:text=The%20Colorado%20Task%20 Force%20on,to%20meet%20through%20 spring%202020.

26. Id. 27. See Stewart et al., “Lost productive work time costs from health conditions in the United States: results from the American Productivity Audit,” J. Occup. Environ. Med. (Dec. 2003), https://pubmed.ncbi.nlm.nih. gov/14665809 (costs of lost productivity due to chronic health problems); CDC, “Excessive Drinking is Draining the U.S. Economy,” https://www.cdc.gov/features/ costsofdrinking/index.html (cost of alcohol use including lost productivity as a result).

30. Holtom et al., “5 Tips for Communicating with Employees During a Crisis,” Harv.

Bus. Rev. (July 9, 2020), https://hbr. org/2020/07/5-tips-for-communicating-withemployees-during-a-crisis.

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50. Hartford HealthCare, “These Age Groups Most Affected by COVID-Related Depression, Anxiety” (June 29, 2020), https:// hartfordhealthcare.org/about-us/news-press/ news-detail?articleid=26831&publicId=395.

51. Id. 52. Id. 53. See http://web28.streamhoster. com/clcinco/CBA_VIDEOS/CBAYLD/ CopingStrategies.mp4.

54. See Powell, “The Link between Well-Being and Inclusion,” 49 Colo. Law. 19 (June 2020).

55. See Box et al., “The Modern Lawyer Movement: How a Growing Number of Colorado Lawyers Are Changing the Practice of Law,” 48 Colo. Law. 8 (Dec. 2019).

56. See https://www. coloradosupremecourt.com/AboutUs/ LawyerSelfAssessmentProgram.asp.

47. See also Wellmark, “The surprising well-

58. Id.

Did you know that the Colorado Bar Association has a foundation?

See our page later in this edition for more information or take a look at the Colorado Bar Foundation website: www.coloradobarfoundation.org. We rely on our generous donors who make these important grants possible. Please go to our website and make a contribution.

31. See id.

12

49. Schaeffer and Rainie, “Experiences with the COVID-19 outbreak can vary for Americans of different ages,” Pew Research Ctr. (June 16, 2020), https://www. pewresearch.org/fact-tank/2020/06/16/ experiences-with-the-covid-19-outbreak-canvary-for-americans-of-different-ages.

46. http://coloradolap.org.

28. Beitner, “Five Tips For Implementing Your Firm’s Well-Being Initiative,” Law Practice Today (Jan. 14, 2020), https:// www.lawpracticetoday.org/article/five-tipsimplementing-firms-well-initiative.

29. One Brief, supra note 3.

48. Ctr. for Parent and Teen Commc’n, “Giving Back is Key to Well-Being” (Jan. 17, 2019), https://parentandteen.com/ giving-back/#:~:text=Emotional%20 Benefits,putting%20aside%20your%20 own%20troubles; Wellmark, supra note 47.

57. Holland, “Financial Stress and Wellness: Understanding the Problem,” Everyday Health (Feb. 2019), https://www.everydayhealth.com/ wellness/united-states-of-stress/financialstress-wellness-understanding-problem.

45. See https://judicialwellbeing.colorado.gov.

25. One Brief, supra note 3.

being benefits of mentorship: Both mentors and mentees reap the rewards” (May 2020), https://www.wellmark.com/blue-at-work/ healthy-employees/mentoring-in-theworkplace.

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WELCOME | CBA JUSTPRESIDENT’S JOINED MESSAGE

Welcome New Members

C

ongratulations and welcome to the CBA family! Whether you’re working from home or office, the CBA offers numerous opportunities to enrich your career and the community. Be sure to join in on the discussion at CBA Community and follow us on LinkedIn, Twitter, Facebook, and Instagram.

Alexis Abercrombie Kristina Abernathy Rachael Adkins Brian Anderson Tricia Archuleta Abigail Asadi Rachael Asbell James Bagby Taylor Banholzer Daphne Barrera John Barth Kit Beikmann Alexandria Bell Lindsay Bendell Zoe Bernstein Allyson Beyer Alex Black

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Christianne Blevins Benjamin Bonner Breanna Boss Christina Boyle Dana Bradley Mary Branton-Housley Christopher Breidenbach Samuel Brightwell Crispin Brim Robert Brown Liangyin Bunsness Mary Ellen Burdick-Felling K. Blair Burnett Aaron Burton Taylor Campbell Laurence Canaday K. Thomas Cantley

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Jason Carr Emma Cassell F. Castle Jr. Keirin Clare Sadie Clement Meredith Coleman Lizabeth Collier Sean Conrecode Ryan Cooke Aria Corbitt Mackenzie Coupens Regan Crawford Natalie Cristo Spencer Crowell Kenneth Culbreth Cella Dabelea Charlston De Grood Katia De oliveira Abbey DeBoyes Ann Defranco Hanna DeSalvo Philip Downs Kelly Duffield Isabel Dufford Charles Early William Edwards Asako Ejima Jessica Eller Misty Escobedo Liliana Espalter Gabrielle Falcon Nicholas Farnsworth Jessica Federico Adam Fenstermaker Andrew Ferland Kristen Ferries Amy Ferrin Stephen Ferry Jessica Fischer Roshana Floyd Cassandra Foster Brianna Fritzler Damen Ganze Hillary Goebel Hannah Goldstein Steven Golej Kellye Gordon Zachary Greder Katie Green Tzivya Green

Jason Grimes Sandra Gumeson Andrew Hall Jalyn Hall Patrick Harrigan Olivia Heffner George Heimel Chase Helseth Johanna Hendley Slate Herman John Hermanson Elizabeth Herr Michael Hilleary Dan Hilton David Hopkins Francesca Hovagimian Courtney Hughes Scott Hughes Hannah Huston Blake Jackson Meaghan Janousek Laura Jensen Tristan Jensen Andrew Johnson Jack Johnson James Johnson Jenipher Jones Nicole Jones Rin Karns Cameron Kawato Maya Kieffer Trevor Klein Ashley Koerner Curtis Kortman Kishor Kotecha Karen Ku Kevin Kuelbs Heidi Kutcher Colleen Kwiatkowski Magnolia Landman Vance Larimer Kathryn Larsen Laura Lau Jackson Laughlin Amelia Leas Marnier LeBlanc Alana Lefebvre Stephen Lehnardt Olivia Lettenberger Attn Librarian

Timothy Lindstrom Chiao Ling Luke Lionberger Ella Liskiewicz Annie Liu Ian Liu Addison Loes Christopher Maes Mary Maresh Megan Mars Ryan Martin Francisco Martinez Rosaline Martinez Daniela Masur Kristene Mayer Kathryn McConnell Matthew McDonnell Michael McKenna Michaila Messenger Heidi Metroz Andrew Meyer Brandon Meyers Chasen Miller Bradley Moloney Alexander Monk James Moore Mackenzie Moreno Michael Morgan Nathaniel Mueller Erin Mullen Kristin Muscato Chayla Nelson Ai Nguyen Matthew Nilsen Nicole Nucaro Justine O’Neil Annie Ochs Jessica Ogle Blaine Page Stephan Papadopoulos Tiana Patterson Jessica Patton Cathy Peterson Hailey Peterson Christina Pettus Cheyenne Phillips Samuel Posnick Azucena Rascon Christy Redmond Zachary Reibstein

Kayley Rettberg Nicole Rice Richard Righi Lindsay Riley Jonathan Rivera Catherine Roberts Eric Robinson Paige Robinson Karina Rodriguez Joseph Rosales Tiffany Roybal Lauren Ruben Guy Sack Ellen Sakany Glory Schmidt Abigail Schwarz Aidan Scott Julie Selsberg Roni Shaner Rachel Shanley Grant Shibao Blaine Smith David Smith Amanda Snavely Samuel Sternburg Patrick Stordahl Tonya Talley Seamus Taylor Jordan Thomas Jordan Thornlow Juliana Todeschi Rowan Van Arsdell Robert Vanneste Steven Vasconcellos James Vernon Cassandra Weidner Kathleen Wheeler Andrew White Heather White Kim Whitworth Anna Wilbourn Hannah Williams Rachael Willihnganz Rachel Wilson Julian Wolfson Stephen Worthington Julie Yates Judith Youngman Joseph Zopolsky

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Pro Bono Support to Communities in Need A Survey of Free Monthly Statewide Clinics for Self-Represented Parties

BY R IC N. MORG A N A N D S A BR A JA N KO

T

he trend lines are unmistakable: self-represented litigants are a permanent and growing portion of the courts’ user base. The roles of judges and court clerks concerning self-represented parties have undergone a sea change over the past 15 years.1 Since at least the 1990s, courts in the United States have risen to the challenge posed by the increasing number of litigants who are representing themselves in court.2 Colorado has felt the same pressures as self-represented litigants continue to appear in court in large numbers. Each year since 2013, at least a half million Coloradans have gone to court without a lawyer.3 In cases involving self-represented litigants, judges spend more time explaining basic legal and court processes,4 and the demands on court resources increase at every level. Although the great majority of cases involving self-represented litigants are factually and legally uncomplicated, many self-represented litigants need help navigating through an unfamiliar and procedurally complex system.5 This article provides a survey of free legal clinic programs that can help self-represented litigants prepare for court, especially as the pandemic creates broader public legal needs.

Free legal clinics are no substitute for in-person representation by an attorney, but these clinics meet some needs of self-represented parties in navigating the court process, especially where the issues and procedures are not complex.6

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The State of Affairs The need for critical legal assistance has only intensified during the pandemic as pressures from financial, legal, and medical difficulties mount.

For an estimated 108 million Americans, the lapse of eviction protections is a looming threat.7 A recent poll by Stout Risius Ross estimates that 175,000 eviction cases could be filed in Colorado between August and November.8

At the same time, rental industry experts caution that the availability of COVID-19 grant money and market forces operating in the rental industry will blunt the effects of virus-related evictions in Colorado.9 Either way, the sunset of eviction protections is viewed with great concern by the 259,000 Coloradans estimated to be at risk for eviction.10 Whatever lies ahead, Colorado courts will continue to implement a phased expansion of operations aimed at clearing the huge backlog and cope with a wide variety of new cases.11 Large numbers of self-represented parties will be part of that landscape, appearing in cases involving a broad range of issues, including evictions, family law, employment matters, contract disputes and cancellations, domestic violence, bankruptcies, and foreclosures. The vast majority—living both below and above the poverty line—will have pressing legal needs and cannot afford a lawyer.12 Given the pandemic and the gradual implementation of workarounds to keep everyone safe, the clinics described here have undergone many changes. For example, clinics that were conducted last year in person at local libraries

FREE LEGAL CLINIC SUPPORT TO COMMUNITIES IN NEED

Some cases are complex enough to require an attorney, while others are not so complex that self-representation might be an option, with some help.

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RURAL COUNTIES: NUMBERS OF MONTHLY LEGAL CLINICS

As of July 2020, there were 118 free legal clinics held each month in rural Colorado counties.

transitioned to telephone consultations when the libraries closed their doors. The ingenuity and resourcefulness of many volunteer attorneys made for a smooth transition to all-remote support, and most statewide clinics continue to operate as scheduled. The return to a new normal over the next few months will incorporate many new clinic procedures to keep everyone safe, including a greater reliance on videoconferencing and telephone conferences.

Colorado has two statewide programs that provide free legal clinics for Colorado’s rural communities: Colorado Legal Services and the Virtual Pro Se Clinic program. In addition, local bar associations, pro bono coordinators, local access to justice committees, and the courts’ Self-Represented Litigant Coordinators add free clinic capacity for local communities. All combined, the statewide and local programs deliver 201 monthly free legal clinics to urban and rural communities each month across Colorado.13 Colorado Legal Services Colorado Legal Services (CLS) is a private nonprofit that provides high-quality civ-

il legal services for as many low-income persons and members of vulnerable populations throughout Colorado as possible.14 CLS plays a critical role in helping the most vulnerable Coloradans maintain the basic necessities of life, including food, shelter, utilities, and medical care. It also works to ensure freedom from domestic violence and abuse, and to protect the individual rights of the elderly and those who are physically and mentally disabled.

The pervasive and compelling need for free civil legal services for Colorado’s low-income individuals and families continues to grow as Colorado’s population expands. CLS is the only agency in the state that provides free civil legal services to clients in every Colorado county.15 Serving a statewide low-income population of over 820,000 with a staff of just over 100 personnel, including 58 attorneys, the geographical and technological challenges are intensified by the lack of adequate funding.16 The program’s largest office is in Denver, with other offices in Alamosa, Boulder, Colorado Springs, Craig, Dillon, Durango, Fort Collins, Grand Junction, Greeley, La Junta, Pueblo,

and Salida. CLS partners with independent pro bono programs providing additional services in Alamosa, Colorado Springs, Fort Collins, Grand Junction, Greeley, and Salida.

CLS Rural Clinic Models CLS has long identified a need for additinal outreach for low-income communities in rural Colorado,17 where approximately 16% of its income-eligible clients are located. That vision became a reality in 2014 when CLS was awarded $173,808 as a “Pro Bono Innovation Fund” (PBIF) grant from the Legal Services Corporation (LSC).18 These funds are made available to LSC grantees to encourage innovative approaches to pro bono client services, and to provide the additional resources and time to develop new concepts and experiment with new solutions.

Through a unique partnership with the Colorado Bar Association, two Denver law firms, and metro-area volunteer attorneys, CLS used its initial PBIF grant to develop five clinic models to explore technological options and employ urban pro bono attorneys to expand service to remote rural communities.

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In 2017, following the successful completion of the 2014 initial PBIF grant, LSC awarded CLS $132,416 in a PBIF Sustainability Grant19 to continue, expand, and replicate the five CLS rural clinic models; fully integrate the clinics into CLS core services; and efficiently deliver legal services through technology enhancements.

The five pro bono clinic models are effective in almost any rural county, regardless of the extent of local attorney and other resources, providing for a more equitable distribution of CLS services across the state.20 Three of the original clinic models use Zoom videoconferencing to connect metropolitan pro bono attorneys with rural low-income clients.

One clinic model uses a toll-free telephone line, and one uses only phone and email interaction. These technologies enabled CLS to offer expanded services to rural communities while preserving scarce rural community pro bono and CLS staff resources for cases that require more extensive attention and assistance. These clinics are no substitute for in-person representation by an attorney, but they meet some of the need and complement the services being offered by the very limited number of CLS staff attorneys and pro bono attorneys in rural counties.

These five CLS rural clinic models now serve 42 rural counties: 1. Call4All Clinic. This monthly clinic offers free services to qualifying low-income clients in eight judicial districts covering 23 counties.21 The clinic uses a toll-free telephone line to enable isolated low-income CLS clients to consult with pro bono attorneys from Brownstein Hyatt Farber Schreck. This Denver law firm committed space and technological and pro bono resources to the clinic, which offers assistance with family law, landlord/tenant law, protection order questions, consumer debt collections, probate, and small claims court matters. Since the Call4All Clinic began in 2016, both paralegal students and law students have volunteered to screen callers for eligibility. This initial step ensures that the law firm volunteer attorneys have a basic understanding of the legal issue before they begin the advice call. Due to COVID-19, this clinic has expanded to serve the 5th and the 12th judicial districts because local clinics in those areas are temporarily halted

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due to library closures. Clients can call (844) 404-7400 the third Wednesday of the month from 5 to 8 p.m.

2. Record Sealing and Expungement Clinic.

This clinic serves 10 judicial districts covering 35 counties.22 A CLS paralegal reviews applications, and a CLS attorney provides advice and brief services. The attorney reviews and analyzes whether each case can be sealed or expunged, and prepares petitions for eligible clients. The clinic also collaborates with Self-Represented Litigant Coordinators, who can assist CLS clients with case filing and procedural requirements thereafter. The 2019 changes to Colorado laws eased restrictions on record sealing and expungement and enabled CLS staff to expand their efforts in this area. For more information, call (800) 521-6968.

3. San Luis Valley and 5th Judicial District Legal Clinics. These monthly general legal advice clinics serve all six rural counties in the 12th Judicial District and all four counties in the 5th Judicial District. The clinics are hosted by libraries in Saguache, Blanca, Leadville, and Idaho Springs, and by the CLS Dillon office and the Eagle County Sheriff’s Office. Metro Denver pro bono attorneys advise clients through Zoom videoconferencing on issues including family law, landlord/tenant law, protection order questions, consumer collections, and small claims and probate matters. Due to COVID-19, these clinics are temporarily suspended because of library and office closures; however, the Call4All Clinic has been expanded to serve these counties until they can reopen. For more information, call (719) 589-4993 (San Luis Valley) or (970) 668-9612 (5th JD).

4. Caregiver Clinic. This clinic serves the six rural counties of the 12th Judicial District, offering low-income clients 30- to 60-minute consultations via Zoom with metropolitan pro bono attorneys from Kilpatrick Townsend & Stockton. Clients are referred by the Alamosa CLS office and assisted with adoptions, allocation of parental responsibilities, and guardianships. Volunteer attorneys interview each client and prepare required court forms before returning the case to the CLS Alamosa office for final disposition. For more information, call (719) 589-4993.

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5. Family Law Clinic in Cortez. This clinic serves the 22nd Judicial District and is hosted by the Cortez Library. It employs Zoom videoconferencing to connect CLS clients in Montezuma and Dolores counties with metro Denver pro bono attorneys to provide consultations and some document preparation.23 Since 2017, the clinic has accepted clients with all family law (not just post-decree) questions, and has allowed both brief drop-ins (4 to 5 p.m.) and hour-long, pre-scheduled appointments (6 to 7 p.m.). A local non-attorney coordinator assists at each clinic, greeting clinic attendees and assisting with the Zoom videoconferencing.

Due to COVID-19 this clinic is temporarily suspended because the library is closed; however, the Call4All Clinic has been expanded to serve these counties until the clinic can resume. For more information, call (303) 866-9384 or (970) 385-7378.

Virtual clinics enable CLS staff and pro bono programs to rely on resources located in regional population centers to serve clients in geographically isolated or less well-resourced areas. CLS looks forward to continued collaboration with the CBA and all its other partners in developing responsive ways to meet the unmet access to justice needs of rural Colorado.

2020 VPC CLINICS

The VPC program provides free monthly legal clinics in 35 counties.

Virtual Pro Se Clinic Program The Virtual Pro Se Clinic (VPC) program is just one of many pro bono tools developed to address the growing needs of self-represented litigants in Colorado.24 The program’s components are

familiar: a few willing and capable volunteers, each firmly committed to the importance of pro bono assistance; a very limited budget; and a vast and pressing need for legal assistance.

The VPC program provides free monthly legal clinics in 35 counties at 46 public libraries supporting 19 of Colorado’s 22 judicial districts, all via Zoom. The program relies on local public library investments in computers, broadband internet, and brick-and-mortar facilities already in place across the state. 25 The VPC program is entirely funded by a generous private grant from the Lawrence N. Greenleaf Masonic Lodge in Denver.

By leveraging low-cost, low-risk technology, the VPC program delivers clinics remotely, offering each patron a 20-minute, one-on-one dialogue with a knowledgeable attorney on any Colorado civil subject. Volunteer attorneys support clinics from their law firm, home office, or any location with broadband access and a web-cam equipped device. For more information about any VPC program, call (303) 520-6088.

The CHECKERBOARD Website Legal assistance for individuals works best when clinic patrons can find what they need, understand what they find, and act on it confidently.

Regardless of what that may entail, the VPC volunteer attorney only has 20 minutes to get the message across. To give volunteer attorneys an effective tool to deliver that message, the VPC program launched the CHECKERBOARD website in 2015.

The website, www.checkerboard.co, provides free, one-click access to court forms, statutes, instructions, court rules, flowcharts, videos, and other free information for over 60 different types of Colorado civil issues. It comprises over 800 nested web links, seamlessly connecting to over 160 websites with free information on Colorado civil issues, including the Colorado Courts website, CLS, the CBA, the Colorado Legal Help Center, the Law Library of the Library of Congress, and many others.

The website also allows clinic patrons to revisit materials after the clinic, giving them a better opportunity to understand the materials and effectively apply them in their case. It is an

CHECKERBOARD

The CHECKERBOARD website provides clinic patrons access to information for over 60 types of Colorado civil issues. Additionally, information about any clinic can be found by selecting “Getting More Help” in the bottom-right corner.

important example of the new and innovative tools created to assist communities in need across Colorado.

Metro Volunteer Lawyers Metro Volunteer Lawyers (MVL) is the Denver Bar Association’s pro bono program and is supported by the bar associations in Adams, Broomfield, Denver, Douglas, Elbert, Gilpin, and Jefferson counties. MVL provides free and low-cost civil legal services through multiple programs in the Denver metro area. MVL is best known as the state’s largest pro bono program,26 coordinating full representation by hundreds of volunteer attorneys in the Denver metro area and providing full representation to approximately 1600 low-income clients per

year. But MVL also operates five free legal clinic programs in the metro area for indigent parties: ■ Family Law Court Program (FLCP).

Assists parties with uncomplicated, uncontested divorce or custody matters where the other party is not represented by an attorney.

■ Post-Decree Clinic. Assists individuals with legal problems arising after permanent orders in a dissolution of marriage or allocation of parental responsibilities case.

■ Denver Indian Center Legal Clinic. Assists with resource referral, understanding the legal process, and how to proceed as a pro se party.

■ Power of Attorney Workshop. Helps seniors complete advance planning

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documents including medical power of attorney, financial power of attorney, and living wills.

■ Family Law Unbundled Clinic. Provides unbundled legal services for dissolution of marriage or allocation of parental responsibility cases by focusing on problem-solving, negotiation assistance, court preparation, mediation, and settlement conferences.

For more information about schedules and locations for any of MVL’s clinic programs, visit https://www.denbar.org/Metro-VolunteerLawyers/I-Need-Help or call (303) 837-1313.

MVL has a variety of volunteer opportunities for attorneys, mediators, paralegals, and law students. Volunteers help stabilize families, save taxpayers money, reduce the number of cases clogging the courts, and help people move toward self-sufficiency. Interested volunteers may visit https://www.denbar.org/Metro-VolunteerLawyers/Volunteer for more information.

Statewide Pro Bono Projects Most of the programs available to self-represented litigants in Colorado offer assistance outside the courtroom. But some cases require an attorney. In addition to the free clinic programs discussed above, Colorado has 16 pro bono projects serving 53 of Colorado’s 64 counties.27 These projects deliver a broad variety of free legal assistance, including full representation by volunteer attorneys.28

Western Colorado Nine of the 16 pro bono projects are in Western Colorado: ■ Alpine Legal Services. Serves Garfield, Pitkin, and Western Eagle counties. For more information, call (970) 945-8858 or visit https://alpinelegalservices.org.

■ Dillon Colorado Legal Services. Serves Clear Creek, Gunnison, Pitkin, and Summit counties. For more information, call (800) 521-6968.

■ Heart of the Rockies Bar Association Pro Bono Program. Serves Chaffee County.

For more information, call (719) 539-4251.

■ Mesa County Bar Association Pro Bono Project. Serves Mesa County. For more 20

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information, call (970) 424-5748 or email contact@probonomc.org.

Northwest Colorado Legal Services.

Serves Eagle, Lake, Routt, Grand, Jackson, Moffat, and Rio Blanco counties. For more information, call (800) 521-6968.

San Luis Valley Bar Association Pro Bono Project. Serves Alamosa, Conejos, Costilla, Mineral, Rio Grande, and Saguache counties. For more information, call (719) 589-4993.

Alamosa Colorado Legal Services. Serves Alamosa, Conejos, Costilla, Mineral, Rio Grande, and Saguache counties. For more information, call (719) 589-6534 or email slvprobono1@hotmail.com.

Southwest Bar Volunteer Legal Aid. Serves Archuleta, La Plata, and San Juan counties. For more information, visit https://southwestbarvolunteerlegalaid. wordpress.com or call (970) 247-0266.

Uncompahgre Volunteer Legal Aid. Serves Montrose, Ouray, Delta, and San Miguel counties. For more information, call (970) 249-7202 or visit https:// uvlamontrose.org.

Eastern Colorado The remaining seven pro bono projects are in Eastern Colorado: ■ Boulder County Legal Services. Serves Boulder County. For more information, call (303) 449-7575.

■ Larimer County Bar Association Pro Bono Project. Serves Larimer County.

For more information, call (970) 4022075 or visit https://www.larimerbar. org/pro-bono.

■ La Junta CLS Office. Serves Baca, Bent, Cheyenne, Crowley, Huerfano, Kiowa, Kit Carson, Las Animas, Otero, and Prowers counties. For more information, call (888) 805-5152.

■ Metro Volunteer Lawyers. Serves Adams, Broomfield, Denver, Douglas, Elbert, and Jefferson counties. For more information, call (303) 837-1313 or visit https://www. denbar.org/mvl.

■ Pikes Peak Justice and Pro Bono Center.

Serves El Paso and Teller counties. For

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more information, call (719) 473-6212 or email probono@elpasocountybar.org.

■ Pueblo County Pro Bono Project. Serves Pueblo County. For more information, call (719) 545-6708 or visit grodosevich@ colegalserv.org.

■ Weld County Legal Services. Serves Weld County. For more information, call (970) 310-8367 or email vtaylor.wcls@ gmail.com.

Self-Represented Litigant Coordinators Since 2013, Self-Represented Litigant Coordinators, or “Sherlocks,” have been assisting self-represented parties in courthouse Self-Help Centers in all Colorado judicial districts. Sherlocks are court staff who provide self-represented parties with legal information, assistance with procedural issues, and resources offered by the court as well as outside organizations, but they cannot provide legal advice.29 Colorado Chief Justice Directive 13-01 spells out the services that a Sherlock can and cannot provide.

In 2018, Sherlocks assisted approximately 150,000 self-represented parties in courthouses across Colorado, and assisted over 168,000 in 2019.30 Using 2018 data, Sherlocks assisted nearly one-quarter of all self-represented parties estimated to be appearing in Colorado courts without an attorney.31 This is by far the most public contact of any pro bono program in Colorado.

In 2015, then-Colorado Supreme Court Chief Justice Nancy E. Rice hailed the Sherlock Program as a “tremendous success.” According to Justice Rice, “[w]ithout the assistance of Sherlocks, many self-represented individuals may have decided the court process was too complicated and walked away or, alternatively, proceeded without guidance, requiring court clerks, judges, and other staff members to provide piecemeal guidance and correct erroneous filings.”32 All 22 Colorado judicial districts have at least one Sherlock for their courthouse SelfHelp Centers. The statewide Sherlock list with contact information, locations, and hours can be found at https://www.courts.state.co.us/ userfiles/file/Self_Help/Contact%20list%20 for%20public(17).pdf.

Veterans Clinics In addition to the general civil legal clinics described above, Colorado currently has three free monthly legal clinics for military veterans.

Two are part of the CBA’s Colorado Lawyers for Colorado Veteran’s (CLCV) initiative, while the third was created by the Arapahoe County Bar Association (ACBA), in partnership with the Rocky Mountain Regional Veterans Administration (VA) Medical Center.

CLCV Clinics CLCV is a general legal referral program that provides free and low-cost legal services to active duty military, veterans, and veteran-related cases that are referred to the CBA by veteran service agencies. Managed by the CBA Military and Veterans Affairs Section, it is intended to assist veterans in understanding the legal process and forms.33 For select cases, some CLCV volunteer attorneys will provide full representation, including court appearances.

In normal times, the CLCV’s two veterans clinics are held in Denver at the Bill Daniels Veterans Center, and in Colorado Springs at the Colorado Springs VA Medical Center. However, in light of COVID-19, both are being held virtually at this time. In addition, a third CLCV clinic is being planned for Grand Junction to reach a more underserved area.

ACBA/VA Clinic Colorado’s third free legal clinic for veterans was established as a partial medical-legal partnership between the ACBA and the VA. One goal of medical-legal partnerships is to mitigate or alleviate medical issues through legal assistance. For example, if a veteran is living in an apartment with mold that the landlord will not address, the veteran may continue to return to a hospital for medical treatment. Providing the veteran legal information or the assistance of an attorney who can help coordinate with the landlord to alleviate the mold and move the veteran to a safe apartment under the warranty of habitability, can do more to address the health issue than repetitive medical treatment. Social workers play a critical role in a medical-legal partnership because they have an established relationship with the veteran and can aid in

effective communication strategies and help with non-legal aspects of resolving the legal issue. Because of the ACBA/VA partnership, many veterans can navigate the foreign territory of the court system with a guide.

The ACBA/VA clinic has been operating virtually since it began on April 15, 2020. However, when community safety allows, the clinic will transition to an in-person setting at the Rocky Mountain VA Regional Medical Center in Aurora.

Because of the limited virtual nature of the clinic, the consults are only available through VA referral at this time. When the clinic transitions to an in-person setting, veteran eligibility will be expanded and the clinic will begin using the CHECKERBOARD website.

The ACBA/VA clinic currently seeks attorney volunteers in all practice areas to provide legal information to veterans in need. The meetings are held telephonically through the VA teleconference system for confidentiality, and volunteers are matched with individuals whose legal issue corresponds with their practice areas.

Volunteers can make a tremendous impact on a pro se veteran’s life. They are also eligible for CLE credit for their volunteer service. Interested attorneys should contact Sabra Janko, clinic coordinator, at sabra@jankolaw.com or (720) 780-0115, or complete the volunteer intake form on the ACBA website at https://www. arapahoecountybar.org/page-18054.

Conclusion Innovation has firmly taken root in Colorado to address the growing needs of self-represented litigants and to deliver effective free legal assistance to communities in need, no matter where they are. Over time, pro bono support remains a vital mechanism among the constellation of tools to ensure access to justice.34 The advent of new technologies may change the shape of those efforts and make them easier, but it takes volunteer pro bono attorneys to engage and support the communities that need their help the most.

Ric N. Morgan owns a solo general practice in rural Colorado and is the coordinator for the Virtual Pro Se Clinic program.

Sabra Janko is a retired Army Judge Advocate General Attorney who owns and operates a family law firm, JLaw LLC, with a focus on military, veteran, and first responder legal needs. She is also a Child and Family Investigator.

Coordinating Editor: Kathleen Schoen, kschoen@ cobar.org

Did you know that the Colorado Bar Foundation gave out more than $127,000 this year to deserving nonprofits?

See our page later in this edition for more information or take a look at the Colorado Bar Foundation website: www.coloradobarfoundation.org. We rely on our generous donors who make these important grants possible. Please go to our website and make a contribution.

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N OT E S

1. Engler, “Turner v. Rogers and the Essential Role of the Courts in Delivering Access to Justice,” 7 Harv. Law & Pol'y Rev. 31, 45 (2013).

2. Gray, “Reaching Out or Over-Reaching: Judicial Ethics and Self Represented Litigants,” State Justice Institute (2005) (citing Goldschmidt et al., “Meeting the Challenge of Pro Se Litigation,” American Judicature Society (1998)).

3. These numbers were drawn in part from 2013–2019 Annual Statistics Report, Colorado State Judicial Statistics, by Fiscal Year; and 2013–2018 Annual Pro Se Report, Cases and Parties Without Attorney Representation in Civil Cases [in Colorado], by Fiscal Year, https://www.courts.state.co.us/Administration/ Unit.cfm?Unit=annrep. However, from 2013 to 2018, numbers of self-represented parties in Colorado courts were reported for only about one-third of the total cases filed. Nevertheless, a lower boundary for the total numbers of pro se parties for all case types can be estimated.

For the detailed methodology used to arrive at these numbers, please contact Ric Morgan at morgan@hayday.org.

4. Foreword by Chief Justice Nathan B. Coats, 2019 Colorado Judicial Branch Annual

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Statistical Report at i (2019), https://www. courts.state.co.us/userfiles/file/Administration/ Planning_and_Analysis/Annual_Statistical_ Reports/2019/FY2019AnnualReportFINAL.pdf.

5. Owens et al., “Access to Justice: Meeting the Needs of Self-Represented Litigants,” ChicagoKent College of Law (2002).

6. Asher et al., “The Challenges of Serving Rural Colorado,” 46 Colo. Law. 16, 19 (July 2017).

7. Dougherty, “Millions of Evictions are a Sharper Threat as Government Support Ends,” N.Y. Times (Aug. 7, 2020).

8. Stout Risius Ross, LLC, “Estimates of Households Experiencing Rental Shortfall and Potentially Facing Evictions” (data through July 29, 2020), https://bit.ly/3nhW5yp.

9. Hamrick, “Upcoming Colorado Evictions: The Sky is Not Falling,” Colo. Real Estate J. (July 29, 2020). See also Davies, “Three Solutions for Safeguarding the Affordable Housing Supply,” Rental Housing J. (Aug. 14, 2020).

10. Stout Risius Ross, LLC, supra note 8.

11. See, e.g., “Class Action Litigation Related to COVID-19: Filed and Anticipated Cases,” Nat’l L. Rev., vol. 10, no. 229 (Aug. 16, 2020).

12. Sandefur, “Access to Civil Justice and Race,

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Class, and Gender Inequality,” 34 Ann. Rev. Soc. 339, 341 (2008) (“We know that civil justice problems occur across a range of issues in contemporary life and are ubiquitous across the population, including among people who are above the poverty line but nevertheless unable to afford a lawyer.”).

13. Clinic numbers are compiled from listings published by CLS, the Colorado Legal Help Center, MVL, the CHECKERBOARD website, pro bono coordinators, and the 10 major urban bar associations statewide. These clinic numbers only reflect recurring monthly clinics. Some recurring clinics, like quarterly clinics, are not included.

14. CLS Private Attorney Involvement Plan 2020 (draft) at 1 (2020). See also Jon Asher’s Presentation to the Colorado Access to Justice Commission Hearing at Centennial, Colo. (Sept.

24, 2013) (both on file with the authors and available on request).

15. Hart, “Deep Impact: The Consequences of Defunding LSC,” 46 Colo. Law. 72 (Aug. 2017).

16. Asher et al., supra note 6 at 19; Gast, “Access to Justice Heroes: Diana Poole and John Asher,” 46 Colo. Law. 4, 6 (Oct. 2017) (quoting Jonathan Asher: “We strive to be good stewards of scarce resources.”).

17. Asher et al., supra note 6.

18. LSC, Pro Bono Innovation Fund Grants 2014 (2014), https://www.lsc.gov/pro-bonoinnovation-fund-grants-2014.

19. LSC, Pro Bono Innovation Fund Grants 2017 (2017), https://www.lsc.gov/pro-bonoinnovation-fund-grants-2017.

20. CLS, 2014 PBIF Grant Application to LSC at 3 (June 2014).

21. The Call-4-All Clinics provide services in the 3rd, 9th, 8th, 13th, 14th, 15th, 16th, and 22nd judicial districts, in Baca, Bent, Crowley, Cheyenne, Crowley, Dolores, Grand, Huerfano, Jackson, Kit Carson, Kiowa, Las Animas, Logan, Moffat, Montezuma, Morgan, Otero, Phillips, Prowers, Rio Blanco, Routt, Sedgwick, Washington, and Yuma counties.

22. The Record Sealing and Expungement Clinic provides services in Baca, Bent, Chaffee, Cheyenne, Clear Creek, Crowley, Custer, Delta, Eagle, Fremont, Grand, Gunnison, Hinsdale, Huerfano, Jackson, Kiowa, Kit Carson, Lake, Las Animas, Logan, Moffat, Montrose, Morgan, Otero, Ouray, Park, Phillips, Prowers, Rio Blanco, Routt, San Miguel, Sedgwick, Summit, Washington, and Yuma counties.

23. See https://coloradojcf.org/wp-content/ uploads/2019/03/Cortez-Clinic-Flyer.pdf.

24. Information about any VPC clinic can be found by visiting www.checkerboard.co and selecting the “Getting More Help” square in the bottom-right corner of the checkerboard.

25. Sandefur and Smyth, “Access Across America: First Report of the Civil Justice Infrastructure Mapping Project,” American Bar Foundation (2011) (“The existing civil legal assistance infrastructure is, in effect, the output of many public-private partnerships, most of them on a small scale.”).

26. Taubman, “Has the Time Come to Revise our Pro Bono Rules?,” Denv. U. L. Rev. vol. 97, iss. 2, at 435 (Mar. 2020).

27. Counties outside the service area of Colorado’s 16 pro bono projects are Arapahoe, Custer, Fremont, Hinsdale, Lincoln, Logan, Morgan, Phillips, Sedgwick, Washington, and Yuma.

28. See https://www.cobar.org/For-Members/ Pro-Bono-Opportunities/Statewide-Pro-BonoOpporunities#8957259-greater-colorado--.

See also Van Atta, Colorado Access to Justice Commission’s Colorado Local Access to Justice Reports 2015, http://www.coloradojustice. org/portals/16/repository/2015%20Local%20 ATJ%20Report%20Summary.pdf.

29. Knowlton, “Looking Back at Two Years of Colorado’s SRLC Program,” IAALS Blog (Dec. 16, 2015), https://iaals.du.edu/blog/lookingback-two-years-colorado-s-self-representedlitigant-coordinator-program.

30. Self-Help Information/Statistics, Statewide Numbers of SRLC Contacts in Self-Help Centers, by year, https://www.courts.state. co.us/Self_Help/information.cfm. See also

Coats, FY 21 Judicial Department Budget Request at 8 (Nov. 1, 2019).

31. In 2018, there were an estimated 150,000 Sherlock contacts out of an estimated 631,464 total number of self-represented parties (23.7%). See 2013–2019 Annual Statistics Report, Colorado State Judicial Statistics,

by Fiscal Year; and 2013–2018 Annual Pro Se Report, Cases and Parties Without Attorney Representation in Civil Cases [in Colorado],

by Fiscal Year, https://www.courts.state.co.us/ Administration/Unit.cfm?Unit=annrep.

32. Rice, “Sherlocks Provide Valuable Support for Self-Represented Litigants,” 44 Colo. Law. 85 (Nov. 2015).

33. See https://www.cobar.org/For-members/ pro-bono-opportunities/colorado-lawyersfor-colorado-veterans. See also https://www. cobar.org/For-Members/CBA-Sections/MilitaryVeterans-Affairs.

34. Hembroff et al., “. . . And Justice For All—A Report on Pro Bono in Michigan: 2007,” State Bar of Michigan and Institute for Public Policy, Michigan State U. (Dec. 2009) (“A nation can claim to believe in “justice for all”, but

theory and practice, rhetoric and fact must be aligned for these claims to be meaningful.

The legal system has, over time, developed a constellation of mechanisms to assure minimal access to justice. Pro bono work by private lawyers is a critical part of that constellation of mechanisms.”).

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Dispositive Motions Practice in Colorado Best Practices and Challenges amid the Pandemic

BY R . BRO OK E JAC K S ON A N D JOH N L . W H E E L E R , W I T H C ON T R I BU T IONS BY BRO OK E H . M E Y E R

C

olorado’s federal and state courts continue to adapt to challenges during the COVID-19 pandemic that are rooted in preserving constitutional rights and protecting public health and safety. Starting in March 2020, both federal and state courts in Colorado issued orders continuing civil and criminal trials, allowed telephone hearings and videoconferences in lieu of in-person hearings, and prioritized essential matters.1 Courts continue to issue orders based on new public health information and new court operations protocols. Simultaneously, courts are now facing a backlog of cases filed

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pre-pandemic while also preparing for newly filed or soon-to-be-filed lawsuits.

Courts, judges, and attorneys have a unique opportunity right now to seize on federal and state courts’ ability to embrace change quickly and to make the civil litigation process more efficient for all. While past civil reform efforts emphasized proportionality in discovery and early case management rule changes, discovery is only part of a civil case’s lifecycle. Motions practice—as much as discovery—plays a critical role in making the civil process more efficient and less costly, especially now that court resources are at capacity. Dispositive

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motions, when used appropriately, can save courts and litigants time and money. But when attorneys file motions reflexively and courts do not thoughtfully manage or timely rule on them, such motions inject additional cost and delay into court systems across the country, ultimately undermining access to justice for all.2 In this article, a federal district court judge and a state district court judge share advice for attorneys navigating dispositive motions practice. Much of this advice is drawn from a 2019 report from the Institute for the Advancement of the American Legal System (IAALS report),3 which examined civil dispositive motions practice by conducting empirical research and identifying opportunities for improvement and innovation. The IAALS report contains more than just a collection of best practices; it calls for the bench and bar to actively engage in a more targeted and focused approach to dispositive motions to better serve clients and the system.

Courts and attorneys are encouraged to review the report’s recommendations, along with the judges’ practice standards and suggestions below, and rethink dispositive motions practice in civil litigation.

Judge R. Brooke Jackson, US District Court for the District of Colorado Motions to dismiss and motions for summary judgment filings have become routine in most civil cases, whether or not there is a realistic possibility of success. Motions practice can be a critical part of the prosecution or defense of a case. It can also be cause for delay, a burden on the court, and costly to parties.

Motions to Dismiss The replacement of “notice” pleading required

by Federal Rule 8(a) with the Twombly/Iqbal “plausibility standard”4 has resulted in a common trend I have witnessed on the federal bench: motions to dismiss that are quickly followed by a motion to amend the complaint with a proposed amended complaint attached that either eliminates claims or amplifies allegations of fact—or both. These motions to dismiss rarely result in a complaint being fully dismissed with prejudice but commonly create

unwarranted filings that largely consume judges’ and law clerks’ time.

Effective December 1, 2019, I revised my practice standards to try to improve dispositive motions practice in civil cases by incorporating the IAALS recommendations for making the pretrial dispositive motions process more efficient.5 To encourage communication between opposing counsel, I request that the parties meet and confer in good faith and a meaningful way before filing a motion to dismiss. While in-person meetings are at least temporarily not feasible, I strongly encourage counsel to pick up the phone, or even better, have a videoconference call, to discuss: ■ the issues that the movant intends to raise in the motion to dismiss; ■ whether the parties could resolve all or some of those issues without a motion; ■ the reasons that the movant believes those issues are legally meritorious; ■ the reasons that the non-movant believes the motion should be denied; ■ whether there are any alternatives to the motion that would suffice (e.g., could the plaintiff simply amend the complaint?); and ■ whether the motion could be resolved through a streamlined process (e.g., letters instead of briefs, or in a conference with the court).

The purpose of counsel speaking directly face-to-face (now by video or telephone) is to candidly talk through the issues and any deficiencies in a complaint and work toward

To encourage communication between opposing counsel, I request that the parties meet and confer in good faith and a meaningful way before filing a motion to dismiss.

a practical resolution. If unresolved issues remain, counsel on both sides must submit a short letter to the court before filing a motion to dismiss. My experience so far at the motion

to dismiss level is that at least one and usually both parties submit three-page letters indicating that they have conferred, that the plaintiff has narrowed his or her claims, and that there still is a Rule 12(b)(6) issue, which they identify. I typically review the letters and make comments.

Depending on the facts and law of each case, I may (1) suggest that proceeding with a motion to dismiss will be a waste of time, (2) indicate that the defendant has raised a legitimate issue and should proceed, or (3) suggest that the motion be limited to one or two issues. I never outright say the defendant cannot file a motion to dismiss. Overall, the process seems to be effective. It requires a little extra time up front for the attorneys and for me, but I believe it reduces the ultimate amount of time spent on these motions by eliminating some of the “just because” motions and focusing more narrowly on the key issues.

Motions for Summary Judgment My practice standards now require counsel to submit a short letter to the court explaining why summary judgment is appropriate, so that I may make suggestions on the issues and responses.

I have had less experience so far with letters of intent to file motions for summary judgment, as my new practice standards concerning motions went into effect with cases filed after December 1, 2019. At a minimum, it causes the attorneys

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to think again about whether a motion for summary judgment makes sense. In my view, filing a summary judgment motion to “educate the judge,” to avoid the theoretical possibility of a malpractice claim, or “just because” that is the way it’s done in modern civil litigation practice are not good reasons to file. I hope that my modified approach will help eliminate some of those reasons.

Other Practical Tips Prompt rulings on dispositive motions are important to you and your clients. If a motion has been fully briefed and there has not been a ruling within what strikes you as a reasonable time, you are welcome to call chambers and inquire about the status of the motion. Sometimes a motion falls through the cracks. But I hope you will understand that the volume of dispositive motions we receive is sometimes too much for my law clerks and me to handle as promptly as we would like.

Please avoid making personal attacks on opposing counsel or parties. Examples include calling the opponent’s argument “outrageous,” “absurd,” or even “silly.” Now, more than ever, life is too short, and those editorial comments don’t increase the persuasiveness of your motion or response. In fact, it’s quite the opposite.

Back when I was a practitioner, I enjoyed having a good relationship with opposing counsel, spending more time preparing for trial and less time on motions and discovery, being an advocate by figuring out substantive arguments after candidly disclosing contrary authority, and having a good relationship with the court staff. I encourage attorneys today to do the same. It’s more satisfying—and more effective—that way.

Judge John Wheeler, Arapahoe County District Court The IAALS report addresses the challenges judges and attorneys face at the most basic level of the civil litigation system. Rather than merely “cursing the darkness,”6 as we district court judges are wont to do, the report provides (1) hard statistics demonstrating the problem; (2) five principles to guide both the filing and the determination of dispositive motions; and (3)

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eight concrete recommendations for improving the quality, efficiency, and effectiveness of dispositive motions practice.

State Court Resources The pandemic has accelerated the need for attorneys and judges to rethink the procedural structure of dispositive motions practice in state courts. State courts already work with fewer resources than prior years. Of the 23 Colorado state judicial districts (including Denver), 12 districts have moved away from using any law clerks assigned to individual judges and toward a pool of a few “legal research attorneys.” Only seven districts continue to use law clerks at all, and four districts use neither. This means that, for the foreseeable future, judges are researching and writing their own orders, largely without assistance.

Complicating this reduction in staff (at least at the state court level) is the “Warne effect” on Rule 12(b)(5) motions practice. When the Colorado Supreme Court adopted the Twombly/ Iqbal plausibility standard in Warne v. Hall in 2016,7 the common wisdom within the judiciary was that plaintiffs’ attorneys would start filing 50-page complaints alleging every conceivably relevant fact supporting a claim in an effort to avoid dismissal. Instead, while complaints remained largely unchanged, the number of Rule 12(b)(5) motions filed by defense counsel skyrocketed. The default procedure for a deficient complaint is for the district court judge to (1) detail the deficiencies under Warne, and (2) permit the plaintiff to amend under Rule 15(a) before dismissing the complaint—geometrically increasing the courts’ dispositive motions load.

Based on the pandemic, reduction of district court judges’ resources, and the Warne effect, counsel and judges alike must rethink the way they approach dispositive motions to develop a more collaborative, focused, and efficient approach to motions practice.

The IAALS recommendation for a pre-Rule 12(b) motion conference between counsel is particularly important as an opportunity for plaintiffs to amend without leave of the court under Rule 15(a),8 thereby avoiding the expense and delay associated with Rule 12(b) motions and avoiding the plaintiff ’s “mid-motion”

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amendments, which complicate the briefing process. Under this recommendation, certification under Rule 121(c) § 1-15(8) of any Rule 12(b) motion would include confirmation, at the pre-Rule 12(b) conference, that the plaintiff was offered the opportunity to amend.

As an alternative to the court merely granting the plaintiff leave to amend the complaint in lieu of granting the defendant’s Rule 12(b) motion, we have found that staying the briefing to provide the plaintiff with an opportunity for “early discovery” under Rule 26(d)9 allows the plaintiff to gather evidence that is only in the defendant’s possession before responding to a Rule 12(b) motion.

Summary Judgment Several years ago, our civil division adopted the federal practice of requiring all Rule 56 dispositive motions to be prefaced with a list of facts purported to be undisputed upon which the motion is based: one fact per numbered sentence with reference to a document or sworn statement/affidavit. The response brief then indicates (in correspondingly numbered paragraphs) whether the fact is admitted or denied—and if denied, the factual basis for the denial. The response brief may then cite to additional facts in the same format, with the movant addressing each additional fact in the reply brief. In this manner, the court and other parties are provided with a quick reference to the admitted and disputed facts upon which the court’s decision will be based.

In this vein and premised on the IAALS report’s first recommendation for a “pre-motion conference” with counsel, I also suggest that movant’s counsel, as part of the pre-motion conference, forward a complete list of all facts (with documentary/sworn statement support) to opposing counsel, and then confer in good faith on (1) a stipulated list of undisputed facts to preface the summary judgment motion, and (2) an additional list of disputed facts, thereby permitting the parties and the court to concentrate only on those disputed facts, and eliminating the “back-and-forth” procedure currently used. This recommendation also provides the court a more focused and properly narrowed Rule 56 motion.

The IAALS report provides a longoverdue evaluation of traditionally outdated litigation practices with practical recommendations for improving the efficiency and lowering the cost of civil litigation.

A pre-Rule 56 motion conference with the court also avoids the dreaded “dueling” Rule 56 motions that seem to proliferate current civil litigation (i.e., the summary judgment motion that draws an immediate and competing motion from opposing counsel on the same issues).

Addressing such competing motions is awkward and extremely time-consuming for the court. If the court conference reveals competing motions, our civil division requires counsel to submit simultaneous initial motions and simultaneous responses with no reply briefs—instead of two “packages” of three briefs—thereby giving each party two briefs.

Pro Se Parties Ever-present in state courts is the extra care required when pro se parties are involved.

The confusion and “deer-in-the-headlights” reaction of pro se litigants to litigation in general is exponentially compounded when opposing counsel files a dispositive motion of any type. The tension inherent in courts holding pro se litigants to the same rules as represented parties and providing them with assistance in understanding those rules10 is readily apparent. To address these issues, our civil division finds that an immediate telephone status conference with the pro se party and

opposing counsel (1) is appropriate to explain both the procedure and the importance of Rule 12 and 56 motions to pro se litigants, (2) does not overstep the court’s ethical boundaries, and (3) improves the efficiency of motions practice.

We further facilitate communication between counsel and pro se parties by requesting counsel to email all filings with or by the court to the pro se party immediately, in addition to service by US mail. This procedure places the parties on a more level field.

The IAALS report provides a long-overdue evaluation of traditionally outdated litigation practices with practical recommendations for improving the efficiency and lowering the

cost of civil litigation. We, as a division, are hopeful that the Colorado Supreme Court Civil Rules Committee will adopt the IAALS recommendations.

Conclusion Courts around the country are answering the call for improvement and innovation by incorporating the IAALS recommendations into their practice standards. Learn more about implementing recommendations for dispositive motions at https://iaals.du.edu/projects/ efficiency-motion, as well as other efforts to improve our state and federal court system at https://iaals.du.edu/projects.

R. Brooke Jackson is a judge for the US District Court for the District of Colorado. Before his appointment to the federal bench in 2011, he served as a district court judge for the First Judicial District from 1998 to 2011, where he also served as chief judge from 2003 to 2011. Previously, he was a partner at Holland & Hart, LLP. John L. Wheeler was appointed to the 18th Judicial District as a district court judge in 2006. Before his appointment to the bench, he was a partner at Pryor Carney & Johnson PC, from 1983 to 1995, and then a partner at Antonio Bates Bernard PC until 2006, with a focus on civil law. Judge Jackson and Judge Wheeler extend their gratitude to Brooke H. Meyer, IAALS manager of Civil Justice Reform, for her thoughtful insights on this article and her commitment to improving the judicial system.

Coordinating Editor: Judge Stephanie Dunn, stephanie.dunn@judicial.state.co.us

NOTE S

1. Order Regarding COVID-19 and Operation of Colorado State Courts, Colo. Supreme Court (Mar. 16, 2020); General Order 2020-2, Court Operations Under the Exigent Circumstances Created by COVID-19, US Dist. Court for the Dist. of Colo. (Mar. 13, 2020).

2. The most common dispositive motions filed are motions to dismiss for failure to state a claim (CRCP 12(b)(5) and Fed.R.Civ.P. 12(b)(6)) and motions for summary judgment (CRCP 56 and Fed.R.Civ.P. 56).

3. Kauffman, Efficiency in Motion: Recommendations for Improving Dispositive Motions Practice in State and Federal Courts (IAALS 2019). The IAALS report is the culmination of nearly three years of research, surveys, and expert input into the opportunities for improvement and innovation. The recommendations were built on IAALS’ empirical study of summary judgment in 10 US district courts. Kauffman and Cornett, Efficiency in Motion: Summary Judgment in the U.S. District Courts (IAALS 2018).

4. Warne v. Hall, 373 P.3d 588 (Colo. 2016). See also Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009).

5. My practice standards are available on the US District Court’s website (rev. Dec. 1. 2019), http:// www.cod.uscourts.gov/Portals/0/Documents/Judges/RBJ/RBJ_Practice_Standards.pdf.

6. Watkinson, The Supreme Conquest, and Other Sermons Preached in America 217–18 (1907).

7. Warne, 373 P.3d 588. See also Twombly, 550 U.S. 544; Iqbal, 556 U.S. 662.

8. CRCP 15(a) (“A party may amend his pleading once as a matter of course at any time before a responsive pleading is filed . . . .”).

9. CRCP 26(d) (“Except when authorized by these Rules, by order, or by agreement of the parties, a party may not seek discovery from any source before service of the Case Management Order pursuant to C.R.C.P. 16(b) . . . .”) (emphasis added).

10. Colo. Code Jud. Conduct, Rule 2.2, cmt. 4 (“It is not a violation of this Rule for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard.”). See also Negron v. Golder, 111 P.3d 538, 541 (Colo.App. 2004) (“pro se litigants are bound by the same rules of civil procedure as attorneys licensed to practice law in this state.”).

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DEPARTMENT | TECHNOLOGY SUB TITLE IN THE LAW PRACTICE

What is OSINT?

BY E R I N BE F FA

I

nformation, some say, is the new oil.

Like oil in the early days of the oil boom, important personal and commercial information lies just below the internet’s surface. The art and science of finding that information even has a name: Open Source Intelligence (OSINT).

While a few online information sources are relatively well-known (e.g., Facebook), the OSINT analyst goes well beyond these deposits, drilling deeper into the vast reserves of information available on every person, company, and organization.

OSINT isn’t “hacking.” Trained OSINT analysts never intrude into secure realms to locate information; they steal no passwords and breach no firewalls. Instead, they use advanced

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search techniques and honed research skills to find information hiding in plain sight—information that’s freely available to anyone who knows where and how to look.1 Lawyers and other legal professionals may be interested to learn OSINT’s many uses. This article discusses the science of OSINT and provides an overview of its application within the legal field.

The Staggering Amount of Publicly Available Information OSINT analysis can reveal a wealth of detail about individual or corporate targets—likely much more information than the target knew or wanted to be publicly available. Using just the first and last name of a person as a starting

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point, an OSINT analyst dives deep into the available online information for that subject.

Through this search, the analyst may identify data points ranging from the subject’s mother’s maiden name to vehicle VIN to covert social media accounts. The flowchart shows how one basic piece of information can lead to personal details very quickly.

OSINT research can also lead to intelligence about companies, such as working copies of financial details in Excel spreadsheets, PowerPoint presentations detailing company products, building blueprints, proprietary code shared online, or internal memos in PDF format. The amount of proprietary information accidentally posted or left online is astonishing.

Use in the Legal Field For legal professionals, OSINT may be the key factor in the outcome of a case. Below is a broad overview of some of the most common law-related applications.

Identifying Key Players OSINT analysts can help lawyers locate and gather information about witnesses, potential plaintiffs, and other key players in a case.

Jane Doe

Free people search website

Google image search of “Jane Doe”

Email address

DOB, aliases, maiden name, current and past addresses, neighbors

Business card

Additional email accounts

Additional residents of current address, names, school district, voting records and political affiliation, Zillow images of home interior, alarm system provider and alarm keypad locations, Google street view images for address, make/model of cars at that address, Tweets and YouTube postings from the latitude and longitude, landlord name, wireless signals from that location and device identification

Email address, employer, job title, work phone number

Social media account identification

Using a compendium of tools, techniques, and resources, the OSINT analyst can turn the first informational “hint” into a full dossier of potentially valuable details.

Lay witnesses are often the most difficult to identify and yet essential to a case. Image analysis is one tool used to identify unknown witnesses. Given the popularity of social media and widespread camera use, there are likely photos or video of a potentially crucial event to an active case. But it’s very common for people to overlook the information contained in a single image. OSINT analysts can pivot off small details to identify locations, describe the time frame, and name participants.

OSINT analysts can also locate people who lived in a particular area during a specific time frame. Such information can help locate witnesses or find possible plaintiffs in a class action suit.

Finding an expert witness to testify is another use of OSINT research. A more advanced review could reveal significant detail regarding the expert’s past work and credibility. OSINT analysts may find incidents of disreputable behavior or details that discredit an expert witness.

Locating people with other shared characteristics, such as particular school affiliations or medical conditions, is yet another use of OSINT research. This can be useful when identifying class action plaintiffs or persons associated with a subject of interest. While traditional skip tracing can assist in locating service of process targets, OSINT techniques go well beyond what is available in standard credit reporting files.

Performing Due Diligence Anyone involved in acquisitions understands the time and energy required to build a comprehensive dossier on a subject. OSINT research for corporate merger and acquisition activity can help identify assets, historical business changes, high-risk insecure data systems, staff who may be a liability, and fraudulent activity.

For example, analysts may review historical satellite images of a property for evidence of significant structural changes or repairs. If a property has undergone significant updates

Images of Jane Doe, spouse, anniversary, children, children’s social media accounts, children’s birthdays, friends, habits, hobbies, businesses frequented, nicknames, family, family’s social media accounts, last location, work schedule, physical characteristics (tattoos, piercings, etc.), high school, hometown

while the owner claims bankruptcy, this may indicate potential fraud. Social media, such as Tweets originating from the latitude and longitude of a particular address, can also reveal fraudulent activity.

Performing company due diligence is an intensive task, but OSINT analysts can help lighten the load.

Strengthening Security Securing client data (and the firm’s reputation) is a growing concern in the current era of mega breaches and citywide ransomware lockouts. A malicious hacker can take down a company out of spite or for financial gain via crypto-ransomware. But an organization cannot address security issues it doesn’t know about.

OSINT research can help identify internal and external security weaknesses so a firm can harden its security posture and reduce the risk of online attacks. Examples of OSINT security risks include: ■ company emails in use on the dark web; ■ images of physical keys and badges found online;

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DEPARTMENT | TECHNOLOGY SUB TITLE IN THE LAW PRACTICE

Conclusion The collection, analysis, and identification of publicly available information is the heart and soul of open source intelligence. Beyond a deep understanding of Google capabilities, OSINT analysts flex a wide range of known sites, tools, and techniques to uncover valuable information regarding a subject. As the amount of information online continues to grow, OSINT research will only become more valuable to firms and other businesses.

A targeted search for “John Doe” using WebMii.com.

■ outdated website security certificates; ■ leaked documents with executive signatures; ■ former staff revealing sensitive details on internal review forums; and ■ open FTP servers, PDF, and DOC files unsecured on company-hosted websites.

Isn’t OSINT Just Googling?

Google is a great search engine, but OSINT research goes far beyond Google. To say OSINT is “Googling on steroids” would almost be accurate.

To understand OSINT, one must first understand the limitations of major search engines like Google. Google does not possess the ability to search everything online. The Google search engine works by indexing information it crawls from online sources. The information brought up from a Google search is the result of Google’s proprietary algorithm. While the amount of information held in Google’s data centers is staggering, it is far from all the information available. A 2014 article estimated that Google had indexed just 4% of the information on the internet.2 Typical internet browsing traffic does not wholly exist within Google. You may navigate to YouTube for videos, LinkedIn for the last name of that guy from Sales you only refer to as

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“Bob,” or your Outlook app to check your email.

Yet when many internet users start an online search of their digital footprint, the search often begins and ends with Google. OSINT analysts go deeper by using additional analysis tools.

Often, an OSINT analyst will start with a single piece of information, such as a person’s name or email address. Pivoting off the smallest details reveals more and more personal information regarding an individual that can be crucial for the subject and any malicious attacker.

Enumerating a target’s online presence is another primary task for OSINT analysts, who employ specific techniques and tools for precise account identification. For example, the analyst might use a social media identification site such as WebMii.com to search across a variety of social media platforms. This can lead to coworkers, friends, family, school associations, email addresses, additional businesses, assets, hobbies, patterns of behavior, physical locations for the subject, and more.

OSINT analysts can also help users begin to understand their own digital footprint and the implications of the widespread availability of their personal information. The potential for exploitation of this information is boundless.

Every individual and corporation should understand their digital footprint.

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Erin Be ffa is an Op e n So urce Intelligence professional at Digital Silence in Denver, where she leads the OSINT Practice. Her expertise in OSINT is well-recognized in the field, including her receipt of a Black Badge as the winner of the NolaCon tech conference’s OSINT event. In addition to assisting clients across a wide range of intelligence assignments, she volunteers with the Innocent Lives Foundation, Trace Labs, and Operation Safe Escape. She also works with the National Child Protection Task Force in the search for missing and exploited children.

Coordinating Editor: Joel Jacobson, joel@ rubiconlaw.com

NOTE S

1. Because OSINT only searches publicly available resources, the information gained is by definition “public” information. Even if an individual or company expected or preferred that the data remain confidential or private, the OSINT analyst did not transgress any technical (e.g., “hacking” an account) or legal (e.g., Terms of Service violation) barriers to obtain the information, and thus there is no known privacy or other legal breach inherent in the OSINT process. OSINT analysts also understand fundamental evidentiary requirements, and the information located is generally admissible subject to ordinary foundation and hearsay requirements. Similar rules apply for information gathered from the dark web. As long as the researcher follows specific rules of conduct when accessing the data, passive collection of information on the dark web is legal and within the realm of OSINT. 2. Rosen, “The Internet You Can’t Google,” Tennessean (May 2014) https:// www.tennessean.com/story/money/ tech/2014/05/02/jj-rosen-popular-searchengines-skim-surface/8636081.

I found it on Casemaker.

Casemaker?

Yes. Casemaker. You get it for free as a member of the Colorado Bar Association.

Free! Login to cobar.org and click on the Casemaker link.

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FEATURE | TITLE CRIMINAL LAW

Sealing Criminal History Records for Convictions under CRS §§ 24-72-701 et seq.

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This article explores the significant changes made in 2019 to Colorado’s statutes for sealing criminal history records for convictions and discusses how to address sealing from a practitioner’s perspective.

T

he 2019 legislative session resulted in the most significant changes to Colorado’s various statutes addressing the sealing of criminal history records in at least a decade—perhaps since 1977. The new laws, which greatly expand the ability to seal criminal history records, apply primarily to convictions. They also modify the sealing process and alter some effects of a sealed record. This article discusses these legislative changes and their practical implications for practitioners and their clients.1 Evolution of the 2019 Legislative Changes The Criminal Justice Act of 1977 allowed courts to seal all criminal records, including convictions.2 However, in 1988 the General Assembly reversed course and excluded individuals convicted of offenses from eligibility.3 In 2008 the tide began to flow the other way, starting with the ability to seal some drug convictions.4 The General Assembly added the ability to seal offenses committed by human trafficking victims in 2012.5 Petty and municipal offenses were approved for sealing in 2013.6 Crimes related to posting intimate photographs on the internet were added in 2014.7 In 2016, Colorado instituted a simplified sealing procedure that allowed for more rapid and less expensive sealing of many criminal records when charges did not result in a conviction.8 While significant, all of those changes pale in comparison to the scope of the 2019 amendments and additions, which vastly expand the ability to seal criminal convictions at the misdemeanor and low- to mid-felony levels. Highlights of the new provisions include: ■ the ability to seal class 2 and 3 misdemeanors and all drug misdemeanors (two years after final disposition).9 ■ the ability to seal class 4, 5, and 6 felonies, class 1 misdemeanors, and class 3 and 4 drug felonies (three years after final disposition).10 ■ the ability to seal all other eligible offenses (five years after final disposition).11 ■ the continued exclusion of convictions for misdemeanor traffic offenses, traffic infractions, DUI/ DWAI, sex offenses, child abuse, domestic violence,

cases with extremely aggravated circumstances, Victim Right’s Act matters, felony cruelty to animals, and certain other enumerated matters.12 The statutory changes are retroactive, applying to “all eligible cases.”13 Aside from the above exclusions, the law creates a path for sealing otherwise ineligible misdemeanors.14 The law allows sealing of deferred judgments for misdemeanor sex offenses but still excludes a deferred felony sex offense.15 Both prosecutors and defense counsel should become very familiar with the 2019 statutory changes. Beyond the criminal sentence, those with convictions face substantial impacts from having a criminal record. For example, criminal conviction records, searchable during the job application process, are frequently a determining factor in employment decisions.16 Defense counsel should be mindful of the downstream ability to seal a criminal record when negotiating a disposition.

Because the statutory changes now make the records from many resolved cases sealable, counsel should consider their legal and moral responsibility to notify former clients, many of whom may have been previously advised of the legal inability to seal their records. 17 Generations of prior defendants with criminal convictions are now able to seal those records but may not know it.

Sealing Criminal Convictions The centerpiece of the 2019 legislation is the novel ability to seal misdemeanor and felony criminal convictions.18 Although the legislation identifies numerous subcategories of crimes that remain ineligible for sealing, the door is now open to seal a significant percentage of previously ineligible convictions. Before 2019, the general rule was that criminal convictions could not be sealed, other than those specifically enumerated by statute.19 The 2019 changes flip this analysis to a presumption of eligibility to seal, with carve-outs for ineligible categories.

The 2019 legislation sets out a graduated plan allowing for more rapid sealing of lesser offenses with fewer requirements. As the offense level ramps up from less to more serious, so too do the requirements or hurdles to sealing. The lowest level of convictions eligible for NOV E M BE R 2 0 2 0

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FEATURE | TITLE CRIMINAL LAW

SEALING REQUIREMENTS BY OFFENSE LEVEL OFFENSE

TIME FROM FINAL DISPOSITION

NOTICE TO DA REQUIRED

HEARING REQUIRED

STANDARD FOR COURT

Petty offense/ drug petty offense

1 year

Yes

No

Shall

Misdemeanors 2–3, drug misdemeanors

2 years

Yes

If DA objects or if the charge is a VRA offense

Shall, if no objection or not VRA offense; otherwise, may

May

Felonies 4–6, drug felonies 3–4, misdemeanor 1

3 years

Yes

If no DA objection and not a VRA offense, hearing is discretionary; otherwise, hearing is mandatory

All other eligible offenses

5 years

Yes

Mandatory

May

Unclear; not set forth in the statute

Court must find that the need to seal is “significant and substantial” and public disclosure is no longer necessary to protect or inform the public; unclear whether shall or may, but probably may (discretionary)

Otherwise ineligible misdemeanors; unclear if there are any carve-outs

No longer a threat

sealing, petty offenses and drug petty offenses, can now be sealed one year after final disposition of the case20 (for practical purposes, when the court’s jurisdiction ends; e.g., when probation terminates). For eligible petty offenses, there is no mechanism for a court hearing and sealing is mandatory, as the statute provides “the court shall order that the records be sealed . . . .”21 By contrast, to seal offenses more serious than a class 4 felony, notice to the district attorney (DA) is mandated, a hearing is required, and sealing is discretionary as indicated by the “may” language in the statute.22 Offenses from low-level misdemeanors to mid-level felonies fall in between those two poles as indicated in the accompanying chart.

Pursuant to CRS § 24-72-706(1)(c), all sealings require a custodian of records list and a verified criminal history. Victim Rights

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DA consent “or” all other requirements must be met; unclear if DA must be notified to proceed with alternative requirements

Act (VRA) offenses, as enumerated in CRS § 24-4.1-302(1), require a hearing under CRS § 24-72-706(1)(f )(II).

The Basic Process The motion to seal is filed in the criminal case in which the conviction occurred23—this is juxtaposed with earlier versions of Colorado sealing statutes in which a new civil case had to be opened to seal a criminal case. That step has been removed except where no case was originally filed in state court.24 Notice to the prosecution is required. 25 While the notice requirement is essentially irrelevant for practitioners—electronic filing of a motion to seal will automatically be routed to the prosecution—pro se defendants filing on paper at the courthouse will have to ensure compliance.

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All motions require a list of custodians.26 While this list would obviously include the arresting agency, the prosecution, and the court, practitioners should be aware of less obvious but equally important custodians. Additional custodians could include: ■ an alternate detention facility, if a defendant was arrested somewhere other than the county of origin for the case and either bonded there or was extradited; ■ public and private probation offices, if probation was transferred at some point during the probation period and multiple probation offices must be notified; and ■ pretrial supervision offices.

It is crucial to ensure that all custodians are notified because those not listed and served are under no obligation to follow a sealing order. Practitioners would likely find a client

understandably irate were a background check to reveal the existence of a sealed conviction due to a failure to list and serve all custodians.

Because the statute applies retroactively, defendants may seek to seal some very old cases. These cases may have incomplete records, and clients may struggle to fill in the gaps many years later. To avoid potential client complaints, practitioners are advised to create a written client certification that the client has informed the practitioner of all known custodians. Then, if an unanticipated custodian is missed, the practitioner has some coverage.

This is particularly important where the attorney did not originally represent the client in the case being sealed.

For those unsuccessful in their first attempt to seal, the law mandates a 12-month wait before another petition can be filed.27 Determining Eligibility The statute charges the court with conducting an initial review for eligibility,28 which is based on a facial reading of the motion and allows the court to take judicial notice of matters outside the motion.29 The statute does not delineate the additional matters that may be considered, but at a minimum, the initial review necessarily involves examining whether ■ the requisite time period has passed for sealing for the most serious crime being sealed; ■ the defendant owes restitution, fines, court costs, late fees, or other fees ordered in the case, unless the order was vacated;30 and ■ the defendant was convicted of a criminal offense “since the date of final disposition of all criminal proceedings against him or her or since the date of defendant’s release from supervision, whichever is later.”31 If the defendant does not meet the statutory requirements for any of these factors, sealing will be barred.

As to the criminal record, the statute requires provision of the appropriate record, at the petitioner’s expense. The record must be no staler than 20 days old at the time the petition to seal is filed and must be lodged with the court no later than 10 days after the filing of the petition.32 The state court website provides

“

Thus, counsel on both sides must consider the strategic implications of the timing of convictions and how that could later affect eligibility to seal a criminal conviction. But regardless of how the parties strategically approach this issue, a plea agreement cannot include a waiver of the right to seal, which the statute specifically prohibits.

”

instructions on obtaining the background check from the Colorado Bureau of Investigations (CBI).33 CRS § 24-72-706(1)(f) does not address the less obvious nuances of the criminal background check requirement. One implication is that the requirement that a defendant have no new convictions seemingly only applies to the record being sealed. This indicates that a petitioner might have an older record that would not bar sealing the newest case in time. And because the only requirement vis-à-vis the sealing is that there be no new “conviction” after the case concludes, a new conviction accrued during a defendant’s probationary/supervision period is potentially affected. For example, a defendant on probation who receives one or more new convictions during the probationary period could potentially have all his or her records sealed after the supervision period ends and after the requisite time frame.

This is a real-world issue, as probation generally does not end while a pending new case exists. Generally, when a new crime is alleged during a probationary period, a probation violation complaint is filed, which effectively tolls the probationary period until resolution of the entire circumstance—the new cases and the probation violation. Thus, someone could accumulate new cases and convictions during probation, all of which might eventually be eligible for sealing. Often, a global disposition is reached resolving both the probation violation and the new law violation. If those violations are resolved simultaneously, the statute seems to leave open the possibility of sealing both at a later time.

This raises practical considerations for criminal lawyers. For the defense attorney looking at the client’s entire record, an agreement resolving a probation violation and new cases simultaneously seemingly leaves the door open for sealing multiple convictions at a later time.

For the prosecutor who determines that a particular record should not be sealed, ensuring the conclusion of one case before another would be important. This could be accomplished by terminating probation unsuccessfully in the first matter and subsequently resolving the second matter, so that the first-in-time case could not

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FEATURE | TITLE CRIMINAL LAW

later be sealed. Thus, counsel on both sides must consider the strategic implications of the timing of convictions and how that could later affect eligibility to seal a criminal conviction.

But regardless of how the parties strategically approach this issue, a plea agreement cannot include a waiver of the right to seal, which the statute specifically prohibits.34 Another implication arises where a more recent crime resolves without a conviction, such as by way of a diversion or a deferred judgment. This could preserve the eligibility to seal the older case. For example, a defendant could have a prior conviction that would otherwise be eligible for sealing, absent a new conviction. During the negotiation process for the newest case, both the prosecutor and defense counsel should be aware of the import of their negotiations on the eligibility to seal such prior conviction. For some defendants, particularly those whose older and previously sealable matter was a felony, it could be worthwhile to make concessions when negotiating the new case to maintain eligibility to seal the conviction. Such concessions might include incarceration or harsher sanctions. Prosecutors should be aware of these considerations and decide whether it’s desirable to allow particular defendants to preserve their eligibility to seal.

The Hearing If the court preliminarily determines eligibility, it must proceed as set forth for each level of crime as indicated in the accompanying chart.

For petty offenses and petty drug offenses, the court “shall” seal the record. The statute does not establish any mechanism for a hearing or prosecutorial objection, nor does it provide a balancing test for the court. Court discretion and hearings enter the picture at the next offense level up.

For class 2 or 3 misdemeanors and all drug misdemeanors, the statute allows for prosecutorial objection. But if there is no objection from the DA, the process works the same as for petty offenses. Sealing appears mandatory, and no hearing or court discretion is afforded.

However, if the prosecutor objects, or a victim in a VRA case requests a hearing, the court must hold a hearing. The standard at such a hearing

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is the succinctly stated “privacy balancing test” enunciated in D.W.M. v. District Court County of Pitkin.35 This same test applies for many of the offenses discussed below and requires the court to determine whether “the harm to the privacy of the defendant or the dangers of unwarranted, adverse consequences to the defendant outweigh the public interest in retaining public access to the conviction records.”36 The court is charged with considering “at a minimum” (1) the severity of the offense to be sealed, (2) the defendant’s criminal history, (3) numbers and dates of convictions the defendant seeks to seal, and (4) the need for a government agency to maintain the records.37 This directive implies that more factors may be considered, though what “more” might entail is not defined.38 Class 4, 5, and 6 felonies, level 3 or 4 drug felonies, and class 1 misdemeanors also have a split procedure.39 In the absence of DA objection, and if the VRA is not implicated, the court may grant the matter “with or without a hearing.”40 If there is a prosecutorial objection or a VRA victim request for hearing, a hearing must be held and the privacy balancing test applied.41 If there is a request to seal any other matter, a hearing is required and the court must apply the privacy balancing test.42 It is unclear which crimes fall within the “any other offense language,”43 because the CRS § 24-72-706(2) (a) exclusionary list removes most higher level felonies from consideration. Drug felony level 2 crimes are not on the exclusion list, so presumably crimes at that level could be sealed under this catchall section. All class 1 to 3 felonies under CRS Title 18 and drug felony level 1 crimes are excluded and thus not eligible for sealing.44 The statute contains a smattering of unclassified felonies related to the Air Quality Control Program,45 most of which the average criminal practitioner will never encounter.

Perhaps the legislature was referring to these obscure crimes when it inserted the “any other offense” section.

For those attempting to seal otherwise ineligible misdemeanors, there is not yet any explication of the multipart standard that must be proven by the petitioner where the prosecution does not consent.46 The statute mandates the familiar clear and convincing standard

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but then nebulously requires proof that the petitioner’s need for sealing is significant and substantial, the passage of time is such that the petitioner is no longer a threat to public safety, and public disclosure is no longer necessary to protect or inform the public.47 Because the offenses seemingly covered by this subsection are for significant matters such as prior DUIs and misdemeanor domestic violence, litigation will likely ensue that may clarify the contours of this area. Pioneers into this new territory will have to strike out into the unknown and see what results they achieve.

Relevant Legal Authority To date, there is no appellate case law interpreting the 2019 statutory changes. Robertson v. People,48 a 2017 case, addresses the D.W.M. privacy balancing test from the perspective of sealing a deferred judgment. In Robertson, the Court of Appeals reversed and remanded, due in part to an insufficient trial court record reflecting how the court weighed and considered the D.W.M. factors. The takeaway for practitioners and trial courts is that findings must “reflect adequate consideration of the pertinent factors,”49 which must include at least the enumerated statutory list and may also take into account such factors as “the strength of the government’s case . . ., the petitioner’s age and employment history, and the specific adverse consequences the petitioner might suffer if the records were not sealed.”50 While this is not a particularly detailed roadmap for sealing hearings, it reflects the current dearth of explanatory case law on the topic. Since 1988, this area of the law has engendered little dispute, which makes sense from a practical perspective. Matters previously subject to sealing included those that prosecutors already deemed worthy of a significant reduction in consequences, such as deferred judgments. If a prosecutor previously made the decision not to saddle a defendant with a conviction—knowing that sealing was a likely outcome upon successful completion—that same prosecutor would be unlikely to later oppose sealing. But this analysis has significantly changed. Now, with defendants eligible to seal a host of previously ineligible charges

and convictions, prosecutors may be far less willing to accede to motions to seal, and the number of contested hearings could increase.

This may ultimately result in a more robust case law analysis of this legal niche.

Impacts of Sealing Sealing a criminal conviction neither vacates the conviction51 nor operates as a pardon. There is no reason to believe that, under Colorado law, sealing a conviction would restore the right to possess a firearm or act as a prophylactic to the charge of possession of a weapon by a previous offender.52 Federal law also does not offer a safe harbor in this regard as it defines a conviction by reference back to the original jurisdiction—“what constitutes a conviction . . . shall be determined in accordance with the law of the jurisdiction in which the proceedings were held.”53 To the extent that a sealed conviction was a predicate offense as part of a compounding situation, sealing also provides no protection for a defendant’s future behavior; for example, a first public indecency conviction is a petty offense and a second is a class 1 misdemeanor,54 and a fourth misdemeanor domestic violence case can be prosecuted as a felony.55 Because sealing does not vacate the conviction for the prior offense, nothing suggests that a subsequent matter would not be eligible for prosecution at whatever enhanced level the statutes might allow.

Further, the 2019 legislation mandates unsealing if a new conviction is entered after sealing the former matter.56 While there is no statutory mechanism to accomplish unsealing, presumably prosecutors will be able to spot new cases and inform the court in their jurisdiction and their colleagues in other jurisdictions as to the need to unseal a specific matter. Defense attorneys likely now have an obligation to advise clients with sealed matters who have a new case that a consequence of conviction would include unsealing the older matter. The statute also includes a provision that allows a member of the public to petition for unsealing of the record by showing that some new circumstance now affects the result of the balancing test.57 How the public would know about the sealed conviction

“

While it may be self-evident and common sense, sealing is only effective as to those entities who are served with the sealing order and therefore must comply.

” unless the matter was a VRA case is unclear.

While it may be self-evident and common sense, sealing is only effective as to those entities who are served with the sealing order and therefore must comply. This includes criminal justice agencies such as the court, prosecutor, and investigating law enforcement agencies, and can also include a private custodian in the business of providing this type of information to others,58 such as a private background check agency. The easiest way to test the effectiveness of the sealing is to purchase a private background check, post-sealing, from an entity that draws from multiple potential sources. If the check comes back clean, that is a reasonable indication that the conviction at issue was not picked up by private sources. If the check comes back with hits from private background check agencies, the sealing order must be served on each to gain their compliance. It is better to expend the effort on a background check shortly after sealing than to have a client surprised later by a job rejection when a sealed conviction pops up in a search.

Unfortunately, testing a sealing in this way does not handle social media postings about the sealed conviction. Not much can be done in this arena. Social media postings, whether self-initiated by the defendant or posted by others, are difficult or impossible to remove.

Once information is out in the digital world, it probably cannot be reversed. Therefore, it’s good practice to advise every client at the inception of a criminal action to not post anything to social media platforms. This is not a complete shield from later social media checks by prospective employers and others, but it is probably the most effective offense.

News articles are similarly hard to deal with. The press, for good reason, is protected by the First Amendment and can publish factual articles about ongoing criminal cases, whether they result in a conviction or not. These remain searchable later and could prejudice a defendant, even one who has a sealed conviction.

This is no less true for the defendant who is acquitted and otherwise resolves a case short of conviction and has the matter sealed.

While sealing a conviction does not erase many vestiges of prior conduct, it still carries significant benefits that make sealing worthwhile.

The most obvious benefit is that “employers, state and local government agencies, officials, landlords, and employees [can]not require an applicant to disclose any information contained in sealed conviction records in any application or interview or in any other way” and the applicant does not have to disclose the sealed conviction in response to questioning.59 The applicant may actually dissemble, stating that he or she was never convicted.60 And an applicant cannot be denied solely for refusing to disclose a sealed conviction record.61 While this provision allows the applicant’s nondisclosure, it offers no protection from disclosure of an applicant’s conviction by another source such as social media, which a potential employer could then consider anyway. This situation makes it even more crucial to ensure, to the extent possible, that all traces of the sealed conviction are removed from possible searchable sources.

Finally, there are sealing exceptions for (1) Colorado bar examiners, allowing them to

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inquire as to bar applicants about all sealed arrest and criminal records that come to their attention “through other means,” and (2) for the state Department of Education, allowing it to inquire as to records regarding pending sealings for licensed educators or applicants for an educator’s license.62 Sealed records can also be used for a variety of criminal justice purposes as outlined in the statute.63 This list is so extensive that it essentially negates the sealing for criminal justice purposes.

Conclusion The 2019 statutory changes regarding sealing criminal convictions expanded the types of convictions subject to sealing. These changes are intended to help defendants regain some privacy and dignity and enhance their employability. But the statutes leave open a number of substantive and procedural questions. Future case law will likely provide practitioners additional guidance on the requirements for sealing criminal records.

In the meantime, counsel on both sides must carefully consider the implications of sealing in each case.

Gordon P. Gallagher is a part-time US magistrate judge for the US District Court for the District of Colorado. He also has a private state court practice on the Western Slope, primarily in the area of criminal defense. This article is written from Judge Gallagher’s perspective as a private practitioner and is not related to his position with the federal court.

Coordinating Editor: Judge Adam Espinosa, adam.espinosa@denvercountycourt.org

NOTES

1. This article does not comprehensively address sealing of records for matters not resulting in convictions because the statute has remained relatively consistent in that regard since 2016, notwithstanding some recodifying.

See generally CRS §§ 24-72-701 et seq.

2. Ch. 340, sec. 1, § 24-72-308, 1977 Colo. Sess.

Laws 1249.

3. Ch. 190, sec. 3, § 24-72-308, 1988 Colo. Sess.

Laws 979.

4. Ch. 393, sec. 2, § 24-72-308.5, 2008 Colo.

Sess. Laws 1938.

5. Ch. 174, sec. 7, § 24-72-308.7, 2012 Colo. Sess.

Laws 623.

6. Ch. 289, sec. 10, § 24-72-308.9, 2013 Colo.

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Sess. Laws 1544.

7. Ch. 283, sec. 3, § 24-72-709, 2014 Colo. Sess.

Laws 1166.

8. CRS § 24-72-702.5 (repealed).

9. CRS § 24-72-706(1)(b)(II).

10. CRS § 24-72-706(1)(b)(III).

11. CRS § 24-72-706(1)(b)(IV).

12. CRS § 24-72-706(2)(a).

13. CRS § 24-72-706(3).

14. CRS § 24-72-706(2)(b).

15. CRS § 24-72-703(12)(d)(II).

16. Leasure and Anderson, “Recognizing Redemption: Old Criminal Records and Employment Outcomes,” 41 Harbinger 271 (Mar. 2017).

17. Courts, probation, and parole must now advise defendants as to their rights concerning sealing. CRS § 24-72-703(9).

18. CRS § 24-72-706.

19. Categories of convictions previously eligible for sealing under pre-2019 statutes included some drug convictions, CRS §§ 24-72-704, -705, and -710; prostitution related records, CRS § 24-702-706; public transportation fair evasion, CRS § 24-72-707; some petty offense and municipal court records (three years after conclusion), CRS § 24-72-708; and some records related to the internet posting of intimate photographs, CRS § 24-72-709.

20. This is a reduction from the three-year requirement in prior legislation. See, e.g., CRS § 24-72-705(b)(I), which allowed for sealing of petty drug offenses three years after final disposition of the case.

21. CRS § 24-72-706 (1)(f)(I) (emphasis added).

22. CRS § 24-72-706(1)(f)(IV).

23. CRS § 24-72-706(1)(a).

24. But, c.f., CRS § 24-72-708 (because no state court case exists when attempting to seal a municipal record, the state opens and then concomitantly seals a state civil action).

25. CRS § 24-72-708(2)(b).

26. CRS § 24-72-706(c).

27. CRS § 24-72-703(3).

28. CRS § 24-72-706(1)(d).

29. Id. 30. CRS § 24-72-706 (1)(e).

31. CRS § 24-72-706(1)(f)(I)–(IV).

32. CRS § 24-72-706(c).

33. https://www.courts.state.co.us/Forms/ Forms_List.cfm?Form_Type_ID=104. JDF 611 provides downloadable step-by-step instructions, with instructions for locating the necessary forms.

34. CRS § 24-72-703(11).

35. D.W.M. v. Dist. Ct. Cty. of Pitkin, 751 P.2d 74 (Colo.App. 1988).

36. CRS § 24-72-706(g).

37. Id. 38. Id. 39. CRS § 24-72-706(1)(f)(III).

40. Id. 41. Id.

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42. CRS § 24-72-706(1)(f)(IV).

43. Id. 44. CRS § 24-72-706(2)(a)(IV)(J).

45. See, e.g., CRS § 25-7-122.1(3)(a) (knowing endangerment of air quality) and CRS § 34-21106(2) (revealing stamped confidential mine information).

46. CRS § 24-72-706(2)(b).

47. Id. 48. Robertson v. People, 410 P. 3d 1277 (Colo.

App. 2017).

49. Id. at 1283.

50. Id. 51. CRS § 24-72-703(2)(a)(II).

52. CRS § 18-12-108.

53. 18 USC § 921(a)(20).

54. CRS § 18-7-301.

55. CRS § 18-6-801(7).

56. CRS § 24-72-703(2)(V).

57. CRS § 24-72-703(5)(c).

58. CRS § 24-72-701(8), referring to CRS § 24-72-302(11).

59. CRS § 24-72-703(2)(D)(I).

60. Id. 61. Id. 62. CRS § 24-72-703(2)(d)(II) (bar examiners) and (III) (Department of Education).

63. See generally CRS § 24-72-703.

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Parenting Plans for the COVID-19 Pandemic Era

BY JOA N MC W I L L I A M S A N D ST E PH A N I E E . DA N K E L

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This article explains challenges divorcing parents face in the COVID-19 era, as well as opportunities that arise when parties take a creative approach to overcoming these challenges. It also discusses the importance of creating a flexible parenting plan with pandemic-specific provisions.

T

he COVID-19 pandemic has created chaos for many families, but it is also creating opportunity. Many co-parents, out of necessity, are seizing the moment to reject conflict and work together for the benefit of their children. In fact, it is possible that the pandemic could create a “tipping point”1 at which parties will reject the adversarial approach to divorce and prioritize the children’s needs. The anticipated tipping point is supported by ■ family circumstances that are drastically changing from day to day. Parents and children are experiencing emotional, physical, and financial traumas that demand immediate attention. Parenting plans that require the interpretation of a judge and countless hours of litigation are impractical. Clients need parenting plan provisions that are straightforward and flexible and can be implemented as their needs evolve.

■ the unique judicial morass resulting from the pandemic. Courts are either closed or operating on an emergency basis, and court staff has been reduced, with further reductions anticipated.2 In addition, legal precedent for parenting plans is sparse.

This combination of limited availability of hearings and uncertain case outcomes encourages parental cooperation.

■ the increased importance of the lawyer’s role as an advisor. Due to the factors outlined above, clients need attorneys to act primarily as advisors and to assume the role of advocate only in the most extreme cases. 3 Many attorneys are counseling clients to prioritize their children’s mental and physical health and adopt a cooperative approach to parenting after divorce.

“

The pandemic is highlighting the need to better educate and support divorcing parents and their children. Attorneys can attend to this need by fashioning creative approaches to divorce, including the use of selfimplementing provisions in parenting plans that can be submitted to the court when appropriate.

”

This article describes the current challenges faced by divorcing parents and children as well as opportunities for enhancing parenting presented by these same challenges. It focuses on the status of the courts in Colorado, the lawyer’s role as an advisor, and factors to consider when drafting parenting plans.

The Emerging Parenting Challenges The COVID-19 virus has made co-parenting even more complicated. Parents must now plan for unanticipated events such as illness (the parent’s or the children’s), self-isolation, job modification or loss, home schooling, mental health issues, working at home, and perhaps food shortages. They must make decisions regarding the necessity to self-quarantine, whether to take out-of-state vacations, choice of childcare if schools are closed, and extracurricular activities. In some instances, parents are dealing with increased conflict, domestic abuse, and an unpredictable future.

The pandemic has created challenges for children as well, with parents unable to reassure them when or whether things will return to normal. Children may suffer anxiety and mental health issues, which may go undetected and/ or untreated. The fear of losing a loved one, or the fear of becoming ill themselves, can create trauma. Social isolation is harmful for many children and devastating for children with special needs. For children experiencing increased conflict or violence at home, the situation is especially troubling. Childhood trauma is extremely serious and may affect the children for the rest of their lives.4 The pandemic is highlighting the need to better educate and support divorcing parents and their children. Attorneys can attend to this need by fashioning creative approaches to divorce, including the use of self-implementing

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provisions in parenting plans that can be submitted to the court when appropriate.

Court Availability Colorado courts are striving to balance public health considerations with the necessity to maintain the fair and effective administration of justice for communities. 5 Due to ever-changing local and state guidelines, it is difficult to summarize how Colorado courts are presently handling cases related to COVID-19 and parenting plans. It is quite likely that while this article is being published, the statewide recommendations and procedures will change multiple times. But regardless of the fluctuating nature of COVID-19 orders and the courts’ availability, the last few months may inform how courts will respond to a future resurgence of COVID-19.

When the “stay at home” orders were first put into place by Governor Polis, the Colorado Supreme Court issued an “Order Regarding COVID-19,”6 which suspended various court operations but allowed state courts to continue hearing matters to protect basic constitutional rights and address matters essential to safety and well-being. This order classified hearings on motions to restrict parenting time and parental abduction prevention as “essential.”

After the Supreme Court’s initial order on March 16, 2020, judicial districts proceeded to publish additional guidelines on their websites.

For many judicial districts, this meant vacating and continuing all hearings not related to public health and safety for the foreseeable future.

Where possible, hearings were held either online or by telephone. Permanent orders hearings were pushed back into the fall of 2020. Some districts even began accepting pro se filings via email or E-file.

Based on anecdotal information, family law attorneys are currently seeing a major uptick in both motions to enforce and restrict parenting time. These filings are primarily based on parents withholding parenting time and parents’ varying ideas of what is “safe” for their children.

The courts’ handling of these disputes varies not only by district, but also by state.7 In some states, primary parents were directed to exercise 100% of parenting time until the stay at home

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orders were lifted.8 In other states, if a parent was a first responder or essential healthcare worker, they were prohibited from exercising any parenting time.9 In Colorado, while policies are ever evolving, information and updates for each judicial district are currently available on the judicial districts’ websites.10 A final factor affecting court availability is an increase in judicial fatigue. Before the COVID-19

experience in these matters. Contested hearings that should normally be allotted a full day may very well be consolidated into a one- or two-hour hearing. This is another reason why, in the days of COVID-19, many attorneys are encouraging their clients to resolve disputes outside of the courts, either among themselves or by employing professionals who can adequately hear and address their family matters, such as mediators and arbitrators.

“

The Changing Roles of the Attorney and the Judge The Colorado Rules of Professional Conduct (Rules) identify the attorney’s responsibilities as a client’s representative. As set forth in the Rules’ Preamble and Scope, a lawyer performs four functions: advocate, advisor, negotiator, and evaluator.13 As an advocate, the lawyer “zealously asserts the client’s position under the rules of the adversary system.” 14 As an advisor, the lawyer “provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications.”15 If the lawyer focuses only on being an advocate, the best interests of the client’s children can get lost.

This problem was solved, in part, by the Colorado Supreme Court’s adoption in 2017 of an amendment to Rule 2.1, Comment [2], which states that “[i]n a matter involving the allocation of parental rights and responsibilities, a lawyer should consider advising the client that parental conflict can have a significant adverse effect on minor children.”

Colorado is the first state in the country to adopt a rule comment concerning children, and while it is not mandatory, lawyers may use it as a focal point for discussions with clients. The comment supports and enhances the lawyer’s role as an advisor by allowing for considerations such as “moral, economic, social and political factors.”16 Some lawyers have adopted the position that, while they do not owe a duty to children, they have a responsibility to them to educate parents and help them understand how they can significantly support (or damage) their children. And the lawyer’s role as an advisor only grows in importance as the needs of the

Colorado is the first state in the country to adopt a rule comment concerning children, and while it is not mandatory, lawyers may use it as a focal point for discussions with clients.

” pandemic began, judges were already at risk for judicial fatigue and burnout.11 Now, because most hearings, including all jury trials, have been delayed for months, the pandemic has created a bottleneck of cases. This will likely mean greater workloads for judicial officers on top of issues created by the reduction in the judicial budget.12 In turn, already exhausted judges will be faced with quickly addressing domestic dockets, whether or not they have

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family increase and court availability decreases in response to the pandemic.

The court’s role is similarly taking on a new importance in connection with parenting plans. Courts must approve parenting plans, including by finding that the plan is in the “best interests of the child.”17 As part of this process, at least one court is taking a much more active educational role.

In Colorado’s 11th Judicial District, Chief Judge Patrick W. Murphy sends a letter to each parent who appears in his court.18 His letter asks divorcing parents to review the Adverse Childhood Experiences study19 and be prepared to discuss it with him in court. He refers parents to resources such as the “Divorce Toolkit”20 and, if he senses a lack of co-parenting cooperation in a given case, he will order the parties to complete the “Up To Parents” program.21 He further refers parents to online programs or mobile apps for communication and to the Arizona Court Parenting Plan22 program for ideas on how to develop a parenting plan. The letter is included as an appendix to this article.

In this new era, family lawyers are increasingly focused on their role as advisors, and judges are expanding their role as educators. A positive result of the new reality is that parents, due to necessity and perhaps out of educated consideration, may be more inclined to cooperate. This cooperation will be enhanced by well-crafted parenting plans.

COVID-19 Parenting Plans Many provisions recommended for COVID-19 parenting plans are similar to those found in standard parenting plans. Parties must continue to agree on (or the judge will order) how they will make major decisions for the health, education, and general welfare of their children. They must also agree on (or the judge will order) an age-appropriate parenting time schedule.

However, to accommodate the unpredictable needs of parents and children during the pandemic, parties may want to add provisions to their parenting plan that specifically address extraordinary circumstances. These provisions should be designed to reduce conflict and meet the unanticipated needs of the family members.

They may be time-limited and, with court

approval, self-implementing. Such provisions might begin by stating the parties’ intent and goals for their parenting relationship and may include, for example: ■ an agreement to immediately inform the other parent of suspected or confirmed exposure to the virus that either the parent or children may have had.

■ an agreement to immediately inform the other parent if the children are exhibiting any symptoms of the virus.

■ the names and contact information (including email addresses) of the doctors either parent will use in the event of exposure.

■ the names and contact information (including email addresses) of mental health professions that the children could use.

■ agreed upon parenting guidelines for the physical well-being of the children, such as

how parents will make a good faith effort to comply with local, state, and Centers for Disease Control and Prevention (CDC) guidelines.

■ the parenting time schedule that will be in effect during the pandemic. If one parent misses time, can that parent make it up?

If one parent must work at odd hours, will the other parent cover for him or her?

What about long-distance parenting? Will parents or children be able to travel during this period? What metric will the parties use to determine whether travel is safe?

■ the access the children will have with each parent, for example, by telephone, Skype, Zoom, or some other means. Will the “away” parent be able to share books, movies, schoolwork, or games with the children online? Can the parties agree to a reading or schooling app in advance

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to share in the children’s learning experience?

■ the names and contact information of friends and relatives that each parent agrees to allow to have FaceTime, Zoom, or Skype access to the children to provide relief for either parent. Grandparents can offer invaluable assistance by using the internet to read with the children, teach them new skills, engage in art projects, or play games. And this interaction can strengthen their bond with the grandchildren.

■ agreements for how the parties will share financial responsibilities. This is the frightening side to this pandemic because layoffs, reduced work forces, terminations, and furloughs can lead to financial trouble. Generosity during this time will add a layer of protection for the children.

■ how the parties will manage conflict.

Even one parent taking the high road can change the conflict dynamic. Parties model behavior for their children; by managing conflict effectively they set an example that encourages love and peace.

■ an alternative dispute resolution (ADR) provision for handling disagreements. This could include, for example, mediation, arbitration, or early neutral evaluation.

Parties can agree in advance on a particular neutral and choose someone who provides virtual or online services.

The parties may devise other ways to successfully co-parent through this crisis. It is a challenge, but it is a creative challenge, and offers an opportunity to change the dynamic of the co-parenting relationship and create stability for children.

There are four primary methods of ADR for addressing parenting plan issues outside of the court:23 ■ Negotiation: Parents could agree to negotiate disputes with each other a certain number of times before progressing to

Parties should also consider default provisions in the event of an outbreak or changing COVID-19 guidelines.

Such default plans include the Governor’s orders, CDC recommendations, or other federal guidelines.

Litigation Alternatives There are many reasons to encourage clients to include ADR provisions in their parenting plans generally, but COVID-19 makes the use of ADR even more compelling. As stated above, courts have become less available and parties have become less financially able to pay for expensive litigation. ADR offers significant benefits in this environment.

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” mediation, arbitration, or litigation.

For example, a parenting plan could provide that the parties agree to notify each other about their disagreements, with supporting data or their rationale, and discuss the matter during a 24-hour period before submitting the dispute to mediation or arbitration. A provision

on negotiation procedures will likely be successful only with parties who have previously been able negotiate disputes in good faith.

■ Mediation: Parties may agree to submit to mediation within a set time period to resolve a dispute. Given the increasing role of mediation in family law and that parties are seeking expedited resolutions during the current pandemic, it may be beneficial to provide the names of multiple mutually acceptable mediators in a parenting plan. Parties should include consideration of a mediator’s ability to mediate via online platforms.

■ Arbitration: An arbitration provision may be included, similar to a mediation provision. The primary difference between mediation and arbitration is that arbitration is binding. An arbitration clause may be more appropriate than a mediation provision where the parties have a lower budget or a history of noncooperation.

The primary benefit of arbitration is that the arbitrator’s decision resolves the parties’ dispute, and they must abide by the decision. Of course, the risk that an arbitrator may not decide in your client’s favor must be weighed when deciding on this form of ADR. Parties should also consider default provisions in the event of an outbreak or changing COVID-19 guidelines. Such default plans include the Governor’s orders, CDC recommendations, or other federal guidelines. An ADR professional could be designated to resolve any disputes on default provisions. Parties could even decide in advance what to do if schools are open, closed, or providing remote instruction.

Conclusion This is a unique period in the evolutionary process of divorce. Families are experiencing life-threatening situations that make issues they previously had with a spouse or former spouse pale in comparison. And the virus has stripped many parents of the time, money, and energy to engage in protracted arguments. At the same time, family law lawyers and judges are stepping up by promoting creative and

flexible settlements. This could be the moment when the balance tips against the adversarial approach to divorce in favor of cooperative parenting agreements that benefit parents and their children.

Joan McWilliams is the founder of McWilliams Mediation Group, Ltd. She focuses her practice on writing, speaking, and consulting, and frequently lectures on mediation and the impacts of divorce and unresolved parental conflict on children—joan@ mcwilliamsmediation.com. Stephanie E. Dankel is an associate attorney at Cage Bucar Lewis, LLC in Denver. Before becoming an attorney, she was a foster care social worker—stephanie@ cagebucarlewis.com.

Coordinating Editors: Halleh Omidi, hto@ mcguanehogan.com; Courtney Allen, allen@ epfamilylawattorneys.com

N OTE S

1. “The tipping point is that magic moment when an idea, trend, or social behavior crosses a threshold, tips, and spreads like wildfire.”

Gladwell, The Tipping Point: How Little Things Can Make a Big Difference (Little Brown and Co. 2000).

2. See HB 20-1360 (The Long Appropriations Bill).

3. Colo. RPC 2.1.

4. See Felitti and Anda, “The Lifelong Effects of Adverse Childhood Experiences” in Chadwick et al., Chadwick’s Child Maltreatment: Sexual Abuse and Psychological Maltreatment vol.

2 (STM Learning, Inc. 4th ed. 2014), https:// www.acesconnection.com/fileSendAction/ fcType/0/fcOid/399727599841203732/ filePointer/465603194268564968/ fodoid/465603194268564964/ ChadwickChapter10%20.pdf.

5. Order Regarding COVID-19 and Operation of Colorado State Courts, https://www.courts. state.co.us/userfiles/file/Media/Opinion_Docs/ COVID-19%20Order%2016Mar2020(1).pdf.

6. Id. 7. Twohey, “New Battle for Those on Coronavirus Front Lines: Child Custody,” N.Y. Times (Apr. 7, 2020), https://www.nytimes. com/2020/04/07/us/coronavirus-childcustody.html.

8. Id. 9. Id. 10. Colorado Judicial Branch, Courts by District, https://www.courts.state.co.us/Courts/District/ Choose.cfm.

11. Zimmerman, “Six-Month Checkup: Early Warning Signs of Judicial Burnout,” Mo. Bar Bulletin (Nov. 2001), https://www.lapnh.org/

pdfs/6monthcheckup_Judicial_Burnout.pdf.

12. See HB 20-1360.

13. Colo. RPC Preamble and Scope.

14. Id. 15. Id. 16. Colo. RPC 2.1.

17. CRS § 14-10-124.

18. Letter from Chief Judge Patrick W. Murphy, 11th Judicial District, to the parents of minor children in dissolution of marriage or allocation of parental rights proceedings. Reprinted with permission.

19. CDC, Adverse Childhood Experiences (ACEs), www.cdc.gov/violenceprevention/ acestudy.

20. See Sesame Street in Communities, www. sesamestreet.org/toolkits/divorce.

21. Up to Parents, www.uptoparents.org.

22. Arizona Supreme Court, Planning for Parenting Time: Arizona’s Guide for Parents Living Apart (2009), http://www.azcourts.gov/ portals/31/parentingtime/ppwguidelines.pdf.

23. ABA Dispute Resolution Section, Dispute Resolution Processes, https://www. americanbar.org/groups/dispute_resolution/ resources/DisputeResolutionProcesses.

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APPENDIX

ELEVENTH JUDICIAL DISTRICT CHAFFEE COUNTY P.O. BOX 279 SALIDA, COLORADO 81201 719-539-2561 CHIEF JUDGE PATRICK W. MURPHY District Administrator Lisa Rowe

Clerk of Court Karen Prosser

To: The parents of minor children in dissolution of marriage or allocation of parental rights proceedings Greetings, My name is Patrick Murphy. I will be the judge on your case and will be responsible for making decisions that affect you and your children. I do not take this role lightly. I know that these types of proceedings can be, but don’t have to be, emotional, stressful and antagonistic. As a child of divorce myself, I am asking you to always keep in mind the impact that a separation or divorce can have on your child and to always put your child’s needs ahead of your own.

The smoother you can make this situation for your children, the better off they will be going forward through their childhood and as adults.

Extensive research on the biology of stress shows that healthy childhood development can be derailed by excessive or prolonged activation of the body’s stress response systems, with damaging effects on health, learning and behavior. High conflict between parents during divorce or separation can be extremely stressful to children.

I encourage you to review the Adverse Childhood Experience (A.C.E.) study to find out just how damaging and long lasting the effects of stress can be on children. See: www.cdc.gov/violenceprevention/acestudy. You will also be given, along with this letter, a brief discussion of the A.C.E. study and the 10 A.C.E. questions. If I sense high conflict in your case, please be able and ready to discuss the A.C.E. study with me in Court.

For younger children, divorce or separation can be confusing and for parents, being able to answer questions from your child about the divorce or separation can be difficult. Sesame Street has available a “Divorce Toolkit” with books, songs and videos that can help parents answer, in a constructive way, these questions. See www.sesamestreet.org/toolkits/divorce.

Co-parenting is often a challenge for divorcing or separating parents. This challenge needs to be met in order for your child to make it through this process, both short term and long term, with as little stress as possible. A free, in depth and on-line resource to help parents meet that challenge can be found at www.uptoparents.org. If I sense a lack of co-parenting in your case, please expect an Order from me to complete the Up To Parents program.

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Communication and coordination of parenting time and decision making can also be difficult with two homes. There are numerous online programs or mobile apps that can help parents keep communication lines open and constructive. These include www.2houses.com ($10 per month), www.ourfamilywizard.com ($99 per parent per year) and www.talkingparents.com (free). This is not an exclusive list and the Court does not endorse any particular service.

Developing a parenting plan can also be difficult. The state of Arizona has created a useful guide that can help parents determine what type of parenting plan is most appropriate for the child and for the parents. See: www.azcourts.gov/portals/31/parentingtime/ppwguidelines.pdf.

A divorce or separation does not have to be harmful to your child. In fact most of the cases I see do not result in high conflict between the parents and subsequent harm to the child. Whether you can successfully co-parent or whether you expose your child to conflict is up to you. Please keep in mind, if you choose the high conflict route, the damage it will do to your child.

Sincerely, Patrick W. Murphy Chief Judge, 11th Judicial District

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FEATURE | TITLE GOVERNMENT COUNSEL

Follow the Money Federal COVID-19 Funding and the Inevitable Wave of Government Enforcement

BY J E N N I F E R L A K E

This article explores potential civil liability for borrowers, grantees, and lenders of federal COVID-19 business assistance funding.

T

he federal government has distributed an unprecedented amount of business assistance funding to a wide variety of recipients in response to the COVID-19 pandemic. The funds have been distributed in the form of grants and loan programs that have been cobbled together in a short period of time relative to the amount of time it typically takes the federal government to implement new regulatory schemes. New guidance and regulations are issued almost weekly for some of these programs, and there has been considerable confusion regarding the applicable requirements for some of the largest grant and loan programs.

During previous crises that have resulted in rapid distributions of large amounts of federal funds, government audits, investigations,

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and enforcement actions followed. There are already myriad signs that this crisis will be no different. Moreover, given the widespread nature of the economic harm caused by the pandemic, federal funds are flowing to a large number of recipients that are likely to have little or no experience with federal grant and loan programs. Borrowers, grantees, and lenders of COVID-19-related federal funding should be aware of their potential civil liability1 and take proactive steps to minimize potential exposure.

Federal COVID-19 Business Assistance Programs The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) was passed into law on March 27, 2020.2 Among other things, it authorized a variety of business assistance

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and relief programs. Each program has its own regulations and certification requirements that restrict the use of the funding and require participants to make statements and provide information concerning their eligibility for the funds. The largest and most popular business assistance programs are briefly described below.

Paycheck Protection Program One of the CARES Act’s central relief measures was the Paycheck Protection Program (PPP),3 a temporary loan product administered through the US Small Business Administration’s (SBA) 7(a) Loan Program.4 Within the first 14 days of the program, approximately $342 billion was distributed to more than 1.6 million recipients.5 At the time the program expired on August 8, 2020, approximately 5.2 million PPP loans had

been approved for a total of approximately $525 billion.6 PPP loans are fully guaranteed by the SBA, and the entirety of the loan is eligible for forgiveness if certain conditions are met.7 Private lenders are responsible for processing and approving both initial loan applications and forgiveness applications.8 The applications have multiple certifications that a borrower must make concerning eligibility for the loan and use of the funds.9 For example, a borrower must certify on the loan application that “[c]urrent economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant,” and that “the information provided in this application and the information provided in all supporting documents and forms is true and accurate in all material respects.”10 Although lenders may rely on the documentation submitted by a borrower, they must meet certain limited underwriting obligations and make certifications to the SBA concerning their compliance with those obligations.11 Additional Business Loan Programs COVID-19-related business assistance for small and medium-sized businesses is also available through the SBA’s Economic Injury Disaster Loan Program12 and the Federal Reserve’s Main Street Lending Program, among others.13 Similar to the PPP, borrowers must make a variety of certifications concerning eligibility and use of the funds for both categories of loans.14 Because the Federal Reserve guarantees the loans issued through the Main Street Lending Program, lenders participating in that program must also submit certifications concerning a borrower’s eligibility for the loan and the due diligence conducted in underwriting the loan.15 Provider Relief Fund In addition to loan programs, the CARES Act also authorized the US Department of Health and Human Services (HHS) Provider Relief Fund (Provider Relief Fund). The Provider Relief Fund distributes several types of grants to hospitals and healthcare providers, and hundreds of billions of dollars have already been distributed through the fund.16 The most widely distributed grant was a $50 billion “General Distribution,” which was

automatically transferred to healthcare providers shortly after passage of the CARES Act. Two formulas were used to calculate a provider’s share of the distribution based on 2019 Medicare fee-for-service payments and/or most recent tax year annual gross receipts.17 Although the funds were automatically transferred to recipients’ bank accounts, HHS subsequently released terms and conditions requiring recipients to sign an agreement within a certain period of time to legally retain the funds.18 A provider’s failure to sign the terms and conditions or return the funds is deemed an acceptance of the terms and conditions.19 The terms and conditions are 11 pages of restrictions and requirements regarding use of the funds. Among other things, providers must certify that after January 31, 2020 they provided “diagnoses, testing, or care for individuals with possible or actual cases of COVID-19,” and that the funding “will only be used to prevent, prepare for, and respond to coronavirus, and that the Payment shall reimburse the Recipient only for healthcare related expenses or lost revenues that are attributable to coronavirus.”20 The funding cannot be used to reimburse the provider for expenses or losses that have been reimbursed by other sources or that other sources are obligated to reimburse.21 HHS has already announced that it will require recipients to submit future reports regarding use of the funding.22 Government Contracts In addition to grant and loan programs, federal agencies have obligated approximately $17 billion in COVID-19-related contracts.23 Government contracts are similarly subject to a variety of federal regulations and contract-specific requirements, and often require contractors to make certifications in connection with both the initial request for proposal and with respect to subsequent requests for payment as the contract is performed.

History of Post-Crisis Enforcement Actions Historically, the federal government has targeted disaster funds and programs for audits, investigations, and civil enforcement actions to deter fraud and recoup misused taxpayer funds.

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For example, in the aftermath of Hurricane Katrina the US Attorney General formed the Hurricane Katrina Fraud Task Force.24 The task force sought to coordinate and ensure timely prosecution of fraud related to disaster relief funds, among other things.25 The task force successfully pursued civil claims under the framework of the False Claims Act, 31 USC §§ 3729 et seq. (FCA), among other statutes.

Notably, it obtained a $4 million settlement with a company that accepted over $5 million for post-disaster work it did not complete on a contract with the US Department of Homeland Security.26 Another notable enforcement effort occurred in the wake of the Great Recession when the federal government coordinated a number of initiatives and task forces to investigate and prosecute fraud. President Obama established the Financial Fraud Enforcement Task Force to investigate and prosecute financial crimes related to the crisis and recovery efforts, including FCA violations.27 The US Department of Housing and Urban Development (HUD) and the US Department of Justice (DOJ) worked together to investigate multiple large mortgage lenders to determine whether the lenders’ conduct in underwriting and approving federally insured mortgage loans contributed to the financial downfall of the government fund that paid claims on the loans.28 The coordinated effort, sometimes referred to as the “Big Lender Initiative,” resulted in settlements with 20 mortgage lenders totaling more than $4.75 billion.29 Congress also created the Special Inspector General for the Troubled Asset Relief Program (SIGTARP), which had the authority to audit, investigate, and conduct oversight over the distribution of Troubled Asset Relief Program (TARP) funds.30 In addition to numerous successful criminal prosecutions related to the funds, SIGTARP obtained large civil settlements from participants in federal programs.31 Oversight of Federal COVID-19 Funds The federal government has already indicated that it will closely monitor and investigate potential misuse of COVID-19 relief funds. The CARES Act provides for the creation of a Special Inspector General for Pandemic Recovery

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“

Given the creation of formal oversight bodies and the preliminary announcements concerning enforcement made by various government entities, attorneys and clients can expect robust investigations and prosecutions concerning the use of COVID-19 relief funds.

”

(SIGPR), a Pandemic Response Accountability Committee (PRAC), and a Congressional Oversight Commission.32 The SIGPR “is directed to ‘conduct, supervise, and coordinate audits and investigations’ of the financial assistance programs for businesses included in Title IV of the CARES Act . . . .”33 The PRAC currently comprises 20 inspectors general from various federal agencies, and its mission is to ensure “‘that funds intended to support individuals, workers, healthcare professionals, businesses, and others affected by the pandemic are used efficiently, effectively, and in accordance with the law.’”34 The Congressional Oversight Commission

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has five members and is tasked with overseeing actions undertaken by the Department of the Treasury and the Federal Reserve.35 Finally, the Government Accountability Office (GAO) has been tasked with oversight of COVID-19-related funds as well.36 Separate and apart from the CARES Act oversight mechanisms, the DOJ and the federal agencies responsible for administering the business relief programs have made clear that investigations and prosecutions are forthcoming.

On March 16, 2020, Attorney General William Barr issued a memorandum to all US attorneys encouraging them to work with the DOJ Civil Division’s Consumer Protection Branch, among other divisions, to “detect, investigate, and prosecute” fraudulent conduct related to the pandemic.37 With respect to the Provider Relief Fund, HHS has announced that it will have “significant anti-fraud monitoring of the funds distributed, and the Office of Inspector General will provide oversight as required in the CARES Act to ensure that Federal dollars are used appropriately.”38 With respect to PPP loans, the SBA has cautioned that “all borrowers should review carefully the required certification that ‘current economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant.’

Borrowers must make this certification in good faith . . . .”39 The SBA preliminarily announced that it would be reviewing all loans in excess of $2 million, creating a so-called “safe harbor” for loans under $2 million.40 Specifically, the SBA announced that for loans under $2 million, recipients “will be deemed to have made the required certification concerning the necessity of the loan request in good faith.”41 However, these announcements were made in the form of answers to Frequently Asked Questions (FAQs), which do not constitute binding guidance.

Indeed, after those FAQs were issued, the SBA published an interim final rule in the Federal Register that contradictorily stated that it “may review any PPP loan, as the Administrator deems appropriate,” and that “[f]or a PPP loan of any size, SBA may undertake a review at any time in SBA’s discretion.”42 SBA has further informed the GAO that it will review a select number of loans under $2 million, possibly through statistical

sampling or in response to specific reports of noncompliance.43 The GAO has recommended as an “essential” measure that the SBA address potential fraud in loans of $2 million or less.44 Given the creation of formal oversight bodies and the preliminary announcements concerning enforcement made by various government entities, attorneys and clients can expect robust investigations and prosecutions concerning the use of COVID-19 relief funds.

Enforcement Mechanisms The federal government has several civil enforcement mechanisms at its disposal to investigate and prosecute the misuse of federal funds.

False Claims Act The FCA is perhaps the most frequently used enforcement tool. It was enacted in 1863 and “was originally aimed principally at stopping the massive frauds perpetrated by large contractors during the Civil War.”45 The FCA provides for both civil and criminal liability for any person who, among other things, “knowingly presents, or causes to be presented, a false of fraudulent claim for payment or approval,” or “knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim . . . .”46 The term “claim” is broadly defined by 31 USC § 3729 to include: any request or demand, whether under a contract or otherwise, for money or property and whether or not the United States has title to the money or property, that— ■ is presented to an officer, employee, or agent of the United States; or ■ is made to a contractor, grantee, or other recipient, if the money or property is to be spent or used on the Government’s behalf or to advance a Government program or interest, and if the United States Government— ▷ provides or has provided any portion of the money or property requested or demanded; or ▷ will reimburse such contractor, grantee, or other recipient for any portion of the money or property

which is requested or demanded . . . .47 The term “material” is defined as “having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property.”48 Finally, the FCA defines “knowingly” to include actual knowledge as well as deliberate ignorance and reckless disregard of the truth or falsity of the information submitted to the government; no specific intent to defraud the government is necessary.49 The FCA imposes liability for treble damages plus civil penalties ranging from $11,665 to $23,331 for each false claim.50 DOJ has a history of targeting both individuals and corporate entities through FCA prosecutions.51 Moreover, its use of the FCA has been prolific. In each of the past 10 years, DOJ has obtained civil settlements and judgments under the FCA, with respect to healthcare fraud alone, in excess of $2 billion per year.52 In addition to FCA suits initiated by the federal government, the FCA provides for a private right of action. Under the law’s qui tam provisions, any person may file an FCA suit in the name of the government.53 The complaint is initially filed under seal while the government decides whether to intervene in the case and take over the litigation.54 If the government prevails in a qui tam action, the whistleblower typically receives 15 to 30% of the government’s recovery.55 A significant portion of FCA suits are qui tam actions.56 For example, of the $3 billion in total FCA settlements and judgments reported by the federal government in 2019, approximately $2.1 billion resulted from 633 qui tam suits.57 Financial Institutions Reform, Recovery and Enforcement Act A similar civil enforcement mechanism is the Financial Institutions Reform, Recovery and Enforcement Act of 1989, 12 USC § 1833a (FIRREA). FIRREA allows the government to seek civil monetary penalties against entities or people who violate one of several enumerated criminal statutes that affect financial institutions, such as bank fraud or making a false statement to a federally insured institution to obtain credit.58 Although FIRREA involves violations of what

are otherwise criminal statutes, the burden of proof is a preponderance of the evidence.59 The penalties are significant at up to $1 million per violation and up to $5 million for continuing violations.60 Alternatively, if a person derives pecuniary gain from the violation or causes pecuniary loss to someone other than the violator, the penalty may be up to the amount of the gain or the loss.61 The government often pursues FCA and FIRREA claims in tandem.

Program Fraud Civil Remedies Act A lesser known enforcement mechanism is the Program Fraud Civil Remedies Act of 1986, 31 USC §§ 3801 et seq. (PFCRA). Affectionately known within the federal government as the “baby False Claims Act,” its provisions are similar to the FCA but with liability for double damages instead of treble damages.62 The major differences between the FCA and the PFCRA are that penalties may be imposed under the PFCRA for false statements even in the absence of a claim, and the amount of each claim must be less than $150,000.63 However, multiple claims may be aggregated in a single PFCRA action provided that each individual claim is less than $150,000.64 PFCRA cases are litigated by federal agencies, rather than DOJ, before “presiding officers,” who are often administrative law judges (ALJs).65 Each agency is required to promulgate its own rules and regulations implementing the PFCRA’s provisions.66 The SBA’s Office of the Inspector General (OIG) has a history of using both the FCA and administrative enforcement actions to recoup funds from grantees, loan recipients, and lenders. For example, it has previously undertaken reviews of SBA’s 7(a) loan program to determine whether lenders participating in the program originated and closed 7(a) loans in accordance with SBA’s requirements.67 In addition, SBA OIG has a history of pursuing civil settlements from borrowers who fraudulently claim special status (e.g., small business or veteran-owned business) to establish their eligibility for various SBA contracts and loans.68 Suspension and Debarment The final major enforcement mechanisms available to the government are suspension and

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debarment. Suspension and debarment enable the federal government to exclude individuals and corporate entities from doing business with the government. Once a person or entity is suspended or debarred, that person or entity may not participate in covered transactions with any federal agency, or act as a principal of an entity participating in a covered transaction.69 Covered transactions include grants, loans, loan guarantees, subsidies, insurances, and other types of payments made by the federal government for a specific purpose.70 Thus, for all practical purposes, an entity or individual who is debarred is precluded from receiving any further federal funds from any source for the period of the suspension or debarment.

Federal agencies are required to adopt regulations implementing suspension and debarment procedures in accordance with overarching regulatory guidance provided by the Office of Management and Budget.71 Federal agencies may use the debarment and suspension system to exclude from federal programs persons who are “not presently responsible.”72 Although the term “presently responsible” is not clearly defined, the regulations broadly provide that a federal agency may debar a person for, among other things, civil judgments that indicate a “lack of business integrity or business honesty,” “[v]iolation of the terms of a public agreement or transaction so serious as to affect the integrity of an agency program,” or “[a]ny other cause of so serious or compelling a nature that it affects your present responsibility.”73 Suspension and debarment proceedings are informal processes administered by each agency.74 However, if there are disputed facts, more formal fact-finding proceedings are conducted, often by an ALJ.75 In addition to these enforcement mechanisms, statutes apply to certain government-regulated industries that may provide for additional or alternative monetary penalties.

Enforcement Mechanisms for Misuse of Federal COVID-19 Funding As a result of the enforcement mechanisms described above, the potential for civil liability arises virtually every time a participant in a federal loan or grant program provides informa-

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tion, documentation, and certifications to the government concerning eligibility for funding, use of the funds, and compliance with various regulatory requirements. The rapid rollout of many of the COVID-19-related business assistance programs has caused confusion within both government agencies and the public concerning applicable regulations and requirements.76 Particularly with respect to the PPP, the SBA has had to make frequent changes to informal guidance and interim regulations, some of which contradict previous guidance and interim regulations. Due to the rapidly changing regulatory landscape, and because many recipients of COVID-19 relief funds are small businesses with minimal experience with government loan programs, there is a significant risk that borrowers and grantees will run afoul of program requirements. And no specific intent to defraud the government must be proven to establish liability under the government enforcement mechanisms described above.

With respect to the PPP, the GAO has already recognized that “the limited safeguards and lack of timely and complete guidance and oversight planning have increased the likelihood that borrowers may misuse or improperly receive loan proceeds.”77 It has also noted that the limited underwriting required from lenders has left the program vulnerable to fraud.78 At this time, it appears that the majority of audits, investigations, and enforcement actions regarding the PPP will be directed toward borrowers rather than lenders. The SBA has announced that it may review whether borrowers were eligible for the loan, calculated the loan amount correctly, used the funds for allowable purposes, and were entitled to loan forgiveness in the amount claimed.79 Borrowers must retain PPP documentation in their files for six years after the date the loan is forgiven or repaid in full.80 However, lenders still face potential liability with respect to even their limited underwriting obligations and required certifications. For example, if a lender does not obtain all required documentation from a borrower or misses obvious signs of misrepresentation, the lender may be subject to investigation and prosecution.

With respect to the Provider Relief Fund, there was considerable confusion regarding

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the terms and conditions that were published after healthcare providers had already received distributions from the fund. Because of the timing, and because healthcare providers will be deemed to have accepted the terms and conditions if they do not return the funds, some healthcare providers may not realize the extent of the regulatory requirements and restrictions applicable to the funding. As noted above, HHS has already announced that reporting concerning the use of the funds will be required, and scrutiny of those reports will inevitably follow. Finally, with respect to the Main Street Lending Program, both lenders and borrowers may be subject to scrutiny concerning the underwriting process, particularly for loans that ultimately fail.

To date, both HHS and SBA have publicly released detailed information concerning the recipients of federal COVID-19 funding.

Given this widely available information and the large amount of publicity surrounding these programs, it is inevitable that borrowers, grantees, and lenders will be subject to qui tam actions concerning their involvement with the PPP and the Provider Relief Fund. Indeed, the National Whistleblower Center has already formally requested that DOJ “establish a task force to monitor and investigate violations of the False Claims Act related to allegations of fraud committed in federal programs related to the Coronavirus crisis.”81 Best Practices to Minimize Risk Government investigations and enforcement actions are costly to the subjects of such actions, both financially and in terms of reputational harm. This is true for formal litigation under the auspices of the FCA and FIRREA as well as for more informal administrative enforcement actions. However, borrowers, lenders, and grantees can take proactive steps to minimize potential exposure. All of these recommendations are grounded in one fundamental rule of thumb when dealing with government programs: documentation.

First, given the rapidly changing nature of the guidance applicable to COVID-19-related grant and loan programs, it is important to document and save the guidance that was relied upon when

applying for and expending government funds.

Government agencies do not always maintain comprehensive or easily accessible archives of past rules and guidance, particularly when that guidance is informal or interim.

Second, borrowers and grantees should carefully document their eligibility for, and use of, the funds. Lenders should ensure that all documentation supporting the underwriting decision is included in the loan file. Documentation will enable program participants to quickly and credibly respond to government investigations instead of being put in the disadvantageous position of having to reconstruct the decision-making process after the fact.

Third, borrowers, grantees, and lenders should have a plan in place to ensure compliance with regulatory requirements and monitor for noncompliance. The plan should, among other things, ensure careful tracking of the use of federal funds and compliance with all applicable regulatory requirements, ensure retention of relevant documentation, and identify a process

for handling internal or external complaints or reports of wrongdoing. Any instances of noncompliance should be remedied and reported, if necessary; structural changes should be implemented where applicable; and all steps taken in response to the noncompliance should be carefully documented.

Conclusion We are in a new era of government funding and relief programs. Given the nature of the pandemic and its widespread economic effects, more individuals and entities are receiving government funding than ever before. Many of these individuals and entities have little experience with the morass of rules, regulations, and certifications inherent in government programs. Even well-meaning individuals may run afoul of these regulations, particularly given the acknowledged confusion surrounding many of these programs. However, using best practices, particularly careful documentation, can minimize many of the risks.

Jennifer Lake is a civil litigator with Childs McCune in Denver. Her practice focuses on complex commercial litigation, eminent domain, and real estate-related litigation.

Previously, Lake clerked for the Honorable Robert N. Scola Jr. of the US District Court for the Southern District of Florida and served as a trial attorney at the US Department of Housing and Urban Development—jlake@childsmccune.com.

Coordinating Editors: Mary Elizabeth Geiger, megeiger@garfieldhecht.com; Jennifer Seidman, jseidman@burgsimpson.com

NOTES

1. This article focuses on civil liability, but the potential for criminal liability exists in some circumstances as well.

2. Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136, 134 Stat. 281 (Mar. 27, 2020).

3. The PPP was authorized by § 1102 of the CARES Act. Additional funding was subsequently provided by the Paycheck Protection Program and Healthcare Enhancement Act, Pub. L. No. 116-139, 134 Stat.

621 (Apr. 24, 2020). The PPP requirements were supplemented and modified further by the Paycheck Protection Program Flexibility Act of 2020, Pub. L. No. 116-142, 134 Stat. 641 (June 5, 2020).

4. Business Loan Program Temporary Changes; Paycheck Protection Program—Additional Eligibility Revisions to First Interim Final Rule, 85 Fed. Reg. 124, 38301 (proposed June 26, 2020) (to be codified at 13 CFR pt. 120).

5. SBA OIG, Flash Report Small Business Administration’s Implementation of the

Paycheck Protection Program Requirements at 2 (May 8, 2020), https://www.sba.gov/ sites/default/files/2020-05/SBA_OIG_ Report_20-14_508.pdf.

6. SBA PPP, Additional Program Information, https://www.sba.gov/funding-programs/ loans/coronavirus-relief-options/paycheckprotection-program.

7. Paycheck Protection Program—Additional Eligibility Revisions to First Interim Final Rule, 85 Fed. Reg. 124 at 38302.

8. See GAO, COVID-19: Opportunities to Improve Federal Response and Recovery Efforts at 3 (June 25, 2020), https://www.gao. gov/reports/GAO-20-625.

9. See PPP Borrower Application Form Revised June 12, 2020, https://www.sba.gov/sites/ default/files/2020-06/PPP%20Borrower%20 Application%20Form%20%28Revised%20 June%2012%202020%29-Fillable-508. pdf; PPP Loan Forgiveness Application Revised June 16, 2020, https://www.sba. gov/sites/default/files/2020-06/PPP%20

Loan%20Forgiveness%20Application%20 %28Revised%206.16.2020%29-fillable_0-508. pdf.

10. See PPP Borrower Application Form, supra note 9 at 2.

11. See Business Loan Program Temporary Changes; Paycheck Protection Program, 85 Fed. Reg. 73, 20811, 20815-16 (Apr. 15, 2020) (to be codified at 13 CFR Part 120).

12. SBA, Economic Injury Disaster Loan Emergency Advance, https://www.sba.gov/ funding-programs/loans/coronavirus-reliefoptions/economic-injury-disaster-loanemergency-advance.

13. See Board of Governors of the Federal Reserve System (hereinafter BOG), Main Street Lending Program, https://www.federalreserve. gov/monetarypolicy/mainstreetlending.htm.

14. See, e.g., BOG, Main Street New Loan Facility Borrower Certifications and Covenants Instructions and Guidance, https://www. bostonfed.org/-/media/Documents/ special-lending-facilities/mslp/legal/msnlflender-transaction-specific-certificationsand-covenants.pdf?la=en. See also COVID-19 Economic Injury Disaster Loan Application, https://covid19relief.sba.gov/#.

15. See, e.g., BOG, Main Street New Loan Facility Lender Transaction Specific Certifications and Covenants Instructions and Guidance, https://www.bostonfed.org/-/ media/Documents/special-lending-facilities/ mslp/legal/msnlf-lender-transaction-specificcertifications-and-covenants.pdf?la=en.

16. HHS, CARES Act Provider Relief Fund: General Information, https://www.hhs.gov/ coronavirus/cares-act-provider-relief-fund/ general-information/index.html.

17. Id. 18. HHS, Terms and Conditions for Relief Fund Payment from $30 Billion General Distribution, https://www.hhs.gov/sites/default/files/termsand-conditions-provider-relief-30-b.pdf; HHS, Terms and Conditions for Relief Fund Payment from $20 Billion General Distribution, https:// www.hhs.gov/sites/default/files/terms-andconditions-provider-relief-20-b.pdf.

19. Id. 20. Id. at 1.

21. Id. 22. HHS, CARES Act Provider Relief Fund: FAQs, Auditing and Reporting Requirements, https://www.hhs.gov/coronavirus/cares-actprovider-relief-fund/faqs/index.html#auditingreporting-requirements.

23. GAO, supra note 8 at 45.

24. DOJ, Hurricane Katrina Fraud Task Force Second Year Rep. to the Att’y Gen. at 1 (Sept.

2007), https://www.justice.gov/sites/default/ files/criminal-disasters/legacy/2012/07/30/0904-07AG2ndyrprogrpt.pdf.

25. Id. at 1–2.

26. Press Release, DOJ, Hurricane Katrina Contractor Accepts $4 Million Judgment Under the False Claims Act (Apr. 24, 2009), https:// www.justice.gov/opa/pr/hurricane-katrinacontractor-accepts-4-million-judgment-underfalse-claims-act.

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27. US Attorneys’ Bulletin, First Year Report—Financial Fraud Enforcement Task Force, vol. 59, no. 2 at 2.3 (Mar. 2011), https:// www.justice.gov/sites/default/files/usao/ legacy/2011/06/06/usab5902.pdf.

28. Cox, Deputy Associate Attorney General, DOJ, Keynote Remarks at the 2020 Advanced Forum on False Claims and Qui Tam Enforcement (Jan. 27, 2020), https://www. justice.gov/opa/speech/deputy-associateattorney-general-stephen-cox-provideskeynote-remarks-2020-advanced.

29. Id. 30. SIGTARP, SIGTARP Quarterly Report to Congress at 13 (July 27, 2016), https:// www.sigtarp.gov/Quarterly%20Reports/ July_27_2016_Report_To_Congress.pdf.

31. See, e.g., id. at 14.

32. See Cong. Research Serv., IN11328, Special Inspector General for Pandemic Recovery: Responsibilities, Authority, and Appointment (Apr. 13, 2020) (hereinafter SIGPR Notice), https://crsreports.congress.gov/product/pdf/ IN/IN11328; Cong. Research Serv., IN11304, COVID-19 Congressional Oversight Commission (COC) (Apr. 2, 2020) (hereinafter COC Notice), https://crsreports.congress.gov/product/pdf/ IN/IN11304; Cong. Research Serv., IN11343, The Pandemic Response Accountability Committee: Organization and Duties (updated Apr. 28, 2020), https://crsreports.congress.gov/ product/pdf/IN/IN11343.

33. SIGPR Notice, supra note 32 at 1.

34. About PRAC, https://www. pandemicoversight.gov/our-mission/about-theprac (quoting Michael E. Horowitz).

35. COC Notice, supra note 32 at 1.

36. GAO, supra note 8 at 4.

37. Memorandum from Att’y Gen. William Barr to United States Attorneys (Mar. 16, 2020), https://www.justice.gov/ag/page/file/1258676/ download.

38. CARES Act Provider Relief Fund FAQs, Terms and Conditions, How will HHS recoup funds from providers that are required to repay all or part of a Provider Relief Fund payment?, supra note 22.

39. SBA, Paycheck Protection Program Loans Frequently Asked Questions, FAQ 31 (June 25, 2020), https://www.sba.gov/sites/default/ files/2020-06/Paycheck-Protection-ProgramFrequently-Asked-Questions%20062520-508. pdf.

40. See id. at FAQs 39, 46.

41. Id. at FAQ 46.

42. Business Loan Temporary Program Changes; Paycheck Protection Program—SBA Loan Review Procedures and Related Borrower and Lender Responsibilities, 85 Fed. Reg. 105, 33012 (proposed June 1, 2020) (to be codified at 13 CFR pt. 120).

43. GAO, supra note 8 at 37 n.84.

44. Id. at GAO Highlights.

45. Universal Health Servs., Inc. v. U.S. ex rel.

Escobar, 136 S.Ct. 1989, 1996 (2016) (internal citations and quotations omitted).

46. 31 USC §§ 3729(a)(1)(A)–(B).

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47. 31 USC § 3729(b)(2).

48. 31 USC § 3729(b)(4).

49. 31 USC §§ 3729(b)(1)(A)–(B).

50. 31 USC § 3729(a)(1)(G); Civil Monetary Penalties Inflation Adjustment, 85 Fed. Reg. 119, 37004-6 (June 19, 2020) (to be codified at 28 CFR pt. 85).

51. Press Release, DOJ, Justice Department Recovers over $3 Billion from False Claims Act Cases in Fiscal Year 2019 (Jan. 9, 2020), https:// www.justice.gov/opa/pr/justice-departmentrecovers-over-3-billion-false-claims-act-casesfiscal-year-2019.

52. Id. 53. 31 USC § 3730(b).

54. 31 USC § 3730(b)(2).

55. Press Release, supra note 51. See also 31 USC § 3730(d).

56. Press Release, supra note 51.

57. Id. 58. 12 USC § 1833a(c).

59. 12 USC § 1833a(f).

60. 12 USC § 1833a(b).

61. 12 USC § 1833a(b)(3).

62. 31 USC § 3802(a)(1).

63. 31 USC § 3802(a)(2); 31 USC § 3803(c)(1).

64. Counsel of the Inspectors General on Integrity and Efficiency, Program Fraud Civil Remedies Act Practitioner’s Guide at 17 (Nov. 19, 2013), https://www.nsf.gov/oig/outreach/ sbirworkshop/PFCRA%20Practioners%20 Guide.pdf.

65. 31 USC §§ 3803(e)–(h), 3809.

66. 31 USC §§ 3803(g)(2).

67. SBA OIG, Semiann. Rep. to Congress at 3–5 (Oct. 2019), https://www.sba.gov/sites/default/ files/2019-11/SBA-OIG-Fall-2019-SemiannualReport_1.pdf.

68. See, e.g., id. at 15, 17–18, 47–51.

69. 2 CFR § 180.130.

70. See 2 CFR §§ 180.200, 180.210, 180.970.

71. 2 CFR § 180.20.

72. 2 CFR § 180.125(b).

73. See 2 CFR § 180.800.

74. 2 CFR §§ 180.740, 180.835.

75. 2 CFR §§ 180.830(b), 180.840, 180.735(b), 180.745.

76. GAO, supra note 8 at GAO Highlights.

77. Id. at 34.

78. Id. at 36.

79. Id. at 37.

80. Paycheck Protection Program—SBA Loan Review Procedures and Related Borrower and Lender Responsibilities, 85 Fed. Reg. 105 at 33012.

81. Letter from Stephen M. Kohn, chair of the Bd. of Dirs., Nat’l Whistleblower Center, to Att’y Gen. William Barr (Mar. 16, 2020), https://kkc. com/wp-content/uploads/2020/03/AG-Letterfinal.pdf.

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FEATURE | TITLE PROFESSIONAL CONDUCT AND LEGAL ETHICS

Former-Client Conflicts Lawyer Disqualification under Colo. RPC 1.9(a)

BY E VA N ST E PH E NS ON A N D K R I ST E N F E R R I E S

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This article addresses lawyer disqualification due to a former client conflict under Colorado Rule of Professional Conduct 1.9(a). It focuses on the recent Colorado Supreme Court opinion in Persichette v. Owners Insurance Co.

T

he Colorado Rules of Professional Conduct (Colo. RPC or Rules) explicitly provide that “[l]awyers play a vital role in the preservation of society.”1 “As a member of the legal profession, a lawyer is more than an advocate for his or her clients; she is also ‘an officer of the legal system,’ having special responsibility for the quality of justice.”2 Accordingly, lawyers have a fundamental responsibility to preserve the confidentiality of their clients’ information.3 Moreover, the sanctity of the attorney-client relationship depends on lawyers keeping their clients’ confidences.

The inviolability of the relationship permits clients to make themselves vulnerable to their trusted lawyers, which in turn enables lawyers to counsel their clients effectively. But to feel comfortable sharing private information with a lawyer, clients must be assured that their private information will remain confidential, even after the attorney-client relationship ends. This means the legal profession must not allow lawyers to weaponize client confidences against a client at a later time. Thus, “an attorney has certain ethical duties to former clients that persist even after the attorney-client relationship has concluded.”4 This article discusses lawyer disqualification under Colo. RPC 1.9(a), with a focus on the recent opinion in Persichette v. Owners Insurance Co.5 The Rules’ Framework for Confidentiality To protect the confidential nature of the attorney-client relationship, Colo. RPC 1.6 and 1.9, respectively, prohibit a lawyer from revealing a client’s or former client’s confidential information.6 Rule 1.9(a) goes further, providing that a “lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially

“

When a lawyer accepts a representation adverse to a former client, the lawyer must navigate the competing ethical duties owed to the current client and the former client, especially with respect to safeguarding the confidentiality of the former client’s information.

” related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.”7 When a lawyer accepts a representation adverse to a former client, the lawyer must navigate the competing

ethical duties owed to the current client8 and the former client, especially with respect to safeguarding the confidentiality of the former client’s information.9 Naturally, this ethical dilemma only arises when the representations of the former and current client are related. For that reason, Rule 1.9 permits disqualification only in the limited situation where the former and current representations are “substantially related.”10 To disqualify a lawyer under Rule 1.9, the moving party must show: “(1) an attorney-client relationship existed in the past; (2) the present litigation involves a matter that is ‘substantially related’ to the prior litigation; (3) the present client’s interests are materially adverse to the former client’s interests; and (4) the former client has not consented to the representation after consultation.”11 The movant has the burden to establish these elements.12 Matters are ‘‘substantially related’’ for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter.13 This definition left trial courts wondering: When is there a “substantial risk” that “confidential factual information” would “materially advance” the client’s position in the subsequent matter? In 2017, the Colorado Supreme Court provided some guidance on this question in Villas at Highland Park Homeowners Association, Inc. v. Villas at Highland Park, a case primarily concerning issue preclusion.

The Villas Case In Villas, a homeowner’s association brought a construction defect case against a developer.14

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The developer moved to disqualify the association’s lawyer because she had previously represented the developer in construction defect cases.15 The developer argued that the representations were substantially related because both involved construction defect allegations. The district court, however, invoked the doctrine of issue preclusion and denied the motion without substantively analyzing Rule 1.9.16 The court concluded that because other courts had previously denied the developer’s motion to disqualify his former lawyer, the doctrine precluded the developer, as a threshold matter, from moving to disqualify in Villas.17 The Supreme Court reversed, holding that the dispositive legal issue in the developer’s motion to disqualify—whether the case was “substantially related” to the lawyer’s prior representation of the developer—was not identical to the dispositive legal issue in his other motions to disqualify.18 This was because the question of whether one case is substantially related to a lawyer’s prior representation could not be identical to the question of whether a different case is substantially related to that same prior representation.19 In analyzing the district court’s application of issue preclusion, the Court also addressed the requirements for disqualification under Rule 1.9. First, the court explained that Rule 1.9 “is concerned with the type of confidential factual information that normally would have been revealed in a typical representation, rather than the confidential factual information that was actually revealed.”20 Thus, the moving party need not reveal the confidential information it seeks to protect in moving to disqualify (which would defeat the purpose of the Rule). The Court added that because Rule 1.9 is “concerned with the risk of disclosure” of former client information, “the crucial question is whether the confidential factual information in the attorney’s probable possession is relevant to subsequent claims in a manner that would materially advance those claims—which, in turn, depends on the precise legal theories and allegations in those claims.”21 The Court remanded the case to the district court to resolve the developer’s motion to disqualify with the hint that “[w]here a lawyer handles recurrent yet factually distinct problems,

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The Court held that a law firm, which had a decade-long attorney-client relationship with an insurance company in which the firm ‘helped put in place’ the insurance company’s claims-handling practices, could not subsequently represent the plaintiff in a bad faith case against the same insurance company.

” each individual matter is likely to involve a distinct set of dispositive facts.”22 “In such a situation,” the court continued, “the information that an attorney obtains in a prior representation is not necessarily relevant in later matters and consequently, there is no substantial risk that the attorney could use the information to gain an unfair advantage.”23

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On remand, the district court denied the developer’s motion to disqualify, this time after substantively applying Rule 1.9.24 The court found that the evidence required to succeed on a construction defect claim “is unique to the facts of the case which are probative of whether the builder used reasonable care and skill in constructing the particular homes at issue.”25 The court explained that, to the extent the lawyer learned any confidential factual information about the developer’s general litigation strategy in construction defect cases, such information was “playbook information” (knowledge about a company’s general operations) that did not justify disqualification. The court further explained that under Rule 1.9 comment [3], playbook information is only disqualifying when the lawyer has knowledge of “specific facts gained in a prior representation that are relevant to the matter in question.”

The developer did not show what confidential facts his lawyer would have learned in the prior construction defect cases that would be relevant to the subsequent case. Thus, the district court concluded that “the vast majority of the information she would have acquired would be the ‘nuts and bolts’ of the particular case—the innumerable details regarding site, design, materials, workmanship, etc.—which would have little, if any, relevance even to the very next case she worked on, let alone one arising a decade or more in the future.”26 Beyond Villas, which did not squarely address the substantial relationship test under Rule 1.9—indeed, the Court left that analysis to the district court—legal authority in Colorado has scarcely examined the term “substantially related.” Trial courts thus received little guidance on the level of similarity among representations necessary to require the lawyer to be disqualified for an ethical conflict of interest.

In May 2020, that changed when the Colorado Supreme Court applied the substantial relationship test in the context of an insurance bad faith case.27 The Court held that a law firm, which had a decade-long attorney-client relationship with an insurance company in which the firm “helped put in place” the insurance company’s claims-handling practices, could not subsequently represent the plaintiff in

a bad faith case against the same insurance company.28 In so ruling, the Court both protected the insurance company from disclosure of its confidential information and bolstered Rule 1.9’s purpose of protecting the sanctity of the attorney-client relationship and promoting trust between client and lawyer.

whom the law firm had advised and trained.35 The plaintiff did not contest any of the facts in Owners’ motion, but argued that the law firm only possessed playbook information, which the plaintiff contended did not require disqualification.

Persichette in the District Court In Persichette, the plaintiff sued Owners Insurance Co. (Owners), alleging bad faith breach of an automobile insurance policy’s underinsured motorist (UIM) coverage and seeking statutorily multiplied benefits and fees under CRS §§ 10-3-1115 and -1116.29 Approximately three months after the lawsuit began, a lawyer from a second law firm appeared as co-counsel for the plaintiff. The second firm previously had defended Owners in bad faith cases in Colorado for more than a decade.30 Owners requested that its former law firm withdraw, but the firm refused, contending that the information it acquired while representing Owners was neither confidential nor disadvantageous to Owners.31 Owners filed a motion to disqualify its former firm under Rule 1.9.32 The parties agreed that three of the four elements for disqualification under Rule 1.9 were met: (1) the existence of a prior attorney-client relationship; (2) adversity in the subsequent matter; and (3) the former client’s lack of consent. Thus, the only dispute was whether the law firm’s former representation of Owners was “substantially related” to its subsequent representation of the plaintiff.33 Owners argued that its former law firm must be disqualified because its prior representation of Owners in bad faith UIM cases—in which the firm advised and trained Owners’ claim representatives regarding UIM claim-handling practices—was “substantially related” to the law firm’s subsequent representation of the plaintiff in a bad faith UIM case against Owners.34 Specifically, Owners contended that the prior and current representations involved substantially related facts because the crux of both representations involved whether Owners’ UIM assessment and claim-handling practices gave rise to bad faith tort liability, practices that had been implemented by the same employees

“

The district court’s ruling highlighted the lack of clarity in the decisional law governing the ‘substantially related’ test and posed an important question: How could two matters be ‘substantially similar’ but not ‘substantially related’?

” Relying on Villas, the district court denied Owners’ motion. Analogizing to the construction defect cases in Villas, the court believed the insurance bad faith cases in Persichette involved “factually distinct problems of the same type.”36 The district court ruled that the law firm’s prior representation of Owners in bad

faith cases involved “separate” and “distinct” UIM claims from the UIM claim at issue in Persichette, and therefore the representations were not “substantially related.”37 The court also reasoned that any information the law firm had learned about Owners’ claim-handling practices constituted broad playbook information—knowledge about the company’s general internal operations—which ordinarily does not require disqualification under Rule 1.9.38 Still, the district court found that Owners’ former law firm had “helped put in place” the claim-handling practices that were at issue in the subsequent case.39 It also found that the law firm was “intimately familiar” with those practices, as well as with Owners’ negotiation strategy, its settlement pay ranges, and the factors that would motivate Owners to settle or view bad faith cases as high risk to the company.40 Admittedly struggling with a “close call” under Rule 1.9, the district court concluded that while the litigation “involves a matter that is substantially similar to the prior representation” and the “similarities between the current and prior representations are numerous and substantial,” the matters nevertheless were not “substantially related” under Rule 1.9.41 If nothing else, these findings conveyed that further guidance was required for trial courts to meaningfully apply the “substantial relationship” test under Rule 1.9. The district court’s ruling highlighted the lack of clarity in the decisional law governing the “substantially related” test and posed an important question: How could two matters be “substantially similar” but not “substantially related”?

The Supreme Court Clarifies Disqualification Requirements Owners brought an original proceeding in the Colorado Supreme Court under Colorado Appellate Rule 21, challenging the district court’s denial of its motion to disqualify.42 The question presented was whether Rule 1.9 prohibited a lawyer who previously defended a client in materially identical past matters and helped shape its practices from suing the former client and attacking those same practices as “bad faith.” The Court issued a rule to show cause and, after briefing and oral argument, made

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the rule absolute.43 The Court held that, given the trial court’s factual findings, there was “no doubt” that the law firm must be disqualified under Rule 1.9’s “substantial relationship” test.44 What is a “Substantially Related” Matter?

The Court began its analysis with Rule 1.9, which does not define “substantially related.”

The comments to Rule 1.9, however, provide that two matters are “substantially related” if (a) “they involve the same transaction or legal dispute” or (b) “there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter.”45 Critically, “while the moving party must show that its former lawyer would normally have obtained material information of a confidential factual nature in the prior representation, it need not establish that the attorney actually obtained such information in that representation.”46 Otherwise, the moving party necessarily would have to disclose the confidential information it sought to protect when it moved to disqualify, thereby defeating the purpose of protections afforded by attorney-client confidentiality.47 The Court rejected the district court’s reasoning that the current and former matters could not be “substantially related” simply because the law firm’s prior representation of Owners involved “distinct facts” from those at issue in the subsequent representation against Owners.48 The Court explained that, unlike in Villas, multiple common threads tied the law firm’s defense of Owners in prior bad faith UIM cases to its subsequent representation of the plaintiff in a bad faith UIM case against Owners.

These common threads included “Owners’ general claims-handling policies and procedures, hierarchy of settlement authority, negotiation strategies, settlement pay ranges, and the factors Owners considers in assessing whether to settle a claim.”49 They also included commonalities “[m]ore specific to this case,” such as “advice and training to Owners and Owners’ employees on the policies and procedures Owners uses to handle claims involving uninsured motorists, unreasonable delay, and bad faith—precisely the types of claims at issue here.”50

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Additionally, the law firm had “defend[ed] Owners in many cases against claims like the ones brought by” the plaintiff.51 By ruling that the two matters could not be “substantially related” if they involved “distinct” underlying

“

In this way, Persichette clarified that disqualification is required only when there is a substantial risk that the lawyer learned specific, confidential, factual information that is relevant to the subsequent case against the former client.

” “events,” the district “court essentially collapsed ‘a substantially related matter’ into ‘the same’ matter.” Thus, the Court concluded, the district court, for all intents and purposes, had “read ‘[the] substantially related matter’ [requirement] out of the rule.”52 But “[t]his the court could not do.”53

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The Court opined that two matters need not be “the same” to be “substantially related.”54 So while it may be true that a string of construction defect cases will rarely bear a substantial relationship to one another, because each depends entirely on unique facts giving rise to the particular alleged defect, the same is not true in the context of insurance bad faith cases where there are common underlying threads. These latter cases frequently balance on the same fulcrum of client-focused critical facts—whether a tort arises from the insurance company’s claim handling, claim-processing procedures, claim-settlement conduct, training, or personnel. Because the law firm in Persichette “provided advice and training to Owners and Owners’ employees on the policies and procedures Owners uses to handle claims involving uninsured motorists, unreasonable delay, and bad faith—precisely the types of claims at issue here”—the Court found that the law firm “likely possesses” confidential factual information “about Owners that is probably relevant to [the plaintiff’s] claims in a way that is advantageous to [the plaintiff ] and detrimental to Owners.”55 The Court’s explanation and application of the substantial relationship test in Persichette is largely consistent with its prior articulation of the test in Villas and the district court’s application of the test in that case. In Villas, there was no overarching factual similarity between the individual construction defect cases in which the lawyer previously represented the developer and the later construction defect cases in which the lawyer represented the developer’s opponent. Unlike Persichette, in which common facts regarding Owners’ claim handling practices were present in both the former and present representations, in Villas there was no factual commonality in the construction defect cases that could render the lawyer’s prior representation of the developer and subsequent representation of the homeowner’s association “substantially related.” In this way, Persichette clarified that disqualification is required only when there is a substantial risk that the lawyer learned specific, confidential, factual information that is relevant to the subsequent case against the former client.

Is Playbook Information Disqualifying?

The Court in Persichette also rejected the district court’s expansive view of playbook information.

Generally, playbook information refers to an organizational client’s policies and procedures.56 The term stems from the comments to Rule 1.9, which provide that “[i]n the case of an organizational client, general knowledge of the client’s policies and practices ordinarily will not preclude a subsequent representation.”57 Courts have long held that information regarding an organizational client’s “litigation playbook,” without more, does not require disqualification under Rule 1.9.58 However, a lawyer’s knowledge of “specific facts” gained during the prior representation regarding a former client’s policies and procedures “that are relevant to the matter in question ordinarily will preclude such a representation.”59 In Persichette, the district court ruled that confidential information regarding Owners’ claim-handling policies and procedures merely constituted playbook information that should not ordinarily be disqualifying under Rule 1.9.60 The Supreme Court disagreed, reasoning that the district court’s factual findings—which established that those policies and procedures were directly relevant in the subsequent litigation and were inextricably related to the law firm’s prior representation of Owners—rendered the representations “substantially related” under Rule 1.9.61 The Court rejected the notion that playbook information about an organizational client’s policies and procedures could not ever be disqualifying.62 To the contrary, it held that when internal client information is relevant to the litigation, it is disqualifying even when characterized as playbook information.63 This reasoning is consistent with the district court’s denial of the motion to disqualify in Villas. In Villas, the developer relied on his former lawyer’s possession of generic information about his litigation strategy in construction defect cases in moving to disqualify the lawyer.

But the developer pointed to no specific facts regarding his litigation strategy that could have benefited his opponent in the subsequent matter. In Persichette, on the other hand, the law firm’s possession of specific facts regarding Owners’ claim handling practices, which were

implicated in the subsequent lawsuit, required disqualification under Rule 1.9.

Can a Lawyer Limit Representation of a New Client to Avoid Disqualification?

In Persichette, in response to Owners’ motion to disqualify, the law firm argued that disqualification was not required because the law firm would limit the plaintiff’s bad faith claim against Owners so as not to implicate the claim-handling practices on which the firm had previously advised Owners.64 The Court rejected this gambit, stating: In any event, Persichette’s proposal to cast away part of his case to sidestep a former-client conflict under Rule 1.9(a) may give rise to a concurrent conflict under Colo. RPC 1.7(a)(2). . . . Hence, in attempting to stave off Owners’ motion for disqualification, [the law firm] may be hopping out of the

Rule 1.9(a) frying pan and into the Rule 1.7(a)(2) fire.65 The Court held that a lawyer may not limit representation of a current client to avoid disqualification due to a former-client conflict.66 What is Required to “Preserve the Integrity and Fairness of the Proceedings”?

The existence of a former client conflict under Rule 1.9, by itself, is not enough to compel disqualification of a lawyer in Colorado state court.67 Disqualification under Rule 1.9 becomes mandatory, however, “when it is required to preserve the integrity and fairness of the proceedings.”68 In Persichette, the Supreme Court determined there was “no doubt that, given [the law firm’s] prior representation of Owners,” the plaintiff was “likely to obtain an advantage for him and a disadvantage for Owners.” 69 The Court thus concluded that

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.

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allowing the law firm to remain in the case as the plaintiff’s counsel “would seriously threaten the integrity and fairness of the proceedings,” and because no remedy other than disqualification would cure that defect, the law firm had to be disqualified.70 Under the Court’s reasoning, a former client ordinarily can meet this test by making a sufficiently strong case that the “substantial relationship” test has been satisfied.

The considerations inherent in showing a substantial relationship and the need to preserve the integrity and fairness of the proceedings thus have much in common.

Conclusion Persichette reinforces Colorado’s commitment to attorney-client confidentiality. It clarifies Rule

1.9’s “substantial relationship” test and confirms that a lawyer’s possession of confidential factual information about a former client—including an organizational client—precludes the lawyer from later representing the client’s opponent in a matter implicating that same information. The Supreme Court’s decision strikes a necessary balance between a lawyer’s duty to represent clients that may, over time, find themselves on opposite sides of the courtroom, while still protecting clients’ ability to confide in their lawyers. The decision also protects clients from concurrent conflicts of interest by preventing lawyers from being torn between competing ethical responsibilities to current and former clients.

Evan Stephenson is a partner at Wheeler Trigg O’Donnell LLP in Denver.

He focuses his practice on insurance, commercial, and class action litigation, with an emphasis on trials and appeals—stephenson@wtotrial.com.

Kristen Ferries is an associate at Wheeler Trigg O’Donnell LLP in Denver. She represents clients in complex litigation, particularly in personal injury and product liability matters—ferries@ wtotrial.com.

The authors represented Owners Insurance Co. in Persichette v. Owners Insurance Co. and coordinating editor Stephen Masciocchi was Owners’ expert witness.

Coordinating Editors: Stephen G. Masciocchi, smasciocchi@hollandhart.com; Joseph G. Michaels, joseph.michaels@coag.gov

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N OTE S

1. Colo. RPC Preamble [13].

2. Persichette v. Owners Ins. Co., 462 P.3d 581, 583 (Colo. 2020) (quoting Colo. RPC Preamble [1]).

3. Colo. RPC 1.6(a) (“A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).”).

Rule 1.6(b)(1) permits a lawyer to disclose client information without consent in certain limited circumstances, such as when the lawyer reasonably believes disclosure is necessary “to prevent reasonably certain death or substantial bodily harm.”

4. Villas at Highland Park Homeowners Ass’n, Inc. v. Villas at Highland Park, LLC, 394 P.3d 1144, 1147 (Colo. 2017).

5. Persichette, 462 P.3d 581.

6. See Colo. RPC 1.6(a) and 1.9(c)(2). See also Colo. RPC 1.6 cmt. [2] (“A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation. This contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter. The lawyer needs this information to represent the client effectively and, if necessary, to advise the client to refrain from wrongful conduct. Almost without exception, clients come to lawyers in order to determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct. Based upon experience, lawyers know that almost all clients follow the advice given, and the law is upheld.”).

7. Colo. RPC 1.9(a).

8. Colo. RPC 1.7 (“Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if . . . (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.”). See also People v. Hoskins, 333 P.3d 828, 835–36 (Colo.

2014) (“Colo. RPC 1.9 applies only to situations involving an inherent and substantial risk of violating an attorney’s duty of loyalty to former clients. The prohibition of Rule 1.9 is therefore limited to representations that combine the same or substantially related legal disputes with a motive to harm a former client, in order to advance the interests of a current client.”).

9. Colo. RPC 1.9.

10. Colo. RPC 1.9(a).

11. Villas, 394 P.3d at 1152.

12. Fognani v. Young, 115 P.3d 1268, 1272 (Colo. 2005) (noting that “the moving party has the burden to establish grounds for

disqualification”).

13. Colo. RPC 1.9 cmt. [3].

14. Villas, 394 P.3d at 1147.

15. Id. 16. Id. 17. Id. 18. Id. at 1148.

19. Id. at 1153 (“Given that attorneydisqualification issues depend on the particular facts and legal theories involved in each case, issue preclusion will rarely, if ever, apply to attorney-disqualification motions under Rule 1.9 because the issue raised by one attorneydisqualification motion rarely will be ‘identical’ to one in another case.”).

20. Id. 21. Id. (emphasis in original).

22. Id. 23. Id. 24. Cent. Park Cmty. Ass’n, Inc. v. Cent. Park Rowhomes, LLC, No. 2015CV33740 (Denver Dist. Ct. Mar. 26, 2018) (Findings of Fact, Conclusions of Law, and Order on Motions to Disqualify Plaintiffs’ Counsel).

25. Id. at ¶ 196.

26. Id. at ¶ 242. Because the developer failed to identify the confidential information his lawyer would have learned in individual construction defect cases that would materially advance his opponent in a subsequent construction defect case, Villas was, in the authors’ opinion, a factually weak case for supporting disqualification.

27. Persichette, 462 P.3d 581.

28. Id. at 584–85, 591.

29. Id. at 584.

30. Id. 31. Id. at 585.

32. Id. at 584. Owners also relied on Rule 1.10.

See id. at 584 n.1. Rule 1.10 imputes one lawyer’s conflict to the lawyer’s entire firm, with limited exceptions. See Colo. RPC 1.10(a) (“While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9.”).

33. Persichette, 462 P.3d 585 (“The court had little difficulty determining that Owners satisfied the first, third, and fourth elements of the analysis. . . . That left one question unresolved: whether this matter is ‘substantially related’ to any matter in which Levy Law represented Owners.”).

34. Id. at 584–85.

35. Id. 36. Persichette v. Owners Ins. Co., No. 2018CV31118 (Weld Cty. Dist. Ct. Aug. 14, 2019) (Order Denying Defendant’s Motion to Disqualify Levy Law, P.C. and Marc R. Levy, Esq. as Plaintiff’s Counsel).

37. Persichette, 462 P.3d at 589.

38. Id. at 588.

39. Id. 40. Id.

41. Id. at 585. “Viewing the “substantially related” query as “a close call,” the district court ultimately sided with the plaintiff.

It ruled that, while the present and prior representations were “substantially similar” and involved “numerous and substantial” similarities, they were not “substantially related.” Thus, concluded the court, the law firm’s disqualification was not warranted and the plaintiff was “entitled to counsel of his choice.” Id. 42. Id. 43. Id. at 584–92.

44. Id. at 592.

45. Colo. RPC 1.9 cmt [3].

46. Persichette, 462 P.3d at 587 (emphasis in original).

47. Id. at 590 n.6 (“Requiring Owners to prove that [its former law firm] actually possesses confidential client information about Owners could allow Persichette, through his retention of [Owners’ former law firm], to strongarm Owners into divulging confidential client information.”).

48. Id. at 589 (explaining that the trial court’s “analytical framework doesn’t jibe with the text of Rule 1.9(a), which, in certain circumstances, precludes an attorney who has represented a client in a matter from subsequently representing another client . . . .” in the same or a substantially related matter).

49. Id. at 590.

50. Id. 51. Id. 52. Id. at 591.

53. Id. 54. Id. at 589.

55. Id. at 590. The Supreme Court reached this conclusion based on information contained in the district court’s factual findings. Id. 56. Id. 57. Colo. RPC 1.9 cmt. [3] (emphasis added).

58. See, e.g., In re N. Am. Deed Co., 334 B.R. 443, 454 (D. Nev. 2005) (“The concept of ‘playbook’ disqualification has been rightly condemned unless there is a ‘showing of substantial relationship based on confidentiality concerns [which] is equivocal.’’’) (citing Wolfram, “Former-Client Conflicts,” 10 Geo. J. Legal Ethics 677, 727 (1997)).

59. Colo. RPC 1.9 cmt. [3].

60. Persichette, 462 P.3d at 590.

61. Id. 62. Id. at 590–91.

63. Id. 64. Id. at 591.

65. Id. 66. Id. 67. In re Estate of Myers, 130 P.3d 1023, 1025–27 (Colo. 2006).

68. Id. 69. Persichette, 462 P.3d at 590–91.

70. Id.

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Your First Vaccine Injury Case A Primer on Handling Claims

BY GU R N E Y F. PE A R S A L L I I I

This article provides the history and an overview of the National Vaccine Injury Compensation Program. It offers practical guidance for practitioners to evaluate and litigate vaccine injury claims.

V

accines are a hallmark of modern medicine. The smallpox virus, which once plagued humanity with centuries of outbreaks and a 30% fatality rate, has perished because of the smallpox vaccine.1 The novel coronavirus may be the next virus to meet its end at the hands of a vaccine. But notwithstanding their utility, vaccines can injure, and sometimes catastrophically.

After a wave of vaccine injury lawsuits nearly chased vaccine manufacturers out of the US vaccine market in the 1980s, Congress

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established the Vaccine Injury Compensation Program (VICP), a non-adversarial, no-fault alternative to common law tort. This article offers an overview of the VICP and guidance on how to evaluate and litigate vaccine injury claims.

How Vaccines Work We live in a microbial world. Our immune system is locked in a constant struggle with the microbes all around us, but viruses and bacteria are as interested as we are in surviving.2 Anyone who has had a cold knows that the immune system is not always successful in this struggle.

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At times, it mistakes a harmless microbe as a threat—hence, seasonal allergies. At times, it mistakes a harmful microbe as no threat, leading to viral and bacterial infections.

Antibiotics are effective at killing bacteria, until they develop antibiotic resistance.3 But because viruses are much tinier and harder to target than bacteria, the best defense against them is a strong immune system.4 To that end, vaccines train the immune system to recognize a viral invasion as a threat.5 Typically, vaccines accomplish this by introducing a weakened version of the pathogen into an immune system.

As more people develop immunity to that pathogen, it runs out of eligible hosts and perishes.6 This “herd immunity” helps protect immunocompromised people, whose immune systems would be overwhelmed even by the weakened vaccine version of the pathogen.7 Vaccine Safety All medical intervention comes with risk, whether one is ingesting aspirin or injecting a vaccine.8 Vaccine injuries typically result from either the vaccination or from the vaccine itself. Vaccination injuries result from poorly administering an otherwise perfectly good vaccine, while vaccine injuries result when, even after the injection is correctly performed, the body responds poorly to the vaccine.

Take the main vaccine on the market, the influenza (flu) vaccine. It should be injected in the midpoint of the nondominant arm’s deltoid muscle, at a 90-degree angle.9 If the vaccinator misses that injection site or injects at a poor angle, the injection may result in inflammation that damages musculoskeletal structures, causing chronic pain and limited range of motion due to adhesive capsulitis, shoulder bursitis (frozen shoulder), or rotator cuff tear.10 Paralysis or neuropathy can also result if the injection hits a nerve.11 Even if the vaccinator correctly administers the flu shot, adverse effects might occur. Typically, these effects are merely a brief inconvenience such as a fever, or a mild allergic reaction or soreness at the injection site. These reactions are a natural result of the immune system responding to, fighting off, and remembering the injected pathogen. If a more severe adverse reaction takes place, it often occurs as a severe allergic reaction, inflammation, or autoimmune disorder.

A severe allergic reaction to vaccine ingredients, such as egg or gelatin, can result in anaphylaxis, which often presents as itchy hives or swelling of the throat.12 Vaccine-induced transverse myelitis may occur when the injection of the vaccine leads to spinal cord inflammation and nerve damage, which can present as blurred vision, weakness, paralysis, and bladder or bowel dysfunction.13 Encephalitis occurs when the immune system response to the vaccine causes

“

leading to muscle weakness and paralysis.16 CIPD is a form of GBS that results from the immune system attacking its own myelin, leading to impaired sensory function and loss of motor coordination.17 Chronic arthritis can result if the immune system response causes joint pain and swelling.18 As severe as these disorders may be, their symptoms are amorphous and often take weeks or months to develop, making it difficult to diagnose the disorder as a vaccine-induced injury with a high degree of medical certainty.19 Starting with the first vaccine injury lawsuits, causation was and continues to be the most challenging aspect of vaccine injury litigation.

Vaccine injuries typically result from either the vaccination or from the vaccine itself. Vaccination injuries result from poorly administering an otherwise perfectly good vaccine, while vaccine injuries result when, even after the injection is correctly performed, the body responds poorly to the vaccine.

Common Law Vaccine Injury Liability Courts first addressed vaccine injury liability in Gottsdanker v. Cutter Laboratories.20 In 1955, Jonas Salk released a polio vaccine.21 Sadly, poor manufacturing standards led to “The Cutter Incident,” in which 40,000 children who received this vaccine contracted polio and infected their families and communities.22 The resulting polio epidemic marks one of the worst pharmaceutical disasters in American history.23 Gottsdanker distinguished between vaccine efficacy and vaccine safety, noting that the case did not involve a vaccine efficacy claim that the vaccine failed to protect the vaccinee against polio.24 Such a claim would have failed.25 Instead, the petitioners presented a vaccine safety claim, alleging that the vaccine itself caused polio.26 With that distinction, Gottsdanker set

” brain inflammation, resulting in headaches, fatigue, and/or brain damage.14 Autoimmune disorders involve the immune system attacking itself. The autoimmune disorders that most often appear in vaccine injury cases are Guillain-Barré syndrome (GBS), chronic inflammatory demyelinating polyneuropathy (CIPD), and chronic arthritis.15 GBS results from the immune system attacking its own nerve cells, NOV E M BE R 2 0 2 0

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the framework for manufacturer liability in vaccine injury claims.27 In 1976, an outbreak of swine flu resulted in a government swine flu program that immunized vaccine manufacturers from vaccine injury liability, created a federal vaccine injury claims process, and facilitated the quick vaccination of one-third of the adult US population.28 To boost public confidence in the shot’s safety, President Gerald Ford televised his immunization.29 By 1985, over 4,000 vaccine injury claims had been filed, alleging injuries such as Guillain-Barré syndrome. 30 Even though most cases were dismissed for failure to prove a causal connection between the injury and the vaccination, the claims cost the government nearly as much as the program itself.31 The 1980s saw a wave of diphtheria/tetanus/pertussis (DTP) vaccine lawsuits based on negligence theories, public outrage over vaccine injuries, and congressional hearings on vaccine safety.32 By the mid-80s, DTP lawsuits against Lederle alleged damages exceeding 200 times the manufacturer’s total sales,33 and Connaught Laboratories found itself defending against lawsuits demanding a combined billion dollars in damages.34 In 1985, Kearl v. Lederle Laboratories expanded vaccine injury liability to new heights as the first case to permit product liability claims over vaccine injuries.35 Faced with ever-increasing liability, both in quantity and quality, vaccine manufacturers began spiking vaccine prices or leaving the market altogether.36 The very real possibility of vaccine shortages loomed on the horizon, along with the loss of herd immunity and the return of routine epidemic outbreaks.37 The VICP Congress stepped in to avert the crisis with the National Childhood Vaccine Injury Act of 1986,38 which established an extensive federal role in vaccine safety, development, and monitoring, and created the VICP.39 The VICP preempts virtually all vaccine injury claims in the United States, requiring that vaccine injury petitioners bring their claims to the US Court of Federal Claims (CFC).40 These claims proceed under a simplified, informal system that does not involve a jury, formal discovery process, or

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rules of evidence; imposes a statutory 240-day deadline for the court to issue its final ruling; and extends the promise of compensating “vaccine-injured persons quickly, easily, and with certainty and generosity.”41 A chief special master and seven associate special masters preside over these cases, with a Department of Justice (DOJ) staff attorney representing the respondent, the Department of Health and Human Services (HHS). A 75-cent excise tax on each vaccine dose administered in the US funds the program.42 While the CFC sits in Washington, D.C., nearly everything is filed electronically and handled telephonically. As a result, a vaccine attorney in Colorado can offer full representation to petitioners worldwide.43 Evaluating a Prospective Vaccine Injury Case The vaccine claims process may be simplified, but strict adherence to the process is required.

Disregarding the vaccine court rules and formalities can result in the dismissal of an otherwise viable case. Given the extent of the injuries often involved, a dismissal may expose practitioners to significant malpractice liability.

For this reason, practitioners should carefully review the vaccine court’s rules and guidelines (including sample forms), 44 and evaluate a prospective vaccine injury claim by evaluating (1) whether the claim is timely, (2) what the medical records show, (3) whether HHS will contest entitlement, and (4) the nature and extent of damages.

Is the Claim Timely?

If a prospective vaccine-injured client walks into your office, the immediate issue to determine is whether the statute of limitations has passed or is about to pass. Petitioners must file their claim within three years of the first symptoms of injury (or, for preexisting injuries, within three years of the first significant aggravation of the injury).45 Decedents’ estates must file their claim within two years of death and within four years of any of the above-referenced injury events.46 Meeting this deadline can be daunting. The first sign of injury is often trivial and ignored until it worsens. Medical providers frequently do not suspect a vaccine injury because such

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injuries are so rare. Gathering and reviewing the prospective client’s voluminous medical records takes time as well. And failure to discover that the injury is vaccine-induced does not toll the statute of limitations.47 What Do the Medical Records Show?

After analyzing and addressing, if necessary, any statute of limitations concerns, the next step is to gather and review the medical records. It can take months for large hospitals to respond to medical records requests, and the novel coronavirus pandemic has further slowed response times.

When submitting a medical records request, it is important to provide sufficient identifying information. The best practice is to have the client sign your retainer agreement and a thorough HIPAA agreement that includes the client’s full legal name, date of birth, and social security number, and a scanned copy of the client’s driver’s license. Including insufficient identifying information may support a medical provider’s refusal to provide the records.

Each medical provider that your client has seen since receiving the vaccine and in the three years leading up to the vaccination must provide a copy of the entire client record.

Do not let the simplified and informal nature of the process fool you; the claim is in federal court, and special masters will not hesitate to strike exhibits of medical records if they appear to be incomplete. The medical records should identify the information needed to determine eligibility under the VICP, including the vaccine at issue, the diagnosed injuries, and the date the initial symptoms arose.

HHS periodically updates a list of recognized vaccine injuries, based on Centers for Disease Control and Prevention (CDC) recommendations, on an HHS Vaccine Injury Table (Table).48 If a petitioner receives a vaccine listed on the Table while in the United States and then experiences an injury described in the Table within the time frame listed, causation is rebuttably presumed.49 Petitioners with Table injuries are entitled to compensation on proof that the injury is sufficiently “severe,” meaning that the symptoms have lasted over six months or resulted in death, hospitalization, or surgery.50

SECTION OF THE TABLE RELATING TO SEASONAL FLU VACCINES VACCINE

Seasonal influenza vaccine

INJURY

TIMELINE

Anaphylaxis

Within 4 hours

Shoulder injury related to vaccine administration

Within 48 hours

Vasovagal syncope

Within 1 hour

Guillain-Barré syndrome

3 to 42 days

For claims that fall outside the Table, the petitioner must prove severity and causation by a preponderance of evidence. This requires an expert report, and HHS typically offers competing causation evidence. If the matter cannot be settled, the special master decides whether the petitioner has met the burden to prove causation.51 Even for claims that seem to be Table injuries, it is wise to argue, in the alternative, that the

injury may be an off-Table injury. Under VICP’s “one petition rule,” a petitioner can file only one petition per vaccine injury.52 By claiming the injury as both on and off the Table, counsel ensures that the claim will survive even if the special master decides it does not meet Table criteria.

Will HHS Contest Entitlement?

If the medical records suggest eligibility for

recovery under the VICP, whether as an on- or off-Table case, there is likely a reasonable basis to file the claim. Once you electronically file the petition and supporting documents, a physician at HHS’s Division of Vaccine Injury Compensation will review the submission.53 If the physician agrees that the evidence meets the standard for compensation, the DOJ staff attorney representing HHS will likely concede to the entitlement issue in HHS’s “respondent’s report.” This process generally takes 90 days.

However, HHS’s medical expert may decide that more evidence is necessary, or that the evidence provided already disproves the case.

This can happen if the alleged Table injury does not quite fit into the Table, if the evidence does not prove the injury to be sufficiently severe, or if HHS believes it can refute causation. The author’s experience is that severity is often the weakest link that results in HHS contesting entitlement.54 Accordingly, practitioners can rely on two rules of thumb: (1) Table claims resolve more quickly, reliably, and simply than off-Table claims because the Table acts as causation per se evidence, and causation is difficult to prove;55 and (2) the more clearly the medical records prove every aspect of entitlement (whether causation is assumed or must be

SPECTRUM OF ADVERSE REACTIONS TO VACCINE ADMINISTRATION

Adhesive Capsulitis Shoulder Bursitis Rotator Cuff Tear

No Adverse Reaction

Mild Reaction

Itchiness Burning Sensation Fever Soreness

Shoulder Injury Related to Vaccine Administration

Transverse Myelitis Encephalitis

Severe Allergic Reaction

Inflammation Disorder

Guillain-Barré Syndrome Chronic Inflammatory Demyelinating Polyneuropathy Chronic Arthritis

Anaphylaxis

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Autoimmune Disorder

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THE NATIONAL VACCINE INJURY COMPENSATION PROGRAM PROCESS Petition is e-filed in the CFC, alleging a Table and/or off-Table injury

HHS reviews the petition, then files a respondent's report Contest Eligibility

Concede Eligibility

Special master issues a ruling on entitlement

Entitlement Granted

Plaintiff and HHS negotiate damages and submit a joint proffer or separate proffers of damages

Entitlement Denied

HHS may appeal to the CFC, then to the federal circuit, then to SCOTUS

Plaintiff may opt out or appeal to the CFC, then to the federal circuit, then to SCOTUS

Special master issues a damages ruling

proven), the more likely HHS will concede the entitlement issue.

What are the Damages?

After proving entitlement to compensation, the petitioner must prove damages.56 The VICP permits four categories of damages: past medical expenses, anticipated future medical expenses, lost earnings, and pain and suffering (the last of

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which is capped at $250,000).57 The VICP covers only out-of-pocket medical expenses, which means that hospitals and health insurance providers are not entitled to any portion of recovery.58 Past medical expenses and lost earnings are generally quantifiable, as they are based on out-of-pocket medical bills,59 paystubs, or W9s for petitioners who are self-employed

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or lack traditional paystubs. Future life care planners can offer opinions on anticipated future medical expenses, with the petitioner’s planner offering one estimate and HHS, if it chooses to contest the estimate, offering an alternative (lower) estimate.60 There is no cap on anticipated future medical expenses, and depending on the injury, this may comprise the lion’s share of a large award.

Pain and suffering is an ephemeral concept, but the CFC’s online database of past damages awards in vaccine injury cases helps the parties (or, failing that, the special master) reach an amount consistent with comparable cases.61 When evaluating pain and suffering, two rules of thumb are (1) shoulder injuries normally involve less pain and suffering than autoimmune disorders, and (2) higher amounts of medical expenses and lost wages generally justify a higher pain and suffering calculation.

Attorney Fees Petitioners pay no attorney fees.62 Instead, the VICP reimburses all attorney fees and expenses in a payment separate from the petitioner’s compensation. This usually occurs after the case concludes, but interim payments are possible for cases that involve a substantial amount of time and work.63 Even if a case is dismissed, attorneys are entitled to recover fees so long as they had a reasonable basis to bring a good faith claim.64 The special master determines the amount of the hourly fee, based on the fee schedule that the Office of the Special Masters updates annually.65 Dealing with Unsatisfactory Results If either party is unsatisfied with a special master’s ruling, that ruling is reviewable by a CFC judge, then by the US Court of Appeals for the Federal Circuit, and then by the US Supreme Court.66 The CFC may set aside findings of fact and conclusions of law if the special master’s determination was arbitrary and capricious, an abuse of discretion, or not in accordance with law.67 The federal circuit reviews questions of law de novo, but applies to factual disputes the same standards of review as the CFC.68 The US Supreme Court has granted three petitions in vaccine injury cases.69

After a petitioner has exhausted his or her administrative remedies through the VICP, the petitioner can pursue a regular personal injury case.70 Very few petitioners do so, however, as the Vaccine Act significantly limits civil claims against vaccine administrators and manufacturers.71 Manufacturers are immune from punitive and exemplary damages, as well as from design-defect claims and defective warning claims.72 Accordingly, unless a party can confidently prove that the vaccine manufacturer failed to comply with federal regulations, engaged in fraud, or wrongfully withheld information regarding vaccine approval, safety, or efficacy, pursuing a civil claim is likely inadvisable.

Overall Trends The VICP has seen over 20,000 claims since its inception.73 Over 6,500 claims succeeded, receiving a collective $4.3 billion in payments, which is roughly $660,000 per case.74 The vaccines most often at issue have been the flu vaccine (4,057 claims out of 1.5 billion doses), the Tdap vaccine (514 claims out of 250 million doses), and the HPV vaccine (326 claims out of 111 million doses), with all remaining vaccines seeing fewer than 300 claims over the past 30 years.75 Overall, out of one million vaccinations, one person receives an injury that the VICP compensates.76 Since 2018, roughly 1,200 VICP petitions have been filed each year, which is twice the rate seen in 2005 to 2015.77 If the novel coronavirus pandemic creates a surge in demand for the flu vaccine and the eventual coronavirus vaccine, 2021 may witness a surge of petitions. While surges can delay the processing of claims, the VICP has handled surges before and has never run out of funds.78 Nearly $4 trillion sits in the Vaccine Trust Fund today.79 The interest payments alone are often enough to cover all claims in a year.80 Death accounts for roughly 14% of VICP claims. Counterintuitively, only 2% of claims are Table claims.81 This low percentage may suggest that the Table has failed to keep pace with the rapidly developing vaccine market, but it may instead be the result of dubious claims.

For instance, over 5,600 autism claims have been filed in the VICP, and this author is not aware of any successes.82

Petitioners’ success rates vary wildly, depending on the special master who is randomly assigned to the case and on the experience of the petitioners’ counsel, with just 32% of petitioners succeeding if paired with certain special masters and petitioners’ counsel, and 72% of petitioners succeeding if paired with another group of special masters and petitioners’ counsel.83 The reason behind this variance is unclear, but high success rates may result from successful attorneys selectively bringing only the most meritorious cases. The HHS staff attorneys may also play a role, especially if they approach the case in a more adversarial manner than the VICP might have intended.84 Seven out of 10 claims settle and require minimal special master involvement.85 Attorney fees are generally $22,052 in successful cases, and $14,053 in unsuccessful cases. 86 When the court issues its VICP payment, 86% of that payment goes directly to the petitioner, with the remainder consumed by transaction costs.87 This compares favorably to auto collision cases, in which transaction costs are closer to 50%.88 The statutory requirement to adjudicate VICP cases within 240 days is one of the most attractive features of the program. Unfortunately, just 4.5% of claims resolve within this deadline.89 Between 1999 and 2014, the VICP’s average adjudication time was 5.5 years.90 There are no consequences to exceeding the 240-day requirement. This lengthy process reflects the difficulty of proving causation in off-Table claims, but in this author’s experience, Table claims typically resolve within 240 days, with little to no transaction costs or adversarial posturing from HHS. The VICP’s Impact The VICP has had an immense impact on the American legal landscape by serving as an example of how certain types of claims may be streamlined and managed. Florida, Illinois, New York, Pennsylvania, Virginia, and an ever-growing list of states have proposed the creation of health courts to handle medical malpractice claims as the VICP handles vaccine injury claims.91 This reform du jour sees broad support from the medical community and the public alike.92

The success of this reform remains to be seen, but it is clear why VICP’s successes have encouraged continued experimentation. By indemnifying vaccine manufacturers and creating a simplified legal proceeding for vaccine injury victims, the VICP has struck a careful balance between maintaining vaccine supply, encouraging vaccine demand, and taking care of the one-in-a-million cases where a vaccine causes serious harm.

In large part, the VICP has revitalized the vaccine industry. Once at the brink of collapse in the 1980s, its rate of growth is now double that of pharmaceuticals.93 The effect has been more than apparent in our everyday lives. In 1989, for instance, children received six vaccines by age 2; today, that number stands at 27.94 Fear of the novel coronavirus pandemic may shake the industry even further. If a surge of Americans takes the flu vaccine, and the eventual coronavirus vaccine, Colorado attorneys may come across a corresponding surge of potential vaccine injury cases.

Conclusion Vaccine safety is an ongoing concern, which is currently heightened with the potential for a coronavirus vaccine. The VICP affords an informal process to resolve claims for vaccine injuries, but the process has strict substantive and procedural requirements. Practitioners undertaking representation of VICP claimants must heed these requirements to ensure the best outcomes for their clients.

Gurney F. Pearsall III is an attorney at Pearsall Law Firm, P.C. He is one of two attorneys in Colorado licensed by the US Court of Federal Claims who handles vaccine injury claims— gurney@pearsalllawfirm.com.

Coordinating Editor: Jennifer Seidman, jseidman@ burgsimpson.com NOTE S

1. CDC, Smallpox, https://www.cdc.gov/ smallpox/index.html.

2. Villarreal, “Are Viruses Alive?,” Scientific American (Aug. 8, 2008), https://www. scientificamerican.com/article/are-virusesalive-2004.

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3. Pearsall III, “The Bacterial Renaissance: A Supply-Side Answer to the Icarus Paradox of Antibiotic Usage Undermining Its Own Usefulness,” 37 J. Leg. Med. 133–43 (2017) (exploring how and why the overuse of antibiotics has led to a resurgence in antibioticresistant bacteria and offering solutions to revitalize the antibiotic marketplace).

4. Andre et al., “Vaccination greatly reduces disease, disability, death and inequity worldwide,” 86 Bull. World Health Org. 140, 141 (Feb. 2008), www.who.int/bulletin/ volumes/86/2/07-040089.pdf.

5. Id. 6. Id. at 142.

7. Id. 8. Li et al., “Age-specific risks, severity, time course, and outcome of bleeding on long-term antiplatelet treatment after vascular events: a population-based cohort study,” 390 The Lancet 100093 (July 29, 2017) (suggesting that aspirin contributes to 3,000 deaths per year in the United Kingdom); Chen et al., “The Vaccine Adverse Event Reporting System (VAERS),” 12 Vaccine 542 (1994) (noting that CDC and US Food and Drug Administration experts agree it is unrealistic to expect any vaccine to be perfectly safe or effective).

9. Wash. State Dep’t of Health, CDC Intramuscular Vaccination Infographic, https://www.doh.wa.gov/ ForPublicHealthandHealthcareProviders/ PublicHealthSystemResourcesandServices/ Immunization/LinksforProviders.

10. These are known collectively as shoulder injury related to vaccine administration (SIRVA) injuries.

11. The good news is that vaccine-induced nerve injuries are easy to identify, as nerve damage often results in an immediate burning pain at the injection site.

12. Nichols v. Sec’y of Health and Human Servs., 2018 U.S. Claims LEXIS 206 at 17 (Fed. Cir. 2018).

13. White v. Sec’y of Health and Human Servs., 2019 U.S. Claims LEXIS 2223 at 13–25 (Fed. Cir. 2019).

14. Al-Uffi v. Sec’y of Health and Human Servs., 2017 U.S. Claims LEXIS 464 at 8–10 (Fed. Cir. 2017).

15. Health Res. and Servs. Admin., National VICP Monthly Statistics Report at 5 (Apr. 1, 2020) (hereinafter VICP Statistics Report).

16. Fedewa v. Sec’y of Health and Human Servs., 2020 U.S. Claims LEXIS 623 at 7 (Fed. Cir. 2020).

17. Patel v. Sec’y of Health and Human Servs., 2020 U.S. Claims LEXIS 913 at 10–12 (Fed. Cir. 2020).

18. C.P. v. Sec’y of Health and Human Servs., 2019 U.S. Claims LEXIS 1527 at 15–18 (Fed. Cir. 2019).

19. Reitze, “Federal Compensation for Vaccination Induced Injuries,” 13 B.C. Envtl.

Aff. L. Rev. 169, 186 (1986). There may also be a fear among many physicians of ruining their professional reputation by making a vaccine injury diagnosis, reporting a vaccine injury, or testifying in a vaccine injury case. Levin,

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“Witnesses for Petitioners Are Often Tough to Find,” L.A. Times (Nov. 29, 2004).

20. Gottsdanker v. Cutter Labs., 6 Cal. Rptr. 320 (Cal. Dist. Ct. App. 1960).

21. Offit, “The Cutter Incident, 50 Years Later,” 352 New Eng. J. Med. 1411 (Apr. 7, 2005).

22. Id. 23. Id. 24. Gottsdanker, 6 Cal. Rptr. at 325–26.

25. Id. 26. Id. 27. See also Reyes v. Wyeth Labs., 498 F.2d 1264 (5th Cir. 1974) (involving an infant paralyzed by the polio vaccine and reasoning that between victims and manufacturers, the latter should bear the loss when catastrophic injury occurs). Other courts took the opposite approach and barred vaccine injury lawsuits.

See Shackil v. Lederle Labs., 561 A.2d 511 (N.J. 1989) (dismissing the vaccine injury claim on public policy grounds that such suits discourage vaccine innovation and development). Problematically, where granting liability jeopardized vaccine supply by chasing vaccine manufacturers out of the vaccine market, denying liability jeopardized vaccine demand by discouraging people from risking vaccine therapy.

28. National Swine Flu Immunization Program of 1976, Pub. L. No. 94-380, § 2, 90 Stat. 1113, 1115 (codified as amended at 42 USC § 247b).

29. Reitze, supra note 19 at 179.

30. Id. at 181.

31. Id. at 184–85.

32. Allen, Vaccine: The Controversial Story of Medicine’s Greatest Lifesaver 251–55 (W.W. Norton & Co. 2007).

33. Vaccine Injury Compensation: Hearings on H.R. 5810 Before the Subcomm. on Health and the Env’t of the H. Comm. on Energy and Commerce, 98th Cong. 229 (1984).

34. Funding of the Childhood Vaccine Program: Hearing Before the Subcomm. on Select Revenue Measures of the H. Comm. on Ways and Means, 100th Cong. 16, 104 (1987).

35. Kearl v. Lederle Labs., 218 Cal. Rptr. 453, 455 (Cal. Ct. App. 1985).

36. H.R. Rep. No. 99-908 at 6 (1986), reprinted in 1986 U.S.C.C.A.N. 6344, 6347.

37. Id. at 7.

38. 42 USC §§ 300aa-1 to 300aa-34.

39. H.R. Rep. No. 99-908 at 1–2.

40. Kalinowski, “The House Built On a Hillside: The Unique and Necessary Role of the United States Court of Federal Claims,” 23 Tex. Rev. Law & Pol. 541 (2019) (exploring what the CFC does and explaining why Congress vested jurisdiction over the VICP in the CFC instead of dispersing it across the federal district courts).

41. H.R. Rep. No. 99-908 at 1; Shalala v.

Whitecotton, 514 U.S. 268, 269 (1995) (stating that the VICP’s goal is to establish “a scheme of recovery designed to work faster and with greater ease than the civil tort system.”).

42. 26 USC § 4132(a)(1) (defining “taxable vaccine” for the purposes of the Vaccine Act’s excise tax).

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43. The CFC maintains a list of attorneys in each state who are willing to accept vaccine injury claims, http://www.uscfc.uscourts.gov/ sites/default/files/Vaccine%20Attorney%20 List%209.1.2020.pdf.

44. http://www.uscfc.uscourts.gov/vaccineprogramoffice-special-masters.

45. 42 USC § 300aa-16(2).

46. 42 USC § 300aa-16(3).

47. Cloer v. Sec’y of Health and Human Servs., 654 F.3d 1322, 1341 (Fed. Cir. 2011) (finding that ignorance of the causal link between an injury and the administration of a vaccine does not equitably toll the Vaccine Act).

48. 42 CFR § 100.3.

49. 42 USC § 300a-14; 42 CFR § 100.3(a); W.C. v. Sec’y of Health and Human Servs., 704 F.3d 1352, 1356 (Fed. Cir. 2013).

50. 42 USC § 300aa-11(c)(1)(D).

51. VICP rulings may be illuminating to personal injury attorneys in general, as the reasoning and evidence used to prove causality in such challenging circumstances may be applicable to any injury. See Greene v. Sec’y of Health and Human Servs., 136 Fed. Cl. 445 (Fed. Cl. 2018) (vacating the special master’s decision that the vaccine injury claim failed for insufficient causality evidence and remanding for further consideration).

52. U.S. Ct. Fed. Claims Vaccine R. 2(a) (“Only one petition may be filed with respect to each administration of a vaccine.”). This rule has recently been relaxed for pregnant women so that a claim against the same vaccination can be brought on behalf of the child separately from the claim brought on behalf of the pregnant woman. 21st Century Cures Act, § 3093(c) (amending 42 USC § 300aa-11(b)(2)).

53. Evans, Update on Vaccine Liability in the United States: Presentation at the National Vaccine Program Office Workshop on Strengthening the Supply of Routinely Recommended Vaccines in the United States, 42 Clinical Infectious Diseases S130, S131 (2006).

54. Vaccine injury victims often try to return to normal life before the six-month mark, at which point their medical records grow sparse. This is an especially frequent issue in shoulder-related injuries, which often match Table criteria but later subside and do not require hospitalization or surgery. Additional physical therapy or treatment may provide the necessary evidence that the petitioner continues to suffer from symptoms of their injury after six months.

55. Inst. of Med., Vaccine Supply and Innovation at 155 (1985) (predicting that the “difficulty of proving or disproving a causal relationship between a given vaccine and a particular injury suggest[s] that . . . outcomes will depend on who is required to carry the burden of proof.”).

56. Office of Special Masters, Guidelines for Practice Under the National Vaccine Injury Compensation Program at 5 (rev. Apr. 24, 2020) (hereinafter OSM Guidelines), https:// www.cofc.uscourts.gov/sites/default/files/ Guidelines-4.24.2020.pdf.

57. Id. at 56–57.

58. Id. at 56.

59. For instance, the author handled a case where the health insurance provider did not cover ambulance transportation from one hospital to another, even though the client needed transportation from a small hospital to a larger one that specialized in GBS treatment.

This lack of coverage left the client with a nearly $10,000 bill.

60. Id. at 55–60.

61. Id. at 60. See US Court of Federal Claims Opinions, https://www.uscfc.uscourts.gov/ aggregator/sources/7.

62. 42 USC § 300aa–15(e)(3) (“No attorney may charge any fee for services in connection with a petition” under the VICP).

63. Cruz v. Sec’y of Health and Human Servs., 2020 U.S. Claims LEXIS 534 at 5–6 (Fed. Cir. 2020).

64. 42 USC § 300aa-15(e).

65. A fee of about $200 per hour is typical for new attorneys, while a fee of about $400 can be expected for more experienced practitioners.

66. 42 USC § 300aa-12(f).

67. Porter v. Sec’y of Health and Human Servs., 663 F.3d 1242, 1249 (Fed. Cir. 2011). Specifically, findings of fact are reviewed under an arbitrary and capricious standard, conclusions of law are reviewed under a “not in accordance with law” standard, and discretionary rulings are reviewed under an abuse of discretion standard. Id. 68. Id. 69. Sebelius v. Cloer, 569 U.S. 369 (2013); Bruesewitz v. Wyeth LLC, 562 U.S. 223, 224 (2011); and Shalala, 514 U.S. at 272–73.

70. 42 USC § 300aa-21.

71. Bruesewitz, 562 U.S. at 248 (citing Brief for the United States as Amicus Curiae Supporting Respondents at 28 (“Department of Justice records indicate that 99.8% of successful Compensation Program petitioners have accepted their awards, foregoing any tort remedies against vaccine manufacturers.”)).

72. 42 USC § 300aa-22(b) and (c).

73. VICP Statistics Report, supra note 15 at 5.

74. Id. Of course, this average does little to predict the outcome of any given case, as a senior citizen with a temporary shoulder injury will receive a fraction of what a child paralyzed with GBS will receive.

75. Id. at 2–3.

76. Id. at 1.

77. Id. at 5.

78. See, e.g., VICP Statistics Report, supra note 15 at 1987–2020.

79. HHS, Vaccine Injury Trust Fund Trial Balance at 6 (Apr. 1, 2020 through Apr. 30, 2020). See https://www.treasurydirect.gov/govt/reports/ tfmp/vaccomp/vaccomp.htm.

80. Levin, “Vaccine Injury Claims Face Grueling Fight; Victims Increasingly View U.S. Compensation Program As Adversarial and Tightfisted,” L.A. Times (Nov. 29, 2004).

81. US Gov’t Accountability Office, Gao-15-142, Vaccine Injury Compensation: Most Claims Took Multiple Years And Many Were Settled

Through Negotiation 2, 20 (2014) (hereinafter GAO Report), https://www.gao.gov/ assets/670/667136.pdf.

82. Binski, “Balancing Policy Tensions of the Vaccine Act in Light of the Omnibus Autism Proceeding: Are Petitioners Getting a Fair Shot at Compensation?,” 39 Hofstra L. Rev. 683, 701 (2011).

83. See, e.g., Ridgway, "No-Fault Vaccine Insurance: Lessons from the National Vaccine Injury Compensation Program," 24 J. Health Pol. Pol’y & L. 59, 66 (1999); OSM Guidelines, supra note 56 at 4 (granting wide latitude to special masters in adjudicating claims).

84. See, e.g., Johnson et al., “Use of Expert Testimony, Specialized Decision Makers, and Case-Management Innovations in the National Vaccine Injury Compensation Program” at 44 (Fed. Judicial Ctr. 1998) (citing several special masters who complained that certain staff attorneys “over-litigat[e]” and make the VICP process more adversarial than it was meant to be); Levin, supra note 80 (stating that HHS has threatened to appeal vaccine rulings in favor of the petitioner to encourage a confidential settlement that would shield the evidence from future comparable cases).

85. VICP Statistics Report, supra note 15 at 1.

86. Ridgway, supra note 83 at 74. This discrepancy may suggest that attorney fees for unsuccessful petitioners are docked for being unsuccessful, but more likely it results from the fact that unsuccessful claims resolve sooner and involve fewer hours than successful ones.

87. Detailed Information on the Vaccine Injury Compensation Program Assessment, Section 1.5, Expectmore.gov, http://georgewbushwhitehouse.archives.gov/omb/expectmore/ detail/10003807.2005.html, archived at http:// perma.cc/XWK3-NMSK. 88. Hensler et al., “Trends In Tort Litigation: The Story Behind The Statistics” at 29 tbl. 4.1 (Rand Inst. for Civil Justice 1987).

89. Weiss et al., “AP IMPACT: ‘Vaccine Court’ Keeps Claimants Waiting,” Associated Press (Nov. 17, 2014), https://apnews.com/article/ af3ac36a464440858a743ac5c4929bec.

90. GAO Report, supra note 81 at 10 fig. 1.

91. Farrow, “The Anti-Patient Psychology of Health Courts: Prescriptions from a LawyerPhysician,” 36 Am. J.L. & Med. 188, 193 n.26 (2010).

92. PR Newswire Press Release, Common Good, Nationwide Clarus Poll Reveals that a Large Majority of U.S. Voters Think Legal System Increases Cost of Health Care (May 29, 2012), http://www.prnewswire.com/news-releases/ nationwide-clarus-poll-reveals-that-a-largemajorityof-us-voters-think-legal-systemincreases-cost-of-health-care-155365335. html (finding that 66% of respondents favored health courts); Am. Med. Ass’n, Medical Liability Reform Now! The facts you need to know to address the broken medical liability system 29 (2020 ed.) (“the AMA supports the testing and evaluation of health court pilot projects as an innovative way to address the medical liability problem”).

93. Kaddar, Senior Adviser, World Health Org., Address: Global Vaccine Market Features and

Trends at 4 (Jan. 16, 2013).

94. Compare Iskander et al., “Data mining in the US using the vaccine adverse event reporting system,” 29 Drug Safety 375, 381 (2006) with CDC, Recommended Immunization Schedule for Children and Adolescents Aged 18 Years or Younger at 2 (2017).

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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-M U R I L L O 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.

Pitkin County Presidential Visit

CHBA Elects New President

CBA President Jessica Brown visited beautiful Pitkin County on September 25. The presidential visit was held outdoors at Pioneer Park in Aspen, where guests were able to practice safe social distancing. CBA’s Dan Sweetser, deputy executive director, also attended the presidential visit to discuss future plans for the bar.

Fo l l o w i n g a s p e c i a l election, the Colorado Hispanic Bar Association announced that Jonathan Booker will serve as president for the upcoming Booker. term. Booker will serve as CHBA president-elect for the remainder of 2020 and will be sworn in as president in January 2021.

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CBA YLD Sunset Yoga The CBA Young Lawyers Division held a sunset yoga event as part of its wellness series. The power vinyasa flow class took place along the shore of Sloan’s Lake for a relaxing and peaceful wind-down to the day.

Dolphin pose.

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Jessica Brown presents at Pioneer Park..

Dan Sweetser addresses members.

Six feet apart everyone!

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CBA Executive Council Q&A

Pro Bono Spotlight

We asked this year’s new Executive Council members a few questions about their background and involvement with the CBA. Up this month is Kevin Cheney, who joins the Council as an at-large member.

Deborah Yim of Primera Law Group and Clinton Burke of Flat Creek Law served as pro bono counsel representing a plaintiff in an employment law case in US District Court for the District of Colorado.

Burke and Yim took the case as part of the Federal Pro Se Panel Program. Due to COVID-19 safety precautions, Yim and Burke did not have an opportunity to meet with the client in person during the entire pendency of the case; however, they were still able to develop a rapport with her and successfully resolve the case through virtual means. The attorney-client relationship was developed with the help of Zoom meetings and consultations and telephonic court appearances.

Please tell us a little about yourself, personally and professionally.

I am the cofounder and managing partner of Cheney Galluzzi & Howard, LLC. We are a small firm that focuses on personal injury, insurance bad faith, and criminal defense litigation. I am active in the CBA and Colorado Trial Lawyers Association, where I serve in various leadership positions. I also am the host of the CBA YLD Podcast, “Getting’ Legal With It.” In my free time, I enjoy Cheney. spending time with my fiancé, playing with my giant Newfoundland named Pancake, and discussing politics. In a pre-COVID-19 world, I used to love attending concerts and music festivals, and if we are lucky, I just might get to do that again one day!

How did you first get involved with the CBA and how has it enriched your career?

I first got involved in the CBA when I was in law school at CU-Boulder and attended a CBA event for law students at CU and DU. I loved it and felt like it was a great way to meet other law students at the other in-state school. I got involved in leadership when I was selected to join the CBA YLD Executive Council last year. I feel it has enriched my career in numerous ways, including networking and education. But my favorite thing about the CBA is it gives me an opportunity to give back and grow the profession.

What is your favorite thing about being a lawyer?

Being an advocate for the powerless. In my practice areas, I get to represent real people—many of whom are of modest means—against rich and powerful insurance companies and the government. I get to help them fight. Seeing how much that means to them is my favorite part of my job.

Why did you say “yes” to serving as an Executive Council member and what are you looking forward to this year as you help lead the bar?

Do people say no? I guess I didn’t know that was an option, haha. In all seriousness, I said yes because I think we have a responsibility to build the community we envision. Every person, company, and organization can always be better. There is always room for improvement. And I think if that is true, we all have a responsibility to make it so. Additionally, I think it is really important to have young lawyer voices in the room to offer our perspective and make sure we have a seat at the table. We are fortunate that our CBA President, Jessica Brown, shares that belief. I am looking forward to everything we can accomplish this year!

Clinton Burke and Deborah Yim assist a client over Zoom.

CONTRIBUTE

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

Help us celebrate attorneys who are providing assistance free of charge to clients in need. Email your pro bono stories to jespinoza@cobar.org.

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73

AROUND BAR | PROFILES IN SUCCESS TITLE | THE SUB TITLE

Alfred and his wife Dori at the Colorado Supreme Court in 2019. The couple has been married for 56 years.

Award of Merit Recipient Judge Alfred Harrell A Catalyst for Change

BY H A L E Y H E M E N

T

hroughout his career in the law, the best piece of advice Judge Alfred Harrell has received is that you can’t live your life alone. “You will need help,” he says. “Don’t be afraid to ask for it, and, when you are asked, don’t be afraid to give it.” Harrell has made this a way of life. This year, the CBA recognizes him with its highest honor—the Award of Merit—in recognition of his outstanding service to the legal profession, lifelong dedication to correcting injustices, and unflagging commitment to helping others.1 The Path to Law Harrell’s commitment to service was first modeled after his stepfather, Irving Andrews.

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Andrews played a prominent role in the civil rights movement, was involved with the NAACP, and served on the legal defense team for Brown v. Board of Education of Topeka Kansas,2 which established that racial segregation in schools was unconstitutional. Harrell was 7 years old when Andrews came into his life and he “immediately became my hero. I wanted to be just like him.

I saw first-hand the impact that he had on so many people’s lives in our community. I always hoped that one day I would be able to have that same type of impact.”

In fourth grade, Harrell would learn what lawyers actually did. “I remember announcing at dinner one evening that I wanted to be a lawyer just like my dad. I never wavered from

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that declaration.” As a result of his father’s work with civil rights organizations in and around Denver, young Harrell was able to meet Dr. Martin Luther King, Constance Baker Motley, Rodolpho “Corky” Gonzalez, and Minoru Yasui, each introduction affirming his decision to become a lawyer.

History would further impact his decision when, at 12 years old, Harrell learned about the horrific lynching of Emmet Till—who was only 14 years old—in Mississippi. “I recall being very disturbed and frightened by what had happened. My parents sat down with me and explained what was basically going on in our world and especially what was happening to African Americans in the South.” This only fueled his commitment to a career where he might be able to address injustice. In college he joined CORE, the Congress for Racial Equality, and participated in demonstrations and protests.

In 1963 he joined the March on Washington, D.C., where Dr. King gave his famous “I Have a Dream” speech.

Transition to Practice Following law school, Harrell joined his father’s practice in Denver. While law school was good preparation, the difference between study and practice was as wide as the difference between studying the game of chess and actually playing it.

As a young lawyer, Harrell recalls being faced with situations that he thought he should know how to handle. “What I learned was that if I am not the problem, there is no solution.”

This lesson, as simple and elegant as a Zen koan, was earned at the expense of a hefty fee from one of his first cases. His client was a former elementary school classmate and they sealed their fee agreement with a handshake.

When Harrell was then ordered to get the fee agreement in writing, “I dallied. I was afraid my friend/client would take umbrage.”

The client ultimately received a handsome settlement but changed the agreed upon disbursements. “When I protested, my client related

Granddaughters Beatrice, Hannah, and Isabella attended Judge Harrell’s retirement reception in 2016.

that he had talked to another lawyer and was told that he could adjust the fee since the fee agreement with our office was not in writing. The office lost about $10,000. That may not seem like a lot of money today, but it was 1972—I had just bought my first house for $27,000 and my first year’s salary as a lawyer was $10,000. I realized, after what I then characterized as a debacle, that I had a long way to go before I would be comfortable in the role of lawyer,” Harrell says.

Of course, Harrell went on to become very comfortable in that role until one day Peter Ney, a prominent Colorado lawyer, stopped Harrell in the halls of the Denver City and County building and asked him if he had ever considered becoming a judge. “I replied that I had not entertained that vision, and besides, I was too young to be thinking about the bench.

Peter laughed and ultimately persuaded me to give the idea serious consideration. The second time I applied, I was appointed to the Denver County Court.”

Judicial Impact When asked about memorable cases as a judge, Harrell calls to mind a one-car accident in which the passenger was killed. The two men in the car were firefighters and best friends out doing some last-minute holiday shopping for their families. The roads were wet and icy, and while alcohol was involved, it was clear that neither party was impaired. “The driver was charged with careless driving resulting in death. There was no trial. The driver pled guilty. When I walked into the courtroom for the sentencing hearing, the courtroom was packed from floor to ceiling. The two families, longtime friends, were seated on different sides of the courtroom and I could feel the ice between them. Sentencing took the entire morning. What I remember most about that day was when the families walked out of my courtroom, the ice had melted and many embraced.

“I received several letters of appreciation from members of both families concerning the

way they felt about the sentencing. I don’t know that I would call that a proud moment. I do know that I was able to harness all of my experience and knowledge of the human condition to be an instrument and catalyst for the healing of two families. That particular case and numerous other cases like that have given me my most satisfying moments in this profession.”

During his time as a judge, Harrell was also instrumental in building up the American Inns of Court system in Colorado. Modeled after the English legal associations for furthering professionalism, civility, ethics, and legal skills, the first American Inn of Court was brought to Colorado by Harrell’s mentor and friend Judge John Kane, and it was Judge Kane who asked Harrell to get involved in creating the second Inn in Colorado. “One thing I’ve learned about this profession, if someone you highly respect or a mentor asks you if you might be interested in doing something that will elevate the profession, the right answer is always YES!

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TITLE AROUND | THE SUB TITLE BAR | PROFILES IN SUCCESS

1 1 Alfred and Dori at the US Supreme Court with members of Colorado Inns of Court.

2 Judge Harrell and grandson Julian.

University Club in Denver, where all the Inns except the Intellectual Property Inn meet, the Sotomayor Inn meets in the Denver metropolitan area courthouses, the Supreme Court, area law offices, and at the two law schools.

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“When I meekly suggested that I did not have the wherewithal, or the panache that he had in the legal community, he simply chuckled and told me that he had my back and that I might be surprised.” Harrell’s efforts paid off, gaining enough enthusiasm for several Inns of Court—first the Arraj Inn of Court in 1995, then the Thompson-Marsh Inn, the Robert Rhone-Eva Brackett Inn, and the Minoru Yasui Inn a few years later. Most recently, Harrell and his pupilage group at the Rhone-Brackett Inn presented a program on “How to Create an American Inn of Court,” resulting in the creation of the Justice Sonia Sotomayor Inn of Court.

“The Sotomayor Inn is a little different from the other Inns,” says Harrell. Targeting government lawyers in public service and newly minted lawyers, the Inn has a tiered dues system that makes it more accessible to students and new lawyers. Also, instead of meeting at the

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Enduring Commitment to Positive Change Even in retirement, Harrell continues to create new ways for people to relate to and understand each other for the betterment of the legal profession. In 2017, he and Judge Angie Arkin created the Symposium on Race. It came out of a conversation at the Colorado Women’s Bar Association convention. “We were talking about the ‘state of mind’ of the nation at that time.

Someone suggested that a lot of the problems that we read about daily could be ameliorated if people would just sit down and talk with one another.” Because no one knew of such a group, “without really thinking,” Harrell suggested they start one themselves. Arkin took him at his word, and the Symposium on Race has been hosting open discussions about race issues for the past several years. Due to the COVID-19 crisis the last in-person meeting was in March; however, in response to member requests, meetings have been held since June via Zoom.

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Looking back over 49 years of practice, Harrell has seen many changes and shifts in the state of gender and diversity in the legal profession. “I was the only person of color in the class of 1971 at the DU College of Law. There were two women,” he recalls. When he joined the Denver County Court in 1985, out of 17 judges, two were women, and there was one African American male and one Latinx male.

Now 12 of the judges on the Denver County Court bench are women.

These positive changes are in large part a result of fair-minded people determined to correct the imbalance in representation.

“When Bill Robbins left the Denver District Court bench in 2018 there were no African American judges on any District Court bench in Colorado. In the last 18 months that has been remedied by a committee formed under the auspices of the Colorado Supreme Court and spearheaded by Denver County Court Judge Gary Jackson to bring to the attention of the appointing authority the lack of minority judges on the Colorado bench. The result is there are now six African Americans on the District Court bench in Colorado, all but one are women,” says Harrell. “If someone one wants to make a change in what I consider a noble profession, I would recommend that if you see something that is wrong, speak out.”

If Harrell’s exceptional career is another link in a chain of positive examples started by his father, then all those Harrell has mentored are further links. “If I have made just one person’s life better because of something that I did or said,” he says, “then I have accomplished my mission in this life.”

NOTE S

1. The CBA Award of Merit is awarded annually in recognition of outstanding service or contributions to the association, the legal profession, the administration of justice or the community.

Judge Harrell receives the award jointly with the late Judge Wiley Daniel, who was profiled in the October 2020 issue. This is the second time in the award’s history when there have been multiple winners, the first being in 1983 with brothers Bernard, Rodger, and S. Robert Houtchens.

2. Brown v. Bd. of Educ. of Topeka Kan., 343 U.S. 483 (1954).

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Participating in a CBA section is one of the best ways to enhance your professional growth and keep your practice on the cutting edge.

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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.

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77

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

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.

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

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 Jessica Espinoza-Murillo at advertising@cobar. org.

Full page ■ 7.75" wide x 8.875" tall ■ $750 CBA members; $900 nonmembers

Questions?

Contact Jessica Espinoza-Murillo at advertising@cobar.org.

Sizes and Cost Quarter page vertical ■ 3.75" wide x 4.25" tall ■ $250 CBA members; $350 nonmembers

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LAWYERS’ ANNOUNCEMENTS DEADLINES ISSUE

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

COAN, PAYTON & PAYNE, LLC IS PLEASED TO ANNOUNCE ATTORNEY STEVEN T. MULLIGAN HAS JOINED THE FIRM. Mr. Mulligan’s practice focuses on business law, construction law, commercial restructuring and bankruptcy.

STEVEN T. MULLIGAN smulligan@cp2law.com

is pleased to announce that Adam L. Hirsch has joined the firm as a partner in the Finance & Acquisitions Department.

His practice will continue to have an emphasis on all aspects of bankruptcy, business restructuring, and related transactions.

1550 17th Street, Suite 500 | Denver, CO 80202 dgslaw.com | 303.892.9400

Did you know in 2020 the CBF funded programs in 30 counties this year (and 16 organizations that serve the entire state)?

See our page later in this edition for more information or take a look at the Colorado Bar Foundation website: www.coloradobarfoundation. org. We rely on our generous donors who make these important grants possible. Please go to our website and make a contribution.

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In Memoriam

Darrell S. Elliott May 11, 1953–June 11, 2020

his strong work ethic and his intelligence. He truly enjoyed being an attorney.

Robert G. Pierce May 30, 1929–October 29, 2019 Robert G. Pierce passed away last year, on October 29, 2019, at 90 years of age.

Born in 1929 in Sioux City, Iowa, his parents, Ruth and Glenn, soon moved to Nebraska. A gifted athlete, Bob found great success on the basketball court and had an exceptional high school, college, and semi-pro career.

His high school career was capped by MVP status on a 26-0 Lincoln High School 1945–46 state champion team. Bob then attended the University of Nebraska, playing basketball for the Huskers and obtaining a degree in mechanical engineering. His success on the basketball court was recognized in 1993 with his induction into the University of Nebraska Basketball Hall of Fame. A lifelong athlete, he ran the basketball court into his 70s and skied at Mary Jane/Winter Park well into his 80s.

After college, Bob played semi-pro basketball for Phillips 66. In the early ’50s, he moved to Denver. Ever the pragmatist, he was accepted into Harvard Law School but instead chose to attend the University of Denver, where he obtained his law degree. In 1959, he met Shirley, and the two of them enjoyed a 60-year marriage, raising two children, Richard and Lynn.

Bob practiced law for 58 years, beginning as a district attorney with the City and County of Denver in 1957, and then running a successful private practice. His dedication to his clients was unquestionable, and his passion and enthusiasm for the practice of law reflected

Brian A. Snow February 5, 1941–August 29, 2020 Brian Armil Snow, general counsel emeritus of the Colorado State University (CSU) System, died peacefully after a long illness on August 29, 2020. He was 79.

Brian was born on February 5, 1941, in Jasper, Arkansas. The son of a college professor, he spent a lifetime advocating for education and social justice in both his personal and professional work.

At the University of Arkansas, Brian earned a BS in business administration, with a minor in journalism, as well as a master’s in political science. He went on to graduate from Duke University School of Law, where he served on the editorial board of the Duke Law Journal.

He later took courses toward an additional master’s in religion at the Iliff School of Theology in Denver.

After graduation from college, Brian worked as a staff reporter for the Wall Street Journal before entering law school. He later served as assistant dean and associate professor of law at the University of Arkansas School of Law and engaged in private practice in Denver for a number of years. He married Eugenie “Crissie” (Sontag) Snow in Denver on May 10, 1986, beginning a remarkable 34-year partnership.

Brian was appointed by Colorado Governor Roy Romer to serve as a voting member of the Board of Governors of the CSU System in 1987—a role he resigned from a year later to accept the position of general counsel for the

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CSU Board and System. He served from 1988 to 2003 as chief counsel for the governing board and its constituent institutions—at the time CSU, Fort Lewis College, and CSU–Pueblo— supervising all attorneys and support staff for the CSU System.

As he helped the university navigate complex issues around athletics and Title IX, including a high-profile lawsuit by members of the women’s softball team, Brian became a champion for equity in women’s athletics and a recognized expert on Title IX and higher education. His lifelong commitment to social justice informed both the value he placed on higher education and academic culture and his many years of political involvement, which included helping to lead Robert F. Kennedy’s Colorado presidential campaign in 1968.

Longtime friend and colleague Bill Thro remembered Brian as a mentor and inspiration: Diagnosed with MS while in his 20s, Brian lived his entire life like he was running out of time. He had an insatiable intellectual curiosity. He always was reading three or four books, subscribed to five daily newspapers, and took theology classes at a local seminary for fun. He wrote more law review articles than most law professors, and he received Colorado State University’s highest award for teaching [the Oliver P. Pennock Award, in 1999].

Among his numerous professional achievements and awards, Brian was named a Life Member of the National Association of College and University Attorneys. He was a member of the Editorial Board of The Journal of College and University Law and the Authors Committee for the Education Law Reporter. He wrote and published more than a dozen law review

articles and was a frequent speaker on various topics involving issues in higher education. His professional activities included serving as vice chair of the American Bar Association’s Government and Public Sector Lawyers Division, as a member of the Securities Committee of the Colorado and Denver Bar Associations and of the American Bar Association, as a member of the screening committee for the selection of the US Attorney for Denver, and as a member of Governor Bill Ritter’s Transition Committee for Higher Education in Colorado.

In addition to his professional service, Snow was deeply involved in his community, having served as the president of the Multiple Sclerosis Society of Colorado, as president of the Washington Park United Church of Christ, and as a member of the Rotary Club of Fort Collins and the Environmental and Transportation Committee of the Denver Chamber of

Commerce. He wrote and acted in a production of his own play, “The Trial of Minnie Wright,” at Bas Bleu Theater Company in Fort Collins.

He is survived by his wife Crissie; sons Andrew and Anthony; brother S. Steve Snow; grandchildren Megan, Lucia, Matthew, Catherine, and John; and many other close family members and friends. He was preceded in death by his parents Mayme and Claude.

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.

Did you know you can be part of the good work of the Colorado Bar Foundation by making a donation?

See our page later in this edition for more information or take a look at the Colorado Bar Foundation website: www.coloradobarfoundation.org.

We rely on our generous donors who make these important grants possible. Please go to our website and make a contribution.

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Colorado Supreme Court Rules Committees Rule Change 2020(28) Colorado Rules of Civil Procedure Rules 103 and 403; Forms 26, 27, 28, 29, 32, 33, and New Form Notice to Judgment Debtor Rule 103. Garnishment This rule sets forth the exclusive process for garnishment. There shall be five (5) types of writs: (1) Writ of Continuing Garnishment, (2) Writ of Garnishment with Notice of Exemption and Pending Levy, (3) Writ of Garnishment for Support, (4) Writ of Garnishment—Judgment Debtor Other Than Natural Person, and (5) Writ of Garnishment in Aid of Writ of Attachment.

SECTION 1 WRIT OF CONTINUING GARNISHMENT (ON EARNINGS OF A NATURAL PERSON) (a)–(g) [NO CHANGE] (h) Delivery of Copy to Judgment Debtor.

(1) The garnishee shall deliver a copy of the writ of continuing garnishment, together with the calculation of the amount of exempt earnings that is based on the judgment debtor’s last paycheck prior to delivery of the writ of continuing garnishment to the judgment debtor and the blank copy of C.R.C.P. Form 28, “Objection to the Calculation of the Amount of Exempt Earnings or For Reduction of Withholding Pursuant to Section 13-54-104(2)(a)(I)(D)” (Appendix to Chapters 1 to 17A, Form 28, C.R.C.P.), to the judgment debtor not later than 7 days after the garnishee is served with the writ of continuing garnishment.

(2) [NO CHANGE] (i) Objection to Calculation of Amount of Exempt Earnings. A judgment debtor may object to the calculation of exempt earnings or

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object and request an exemption of earnings pursuant to section 13-54-104(2)(a)(I)(D), C.R.S. A judgment debtor’s objection to calculation of exempt earnings or objection and request for an exemption of earnings pursuant to section 13-54-104(2)(a)(I)(D), C.R.S., shall be in accordance with Section 6 of this rule. (j) [NO CHANGE] (k) Answer and Tender of Payment by Garnishee.

(1) The garnishee shall file the answer to the writ of garnishment with the clerk of the court and send a copy to the judgment creditor not later than 7 days after the garnishee is served with the writ of continuing garnishment pursuant to section 13-54.5-105(5), C.R.S. However, if the judgment creditor is represented by an attorney, or is a collection agency licensed pursuant to section 12-14-101, et seq., C.R.S., the garnishee shall send such response to the attorney or licensed collection agency.

(2) In the event the answer required by Section 1(k)(1) of this rule is filed and served pursuant to section 13-54.5-105(5)(b), C.R.S., the garnishee shall begin garnishment of the disposable earnings of the judgment debtor on the first payday of the judgment debtor that occurs at least 21 days after the garnishee was served with the writ of continuing garnishment or the first payday after the expiration date of any prior effective writ of continuing garnishment that is at least 21 days after the garnishee was served with the writ of continuing garnishment.

(3) Unless payment is made to an attorney or licensed collection agency as provided in paragraph (k)(1), the garnishee shall pay any nonexempt earnings and deliver a calculation of the amount of exempt earnings to the clerk of the court which issued such writ no less than 7 nor more than 14 days following the time the judgment debtor receives earnings

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affected by such writ. However, if the answer and subsequent calculations are mailed to an attorney or licensed collection agency under subsection (k)(1), the payment shall accompany the answer.

(4) Any writ of continuing garnishment served upon the garnishee while any previous writ is still in effect shall be answered by the garnishee with a statement that the garnishee has been previously served with one or more writs of continuing garnishment and/or writs of garnishment for support and specify the date on which such previously served writs are expected to terminate. (l) Disbursement of Garnished Earnings.

(1) If no objection to the calculation of exempt earnings or objection and request for exemption of earnings pursuant to section 13-54-104(2)(a) (I)(D), C.R.S., is filed by the judgment debtor within 21 days after the garnishee was served with the writ of continuing garnishment, the garnishee shall send the nonexempt earnings to the attorney, collection agency licensed pursuant to section 12-14-101, et seq., C.R.S., or court designated on the writ of continuing garnishment (C.R.C.P. Form 26, page 1, paragraph e). The judgment creditor shall refund to the judgment debtor any disbursement in excess of the amount necessary to satisfy the judgment.

(2) [NO CHANGE] (m) Request for accounting of garnished funds by judgment debtor. Upon reasonable written request by a judgment debtor, the judgment creditor shall provide an accounting in writing of all funds received to the date of the request, including the balance due at the date of the request.

SECTION 2—SECTION 5 [NO CHANGE] SECTION 6 JUDGMENT DEBTOR’S OBJECTION—WRITTEN CLAIM OF EXEMPTION— HEARING (a) Judgment Debtor’s Objection to Calculation of Exempt Earnings or Objection and Request for Exemption of Earnings Pursuant to Section 13-54-104(2)(a)(I)(D), C.R.S., Under Writ of Continuing Garnishment.

(1) [NO CHANGE] (2) If the judgment debtor’s objection to the calculation of exempt earnings is not resolved

with the garnishee within 7 days upon good faith effort, the judgment debtor may file a written objection setting forth, with reasonable detail, the grounds for such objection. Such objection must be filed within 14 days from receipt of the copy of writ of garnishment or calculation of the amount of exempt earnings for subsequent pay periods.

(3) If the judgment debtor objects and requests an exemption of earnings pursuant to section 13-54-104(2)(a)(I)(D), C.R.S., the judgment debtor shall have no obligation to attempt to resolve the issue with the garnishee.

(4) If the judgment debtor objects and requests an exemption of earnings pursuant to section 13-54-104(2)(a)(I)(D), C.R.S., the judgment debtor shall file such objection and request in writing, setting out the grounds for such exemption and request. The judgment debtor may object to the calculation on hardship grounds at any time during the pendency of the garnishment.

(5) The written objection made under Section 6(a)(2) or Section 6(a)(4) of this rule shall be filed with the clerk of the court by the judgment debtor in the form and content of Appendix to Chapters 1 to 17A, Form 28, C.R.C.P. (6) The judgment debtor shall, by certified mail, return receipt requested, immediately deliver a copy of such objection to the garnishee and the judgment creditor’s attorney of record, or if none, to the judgment creditor. If the garnishee has been directed to transmit the nonexempt earnings to an attorney or a collection agency licensed pursuant to section 12-14-101, et seq., C.R.S., then upon receipt of the objection, the garnishee shall transmit the nonexempt earnings to the clerk of the court.

(7) Upon the filing of a written objection, all proceedings with relation to the earnings of the judgment debtor in possession and control of the garnishee, the judgment creditor, the attorney for the judgment creditor, or in the registry of the court shall be stayed until the written objection is determined by the court. (b)–(c) [NO CHANGE] (d) Objection or Claim of Exemption Within 182 days.

(1) Notwithstanding the provisions of Section 6 (a)(2), Section 6(a)(4) and Section 6 (b)(1) of

this rule, a judgment debtor failing to make and file a written objection or claim of exemption within the time therein provided, may, at any time within 182 days from receipt of the copy of the writ with notice or a copy of the writ of continuing garnishment or the calculation of the amount of exempt earnings, move the court in which the judgment was entered to hear an objection or claim of exemption as to any earnings of property levied in garnishment which the judgment debtor claims to have been miscalculated or which the judgment debtor claims to be exempt.

(2)–(3) [NO CHANGE] (e) [NO CHANGE] SECTION 7—SECTION 13 [NO CHANGE] Rule 403. Garnishment NOTE: County Court Rule 403 is identical to C.R.C.P. 103 except for cross references within

the County Court Rule to other County Court Rules. Forms used with the County Court are identical to those used with C.R.C.P. 103, and because County Court Rule 403 cites to and incorporates C.R.C.P. Forms 26 through 34, they need not be duplicated in the County Court Forms Section.

This rule sets forth the exclusive process for garnishment. There shall be five (5) types of writs: (1) Writ of Continuing Garnishment, (2) Writ of Garnishment with Notice of Exemption and Pending Levy, (3) Writ of Garnishment for Support, (4) Writ of Garnishment—Judgment Debtor Other Than Natural Person, and (5) Writ of Garnishment in Aid of Writ of Attachment.

SECTION 1 WRIT OF CONTINUING GARNISHMENT (ON EARNINGS OF A NATURAL PERSON) (a)–(g) [NO CHANGE] (h) Delivery of Copy to Judgment Debtor.

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(1) The garnishee shall deliver a copy of the writ of continuing garnishment, together with the calculation of the amount of exempt earnings that is based on the judgment debtor’s last paycheck prior to delivery of the writ of continuing garnishment to the judgment debtor and the blank copy of C.R.C.P. Form 28, “Objection to the Calculation of the Amount of Exempt Earnings or For Reduction of Withholding Pursuant to Section 13-54- (2)(a)(I)(D)” (Appendix to Chapters 1 to 17AA, Form 28, C.R.C.P.), to the judgment debtor not later than 7 days after the garnishee is served with the writ of continuing garnishment.

(2) [NO CHANGE] (i) Objection to Calculation of Amount of Exempt Earnings. A judgment debtor may object to the calculation of exempt earnings or object and request an exemption of earnings pursuant to section 13-54-104(2)(a)(I)(D), C.R.S. A judgment

debtor’s objection to calculation of exempt earnings or objection and request for an exemption of earnings pursuant to section 13-54-104(2) (a)(I)(D), C.R.S., shall be in accordance with Section 6 of this rule. (j) [NO CHANGE] (k) Answer and Tender of Payment by Garnishee.

(1) The garnishee shall file the answer to the writ of garnishment with the clerk of the court and send a copy to the judgment creditor not later than 7 days after the garnishee is served with the writ of continuing garnishment pursuant to section 13-54.5-105(5), C.R.S. However, if the judgment creditor is represented by an attorney, or is a collection agency licensed pursuant to section 12-14-101, et seq., C.R.S., the garnishee shall send such response to the attorney or licensed collection agency.

(2) In the event the answer required by Section 1(k)(1) of this rule is filed and served pursuant to

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section 13-54.5-105(5)(b), C.R,S., the garnishee shall begin garnishment of the disposable earnings of the judgment debtor on the first payday of the judgment debtor that occurs at least 21 days after the garnishee was served with the writ of continuing garnishment or the first payday after the expiration date of any prior effective writ of garnishment that is at least 21 days after the garnishee was served with the writ of continuing garnishment.

(3) Unless payment is made to an attorney or licensed collection agency as provided in paragraph (k)(1), the garnishee shall pay any nonexempt earnings and deliver a calculation of the amount of exempt earnings to the clerk of the court which issued such writ no less than 7 nor more than 14 days following the time the judgment debtor receives earnings affected by such writ. However, if the answer and subsequent calculations are mailed to an attorney or licensed collection agency under subsection (k)(1), the payment shall accompany the answer.

(4) Any writ of continuing garnishment served upon the garnishee while any previous writ is still in effect shall be answered by the garnishee with a statement that the garnishee has been previously served with one or more writs of continuing garnishment and/or writs of garnishment for support and specify the date on which such previously served writs are expected to terminate. (l) Disbursement of Garnished Earnings.

(1) If no objection to the calculation of exempt earnings or objection and request for exemption of earnings pursuant to section 13-54-104(2)(a) (I)(D), C.R.S., is filed by the judgment debtor within 21 days after the garnishee was served with the writ of continuing garnishment, the garnishee shall send the nonexempt earnings to the attorney, collection agency licensed pursuant to section 12-14-101, et seq., C.R.S., or court designated on the writ of continuing garnishment (C.R.C.P. Form 26, page 1, paragraph e). The judgment creditor shall refund to the judgment debtor any disbursement in excess of the amount necessary to satisfy the judgment.

(2) If a written objection to the calculation of exempt earnings is filed with the clerk of the court and a copy is delivered to the garnishee, the

garnishee shall send the garnished nonexempt earnings to the clerk of the court. The garnished nonexempt earnings shall be placed in the registry of the court pending further order of the court. (m) Request for accounting of garnished funds by judgment debtor. Upon reasonable written request by a judgment debtor, the judgment creditor shall provide an accounting in writing of all funds received to the date of the request, including the balance due at the date of the request.

SECTION 2—SECTION 5 [NO CHANGE] SECTION 6 JUDGMENT DEBTOR’S OBJECTION—WRITTEN CLAIM OF EXEMPTION— HEARING (a) Judgment Debtor’s Objection to Calculation of Exempt Earnings or Objection and Request for Exemption of Earnings Pursuant to Section 13-54-104(2)(a)(I)(D), C.R.S,, Under Writ of Continuing Garnishment.

(1) If a judgment debtor objects to the initial or a subsequent calculation of the amount of exempt earnings, the judgment debtor shall have 7 days from the receipt of the copy of the writ of garnishment or calculation of the amount of exempt earnings for subsequent pay periods, within which to resolve the issue of such miscalculation by agreement with the garnishee.

(2) If the judgment debtor’s objection to the calculation of exempt earnings is not resolved with the garnishee within 7 days upon good faith effort, the judgment debtor may file a written objection setting forth, with reasonable detail, the grounds for such objection. Such objection must be filed within 14 days from receipt of the copy of writ of garnishment or calculation of the amount of exempt earnings for subsequent pay periods.

(3) If the judgment debtor objects and requests an exemption of earnings pursuant to section13-54-104(2)(a)(I)(D), C.R.S., the judgment debtor shall have no obligation to attempt to resolve the issue with the garnishee.

(4) If the judgment debtor objects and requests an exemption of earnings pursuant to section 13-54-104(2)(a)(I)(D), C.R.S., the judgment debtor shall file such objection and request in writing, setting out the grounds for such

exemption and request. The judgment debtor may object to the calculation on hardship grounds at any time during the pendency of the garnishment.

(5) The written objection made under Section 6(a)(2) or Section 6(a)(4) of this rule shall be filed with the clerk of the court by the judgment debtor in the form and content of Appendix to Chapters 1 to 17A, Form 28, C.R.C.P. (6) The judgment debtor shall, by certified mail, return receipt requested, immediately deliver a copy of such objection to the garnishee and the judgment creditor’s attorney of record, or if none, to the judgment creditor. If the garnishee has been directed to transmit the nonexempt earnings to an attorney or a collection agency licensed pursuant to section 12-14-101, et seq, C.R.S., then upon receipt of the objection, the garnishee shall transmit the nonexempt earnings to the clerk of the court.

(7) Upon the filing of a written objection, all proceedings with relation to the earnings of the judgment debtor in possession and control of the garnishee, the judgment creditor, the attorney for the judgment creditor, or in the registry of the court shall be stayed until the written objection is determined by the court. (b)–(c) [NO CHANGE] (d) Objection or Claim of Exemption Within 182 days.

(1) Notwithstanding the provisions of Section 6 (a)(2), Section 6(a)(4) and Section 6 (b)(1) of this rule, a judgment debtor failing to make and file a written objection or claim of exemption within the time therein provided, may, at any time within 182 days from receipt of the copy of the writ with notice or a copy of the writ of continuing garnishment or the calculation of the amount of exempt earnings, move the court in which the judgment was entered to hear

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an objection or claim of exemption as to any earnings or property levied in garnishment which the judgment debtor claims to have been miscalculated or which the judgment debtor claims to be exempt.

(2)–(3) [NO CHANGE] (e) [NO CHANGE] SECTION 7—SECTION 13 [NO CHANGE] Amended and Adopted by the Court, En Banc, September 10, 2020, effective October 1, 2020.

By the Court: Richard L. Gabriel Justice, Colorado Supreme Court

Rule Change 2020(29) Colorado Rules of Professional Conduct

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Rules 7.1, 7.2, 7.3, 7.4, and 7.5 Rule 7.1. Communications Concerning a Lawyer’s Services A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

COMMENT [1] This Rule governs all communications about a lawyer’s services, including advertising.

Whatever means are used to make known a lawyer’s services, statements about them must be truthful.

[2] Misleading truthful statements are prohibited by this Rule. A truthful statement is misleading if it omits a fact necessary to make

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the lawyer’s communication considered as a whole not materially misleading. A truthful statement is misleading if a substantial likelihood exists that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is no reasonable factual foundation. A truthful statement is also misleading if presented in a way that creates a substantial likelihood that a reasonable person would believe the lawyer’s communication requires that person to take further action when, in fact, no action is required.

[3] A communication that truthfully reports a lawyer’s achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case.

Similarly, an unsubstantiated claim about a lawyer’s or law firm’s services or fees, or an unsubstantiated comparison of the lawyer’s or law firm’s services or fees with those of other lawyers or law firms, may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison or claim can be substantiated.

The inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead the public.

[3A] Any communication that states or implies the client does not have to pay a fee if there is no recovery must also disclose that the client may be liable for costs or the adverse party’s attorney fees if ordered by a court. This provision does not apply to communications that state only that contingent or percentage fee arrangements are available, or that state only that the initial consultation is free.

[4] It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation. Rule 8.4(c).

See also Rule 8.4(e) for the prohibition against stating or implying an ability to improperly influence a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law.

[5] Firm names, letterhead and professional designations are communications concerning a lawyer’s services. A firm may be designated by the names of all or some of its current members, by the names of deceased members where there has been a succession in the firm’s identity or by a trade name if it is not false or misleading. A lawyer or law firm also may be designated by a distinctive website address, social media username or comparable professional designation that is not misleading.

A law firm name or designation is misleading if it implies a connection with a government agency, with a deceased lawyer who was not a former member of the firm, with a lawyer not associated with the firm or a predecessor firm, with a nonlawyer or with a public or charitable legal services organization. If a firm uses a trade name that includes a geographical name such as “Springfield Legal Clinic,” an express statement explaining that it is not a public legal

aid organization may be required to avoid a misleading implication.

[6] A law firm with offices in more than one jurisdiction may use the same name or other professional designation in each jurisdiction, but identification of the lawyers in an office of the firm must indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located.

[7] Lawyers may not imply or hold themselves out as practicing together in one firm when they are not a firm, as defined in Rule 1.0(c), because to do so would be false and misleading.

[8] It is misleading to use the name of a lawyer holding a public office in the name of a law firm, or in communications on the law firm’s behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm.

Rule 7.2. Communications Concerning a Lawyer’s Services: Specific Rules (a) A lawyer may communicate information regarding the lawyer’s services through any media. (b) A lawyer shall not compensate, give or promise anything of value to a person for recommending the lawyer’s services except that a lawyer may: (1) pay the reasonable costs of advertisements or communications permitted by this Rule; (2) pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service; (3) pay for a law practice in accordance with Rule 1.17; (4) refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if: (i) the reciprocal referral agreement is not exclusive; and (ii) the client is informed of the existence and nature of the agreement; and (5) give nominal gifts as an expression of appreciation that are neither intended nor reasonably expected to be a form of compensation for recommending a lawyer’s services. (c) A lawyer shall not state or imply that a lawyer

is certified as a specialist in a particular field of law, unless: (1) the lawyer has been certified as a specialist by an organization that has been approved by an appropriate authority of the state or the District of Columbia or a U.S. Territory or that has been accredited by the American Bar Association; and (2) the name of the certifying organization is clearly identified in the communication. (d) Any communication made under this Rule must include the name and contact information of at least one lawyer or law firm responsible for its content.

COMMENT [1] This Rule permits public dissemination of information concerning a lawyer’s or law firm’s name, address, email address, website, and telephone number; the kinds of services the lawyer will undertake; the basis on which the lawyer’s fees are determined, including prices for specific services and payment and credit arrangements; a lawyer’s foreign language ability; names of references and, with their consent, names of clients regularly represented; and other information that might invite the attention of those seeking legal assistance.

Paying Others to Recommend a Lawyer [2] Except as permitted under paragraphs (b)(1) through (b)(5), lawyers are not permitted to pay others for recommending the lawyer’s services.

A communication contains a recommendation if it endorses or vouches for a lawyer’s credentials, abilities, competence, character, or other professional qualities. Directory listings and group advertisements that list lawyers by practice area, without more, do not constitute impermissible “recommendations.”

[3] Paragraph (b)(1) allows a lawyer to pay for advertising and communications permitted by this Rule, including the costs of print directory listings, on-line directory listings, newspaper ads, television and radio airtime, domain-name registrations, sponsorship fees, Internet-based advertisements, and group advertising. A lawyer may compensate employees, agents and vendors who are engaged to provide marketing or client-development services, such as publicists, public-relations personnel, business-development staff, television and

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radio station employees or spokespersons and website designers.

[4] Paragraph (b)(5) permits lawyers to give nominal gifts as an expression of appreciation to a person for recommending the lawyer’s services or referring a prospective client. The gift may not be more than a token item as might be given for holidays, or other ordinary social hospitality. A gift is prohibited if offered or given in consideration of any promise, agreement or understanding that such a gift would be forthcoming or that referrals would be made or encouraged in the future.

[5] A lawyer may pay others for generating client leads, such as Internet-based client leads, as long as the lead generator does not recommend the lawyer, any payment to the lead generator is consistent with Rules 1.5(d) (division of fees) and 5.4 (professional independence of the lawyer), and the lead generator’s communications are consistent with Rule 7.1 (communications concerning a lawyer’s services). To comply with Rule 7.1, a lawyer must not pay a lead generator that states, implies, or creates a reasonable impression that it is recommending the lawyer, is making the referral without payment from the lawyer, or has analyzed a person’s legal problems when determining which lawyer should receive the referral. See Comment [2] (definition of “recommendation”). See also Rule 5.3 (duties of lawyers and law firms with respect to the conduct of nonlawyers); Rule 8.4 (a) (duty to avoid violating the Rules through the acts of another).

[6] A lawyer may pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service. A legal service plan is a prepaid or group legal service plan or a similar delivery system that assists people who seek to secure legal representation. A lawyer referral service, on the other hand, is any organization that holds itself out to the public as a lawyer referral service.

Qualified referral services are consumer-oriented organizations that provide unbiased referrals to lawyers with appropriate experience in the subject matter of the representation and afford other client protections, such as complaint procedures or malpractice insurance requirements.

Consequently, this Rule only permits a lawyer to pay the usual charges of a not-for-profit or

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qualified lawyer referral service. A qualified lawyer referral service is one that is approved by an appropriate regulatory authority as affording adequate protections for the public. See, e.g., the American Bar Association’s Model Supreme Court Rules Governing Lawyer Referral Services and Model Lawyer Referral and Information Service Quality Assurance Act. [7] A lawyer who accepts assignments or referrals from a legal service plan or referrals from a lawyer referral service must act reasonably to assure that the activities of the plan or service are compatible with the lawyer’s professional obligations. Legal service plans and lawyer referral services may communicate with the public, but such communication must be in conformity with these Rules. Thus, advertising must not be false or misleading, as would be the case if the communications of a group advertising program or a group legal services plan would mislead the public to think that it was a lawyer referral service sponsored by a state agency or bar association.

[8] A lawyer also may agree to refer clients to another lawyer or a nonlawyer professional, in return for the undertaking of that person to refer clients or customers to the lawyer. Such reciprocal referral arrangements must not interfere with the lawyer’s professional judgment as to making referrals or as to providing substantive legal services. See Rules 2.1 and 5.4(c). Except as provided in Rule 1.5(d), a lawyer who receives referrals from a lawyer or nonlawyer professional must not pay anything solely for the referral, but the lawyer does not violate paragraph (b) of this Rule by agreeing to refer clients to the other lawyer or nonlawyer professional, so long as the reciprocal referral agreement is not exclusive and the client is informed of the referral agreement. Conflicts of interest created by such arrangements are governed by Rule 1.7. Reciprocal referral agreements should not be of indefinite duration and should be reviewed periodically to determine whether they comply with these Rules. This Rule does not restrict referrals or divisions of revenues or net income among lawyers within firms comprised of multiple entities.

Communications about Fields of Practice [9] Paragraph (c) of this Rule permits a lawyer

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to communicate that the lawyer does or does not practice in particular areas of law. A lawyer is generally permitted to state that the lawyer “concentrates in” or is a “specialist,” practices a “specialty,” or “specializes in” particular fields based on the lawyer’s experience, specialized training or education, but such communications are subject to the “false and misleading” standard applied in Rule 7.1 to communications concerning a lawyer’s services.

[10] The Patent and Trademark Office has a long-established policy of designating lawyers practicing before the Office. The designation of Admiralty practice also has a long historical tradition associated with maritime commerce and the federal courts. A lawyer’s communications about these practice areas are not prohibited by this Rule.

[11] This Rule permits a lawyer to state that the lawyer is certified as a specialist in a field of law if such certification is granted by an organization approved by an appropriate authority of a state, the District of Columbia or a U.S. Territory or accredited by the American Bar Association or another organization, such as a state supreme court or a state bar association, that has been approved by the authority of the state, the District of Columbia or a U.S. Territory to accredit organizations that certify lawyers as specialists. Certification signifies that an objective entity has recognized an advanced degree of knowledge and experience in the specialty area greater than is suggested by general licensure to practice law.

Certifying organizations may be expected to apply standards of experience, knowledge and proficiency to ensure that a lawyer’s recognition as a specialist is meaningful and reliable. To ensure that consumers can obtain access to useful information about an organization granting certification, the name of the certifying organization must be included in any communication regarding the certification.

[11A] In any advertisement in which a lawyer affirmatively claims to be certified as a specialist in any area of the law, such advertisement shall contain the following disclosure: “Colorado does not certify lawyers as specialists in any field.” This disclaimer is not required where the information concerning the lawyer’s services

is contained in a law list, law directory or a publication intended primarily for use of the legal profession.

Required Contact Information [12] This Rule requires that any communication about a lawyer or law firm’s services include the name of, and contact information for, the lawyer or law firm. Contact information includes a website address, a telephone number, an email address or a physical office location.

Rule 7.3. Solicitation of Clients (a) “Solicitation” or “solicit” denotes a communication initiated by or on behalf of a lawyer or law firm that is directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter and that offers to provide, or reasonably can be understood as offering to provide, legal services for that matter.

(b) A lawyer shall not solicit professional employment by live person-to-person contact when a significant motive for the lawyer’s doing so is the lawyer’s or law firm’s pecuniary gain, unless the contact is with a: (1) lawyer; (2) person who has a family, close personal, or prior business or professional relationship with the lawyer or law firm; or (3) person who routinely uses for business purposes the type of legal services offered by the lawyer. (c) A lawyer shall not solicit professional employment even when not otherwise prohibited by paragraph (b), if: (1) the target of the solicitation has made known to the lawyer a desire not to be solicited by the lawyer; or (2) the solicitation involves coercion, duress or harassment.

(d) A lawyer shall not engage in solicitation by any media for professional employment, concerning personal injury or wrongful death of any person. See § 13-93-111, C.R.S. This Rule 7.3(d) shall not apply if the lawyer has a family or prior business or professional relationship with the person or if the communication is issued more than 30 days after the occurrence of the event for which the legal representation is being solicited. Any such communication must comply with the following: (1) no such communication may be made if the lawyer knows or reasonably should know that the person to whom the communication is directed is represented by a lawyer in the matter; and (2) if a lawyer other than the lawyer whose name or signature is contained in the communication will actually handle the case or matter, or if the case or matter will be referred to another lawyer

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or law firm, any such communication shall include a statement so advising the prospective client. (e) This Rule does not prohibit communications authorized by law or ordered by a court or other tribunal. (f) Every communication from a lawyer soliciting professional employment shall: (1) include the words “Advertising Material” on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication is a person specified in paragraphs (b)(1), (b)(2) or (b)(3); (2) not reveal on the envelope or on the outside of a self-mailing brochure or pamphlet the nature of the person’s legal problem; and (3) be maintained for a period of five years from the date of dissemination of the communication, and include a copy or recording of each such

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communication and a sample of the envelope, if any, in which the communication is enclosed, unless the recipient of the communication is a person specified in paragraphs (b)(1), (b) (2) or (b)(3). (g) Notwithstanding the prohibitions in this Rule, a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses live person-to-person contact to enroll members or sell subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan.

COMMENT [1] Paragraph (b) prohibits a lawyer from soliciting professional employment by live person-to-person contact when a significant motive for the lawyer’s doing so is the lawyer’s or the law firm’s pecuniary gain. A lawyer’s

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communication is not a solicitation if it is directed to the general public, such as through a billboard, an Internet banner advertisement, a website or a television commercial, or if it is in response to a request for information or is automatically generated in response to electronic searches.

[2] “Live person-to-person contact” means in-person, face-to-face, live telephone and other real-time visual or auditory person-to-person communications where the person is subject to a direct personal encounter without time for reflection. Such person-to-person contact does not include chat rooms, text messages or other written communications that recipients may easily disregard. A potential for overreaching exists when a lawyer, seeking pecuniary gain, solicits a person known to be in need of legal services. This form of contact subjects a person to the private importuning of the trained advocate in a direct interpersonal encounter.

The person, who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult to fully evaluate all available alternatives with reasoned judgment and appropriate self-interest in the face of the lawyer’s presence and insistence upon an immediate response. The situation is fraught with the possibility of undue influence, intimidation, and overreaching.

[3] The potential for overreaching inherent in live person-to-person contact justifies its prohibition, since lawyers have alternative means of conveying necessary information. In particular, communications can be mailed or transmitted by email or other electronic means that do not violate other laws. These forms of communications make it possible for the public to be informed about the need for legal services, and about the qualifications of available lawyers and law firms, without subjecting the public to live person-to-person persuasion that may overwhelm a person’s judgment.

[4] The contents of live person-to-person contact can be disputed and may not be subject to third-party scrutiny. Consequently, they are much more likely to approach (and occasionally cross) the dividing line between accurate representations and those that are false and misleading.

[5] There is far less likelihood that a lawyer would engage in overreaching against a former client, or a person with whom the lawyer has a close personal, family, business or professional relationship, or in situations in which the lawyer is motivated by considerations other than the lawyer’s pecuniary gain. Nor is there a serious potential for overreaching when the person contacted is a lawyer or is known to routinely use the type of legal services involved for business purposes. Examples include persons who routinely hire outside counsel to represent the entity; entrepreneurs who regularly engage business, employment law or intellectual property lawyers; small business proprietors who routinely hire lawyers for lease or contract issues; and other people who routinely retain lawyers for business transactions or formations.

Paragraph (b) is not intended to prohibit a lawyer from participating in constitutionally protected activities of public or charitable legal service organizations or bona fide political, social, civic, fraternal, employee or trade organizations whose purposes include providing or recommending legal services to their members or beneficiaries.

[6] A solicitation that contains false or misleading information within the meaning of Rule 7.1, that involves coercion, duress or harassment within the meaning of Rule 7.3(c) (2), or that involves contact with someone who has made known to the lawyer a desire not to be solicited by the lawyer within the meaning of Rule 7.3(c)(1) is prohibited. Live, person-to-person contact of individuals who may be especially vulnerable to coercion or duress is ordinarily not appropriate, for example, the elderly, those whose first language is not English, or the disabled.

[7] This Rule does not prohibit a lawyer from contacting representatives of organizations or groups that may be interested in establishing a group or prepaid legal plan for their members, insureds, beneficiaries or other third parties for the purpose of informing such entities of the availability of and details concerning the plan or arrangement which the lawyer or lawyer’s firm is willing to offer. This form of communication is not directed to people who are seeking legal services for themselves.

Rather, it is usually addressed to an individual acting in a fiduciary capacity seeking a supplier of legal services for others who may, if they choose, become prospective clients of the lawyer.

Under these circumstances, the activity which the lawyer undertakes in communicating with such representatives and the type of information transmitted to the individual are functionally similar to and serve the same purpose as advertising permitted under Rule 7.2.

[8] Communications authorized by law or ordered by a court or tribunal include a notice to potential members of a class in class action litigation.

[9] Paragraph (g) of this Rule permits a lawyer to participate with an organization which uses personal contact to enroll members for its group or prepaid legal service plan, provided that the personal contact is not undertaken by any lawyer who would be a provider of legal services through the plan. The organization must not be owned by or directed (whether as manager or otherwise) by any lawyer or law firm that participates in the plan. For example, paragraph (g) would not permit a lawyer to create an organization controlled directly or indirectly by the lawyer and use the organization for the person-to-person solicitation of legal employment of the lawyer through memberships in the plan or otherwise. The communication permitted by these organizations must not be directed to a person known to need legal services in a particular matter, but must be designed to inform potential plan members generally of another means of affordable legal services.

Lawyers who participate in a legal service plan must reasonably assure that the plan sponsors are in compliance with Rules 7.1, 7.2, and 7.3(c).

Rule 7.4. Reserved Rule 7.5. Reserved Amended and Adopted by the Court, En Banc, September 10, 2020, effective immediately.

By the Court: Monica M. Márquez Justice, Colorado Supreme Court

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.

Did you know what 9to5 Colorado, Colorado CASA, Colorado Springs Teen Court, Four Corners Immigrant Resource Center, Hispanic Affairs Project, and Rise Above Violence have in common? They all received grants this year from the CBF along with 24 other organizations.

See our page later in this edition for more information or take a look at the Colorado Bar Foundation website: www. coloradobarfoundation.org. We rely on our generous donors who make these important grants possible. Please go to our website and make a contribution.

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Disciplinary Case Summaries No. 19PDJ022. People v. Barnes. 8/9/2019.

The Presiding Disciplinary Judge granted a summary judgment in this reciprocal discipline matter and publicly censured W. Jeffrey Barnes (attorney registration number 19646), effective September 13, 2019.

On January 16, 2019, the Board of Professional Responsibility of the Supreme Court of Tennessee publicly censured Barnes. The Tennessee order of public censure determined that between May 2011 and August 2017 Barnes was admitted to practice pro hac vice in nine foreclosure-related actions in state and federal court in Tennessee. Though Barnes filed affidavits in each of those matters in support of his request for admission, stating in those affidavits that a copy of the affidavit and supporting documents were being sent contemporaneously to the Board of Professional Responsibility, he did not in fact send those materials. Further, Barnes failed to timely pay his pro hac vice registration fee as required by a Tennessee Supreme Court rule. Barnes thereby violated Tennessee rules mandating fairness to opposing parties and counsel, requiring candor to tribunals, and prohibiting conduct involving misrepresentation.

Through this conduct, Barnes engaged in conduct constituting grounds for reciprocal discipline under CRCP 251.21. The case file is public per CRCP 251.31.

No. 20PDJ061. People v. Dawson. 9/17/2020.

The Presiding Disciplinary Judge approved the parties’ conditional admission of misconduct and suspended Stephen David Dawson (attorney registration number 05136) for 60 days. The suspension was effective October 22, 2020.

In February 2018, Dawson agreed to represent a client in a marriage dissolution and

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child custody case. Dawson did not promptly communicate with his client, taking anywhere between three days and one month to respond to the client’s questions. During the representation, Dawson submitted a settlement proposal to opposing counsel without obtaining his client’s agreement. His client disagreed with aspects of the proposal and later counterproposals, which ultimately were rejected by the other party.

Dawson later attempted to obtain his client’s signature on answers to interrogatories after opposing counsel filed a motion to compel discovery responses. His client disagreed with some of the responses and refused to sign the verification page. Nevertheless, Dawson served the responses to opposing counsel with a verification page containing his client’s signature.

Neither Dawson nor his paralegal admitted to attaching the verification page. At a status conference held the day after Dawson served the interrogatory responses, he informed the court that his client had signed the responses.

Dawson also explained at the conference that he failed to file his client’s trial management certificate due to his own personal circumstances. Shortly after, Dawson filed amended answers to the interrogatories, again without obtaining his client’s signature, because he felt that his client was not being cooperative with review and approval. Dawson believed the answers were correct but later learned that his client disagreed with certain statements in the amended answers. Communications between Dawson and his client broke down, and his client asked to end the representation.

Dawson then moved to withdraw but failed to inform the court that his client had objected to the filed interrogatory responses.

Through this conduct, Dawson violated Colo. RPC 1.2(a) (a lawyer must abide by the

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client’s decisions concerning the objectives of a case and consult with the client regarding the means to achieve the objectives); Colo. RPC 1.4(a) (a lawyer shall reasonably communicate with the client); Colo. RPC 1.4(b) (a lawyer shall explain a matter so as to permit the client to make informed decisions regarding the representation); Colo. RPC 3.3(a)(1) (a lawyer shall not knowingly make a false statement of material fact or law to a tribunal); and Colo. RPC 8.4(c) (it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation).

The case file is public per CRCP 251.31.

No. 18PDJ041 (consolidated with 19PDJ002).

People v. Efe. 4/4/2020.

A hearing board suspended Anselm Andrew Efe (attorney registration number 38357) from the practice of law for one year and one day, effective August 3, 2020. To be reinstated, Efe will bear the burden of proving by clear and convincing evidence that he has been rehabilitated, has complied with disciplinary orders and rules, and is fit to practice law.

Efe committed misconduct in two separate client matters. In one matter, he placed a client’s retainer directly into his operating account without earning the funds, neglected to notify the client of the basis of his fee in writing, and knowingly failed to return unearned funds to the client for six months. Through this conduct, Efe violated Colo. RPC 1.5(b) (a lawyer who has not regularly represented a client must communicate to the client in writing the basis or rate of the lawyer’s fees within a reasonable time after beginning the representation); Colo.

RPC 1.15A(a) (a lawyer must hold the property of a client separate from the lawyer’s own property); and Colo. RPC 1.16(d) (on termination of the representation, a lawyer shall take steps to the extent reasonably practicable to protect the client’s interests, including refunding any advance payment of fees that have not been earned).

In the second matter, Efe filed frivolous and groundless motions and caused unnecessary delays that slowed the progress of the case. As a result, Efe personally was sanctioned $33,000 to cover the opposing party’s attorney fees.

Efe failed to satisfy that award for 17 months, refusing to pay until he was held in contempt, arrested, and jailed. Through this conduct, Efe violated Colo. RPC 3.1 (a lawyer is prohibited from bringing or defending a proceeding, or asserting or controverting an issue in that proceeding, unless there is a basis in law and fact for doing so that is not frivolous); Colo. RPC 3.4(c) (a lawyer shall not knowingly disobey an obligation under the rules of a tribunal); and Colo. RPC 8.4(d) (it is professional misconduct for a lawyer to engage in conduct prejudicial to the administration of justice).

The case file is public per CRCP 251.31.

No. 20PDJ056. People v. Enck. 8/28/2020.

The Presiding Disciplinary Judge approved the parties’ conditional admission of misconduct and disbarred Dale Robert Enck (attorney registration number 14395). The disbarment took effect August 28, 2020.

Enck converted client funds during two separate representations. Enck consumed the clients’ retainers without their authorization before performing any legal services on their cases. In both instances, Enck did not return any portion of the retainer to the client. One of the clients retained Enck ahead of litigation over a business dispute. After receiving the complaint, Enck sent the client a draft answer without first discussing with her the facts of the case. Despite the ongoing litigation, the email containing the draft answer was the last communication Enck sent to the client, who eventually retained new counsel after learning that Enck had been arrested in early 2020.

Through her new counsel, the client discovered that Enck filed the answer only after receiving a motion for default judgment, and that Enck failed to include any obvious counterclaims in the answer. The client and her new counsel attempted without success to convince Enck to withdraw from the case, return the client file, and refund any portion of the retainer.

Enck represented the second client in a DUI matter. The client requested and obtained Enck’s withdrawal from her case after learning of Enck’s arrest, but Enck never returned her file, nor did he send her an accounting of her funds or any unearned portion of her retainer.

In another matter, Enck represented a client pursuing litigation over a soured real estate transaction. Enck accepted $20,000 from the client in an arrangement that was not covered by a fee agreement. Enck filed a complaint for the client in 2016, but thereafter the case twice was almost dismissed for failure to prosecute.

Enck failed to respond to the client for long stretches during the litigation, and the client often had to call the courthouse to learn about the status of his case. Enck entirely ceased communications with the client after September 2019, and he has not refunded any portion of the client’s payment.

Through this conduct, Enck 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 1.4(a)(4) (a

lawyer shall promptly comply with reasonable requests for information); Colo. RPC 1.5(b) (a lawyer shall inform a client in writing about the lawyer’s fees and expenses within a reasonable time after being retained, if the lawyer has not regularly represented the client); Colo. RPC 1.5(f) (a lawyer does not earn fees until a benefit is conferred on the client or the lawyer performs a legal service); Colo. RPC 1.15A (setting forth requirements for lawyers regarding property of clients and third parties); Colo. RPC 1.16(d) (a lawyer shall protect a client’s interests upon termination of the representation, including by giving reasonable notice to the client and returning unearned fees and any papers and property to which the client is entitled); and Colo. RPC 8.4(c) (it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation).

The case file is public per CRCP 251.31.

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No. 20PDJ021. People v. Escamilla. 8/26/2020.

The Presiding Disciplinary Judge approved the parties’ stipulation concerning sanctions and disbarred Samuel Reyes Escamilla (attorney registration number 10905). The disbarment took effect August 26, 2020.

In 2013, Escamilla orally agreed to represent a client in removal proceedings for a $3,500 flat fee. The fee was for all services, including a personal appearance hearing. Escamilla did not give his client a written fee agreement with milestones. Between June 2013 and July 2014, Escamilla received a total of $3,520, paid in chunks. From January 2012 to September 2013, however, Escamilla’s COLTAF account contained a zero balance. He closed that account in September 2013.

Thereafter, Escamilla performed some work on his client’s case. In October 2014, Escamilla was suspended from the practice of law in Colorado. In January 2015, he was reciprocally suspended by the Board of Immigration Appeals.

He was never reinstated from either suspension.

Escamilla never informed his client of his suspension or took the actions required of suspended attorneys under the Colorado Rules of Professional Conduct.

Between October 2014 and February 2018, the client’s case was continued multiple times.

Escamilla received notices of the continuances, but his client did not. His client believed that Escamilla was still his lawyer during that time.

In December 2017, Escamilla gave his client notice of an upcoming personal appearance hearing and stated that he would attend the hearing. Escamilla did not respond to his client’s communications or show up for the hearing.

Escamilla consumed the entire $3,520. He did not refund any of his fee for work that he did not complete.

Through this conduct, Escamilla violated Colo. RPC 1.5(f) (a lawyer does not earn fees until a benefit is conferred on the client or the lawyer performs a legal service); Colo. RPC 1.15A(a) (a lawyer shall hold client property separate from the lawyer’s own property); Colo. RPC 1.16(d) (a lawyer shall protect a client’s interests upon termination of the representation, including by giving reasonable notice to the client and returning unearned fees and any papers and

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property to which the client is entitled); Colo.

RPC 3.4(c) (a lawyer shall not knowingly disobey an obligation under the rules of a tribunal); Colo. RPC 5.5(a)(2) (a lawyer shall not practice law where doing so violates regulations of the legal profession); and Colo. RPC 8.4(c) (it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation).

The case file is public per CRCP 251.31.

No. 20PDJ057. People v. Kamada. 8/31/2020.

The Presiding Disciplinary Judge approved the parties’ conditional admission of misconduct and disbarred Ryan L. Kamada (attorney registration number 36984). The disbarment took effect August 31, 2020.

Kamada violated several Rules of Professional Conduct and Judicial Conduct while serving first as a county magistrate and then as a district court judge. While Kamada served as a magistrate, he purchased marijuana from a friend on multiple occasions. He also looked up information on a third party’s conviction for the same friend. Over a group text chain, Kamada disclosed information about a former client and her case. He discussed with his friends several cases over which he presided, and he made disparaging remarks about a lawyer who appeared before him. Kamada also emailed his friends photographs of his work area that included a computer screen showing case numbers, litigants’ names, events, and document titles.

As a district court judge, Kamada discussed with his friends cases over which he presided, emailed photographs he took of parties and court documents, and attempted to look up case information for a friend. When Kamada reviewed a warrant request by the joint drug task force, the law enforcement officer noted that Kamada was connected to members of the warrant subject’s social media network. The officer took the warrant to the next judge on the on-call list. Kamada discussed the warrant with a friend, who then informed the warrant subject. The friend asked Kamada for updates on the investigation, and Kamada fabricated information to try to convince his friend to avoid the warrant subject. Kamada pleaded guilty to

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the offense of obstruction of proceedings before a federal department or agency, in violation of 18 USC § 1505, for his actions related to the warrant.

Through this conduct, Kamada violated Colo. RPC 1.9(c)(2) (a lawyer who has formerly represented a client in a matter shall not use information relating to the representation except as permitted or required by the Colorado Rules of Professional Conduct); Colo. RPC 8.4(b) (it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects); Colo.

RPC 8.4(d) (it is professional misconduct for a lawyer to engage in conduct prejudicial to the administration of justice); Colo. C.J.C. Rule 1.1(A) (a judge shall comply with the law, including the Code of Judicial Conduct); Colo.

C.J.C. Rule 1.2 (a judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety); Colo.

C.J.C. Rule 1.3 (a judge shall not abuse the prestige of the judicial office to advance the personal or economic interests of the judge or others, or allow others to do so); Colo. C.J.C. Rule 2.9 (a judge shall not engage or consider ex parte communications except as allowed by the Code of Judicial Conduct or otherwise authorized by law); and Colo. C.J.C. Rule 2.10 (a judge shall refrain from making public and nonpublic statements that interfere with or are inconsistent with the fair and impartial administration of justice).

The case file is public per CRCP 251.31.

No. 20PDJ055. People v. Malouff Jr. 8/25/2020.

The Presiding Disciplinary Judge approved the parties’ conditional admission of misconduct and publicly censured Phillip F. Malouff Jr. (attorney registration number 09076).

In November 2016, Malouff was present in a courtroom while a magistrate observed another judge’s docket. As the magistrate walked toward the bench, Malouff asked her to approach him. When she did, Malouff stated, “When you get back from your vacation I better be able to see your tan lines.” He punctuated his

statement with a wink. A month later, Malouff entered the magistrate’s chambers, upset about some scheduling matters. When she instructed Malouff to speak with someone else, he stated, “Ask your husband a question for me when you get home tonight. Ask him what it’s like to have relations with someone who wears the robe. It has always been something I’ve wanted to do, but there have never been any women judges until now.”

During the investigation of these two incidents by the State Court Administrator’s Office, Malouff met with the office’s chief of staff and director of human resources, the court executive, and the chief judge. At the meeting, he was informed that his statements were unprofessional and violated the Colorado Judicial Department’s Anti-Harassment and Anti-Discrimination Policy. He then wrote a letter to the meeting participants expressing his remorse, and the matter was closed.

In July 2019, Malouff met with a clerk and a judicial assistant before a termination of parental rights hearing. Malouff asked the judicial assistant to check whether the mother in the case had an outstanding warrant, to which she replied, “Yes.” Malouff then stated, “Yes, she does have a warrant? Yes, I can check.”

The clerk responded, “She is good, but she needs time to check.” Malouff then replied, “Her husband told me that she is good.” Before that incident, the judicial assistant recalled speaking to Malouff on the phone where she set a case for a Friday at 8 a.m. Malouff asked her if he would get to spend the night with her since he had an early morning meeting at the courthouse. Malouff has since undergone online sensitivity training and engaged in counseling regarding appropriate boundaries. He remains in counseling.

Through this conduct, Malouff violated 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. 20PDJ053. People v. Mathews. 9/15/2020.

The Presiding Disciplinary Judge approved the parties’ conditional admission of misconduct and suspended Laura Ann Mathews (attorney registration number 33679) for three years. The suspension took effect September 15, 2020.

Mathews committed misconduct in three matters. In the first matter, Mathews was retained by a couple who wished to create a guardianship for their special needs son. The parties did not sign a written fee agreement at that time. Despite the couple’s wishes to obtain a guardianship, Mathews focused her efforts on other secondary objectives. Ten months after Mathews was retained, she finally prepared a petition to initiate the guardianship proceeding.

Mathews instructed her assistant to file the petition, but the petition was not filed. For the following two months, Mathews assured the couple that a response was forthcoming

from the court. The clients later discovered the petition had not been filed. Mathews managed to repair the relationship and promised to file the petition in a different county within five days. The filing was delayed, however.

Again, the couple sought to terminate, and again Mathews repaired the relationship. But despite her assurances, the petition was again delayed when Mathews failed to file necessary forms. The couple later discovered the failure, terminated the relationship, and completed the process themselves.

The second matter is premised on Mathews’s conviction by a jury of a class 5 felony for forgery under CRS § 18-5-102(1)(c), after she was found to have forged her clients’ signatures on a fee agreement to enforce payment of attorney fees that were likely to be disputed. In October 2019, Mathews was sentenced to 18 months of probation.

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In the third matter, Mathews pleaded guilty to one count of driving under the influence and, in a separate case, to one count of reckless driving, based on four hit-and-run events on November 10, 2019. Mathews was sentenced on the reckless driving charge to four months of supervised probation; she was sentenced on the DUI charge to 30 days of in-home detention and 12 months of supervised probation.

The parties agree that through this conduct Respondent violated Colo. RPC 1.2(a) (a lawyer must abide by the client’s decisions concerning the objectives of a case and consult with the client regarding the means to achieve the objectives); 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 1.4(a)(4) (a lawyer shall promptly comply with reasonable requests for information); Colo.

RPC 1.5(b) (a lawyer shall inform a client in writing about the lawyer’s fees and expenses within a reasonable time after being retained, if the lawyer has not regularly represented the client); Colo. RPC 1.16(a)(3) (a lawyer shall withdraw if the lawyer is discharged); Colo.

RPC 8.4(b) (it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects); and Colo. RPC 8.4(c) (it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation). The case file is public per CRCP 251.31.

No. 20PDJ033. People v. Romo-Vejar. 8/4/2020.

The Presiding Disciplinary Judge granted a motion for judgment on the pleadings in this reciprocal discipline matter and publicly censured Jesus Roberto Romo-Vejar (attorney registration number 17350), effective September 9, 2020.

On December 4, 2019, an “Agreement for Discipline by Consent in In re: Jesus Roberto Romo-Vejar,” case number 011307, was filed with the Presiding Disciplinary Judge of the State Bar of Arizona. In that agreement, Romo-Vejar conditionally admitted that he violated Arizona Rule of Professional Conduct 1.7(a), and the parties requested the imposition of reprimand.

Arizona’s Presiding Disciplinary Judge accepted the agreement on December 18, 2019 and imposed the discipline of reprimand.

Through this conduct, Romo-Vejar engaged in conduct constituting grounds for reciprocal discipline under CRCP 251.21. The case file is public per CRCP 251.31.

No. 19PDJ068. People v. Ziankovich. 8/3/2020.

The Presiding Disciplinary Judge suspended Youras Ziankovich (New York attorney registration number 5196324) from the practice of law in Colorado for 30 months, effective September 9, 2020.

Ziankovich transgressed many Rules of Professional Conduct while representing a husband and wife in immigration proceedings before the federal court in Colorado. He failed to notify his clients of his previous suspension from the practice of law, which took effect during the representation. He rescheduled a second interview with USCIS multiple times, and on

at least one occasion without the consent or knowledge of his clients. He also failed to timely renew his client’s work authorization permit, letting it expire. Finally, Ziankovich failed to return unearned funds upon termination, and he charged unreasonable and nonrefundable fees.

Through this conduct, Ziankovich violated Colo. RPC 1.3 (a lawyer shall act with reasonable diligence and promptness when representing a client); Colo. RPC 1.4(a)(5) (a lawyer shall consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the rules); Colo. RPC 1.4(b) (a lawyer shall explain a matter so as to permit the client to make informed decisions regarding the representation); Colo. RPC 1.5(a) (a lawyer shall not charge an unreasonable fee or an unreasonable amount for expenses); Colo. RPC 1.5(g) (a lawyer shall not charge nonrefundable fees or retainers); and Colo. RPC 3.4(c) (a lawyer shall not knowingly disobey an obligation under the rules of a tribunal).

The case file is public per CRCP 251.31.

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

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Summaries of Selected Opinions No. 18-1445. McDaniel v. Navient Solutions, LLC. 8/31/2020. Bankr.D.Colo. Judge Holmes.

Chapter 13 Bankruptcy—Res Judicata—Exceptions to Discharge of Debts—Student Loans.

Plaintiffs filed a Chapter 13 bankruptcy petition and the court confirmed their amended plan in 2010. In 2015 plaintiffs certified that they had met the plan’s payments and obligations, and the court granted them a discharge of debts under 11 USC § 1328(a). The order did not specifically identify the debts that were discharged and stated that debts for most student loans were not discharged. Plaintiffs continued to make payments toward their student loans.

In 2017, plaintiffs moved the court to reopen their case. Plaintiffs then filed a complaint against Navient Solutions, LLC (Navient), the creditor for the student loans, seeking a declaratory judgment that their student loans were discharged in bankruptcy and damages based on collection activities in violation of 11 USC § 524(a). Navient moved to dismiss the complaint, and the court denied the motion.

On interlocutory review, Navient contended that plaintiffs’ confirmed Chapter 13 plan makes it res judicata that its student loans were excepted from discharge. While a confirmed plan is res judicata, plaintiffs’ confirmed Chapter 13 plan did not decide whether their student loans were excepted from discharge, so the issue is not res judicata under that plan. Therefore, plaintiffs may still litigate their claim that the loans were discharged in bankruptcy.

Navient also argued that the bankruptcy court erred in ruling that 11 USC § 523(a)(8)(A) (ii) does not except student loans from discharge and, consequently, the exception does not cover plaintiffs’ student loans. Navient contended that the student loans are nondischargeable because

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an educational loan constitutes “an obligation to repay funds received as an educational benefit, scholarship, or stipend” within the meaning of § 523(a)(8)(A)(ii). Section 523(a)(8)(A)(ii) excepts from discharge “an obligation to repay funds received as an educational benefit,” unless doing so imposes undue hardship on the debtors and their dependents. The Tenth Circuit construed the statute and concluded that an obligation to repay funds received as an educational benefit is akin to a stipend or scholarship, as opposed to a loan of funds for education.

Thus, the statutory terms “obligation to repay funds received as an educational benefit” and “educational loan” mean separate things, and plaintiffs’ student loans are not covered by the discharge exception set forth in § 523(a)(8)(A) (ii). Therefore, the bankruptcy court did not err.

The interlocutory order denying Navient’s motion to dismiss plaintiffs’ dischargeability claim was affirmed and the case was remanded for further proceedings.

No. 19-6008. McCraw v. City of Oklahoma City. 8/31/2020. W.D.Okla. Judge Lucero. First Amendment—Fourteenth Amendment Due Process—City Ordinance—Use of City Medians.

Plaintiffs are a group of Oklahoma City (City) residents, a political party, and a news organization. They use City medians to panhandle, engage in protests or other expressive activity, mount political campaigns, cover the news, or have personal conversations. Oklahoma City passed a revised ordinance (ordinance) prohibiting standing, sitting, or remaining for most purposes on medians on all streets with a speed limit of 40 mph or more. The ordinance essentially prohibited pedestrians on approximately 400 of the City’s 500 medians.

Plaintiffs sued the City, contending that the

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ordinance violated their First and Fourteenth Amendment rights to use the medians.

The district court dismissed one plaintiff’s First Amendment claim and granted summary judgment to the City on the Fourteenth Amendment due process and vagueness claims.

Following a bench trial, the court entered judgment against plaintiffs on all other claims.

Plaintiffs appealed the judgment. As to the First Amendment claims, to demonstrate a violation of First Amendment rights, a plaintiff must first establish that the activities in question are protected by the First Amendment. Next, the court must identify whether the challenged restrictions affect a public or nonpublic forum, which determination dictates the extent to which the government can restrict First Amendment activities. Lastly, the court must determine whether the proffered justifications for prohibiting speech satisfy the requisite standard of review. Here, the activities included panhandling, political speech, and engaging in communicative activities while jogging, which are protected speech. Second, the evidence overwhelmingly demonstrated that the City medians have traditionally been used for expressive activity, so they are a traditional public forum.

As to the standard of review, the ordinance failed intermediate scrutiny and thus also failed strict scrutiny. The Tenth Circuit therefore assumed that the ordinance is content-neutral.

For a content-neutral time, place, or manner regulation to be narrowly tailored, it must not burden substantially more speech than is necessary to further the government’s legitimate interests. Here, the City’s claims that it passed the ordinance to protect pedestrians and drivers were not supported by any empirical evidence, and the City failed to show that the ordinance would relieve those purported harms.

Therefore, the City did not meet its burden of demonstrating that its interest is based on a concrete, non-speculative harm. In contrast, the ordinance severely burdened plaintiffs’ speech, and the City failed to demonstrate that less burdensome alternatives would not achieve its interest in median safety. Further, the ordinance was not narrowly tailored to the problem it purported to address, and adequate alternative

channels of speech did not exist because the ordinance affected most of the City’s medians.

Accordingly, the City failed to demonstrate that the ordinance is a constitutionally permissible time, place, and manner restriction, and the ordinance violates the First Amendment.

Plaintiffs also argued that the district court erred by dismissing their Fourteenth Amendment claim that they have a fundamental due process right to intrastate travel and thus to remain on the City’s medians. However, under Tenth Circuit precedent, there is no recognized fundamental right to purely intrastate travel.

Therefore, the Tenth Circuit reviewed the due process claim under rational-basis review and determined that the ordinance passed this test because it is conceivably related to public safety.

Plaintiffs further contended that the ordinance is unconstitutionally vague, based on its definition of “emergency.” The term emergency is not unconstitutionally vague, and an ordinary person would know that plaintiffs’ actions on the medians do not require action that is sufficiently immediate and urgent to constitute an emergency, and therefore, an exception to the ordinance. Accordingly, the ordinance is not void for vagueness.

The dismissal of one plaintiff’s First Amendment claim and the entry of judgment for the City on all plaintiffs’ First Amendment claims were reversed and the case was remanded for

further proceedings. The grant of summary judgment to the City on the vagueness and freedom of movement claims was affirmed.

Nos. 19-2028 & 19-2029. United States v.

Channon. 9/1/2020. D.N.M. Judge Carson.

Forfeiture—Restitution—Mandate—Evidentiary Hearing—Plain Error.

Defendants, a married couple, opened numerous OfficeMax rewards accounts using fictitious names and addresses. They fraudulently obtained over $100,000 in store credit, redeemed those credits for merchandise and prepaid debit cards, and then sold that same merchandise on the internet. Defendants were convicted of wire fraud and conspiracy to commit wire fraud.

At sentencing, following an evidentiary hearing, the district court ordered defendants to pay $96,278 in restitution to OfficeMax and entered a separate forfeiture money judgment against defendants jointly and severally in the amount of $105,191. Defendants appealed in 2018, and the case was remanded for further proceedings. On remand, without holding a second evidentiary hearing, the district court amended its order, clarifying that if the government seeks forfeiture of substitute-property—that is, untainted property when the tainted property is unavailable—it must satisfy 18 USC § 853(p)’s requirements at that time.

On appeal, defendants argued that the mandate required a second evidentiary hearing on the proper forfeiture amount because the government failed to prove the amount of profit defendants realized as a result of their scheme. Here, nothing in the prior panel’s holding indicated that the district court erred in calculating the amount of the forfeiture money judgment. Thus, the mandate did not require the district court to hold an evidentiary hearing on the forfeiture amount. Accordingly, the district court retained the discretion to make its own determination on the hearing request.

Defendants further argued that the district court erred by declining to revisit the amount of the money judgment representing the proceeds of the scheme. Defendants specifically claimed that because the district court based both the restitution and forfeiture amounts on OfficeMax’s loss, the forfeiture judgment constitutes a double recovery. Forfeiture, which is punitive in nature, and restitution, which is remedial in nature, are separate remedies.

Therefore, requiring a defendant to pay the same amount in both restitution and forfeiture does not amount to a double recovery. Accordingly, the district court did not err.

Defendants also contended that the district court erred in holding them jointly and severally liable for the forfeiture judgment. Defendants did not raise this issue on remand, so the Tenth

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Circuit reviewed for plain error. Under plain error review, defendants had to show that the district court committed obvious error, which they were unable to do.

Defendants further contended that the district court erred in declining to hold an evidentiary hearing on remand to determine the need for substitution of untainted assets for tainted assets or to determine whether the value of the substituted assets is equal to or less than that of the unavailable tainted assets defendants obtained. The government is required to prove one of the elements of 18 USC § 853(p)(1), the substitute-asset provision, before the district court may order forfeiture of specific substitute property, but it is not required to do so at a sentencing. The government may satisfy § 853(p)’s substitute-asset requirements at the time it seeks forfeiture of substitute assets.

Accordingly, the district court did not err.

The order was affirmed.

No. 19-2022. United States v. Begay. 9/11/2020.

D.N.M. Judge Lucero. Federal and State Sentencing Disparities—Reasonableness of Sentences.

Defendant assaulted a man in the Navajo Nation and pleaded guilty in federal court to two counts of assault with a dangerous weapon and one count of assault resulting in serious bodily injury. The presentence report calculated a US Sentencing Guidelines’ imprisonment range of 46 to 57 months. Defendant requested that the court vary from this range, contending that significantly higher penalties are imposed on Native Americans convicted of assault in New Mexico federal court than in New Mexico state court. The sentencing court declined to consider defendant’s sentencing-disparity argument and sentenced him to 46 months’ imprisonment.

On appeal, defendant argued that his sentence was unreasonable because under 18 USC § 3553(a)(6), a sentencing court must consider the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct. He maintained that Native Americans receive harsher sentences for aggravated assault than other groups because Native Americans are disproportionately subject to federal criminal jurisdiction. The purpose of § 3553(a)(6) is not to prevent disparities between state and federal sentences, but rather to prevent disparities in sentences among federal defendants. Further, under relevant case law, a district court may not consider a federal/state sentencing disparity under § 3553(a)(6) because consideration of such a disparity would undermine the statute’s goal of achieving uniformity in sentences among similarly situated federal defendants.

Accordingly, the district court’s sentencing decision was reasonable.

The judgment was affirmed.

No. 19-3113. United States v. Delgado-Lopez.

9/14/2020. D.Kan. Judge Lucero. US Sentencing Guidelines—Minor-Role Reduction—Clear Error—Incorrect Legal Standard.

Defendant pleaded guilty to possession with intent to distribute methamphetamine or a mixture containing methamphetamine.

He objected to the presentence report, arguing that he was entitled to a two-level minor-role reduction under US Sentencing Guidelines § 3B1.2(b). In support, he asserted that his role in the criminal enterprise was limited to driving four shipments of drugs from Los Angeles to Kansas City. Defendant received $1,000 for each trip and was required to pay his own travel expenses. Surmising that defendant received a net profit of $270 for each trip, the district court questioned the financial wisdom of the scheme, found defendant’s testimony not credible, and denied his request for a minor-role reduction. The court found defendant’s Guidelines range to be 135 to 168 months’ imprisonment and varied downward, sentencing him to 120 months’ imprisonment, followed by three years of supervised release.

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On appeal, defendant argued that the district court erred in denying the minor-role reduction. Section 3B1.2(b) directs courts to decrease an offense level by 2 levels if the defendant was a minor participant in the criminal activity.

The provision applies to a defendant “who is less culpable than most other participants in the criminal activity, but whose role could not be described as minimal.” Here, defendant’s testimony about being only a courier was by itself insufficient to establish clear error. However, a finding in a sentencing case must be based on record evidence, but here the court’s finding was based on speculation and hypothesis about the economics of the drug trafficking scheme.

Further, the court (1) considered defendant’s lack of cooperation with the government, which was not relevant to whether he had a minor role; and (2) did not address defendant’s guilt relative to the other participants in the scheme, as it was required to do.

The sentence was vacated and the case was remanded for resentencing.

No. 19-1153. Aubrey v. Koppes. 9/18/2020.

D.Colo. Judge Ebel. Americans with Disabilities Act—Reasonable Accommodation—Discrimination—Retaliation.

Plaintiff was an employee with the Weld County Clerk and Recorder’s Office (County) from 2012 until 2015 and was promoted throughout her employment. In 2014, plaintiff became unable to work for a time due to posterior reversible encephalopathy syndrome (PRES).

Plaintiff was placed on leave, and while she was still recovering, the County issued a notice of pre-termination meeting. The notice required plaintiff to attend the meeting the following morning and stated that the County could not accommodate her restrictions from her medical problems. Plaintiff was not notified before the pre-termination meeting that she needed to bring a fitness-for-duty certification, nor was she given any time after the meeting to try to obtain that certification.

Plaintiff attended the meeting and informed the County that she was recovering faster than anticipated. She requested additional time to see her neurologist, for retraining, and/or for possible reassignment to another position.

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Several days later, the County terminated her employment. Shortly thereafter, plaintiff ’s physicians cleared her to return to work. Plaintiff obtained a right to sue letter and filed three claims under the Americans with Disabilities Act (ADA): (1) failure to accommodate disability, (2) discrimination due to disability, and (3) termination in retaliation for asking for an accommodation. The County moved for summary judgment, and the court granted its motion as to all claims.

Plaintiff argued on appeal that the County discriminated against her on the basis of disability by not making a reasonable accommodation for her known disability and, instead, terminating her. To establish a prima facie failure-to-accommodate claim, plaintiff had to show that (1) she was disabled, (2) she was otherwise qualified for the position, (3) she requested a plausibly reasonable accommodation, and (4) the County refused to accommodate her disability. It is undisputed that plaintiff was disabled for purposes of the ADA, was qualified for her position before she began suffering from PRES, and although aware of her need for an accommodation, the County did not provide any.

As to plaintiff’s accommodation request, when a disabled employee seeks an accommodation that will enable the employee to continue performing the essential job functions, the ADA contemplates a collaborative interactive process between the employee and employer, undertaken in good faith, with the goal of identifying the employee’s precise limitations and attempting to find a reasonable accommodation for those limitations. Here, plaintiff sufficiently established three plausibly reasonable accommodations that a jury could find would have permitted her to return to performing the essential functions of her job.

But from the transcript of the pre-termination hearing, a jury could find that County officials made no effort to explore whether it could make accommodations to allow plaintiff to return to work at that time. Considering this, a reasonable jury could further find that the County failed to meet its obligation of engaging with plaintiff in a good faith interactive process.

Accordingly, plaintiff established a prima facie failure-to-accommodate claim.

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Plaintiff also argued that the County discriminated against her on the basis of her disability when it terminated her employment. To recover on this claim, plaintiff had to show that the County’s justification for terminating her was a pretext for disability discrimination. Here, a jury could find that the reasons the County gave for terminating plaintiff in its termination letter and through County officials’ deposition testimony were unworthy of belief because they were inaccurate or false. A jury could further infer that the County acted with discriminatory animus based on how it conducted the pre-termination hearing. Plaintiff thus asserted sufficient evidence to create a triable question as to pretext.

Lastly, plaintiff argued that the County retaliated against her by firing her because she asked the County to accommodate her disability.

The County contended it terminated plaintiff for a legitimate, non-retaliatory reason—because she could not perform the essential functions of her position, and the County could no longer wait for her to recover. While there are reasons for disbelieving the County’s asserted termination reasons, there is no record evidence to support a jury finding that the real reason for the County’s termination was plaintiff’s accommodation request. Accordingly, the district court properly granted summary judgment to the County on the retaliation claim.

The summary judgment on the retaliation claim was affirmed. The summary judgments on the failure to accommodate and discrimination claims were reversed and the case was remanded for further proceedings.

These summaries of selected Tenth Circuit opinions are written by licensed attorney Robert Gunning (Boulder).

They are provided as a service by the CBA and are not the official language of the court. The CBA cannot guarantee the accuracy or completeness of the summaries. The full opinions are available on the CBA website and on the Tenth Circuit Court of Appeals website.

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Summaries of Published Opinions September 3, 2020

2020 COA 132. No. 18CA0224. People v.

Ehlebracht. Criminal Law—Sexually Violent Predator—Sex Offender Lifetime Supervision Act—Sentencing—Probation—Double Jeopardy.

Defendant, who was 29, met the 14-year-old victim on a social media application. He took her to his apartment, gave her alcohol, and

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sexually assaulted her. Defendant pleaded guilty to first degree assault and sexual assault on a child without the use of force. The plea agreement stipulated that defendant would receive a 20-year prison sentence, followed by five years of parole, for the assault conviction; and a 10-years-to-life probation sentence for the sexual assault on a child conviction, to be served consecutively to the prison sentence

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but concurrently with the parole component.

At the sentencing hearing, the court sentenced defendant in accordance with the plea agreement and designated him a sexually violent predator (SVP).

On appeal, defendant challenged his SVP designation. The Court of Appeals first addressed whether Allman v. People, 2019 CO 78, which held that a court may not sentence a defendant to both prison and probation in a multicount case under the general probation statutes, made defendant’s consecutive sentences to both prison and probation illegal.

Here, the district court sentenced defendant to probation pursuant to the Sex Offender Lifetime Supervision Act (SOLSA). The sentencing scheme applicable to sex offenders under SOLSA differs from the general probation statutes, so Allman’s reasoning for prohibiting both prison and probation sentences in a single case doesn’t apply to sentences imposed under SOLSA. Accordingly, defendant’s consecutive prison and probation sentences were authorized by statute and not illegal.

Defendant also contended that the district court failed to make specific factual findings to justify its conclusion that he established the relationship with the victim primarily for sexual victimization; instead, the court erroneously relied on defendant’s two prior convictions for sex offenses involving children. Here, the trial court relied on the results of the SVP Assessment Screening Instrument (SVPASI), in which the evaluator found that defendant established a relationship with the victim for the purpose of sexual victimization. Further, the court’s technically erroneous description of defendant’s prior convictions didn’t undermine its conclusion that he established the relationship with the victim primarily for sexual victimization. Thus, the trial court did not err.

Defendant further argued that his sentences violated his right to be free from double jeopardy by imposing the sex offender, crimes against a child, and special advocate surcharges after the sentencing hearing. Because defendant’s sentence at the hearing didn’t include these mandatory surcharges, it was illegal when first imposed and subject to correction at any time under Crim. P. 35(a). Therefore, the court’s

subsequent addition of these surcharges didn’t violate defendant’s double jeopardy rights.

However, the statutory provisions imposing these surcharges allows the court to waive them if it finds that the offender is indigent or financially unable to pay all or a part of the surcharge. Here, the district court imposed the surcharges without giving defendant an opportunity to prove that he falls within one or more of the exemptions.

The orders designating defendant an SVP and assessing the statutory surcharges were affirmed.

The case was remanded to afford defendant an opportunity to prove that he is entitled to a waiver of one or more of the surcharges.

2020 COA 133. No. 19CA1075. Bilderback v. McNabb. Sovereign Immunity— Colorado Governmental Immunity Act—Emergency Vehicle Exception—Trinity Hearing.

Officer McNabb was stopped at a red light at an intersection when he received an emergency call. As the officer drove through the red light and proceeded through the intersection, Bilderback’s motorcycle collided with the patrol car. Bilderback sued Officer McNabb and the City and County of Denver (collectively, defendants) for damages. Defendants moved to dismiss under CRCP 12(b)(1), arguing that Bilderback’s claims were barred by sovereign immunity under the Colorado Governmental Immunity Act (CGIA). The district court denied the motion without a hearing.

On appeal, defendants argued that the district court misconstrued CRS § 42-4-108(2) (b). They contended that the statute addresses the driver’s conduct before entering the intersection, and the court erred by reading into the statute a requirement that an officer drive slowly after entering an intersection and while passing through it after the officer already has the right-of-way. Under CGIA § 24-10-106(1) (a), a public entity’s immunity is waived in an action for injuries resulting from the operation of a motor vehicle owned or leased by the public entity, by a public employee while in the course of employment, except emergency vehicles operating under CRS § 42-4-108(2) and (3). Among other conditions, the CGIA’s emergency vehicle exception states that an

emergency vehicle driver may proceed past a stop signal, but only after slowing down as necessary for safe operation. This requires a court to determine whether, depending on the specific factual circumstances, the driver was proceeding safely after entering the intersection and while driving through it. Here, the district court properly construed the emergency vehicle exception.

Defendants contended, alternatively, that the district court erred in not holding an evidentiary hearing under Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo. 1993), to resolve the disputed fact of whether Officer McNabb’s view of Bilderback was obstructed by a truck. When there is no evidentiary dispute, the court may rule on a CRCP 12(b)(1) motion and decide the sovereign immunity question without a hearing, based on the pleadings alone. District courts must employ the Trinity procedures to determine facts necessary to resolve all disputed issues of immunity. These procedures include discovery, ruling without hearings, and giving parties the opportunity to request Trinity hearings. Here, the district court erred by not determining, through an evidentiary hearing or other necessary procedures, whether Officer McNabb’s view of the motorcycle was obstructed, which is a central factual issue.

The order was vacated and the case was remanded for further proceedings.

September 10, 2020

2020 COA 134. No. 19CA1360. Woo v. El Paso County Sheriff’s Office. Colorado Governmental Immunity Act—Replevin—Due Process.

Woo was convicted of first degree murder.

Thereafter, he filed this replevin action against the El Paso County Sheriff’s Office and the Fourth Judicial District Attorney’s Office (collectively, defendants) seeking return of personal items seized during and after his arrest. Defendants moved to dismiss for lack of subject matter jurisdiction under the Colorado Governmental Immunity Act (CGIA). The district court dismissed the complaint with prejudice.

On appeal, Woo challenged the dismissal.

The CGIA does not waive immunity for an action

in replevin to obtain possession of property validly seized pursuant to a public entity’s police power and to recover damages for its detention.

Here, Woo did not allege that the initial seizure of the property was wrongful but rather that defendants’ continued detention of it had become wrongful. He also sought monetary damages for the wrongful detention. Therefore, the CGIA bars the replevin action.

Woo also contended that barring his action violates his federal and state constitutional rights against deprivations of property without due process of law because replevin was the only remedy to recover the property. However, Woo had an adequate post-seizure remedy to seek return of the property in his criminal case by filing a verified motion for return of the property. Thus, he was adequately protected against any erroneous property deprivation.

Moreover, parties do not have a constitutionally protected property right to sue the government for damages for their alleged injuries.

Woo also argued that the dismissal “with prejudice” was error because it was based on the lack of subject matter jurisdiction and did not adjudicate the merits of his claim. Here, the district court lacks jurisdiction to hear the merits of Woo’s replevin action because the CGIA bars the claim. Accordingly, the dismissal with prejudice was appropriate.

The judgment was affirmed.

2020 COA 135. No. 19CA1903. Robledo v.

Executive Director of the Colorado Dep’t of Corrections. Inmate Lawsuits—Filing Fees—In Forma Pauperis—CRS § 13-17.5-103(2)(b).

Robledo is an inmate in the custody of the Colorado Department of Corrections (DOC).

He filed three actions challenging different prison disciplinary convictions he sustained. In one case the district court denied his in forma pauperis (IFP) motion and later dismissed the action after he failed to pay the required filing fee. In the other two cases the district court granted the IFP motions and, as required by CRS § 13-17.5-103(2)(b), ordered Robledo to make continuing monthly payments equaling 20% of the preceding month’s deposits to his inmate account until the filing fees were paid in full.

The court ultimately dismissed these two actions

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as moot. More than six years later, Robledo filed identical motions, each titled “Motion to Consolidate Restitution and Garnishment,” in the three cases. The district court denied the motions.

On appeal, Robledo argued that the district court erred in denying his motions, alleging the DOC continued to make “duplicitous extractions” from his account. Though Robledo cited no legal authority for his motions, the Court of Appeals reviewed them under CRCP 60(b)(4) and (5) for an abuse of discretion. The Court concluded that Robledo did not file the motions within a reasonable time, and even if they had been timely, they failed to set forth valid substantive grounds for relief.

The orders were affirmed.

September 17, 2020

2020 COA 136. No. 17CA0317. People v. Black.

Criminal Procedure—Jury Deliberations—Impasse—Jury Instructions.

While being be arrested for DUI, defendant resisted arrest and scratched a police officer’s forearm with her fingernails. Defendant was charged with second degree assault on a peace officer, DUI, and two counts of resisting arrest.

During deliberations, the jury submitted a question to the trial court suggesting that it might be at an impasse. Without further inquiry into whether the jury had reached an impasse and how intractable that impasse was, the trial court instructed the jury to continue deliberating. The jury found defendant guilty of DUI, third degree assault, and two counts of resisting arrest.

On appeal, defendant argued that the trial court erred by instructing the jury to continue deliberating without first determining whether it was deadlocked and, if so, how intractably. When faced with a jury question that indicates the possibility of an impasse, the trial court should determine whether further progress toward a unanimous verdict is likely. After making this threshold determination, the trial court should then decide whether and how to instruct the jury to continue deliberating. Here, the trial court failed to make the threshold inquiry, so it abused its discretion. This error was not harmless

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because the court then proceeded to tell the jury to continue deliberations, which risked coercing the jury to reach a compromise verdict.

Defendant also argued that the evidence was insufficient to support the third degree assault conviction. However, the officer’s testimony about defendant scratching his arm and photographs depicting faint marks of the scratches sufficiently established that defendant caused bodily injury.

The convictions were reversed and the case was remanded for retrial.

2020 COA 137. No. 18CA2050. People v.

Gilbert. Criminal Law—Mental Health Examination—Due Process—Right to Counsel of Choice—Disqualification of Judge.

A Best Buy employee found defendant sitting in a coworker’s vehicle in the store’s parking lot.

The employee confronted defendant, who then exited the car with a knife in hand and fled on foot. Defendant subsequently stole or attempted to steal three cars by threatening the occupants of those cars with the knife. While fleeing in one of the stolen cars, defendant caused a collision.

He left the scene of the accident, stole a truck, and drove away. Police found defendant and the stolen truck a week later.

Defendant was charged with several crimes related to the theft or attempted theft of the cars. He pleaded not guilty at his arraignment, and the court set dates for a motions hearing and trial. The day before the motions hearing, defendant’s counsel filed a notice asking the court to order a mental health examination and vacate the scheduled trial date to allow time for it. The court denied the request. A jury convicted defendant of aggravated robbery, attempted second degree assault, two counts of aggravated first degree motor vehicle theft, second degree criminal trespass, careless driving, and leaving the scene of an accident.

On appeal, defendant contended that his convictions should be reversed because the district court erred in denying his request to undergo a mental health examination and present evidence that he was suffering from one or more mental conditions at the time of the incidents. A defendant has a right to introduce relevant evidence regarding the lack of the

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necessary mens rea due to a mental condition, regardless of whether a crime requires general or specific intent. Therefore, defendant’s mental state was relevant. Additionally, though defendant was required to give notice of his intent to present evidence of his mental condition at the arraignment, defendant’s counsel showed good cause for the late notice. Therefore, the trial court erred, and this error denied defendant the opportunity to meet the burden of going forward with his affirmative defense.

Defendant also argued that the trial court denied his right to retain counsel of his choice.

The trial court must balance the defendant’s right to counsel of choice against the public’s interest in the efficiency and integrity of the justice system. Here, the court erred by failing to conduct this balancing test before denying defendant’s request for substitution of counsel and a continuation of the trial.

Defendant further argued that it was error to deny his motion to disqualify the trial judge.

Defendant’s motion alleged that the judge was biased, based on the judge’s criticism of defense counsel at the motions hearing. However, while the trial judge’s comments may have been rude, they were not so inappropriate to indicate that the judge lacked the impartiality required to preside over the case. In addition, the moving party’s motion to disqualify must be verified, timely, and supported by the affidavits of at least two credible persons unrelated to the defendant. Here, while the motion was verified, it was not supported by two affidavits. Therefore, the motion was properly denied.

The judgment was reversed and the case was remanded.

2020 COA 138. No. 19CA0266. Lodge Properties, Inc. v. Eagle County Board of Equalization.

Property Taxation—Intangible Asset—Condominium Net Income.

Lodge Properties, Inc. (Lodge) is a subsidiary of Vail Resorts, Inc. (Vail Resorts) and owns the Lodge at Vail Resort and Hotel (LAV). The LAV is located at the base of Vail’s ski area and has approximately 160 guest rooms, including 80 that are owned by Lodge and 74 that are privately owned residential condominium units.

The condo units are physically connected to

and integrated with the LAV property, so LAV regularly uses them as hotel rooms.

RockResorts International LLC (RockResorts) is another subsidiary of Vail Resorts and manages LAV’s hotel operations and homeowner’s association. RockResorts and another Vail Resorts subsidiary, Vail/Beaver Creek Resort Properties, Inc. (VBC), provide rental management services to more than two-thirds of LAV’s condo owners. VBC contracts with condo owners to rent their condos to transient guests, and RockResorts manages the LAV rental program under which condos are managed and operated as rental units within the hotel.

VBC retains 40% of gross rental proceeds from condos it manages. Neither RockResorts nor VBC maintains separate financial statements for the condo operations at LAV, and the revenues from Lodge, RockResorts, and VBC all flow into Vail Resorts’ net income.

For tax year 2017, Eagle County (County) assessed LAV’s taxable real property at $41,104,470. The County included VBC’s net operating income from the rental management services it provides to the LAV condos (condo net income). Lodge contested the assessment, and the Eagle County Board of Equalization (BOE) denied its petition. The Board of Assessment Appeals (BAA) then determined that condo net income should not be included for valuation purposes because it is an intangible asset that must be excluded from the calculation of LAV’s actual value.

The BAA ordered the BOE to reduce the 2017 actual value of LAV to $26,245,000.

On appeal, the BOE contended that the BAA erred in determining that a real property’s actual value is different from its market value for tax valuation purposes. Property valuations for tax assessment are based on the property’s

actual value, which is synonymous with market value. Here, condo net income provides an income stream to VBC, and ultimately to Vail Resorts, that can transfer with a sale of the LAV property. Thus, the market value necessarily includes the condo net income, which should be included in LAV’s actual/market value for property tax calculations. Accordingly, the BAA erred.

The BOE also contended that the BAA erred in classifying condo net income as an intangible asset. Condo net income is an identifiable, measurable, and continual source of revenue, so it is not an intangible asset and the BAA should not have excluded it from the actual value determination.

The BOE further argued that the BAA erred by excluding hotel resort fees from its valuation.

The evidence clearly showed that hotel resort fees are a revenue stream directly generated by

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LAV and should therefore be included under the income approach to LAV’s valuation. Therefore, the BAA erred.

The order was vacated and the case was remanded for further proceedings.

court did not err by dismissing the complaint.

The judgment was affirmed and the case was remanded to determine the amount of Hobart’s reasonable appellate attorney fees.

September 24, 2020

2020 COA 139. No. 19CA0661. Hess v. Hobart.

Real Property—Mineral Interests—Life Estate.

The Hesses purchased 160 acres of vacant land from Hobart by warranty deed (the deed).

The purchase contract provided that Hobart reserved a life estate in all mineral rights on the property, and the deed contained a reservation clause stating, “except grantor reserves a life estate in all mineral rights on the property including but not limited to all oil, gas, hydrocarbons and any other minerals.” Hobart then entered into numerous oil and gas leases on the property.

The Hesses later learned that they might possess rights to income and bonuses as remaindermen of Hobart’s life estate in the minerals, and they sued Hobart. Hobart moved to dismiss under CRCP 12(b)(5). The district court found that the deed unambiguously conveyed a life estate in the mineral interests to Hobart and granted the motion.

On appeal, the Hesses argued that the district court erred in dismissing their complaint because it ignored their rights under various principles of oil and gas law and the Uniform Principal and Income Act (UPIA). However, the phrase “a life estate in all mineral rights” unambiguously conveys a life estate in exactly that to Hobart.

This broad language does not contemplate any surrender of those rights to the Hesses or any sharing of income with them that Hobart receives from minerals during her life. Further, (1) the open mines doctrine applies only when a lease is created before the creation of the life estate, which did not occur here; (2) the UPIA only applies in the context of wills, trusts, and estates; (3) the general practice of dividing rights between a life tenant and a remainderman does not apply here because the parties did not agree to divide the mineral rights; and (4) the Hesses were not entitled to damages for waste because and the deed and contract unambiguously gave Hobart unfettered rights concerning the minerals during her life tenancy. As a matter of law, the Hesses made no plausible claims, and the district

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2020 COA 140. No. 16CA1941. People v. Manzanares Jr. Solicitation to Commit Retaliation— Solicitation to Commit Intimidation—Double Jeopardy—Evidence.

In a case not at issue here, defendant was charged with burglary, two counts of second degree assault, and two counts of felony menacing for incidents involving his girlfriend S.M. While awaiting trial in jail, defendant solicited inmates Martinez and Avitia to retaliate against S.M. for reporting him to police and to intimidate her to prevent her from testifying. Defendant was convicted of two charges of solicitation of retaliation against a witness and two charges of solicitation of intimidation of a witness.

On appeal, defendant argued that he was deprived of his right to counsel and to be present at a critical stage of the proceeding when the prosecution conducted an ex parte hearing.

However, defendant waived this argument because defense counsel agreed to the trial court’s curative procedure and requested nothing further.

Defendant also contended that the trial court reversibly erred by admitting several pages of Avitia’s handwritten notes regarding his conversations with defendant. Here, defense counsel’s cross-examination was a general and sustained attack on Avitia’s credibility that was not limited to specific facts. Under these circumstances, the notes qualified for admission as prior consistent statements. Therefore, the trial court did not err.

Defendant also argued that the trial court reversibly erred by refusing to strike Avitia’s opinion that defendant was a “piece of shit.”

While it would have been better for the trial court to strike this comment, it was passing and gratuitous and did not substantially influence the verdict or affect the fairness of the trial proceedings. Therefore, the court did not err.

Defendant further contended that one count of solicitation to commit retaliation and one

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count of solicitation to commit intimidation must be vacated because they are multiplicitous and violate double jeopardy. However, the unit of prosecution under the solicitation statute authorizes prosecution of separate counts for each separate person solicited. Here, the facts established that defendant separately solicited Martinez and Avitia to retaliate against and intimidate S.M. Accordingly, the evidence supports separate and distinct sets of crimes, so the charges were not multiplicitous and there was no double jeopardy violation.

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.

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Summaries of Published Opinions September 14, 2020

2020 CO 70. No. 19SC98. Fisher v. People.

Criminal Procedure—Charging Instruments— Amendments to the Information.

In this case, the Supreme Court considered whether an amendment to the information was permissible under Crim. P. 7(e). The amendment expanded the date range of the charged offenses and was made after trial had begun. The Court held that, while expanding the date range does not automatically prejudice a defendant’s substantial rights, under the totality of the circumstances here, the mid-trial amendment prejudiced Fisher’s substantial right to fully prepare and present his alibi defense. Accordingly, the Court reversed the Court of Appeals’ judgment, vacated Fisher’s convictions, and remanded for a new trial.

2020 CO 71. No. 19SC292. Gonzales v. People.

Authentication—Audio Recordings— Evidence.

In this case, the Supreme Court considered the appropriate standard for authenticating voice recordings for admission into evidence.

The Court held that, in the absence of evidence suggesting that a proffered voice recording has been altered or fabricated, a proponent may authenticate a recording by presenting evidence sufficient to support a finding that it is what the proponent claims. Once this prima facie burden is met, authenticity becomes a question for the factfinder. Accordingly, the Court affirmed the Court of Appeals’ judgment.

from Reves v. Ernst & Young, 494 U.S. 56, 64–67 (1990), as the test for determining whether a note is a security for purposes of the Colorado Securities Act, CRS §§ 11-51-101 to -1008 (CSA).

Answering this question in the affirmative, the Court applied the test to the facts before it and concluded that (1) the promissory note at issue was a security for purposes of the CSA; (2) any instructional error regarding the element of a security was not plain because any error was

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2020 CO 73. No. 18SC760. Barrett Corp. v.

Lembke. Statutory Interpretation—Special Districts—Land Use.

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2020 CO 72. No. 18SC543. Thompson v. People. Colorado Securities Act—Security— Plain Error—Consecutive Sentencing.

In this case, the Supreme Court first decided whether to adopt the family resemblance test

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not substantial; and (3) the convictions for securities fraud and theft at issue were not based on identical evidence, and therefore consecutive sentences were permissible. Accordingly, the Court affirmed the judgment of the division below.

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In this case, the Supreme Court determined the proper interpretation of CRS § 32-1-401(1) (a) of the Special District Act. The Court held that to include new territory in a special district through the procedure set out in the statute, all owners of the surface property to be included must assent, and inclusion is only appropriate if that surface property can be served by the district. The assent of the owners or lessees of subsurface mineral rights is not required.

Accordingly, the Court affirmed the decision of the division below and remanded the case for consideration of any outstanding questions.

2020 CO 74. No. 18SC923. People v. Rigsby.

Mutually Exclusive Verdicts—Legally Consistent Verdicts—CRS § 18-1-503(3)—Double Jeopardy—Multiplicity and Merger.

A jury found defendant guilty of two counts of second degree assault and one count of third degree assault based on the same criminal conduct. On appeal, a Court of Appeals’ division concluded that the guilty verdicts for second degree assault, on the one hand, and the guilty verdict for third degree assault, on the other, were mutually exclusive. The division reasoned that the guilty verdicts could not be reconciled because the second degree assault convictions required the jury to find that defendant acted intentionally and recklessly and was thus aware of the risk of bodily injury, while the third degree assault conviction required the jury to find that defendant acted with criminal negligence and was thus unaware of the risk of bodily injury.

Therefore, the division vacated the judgment of conviction and remanded the case for a new trial.

The Supreme Court reversed the division’s judgment. CRS § 18-1-503(3) sets up a hierarchical system of culpable mental states in which: (1) “intentionally” or “with intent” is the most culpable, “knowingly” is the next most culpable, “recklessly” is the next most culpable, and “criminal negligence” is the least culpable; and (2) proving a culpable mental state necessarily establishes any lesser culpable mental state(s).

Therefore, by returning a guilty verdict on count 1 and finding that defendant acted with intent, the jury, as a matter of law, necessarily found that he acted with criminal negligence.

And by returning a guilty verdict on count 2

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and finding that defendant acted recklessly, the jury, as a matter of law, necessarily found that he acted with criminal negligence. Hence, even if each of the guilty verdicts for second degree assault is logically inconsistent with the guilty verdict for third degree assault, no legal inconsistency exists. And guilty verdicts that are legally consistent are not mutually exclusive.

Despite finding that the guilty verdicts are not mutually exclusive, the Court held that the trial court entered multiplicitous convictions, thereby violating defendant’s right to be free from double jeopardy. Accordingly, the Court remanded the case to the Court of Appeals with instructions to return the case to the trial court to merge the convictions into a single second degree assault conviction and to leave in place only one sentence (one of the two concurrent five-year prison sentences imposed).

September 21, 2020

2020 CO 75. No. 18SC607. People v. Jackson.

Transferred Intent—Bad-Aim Cases—Mistaken-Identity Cases—Double Jeopardy.

Defendant was convicted, as a complicitor, of both first degree murder and attempted first degree murder after his codefendant aimed at, shot, and killed Y.M. under the mistaken belief that Y.M. was E.O. A Court of Appeals division ruled that the Double Jeopardy Clauses of the federal and state constitutions dictate that Jackson cannot stand convicted of both offenses because the latter is a lesser included offense of the former. But in doing so, the division relied on the doctrine of transferred intent, a legal fiction that some courts use largely to ensure that a defendant doesn’t escape liability in what is widely known as a bad-aim situation (i.e., A aims at and shoots toward B, but misses due to his bad aim and accidentally hits and kills C, an innocent bystander).

Because Colorado’s broad statutory definition of first degree murder encompasses unintended victims and renders the transferred intent doctrine unnecessary, the Supreme Court disapproved of the doctrine in first degree murder cases. Further, the Court held that, even if the first degree murder statute didn’t make the transferred intent doctrine unnecessary,

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the doctrine would still be irrelevant here because this is a mistaken-identity case, not a bad-aim case. Unlike a bad-aim case, where A aims at and shoots toward B but misses and accidentally kills C (an innocent bystander), in a mistaken-identity case, A aims at, shoots, and kills C by mistake (A hits his target, mistakenly believing that C is B). Hence, while a bad-aim case involves two victims (the person the perpetrator aimed at and shot toward and the unintended victim harmed by the bullet), a mistaken identity case involves only one victim (the person the perpetrator aimed at and shot with the intent to kill, albeit by mistake). It follows that in a mistaken-identity case, there is no need to transfer the perpetrator’s intent from one victim to another; the concept of transferred intent is immaterial.

The Court determined that the shooter here did not attempt to kill E.O. when he aimed at and shot Y.M. Rather, in aiming at and shooting Y.M., the shooter intended and attempted to kill Y.M., the same person he actually killed. That the shooter wanted to kill E.O. and mistakenly believed Y.M. was E.O. is of no moment. Therefore, defendant’s convictions for first degree murder and attempted first degree murder are based on the same criminal conduct and relate to the same victim.

Accordingly, although the Court agreed that the trial court plainly erred in entering convictions and imposing sentences for both offenses in question, its rationale differs from the division’s. The division’s judgment was thus affirmed on other grounds. The matter was remanded with instructions to return the case to the trial court to vacate the conviction and sentence for the lesser included offense of attempted first degree murder.

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

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Indexed I/O ■ A premium eDiscovery solution, without the expensive price tag. Indexed I/O provides a scalable, cloud-based solution.

CBA members receive a discount. Visit www.indexed.io/cobar.

Konica Minolta ■ Law firms’ technology demands are critical. CBA members receive a rebate on hardware purchases. Contact Alyse Kochenberger at akochenberger@kmbs. konicaminolta.us.

Lenovo ■ Lenovo designs technology with smart, intuitive features to transform the user experience. CBA members save up to 30% off the public web price with access to flash sales. Visit http://1800members. com/cobar.

MGMT HQ ■ MGMT HQ offers access to monthly webinars, white papers, Affinity University, and more. Give your team the kind of practical, real-world training it needs to grow and thrive. Use code COBARMEMBER for a 100% discount.

Visit www.cobar.org/lpm.

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MyCase ■ MyCase is a complete and powerful legal practice management solution designed to help law firms get organized, increase efficiency, and deliver an exceptional client experience. CBA members get a 10% lifetime discount. Visit https://www. mycase.com/coloradobar.

Office Depot ■ Save up to 80% on office supplies. Visit http://1800members.com/cobar.

Page Vault ■ On demand web content collections.

Accurate and defensible. CBA members receive a discount. Visit page-vault.com/ partners/Colorado-bar-association.

Practice Panther ■ The leading and most user-friendly provider of cloud-based practice management and billing software for law firms. Receive 15% off your first year. Visit www.cobar.org/perks#34081-businessservices.

Ruby Receptionists ■ Save 6% on this virtual receptionist service. Call (866) 611-7829 or visit www. callruby.com.

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

PERSONAL SERVICES

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

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

UPS ■ Save up to 25% on online print services.

Visit http://1800members.com/cobar.

The UPS Store ■ Save up to 25% on online print services.

Visit http://1800members.com/cobar.

WordRake ■ WordRake software instantly edits briefs, letters, and other documents for clearer, more concise writing. Save 10% with code COBAR. Visit www.wordrake.com.

FINANCIAL SERVICES ABA Retirement Funds ■ Providing affordable 401(k) plans exclusively to the legal community for 50 years. Call (866) 812-3580 for a free consultation or visit www.abaretirement. com.

LawPay ■ Credit card processing for attorneys. CBA members receive three months of no program fee with subscription. Call (866) 376-0950 or visit www.lawpay.com/cobar.

Options Credit Union ■ Options Credit Union was founded in 1979 by the Denver Bar Association. Visit www. optionscreditunion.com.

discount tickets for Disney World, Universal Studios Orlando, Sea World, and all Orlando-area theme parks and attractions.

Visit www.orlandoemployeediscounts.com/ index-new.

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

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.

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WRITING FOR

ENVIRONMENTAL LAW

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

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

Articles submitted for publication in Colorado Lawyer are reviewed and approved by coordinating editors before being scheduled for publication. Coordinating editors are attorneys and legal professionals who volunteer their time and expertise to solicit, review, and schedule articles for publication.

If you are interested in writing an article for Colorado Lawyer or would like to submit a manuscript, please contact the appropriate coordinating editor to discuss your topic. Writing guidelines are available at cobar.org/tcl.

COORDINATING EDITORS FOR SUBSTANTIVE LAW ARTICLES

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

ALTERNATIVE DISPUTE RESOLUTION

Marshall A. Snider msniderarb@comcast.net

CANNABIS LAW

ANIMAL LAW

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

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

ANTITRUST AND CONSUMER PROTECTION LAW

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

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

APPELLATE LAW

Marcy G. Glenn (303) 295-8320, mglenn@hollandhart.com Judge Christina Finzel Gomez (720) 625-5200, christina.gomez@judicial.state.co.us Stephen G. Masciocchi (303) 295-8000, smasciocchi@hollandhart.com

Leslie A. Tuft ltuft@burgsimpson.com

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

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

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

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

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GOVERNMENT COUNSEL

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

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

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

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

CONTRACT LAW

BUSINESS LAW

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

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JUVENILE LAW

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

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

NATURAL RESOURCES AND ENERGY LAW

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

COORDINATING EDITORS FOR DEPARTMENT ARTICLES

MORE WAYS TO CONTRIBUTE

ACCESS TO JUSTICE

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

“As I See It” Opinion Articles

PROFESSIONAL CONDUCT AND LEGAL ETHICS

Stephen G. Masciocchi (303) 295-8000, smasciocchi@hollandhart.com Joseph G. Michaels (720) 508-6460, joseph.michaels@coag.gov

AS I SEE IT

John Hiski Ridge (206) 919-6708, john.ridge@outlook.com JUDGES’ CORNER

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

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

TAX LAW

LAW PRACTICE MANAGEMENT

Steven Weiser (303) 333-9810, sweiser@fostergraham.com

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

REAL ESTATE LAW

TORT AND INSURANCE LAW

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

LEGAL RESEARCH CORNER

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

available at www.cobar.org/tcl.

General Interest Articles

TRUST AND ESTATE LAW

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

Colorado Lawyer is 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

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).

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.

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UNDER OATH | MEMBER SPOTLIGHT

Judge Juan G. Villaseñor Juan G. Villaseñor is a district judge in the Eighth Judicial District, which serves Larimer and Jackson counties. He sits on the Colorado Lawyer advisory board.

PROFILE

What inspired your enthusiasm for the Colorado Lawyer?

It’s a great publication that I’ve been reading for several years. Many times, its articles have been extremely helpful to my practice and, now, to my judicial duties. When board positions were announced, it was a no-brainer to join the Colorado Lawyer’s board to help shape its future and make the publication even better.

Hometown: Guadalajara, Mexico Law School: Vanderbilt University Lives in: Fort Collins Works at: Eighth Judicial District

What is one of the most positive experiences you’ve had as a lawyer?

Serving as a federal-elections monitor for the US Department of Justice during the 2012 and 2016 presidential elections. It was a fantastic experience visiting voting precincts in Denver and Lehigh County, Pennsylvania, talking to voters about their experience, and seeing their commitment and dedication to maintain a robust representative democracy.

Practice Areas: Civil, Criminal, Domestic Relations, and Juvenile CBA Member Since: 2018

What do you wish you had learned in law school?

Accounting, business valuation methods, and how to read profit-and-loss statements and balance sheets!

What are you passionate about?

Access to justice, procedural fairness, and equality.

Would you like to be featured in Under Oath?

Email Jessica Espinoza-Murillo at jespinoza@cobar.org for a questionnaire.

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Favorite spot in Colorado: Anywhere in the Roosevelt National Forest, west of Fort Collins.

On your desk right now: The Color of Law: A Forgotten History of How Our Government Segregated America, by Richard Rothstein.

What do you consider your greatest achievement?

Becoming the first Latino district judge in Larimer County.

What is an unconventional lesson you’ve learned about the practice of law?

Never say that you won’t have to deal with [fill in the blank] type of law or practice. I’ve been surprised how often I’ve had to deal with areas of the law that I never expected to.

What is the most rewarding moment of your practice?

As a naturalized US citizen, my most rewarding time as a lawyer was representing the United States of America in court.

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.

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