Colorado Lawyer: June 2020 by Colorado Lawyer

JUNE 2020

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

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TABLE OF CONTENTS June | Vol. 49, No. 6 | 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

Navigating Commercial Leases and Real Estate Loans during COVID-19

ADVERTISING

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

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

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

PAGE

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

FEATURES CRIMINAL LAW

Horizontal Gaze Nystagmus Test Evidence in Colorado

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

REAL ESTATE LAW

The Framework under Campbell v. People

Navigating Commercial Leases and Real Estate Loans during COVID-19

by Mary A. Celeste and Julie J. Van Dyne

by Robin L. Nolan and Adam F. Aldrich

PAGE 22

PAGE 36

PROFESSIONAL CONDUCT AND LEGAL ETHICS

TRUST AND ESTATE LAW

In-House Counsel, Whistleblowing, and Ethics

Amy C. DeVan Denver—(720) 625-5697 devanamy@gmail.com Adam Espinosa Denver—(720) 337-0831 adam.espinosa@denvercountycourt.org David W. Kirch Aurora—(303) 671-7726 dkirch@dwkpc.net Lindsay J. Miller Castle Rock—(303) 688-3045 miller@ffcolorado.com

History of the Orange Book Forms

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

An Enduring Product of Its Times

by Jack Tanner

by Frank T. Hill

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Patrick R. Thiessen Arvada—(303) 420-1234 prthiessen@friearndt.com Jami Vigil Colorado Springs—(719) 452-5401 jami.vigil@judicial.state.co.us Amy Larson CBA Executive Director and CEO

ON THE COVER: A lone wild sunflower plant survives the elements at the Great Sand Dunes National Park

and Preserve in San Luis Valley. Photographer N. Reid Neureiter has served as a magistrate judge for the US District Court for the District of Colorado since August 2018.

JUNE 2020

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WELCOME 4

President’s Message

by Kathleen Hearn Croshal

Rockin’ and Rollin’

DEPARTMENTS 8

Best Practices for Law Firms During a Pandemic

by Sean Ginty and Tracy L. Kepler

Technology in the Law Practice Zoom Training for Lawyers— and Using It Securely

by Sharon D. Nelson and John W. Simek

Wellness

The Link between Well-Being and Inclusion by Patty Powell

AROUND THE BAR 50 Bar

News

Court Business

Colorado Supreme Court Rules Committees

78 Office

of the Presiding Disciplinary Judge

Law Practice Management

FROM THE COURTS

Disciplinary Case Summaries 83

OFFICERS

Court of Appeals for the Tenth Circuit

Kathleen Hearn Croshal President Jessica Brown President-Elect

Summaries of Selected Opinions 89 Colorado

Court of Appeals

103 Colorado

Supreme Court

John Vaught Immediate Past President

Summaries of Published Opinions

Ryann Peyton Vice President First Region

Summaries of Published Opinions

Alexis King Senior Vice President Second Region

ALSO IN THIS ISSUE 106 Attention

Photographers

108 Membership 110

Judson Hite Vice President Third Region

Perks

Writing for Colorado Lawyer

News From the CBA, Local Bars, and More

UNDER OATH

by Jessica Espinoza-Murillo

112

54 Bar

Executive Council

Cobea Becker Vice President Fourth Region Keith Vance Vice President Fifth Region

Member Spotlight

News Highlight

A Triumph for Justice: Burg Simpson’s Win in the Body Parts Case

Lawyers’ Announcements

Leslie German Vice President Sixth Region Leslee Balten Vice President Seventh Region

60 In Memoriam

COUNCIL MEMBERS

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

Danaé Woody CBA YLD Chair

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

JUNE 2020

Mary Jo Gross Treasurer Amy Larson CBA Executive Director and CEO Dan Sweetser Deputy Executive Director and COO

C OL OR A D O L AW Y E R

WELCOME | CBA PRESIDENT’S MESSAGE

Rockin’ and Rollin’ BY K AT H L E E N H E A R N C RO SH A L

f you’ve heard me introduce myself, you’ve heard my signature introduction: “I was born in Sandusky, Ohio—the roller coaster capital—and was raised in the suburbs of Cleveland—the home of rock and roll. And my life has been going up and down and round and round and rock ’n’ and rolling ever since.” This year as CBA president has been no exception. Oh, what a year it has been! Pandemic I am writing this message from my home with a stay-at-home order in effect due to COVID-19. By the time this issue reaches you, who knows where this pandemic will have taken us. Hopefully, we will be on the other side of its grip and will be starting to see the silver linings we have found as a result of it. Because this pandemic is such a unique experience for all of us, I want to say a bit about it. My last official act on the road for the CBA was a presidential visit to the Heart of the Rockies Bar Association in Salida on March 11. By March 16, the CBA office was closed and staff had

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transitioned to remotely working from home. The staff did an amazing job of transitioning and then adding to their regular workloads to help members adapt to the changes in our lives and law practices due to COVID-19. Helpful information continues to be accessible on cobar.org via a not-to-be-missed red link to the information. Even though I was now working from home, the number of meetings and phone calls actually increased. Of course, the meetings were being done virtually. I wasn’t spending four to six hours driving from Pueblo to Denver and back for meetings several days most weeks, but the extra needs as a result of the pandemic took a lot of time and effort. I didn’t have as much quiet time at home as you might think. This was probably a blessing, as I also haven’t been feeling too confined or going too stir crazy. The CBA has been very involved and working behind the scenes with the courts, the legislature, and the governor’s office on various legal and law practice issues caused by the pandemic and resulting stay-at-home order. Of course, access to justice is a major focus of the CBA’s

work. During this pandemic, it has taken on a new urgency with the additional legal needs of so many in our state. Fortunately, the CBA and DBA already have programs in place to provide access to justice and pro bono legal services, such as the Federal Pro Se Clinic and Metro Volunteer Lawyers. The CBA has also developed a strong working relationship with the Legal Aid Foundation and Colorado Legal Services, and it continues to play a role in ensuring that legal services needed during the pandemic are available, including by assisting solo and small firms by providing information on monies that may be available to them through the Payroll Protection Program. The CBA also dusted off our Disaster Legal Services Plan, which was developed by the CBA and ABA Young Lawyers Divisions in 2012 in response to Colorado’s fires and flood. This plan generated additional work regarding the unique need for various legal services due to a pandemic. The Disaster Response Team immediately began exploring the types of legal services that would be needed and how to provide them. The CBA YLD and the Disaster Response Team have been relentlessly working to identify needs and to find ways to respond to those needs. Another important COVID-19 lesson learned: Technology works well, but the need for strong broadband access is critical. My virtual experience over these last weeks gives me hope that those around the state who would like to serve in leadership positions will be more easily able to do so. Interestingly, virtual meetings have resulted in all-time highs in meeting attendance. My Focuses for the Year I had declared early on during my president-elect year that I would be working on two elements of the REFOCUS 2020 Strategic Plan: the “E” goal (engage diverse and statewide populations) and the “U” goal (utilize new and young attorneys). I also added a friendly amendment to these goals by adding the phrase “serving our members.” To work toward these goals, we established a YLD Task Force and a Greater Colorado Task Force. The YLD Task Force was up and running before the start of my presidential year. This

dynamic group of young and new lawyers has already finished their assessment of what needs to be accomplished to invigorate and modernize the YLD. Their action plan was approved by the Executive Council, and the task force is now moving ahead with the plan. Details can be found in the November 2019 President’s Message. The Greater Colorado Task Force is also up and running. This task force had its first meeting in January and is still in the assessment phase of its work, but the commitment and hard work of this group is already quite apparent. More details about the Greater Colorado Task Force can be found in the May 2020 President’s Message. I also pledged to support the work of CBA past presidents who were tackling issues of diversity, equity, and inclusivity; access to justice; and broadband access. Their work has been ongoing this year. REFOCUS 2020 has now been reauthorized by the Executive Council as the CBA Strategic Plan for an additional three years, extending it to June 30, 2023. Although a lot of work has already been done under this strategic plan, it was felt that the plan is still appropriate and that work on it yet remains. Local Bar Visits It hasn’t all been hard work. One of the pleasures of the last year has been traveling the state to visit local bar associations. A dear friend of mine observed that this year has given a whole new meaning to the phrase “bar hopping.” Yes, some of those visits did occur in bars and some adjourned to bars. As of the writing of this message, I have visited 18 local bar associations and have six visits remaining. I never made it to Fort Collins for my scheduled visit in early March because of a jackknifed semi on I-25. Then along came COVID-19. The last few visits will likely be done in person in June or virtually with local bar leaders. The local bar visits are truly a highlight of the presidential year. It has been a time to meet bar members and to renew old acquaintances, lawyers who I have known over the years but hadn’t seen for a long time. It has been particularly fun to see lawyers who started their careers in Pueblo and who moved on with their careers in other locations.

Top: Reconnecting with high school classmate Bonnie Schriner. Bottom: Granddaughters Bella (left) and Makena.

Fringe Benefits There have been unexpected benefits to being the CBA president.

A High School Reunion When I started this most recent leadership journey as CBA president-elect, I quickly realized that a fellow Executive Council member, Bonnie Schriner, CBA volunteer extraordinaire, was actually a classmate of mine at Magnificat High School in Rocky River, Ohio. Bonnie and I didn’t really hang out in high school, but I knew of her and both of us were members of the class

of 1965 (I dropped out my senior year). What are the chances that two girls from the same high school in Northern Ohio would both end up lawyers in Colorado and many years later both be on the same leadership team at CBA? Getting to know Bonnie has been a wonderful presidential perk. Treasured Time with My Granddaughters Here is one of my favorite stories from the year: My youngest daughter, her husband, and my two youngest granddaughters live in Thornton. I have stayed with their family frequently during JUNE 2020

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WELCOME | CBA PRESIDENT’S MESSAGE

Presidential portraits.

my past two years in CBA leadership. One night, sitting around the dinner table at their house, my youngest granddaughter Makena, who is 6 years old, very excitedly said, “Grandma, I know two presidents!” We had been discussing the American Civil War. I asked Makena which two presidents, and she responded George Washington, and then she hesitated. I said, “Well, who is the second president?” I expected her to say Abraham Lincoln or Donald Trump. She very proudly said, “And you Grandma!” Ironically, days later in Salida while speaking at the Heart of the Rockies Bar Association, my husband took a picture of me speaking and behind me on the wall was a picture of George Washington. I now have a picture of Makena’s two presidents, George Washington and me. Frankly, I never dreamed my name would be used in the same sentence with George Washington! During this stay-at-home period, Makena has learned how to Google. She surprised her mother recently by showing her pictures of me that she had found on CBA sites, Facebook, and Instagram. Retrospection Writing this last President’s Message has given me an opportunity to think back on the year. It was a year of moments that inspired and educated, moments that made me grow as a person, moments of reflection and of making memories. I have so many great memories from this time—too many to set out here. So here are

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just a few: picnicking in a park in Montrose with lawyers and their families and friends; getting to know CLE presenters during the local bar visits; seeing old friends and making new ones; traveling the state and being reminded of its great beauty and amazing diversity; attending dinners and banquets to honor attorneys for the great work they do to make Colorado a better place to live and work; seeing attorneys who are now well into their careers who appeared in front of me when they were just starting out; and listening to touching introductions of me when I was speaking. But perhaps my favorite memory—Makena’s reaction to her grandmother being CBA president—reminds me that for me, the one thing that is even more important than the law is family. Roll the Credits Those of you who know me, or who read my President’s Profile last July, know that my undergrad degree is in communications and theatre and that I worked in theatre before going to law school. It seems to me that the movies get it right when they run credits at the end. Granted most of us don’t actually read them, but they still underscore the importance of the team that made the movie possible. The CBA cast and crew members for my presidential year number in the hundreds. I wish I could acknowledge each and every one of you by name, but please know that it was your work and the fact that we all worked as a team—or in theatre terms as a company or troupe—that made this an amazing year. So without further ado, here are the production credits for my CBA presidency.

First and Foremost My Husband My Family My Mentors CBA’s Volunteer Leaders Immediate Past President President-Elect Past Presidents Executive Council Board of Governors Joint Management Committee

Section and Committee Leaders CBA-CLE Board Budget Committee Joint Diversity, Equity, and Inclusivity Steering Committee and Working Groups Diversity on the Bench Coalition Legislative Policy Committee Nominating Committee Awards Committee Colorado Lawyer Advisory Board Disaster Response Team Greater Colorado Task Force YLD Task Force CBA YLD COBALT Class Our Courts Mock Trial Federal Pro Se Advisory Committee Colorado Bar Foundation Waterman Fund Legal Community Leaders The Courts Legal Aid Foundation Presidents’ Diversity Council and Diversity Bars Local Bar Leaders CLE Presenters for Local Bar Visits CBA Staff Executive Director Department Directors Governance Liaison and Executive Assistant Accounting Team CBA-CLE Team Communications and Membership Team Information Technology Team Access to Justice and Local Bar Relations Team Legislative Policy Team Reception Sections and Committees and Public Legal Education Team Colorado Lawyer Staff Our Members And last but not least, thank you to the entire CBA membership for letting me represent you in 2019–20. I am humbled and honored to have been your president.

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

Pro bono attorneys can make a difference.

denbar.org/mvl 303-830-8210 Volunteer today. JUNE 2020

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DEPARTMENT | LAW SUB TITLE PRACTICE MANAGEMENT

Best Practices for Law Firms During a Pandemic BY SE A N GI N T Y A N D T R AC Y L . K E PL E R

he COVID-19 pandemic continues to disrupt all aspects of everyday life. As the virus spreads throughout the United States and around the globe, the number of those infected will rise, as will the death rate. Governments have issued quarantines and shelter-in-place orders in an effort to combat the pandemic, and, as a result, several businesses, including law firms, have closed offices temporarily and instituted work from home measures for lawyers and support staff. In this challenging environment with circumstances changing on a continuous basis, law firms must remember the fiduciary duties owed to clients and their ethical duties as defined by rules of professional conduct in the relevant jurisdiction. Law firms may limit their exposure

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to professional liability and other claims by identifying and responding to key issues that may arise during this crisis. Client Communications During these stressful times, clients may require more reassurance from their lawyers than usual, which may lead to an increased need for communication between lawyers and clients. In addition to promptly complying with reasonable requests for information, lawyers also must keep clients reasonably informed about the status of their matters. If law firms have closed their physical law offices on a temporary basis, such information should be communicated to clients, including any updated contact information for the law firm. Law firms may be required to ensure that phone numbers and voicemail

messages are routed to the appropriate law firm personnel working remotely. The same concern applies to regular and certified mail as well as packages sent to the law firmâ&#x20AC;&#x2122;s office. Security in Remote Working Situations Attorneys must be vigilant in maintaining the security and confidentiality of data/client files while telecommuting. Working remotely presents certain cybersecurity risks such as accessing/sending information through unsecure Wi-Fi networks, use of unsecure personal devices, phishing attacks, and many others. Recent media reports indicate a surge in cybercrimes against law firms as criminals attempt to exploit any cybersecurity vulnerabilities with so many lawyers working remotely. It

is important to follow firm security guidelines and policies, and review data breach response plans to ensure that each practice setting is prepared and able to respond quickly to any incident.1 Moreover, law firms that lack cyber insurance should consider obtaining such coverage. Finally, while working remotely, a lawyer may be surrounded by family and friends who are in close proximity to the lawyer’s work computer and client files. Lawyers must establish and implement safeguards to protect any unauthorized or inadvertent disclosure of client information, whether in electronic or physical form. Keeping Abreast of Changing Rules, Regulations, and Laws COVID-19 has temporarily modified how we practice—from courthouse closures, to the extension of certain filing deadlines, and to changes in various regulations in certain practice areas. During this time, it is important to keep abreast of changes to local, state, federal, and international rules that may have an impact upon client matters and legal rights. Lawyers also should inform clients regarding changes to a law or a temporary court closure that may affect their case or matter and provide guidance on how the clients may best achieve their objectives in view of these changes.

Recent media reports indicate a surge in cybercrimes against law firms as criminals attempt to exploit any cybersecurity vulnerabilities with so many lawyers working remotely.

from their remote work locations. Subordinate lawyers and support staff members should test their computer systems to confirm their ability to e-file. Financial Concerns for Law Firms The pandemic’s disruption to the business community may potentially lead to reduced work and less revenue for many law firms. Some law firms may be tempted to sue clients for outstanding fees and legal expenses to increase their accounts receivable during these harsh economic times. Lawyers should weigh the financial benefits against the risks of any collection action resulting in a complaint of legal malpractice against the law firm.2 In some cases, law firms may be required to cease some or all operations for a protracted time period while responding to complications related to this pandemic. Such a scenario raises

Calendaring/Docketing/E-Filing Law firm leadership must ensure that the firm’s calendaring system is current and can be updated from remote work locations. Maintaining a back-up hard copy calendaring system is recommended. Leadership should assess all upcoming jurisdictional deadlines for the next 60 days and either make or confirm assignments in writing to comply with such deadlines. Many federal and state courts have closed temporarily, leading to confusion about filing deadlines, statutes of limitation and repose, service of process, and other issues. Lawyers should continuously check emails from and websites of relevant courts and bar associations for the most recent updates and instructions. Most courts have mandatory e-filing requirements. Law firm leadership must ensure that all relevant personnel have the ability to e-file JUNE 2020

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DEPARTMENT | LAW SUB TITLE PRACTICE MANAGEMENT

Lawyers should decline representations for matters in unfamiliar areas of practice unless they are committed to dedicating the time and resources necessary to develop the expertise required to provide competent representation. more issues than can be addressed in this article.3 Law firms that lack business interruption coverage also should consider obtaining such coverage. Finally, some lawyers may be tempted to dabble in practice areas in which they have no experience. A lawyer’s failure to know the law may lead to claims and disciplinary complaints. Lawyers should decline representations for matters in unfamiliar areas of practice unless they are committed to dedicating the time and resources necessary to develop the expertise required to provide competent representation. Attorney and Support Staff Well-Being The anxiety of a public health crisis, the isolation and lack of time boundaries that come with working remotely, and the juggling of increased family obligations only serves to heighten the already existing mental health and substance use problems facing the legal profession. There are many resources to help attorneys navigate through and cope with the stress and demands of

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this challenging time.4 If the law firm has an affiliation with an Employee Assistance Program, it should remind its lawyers and support staff of that resource. Law firm leadership should instruct all lawyers and employees to follow all Centers for Disease Control and Prevention guidelines with respect to the pandemic, and to seek medical attention when needed.

Conclusion The altered business environment caused by the COVID-19 pandemic presents new challenges for law firms. By adopting the guidance noted above, law firms may manage the professional liability risks and emerge in a better position to serve their clients and maintain their law practices.

Sean Ginty is the risk control director for CNA’s Lawyers Professional Liability Program. He collaborates with other CNA risk control lawyers on the design and content of lawyers’ professional liability risk control services, products, and publications. Ginty lectures frequently at CNA-sponsored events and at state and local bar associations and national seminars hosted by industry-leading organizations. Tracy L. Kepler is a risk control consulting director for CNA’s Lawyers’ Professional Liability Program. In this role, she designs and develops content and distribution of risk control initiatives relevant to the practice of law. Before joining CNA, Kepler served as the director of the ABA Center for Professional Responsibility.

NOTES

1. For more information on best practices and how to handle a cyber event, see CNA’s For Your Eyes Only: Securing Lawyer-Client Communications, and Safe and Secure: Cyber Security Practices for Law Firms, www.cna.com/lplriskcontrol. 2. See CNA’s Taking Stock of a Potential Fee Collection Suit, www.cna.com/lplriskcontrol. 3. For further information, see CNA’s The Big Picture: Enterprise Risk Management for Law Firms, www.cna.com/lplriskcontrol. 4. See CNA, Making Lawyer Well-Being a Priority in the Daily Practice of Law, www.cna.com/ lplriskcontrol; ABA, Mental Health Resources for the Legal Profession During COVID-19, www. americanbar.org/groups/lawyer_assistance/resources/covid-19--mental-health-resources.

The information, examples, and suggestions presented in this material have been developed from sources believed to be reliable, but they should not be construed as legal or other professional advice. CNA accepts no responsibility for the accuracy or completeness of this material and recommends the consultation with competent legal counsel and/or other professional advisors before applying this material in any particular factual situations. This material is for illustrative purposes and is not intended to constitute a contract. Please remember that only the relevant insurance policy can provide the actual terms, coverages, amounts, conditions, and exclusions for an insured. All products and services may not be available in all states and may be subject to change without notice. “CNA” is a registered trademark of CNA Financial Corporation. Certain CNA Financial Corporation subsidiaries use the “CNA” trademark in connection with insurance underwriting and claims activities. Copyright © 2020 CNA. All rights reserved.

LEGAL AID IS A LIFELINE— NOW MORE THAN EVER. Civil legal problems are on the rise as a result of the pandemic, especially for those struggling to make ends meet. Your support will make a difference as more and more Coloradans turn to legal aid for help in meeting their basic needs. Our 2019–20 Campaign for Justice ends on June 30. Make your gift today.

legalaidfoundation.org | 1120 Lincoln St., Ste. 701, Denver CO 80203

JUNE 2020

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DEPARTMENT | TECHNOLOGY SUB TITLE IN THE LAW PRACTICE

the “biggest trust, safety, and privacy issues.”3 Make no mistake about it, though—clients and lawyers both love Zoom and, as Zoom has fixed more and more security defects, we believe it is a darn good videoconferencing solution for lawyers who use it properly.

Zoom Training for Lawyers— and Using It Securely BY SH A RON D. N E L S ON A N D JOH N W. SI M E K

he coronavirus pandemic has forced a lot of lawyers to use videoconferencing to “meet” with coworkers and clients. One of the most popular videoconferencing platforms is Zoom. There are others, but we see Zoom as the choice of many lawyers, especially those in solo and small firms. While we can’t cover all the options and settings for Zoom (there are a ton of them), we’ll try to give our advice on the best way to use and secure Zoom for your firm. The growth in Zoom usage has exploded. At the end of December 2019, there were approx-

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imately 10 million free and paid daily meeting participants.1 By April 2020, that number had increased to over 300 million free and paid daily meeting participant.2 The boom in usage has squarely put the crosshairs on Zoom. Multiple security and privacy issues have been discovered and exposed by security researchers and journalists. Some of the publicity was just, and some of the media statements were wrong or overblown. On April 1, 2020, Zoom CEO Eric Yuan announced there would be a feature freeze for the next 90 days to concentrate resources on fixing

Basics The first question for rookies is: what the heck is this thing called Zoom? According to the website, Zoom is the leader in modern enterprise video communications, with an easy, reliable cloud platform for video and audio conferencing, collaboration, chat, and webinars across mobile devices, desktops, telephones, and room systems. Zoom Rooms is the original software-based conference room solution used around the world in board, conference, huddle, and training rooms, as well as executive offices and classrooms.4 Zoom is extremely easy to use (for lawyers and clients!) and is available across multiple platforms and operating systems. You can use your mobile device with apps available for Android and iOS. There are desktop clients available for macOS, Windows, and a bunch of Linux/Unix versions (e.g., Ubuntu, Linux, CentOS, OpenSUSE, etc.). Equipment To state the obvious, you will need some sort of camera to participate in a videoconference call. Most modern-day laptops are equipped with a webcam for video calls. You could even use your iPad or smartphone with Zoom. Another consideration is sound. The builtin microphones for laptops or phones may not sound particularly good if you are on the receiving end. Consider using a headset (with microphone) or earbuds. You’ll be able to hear better, and so will all the other participants. Besides sounding better, headsets and earbuds help cut down on the ambient noise. Don’t forget where you physically sit during the videoconference. If your back is to an open window, the brightness may make you difficult to see. Light sources (lamps, skylights, etc.) behind you will have the same effect. Objects behind you may be distracting too. Think about what the person on the other end is seeing. Be

cognizant of those around you. Family members may be able to hear you discussing confidential information even if you are wearing a headset. Participating in a Meeting We’ve participated in a slew of Zoom meetings over the years, but it sure feels like we’re now involved in one or two a day instead of one every several months. It seems obvious to us that you need to be in physical possession of the device you use to participate in a Zoom meeting. Apparently, a lot of attorneys don’t get the obvious or haven’t completely thought things through. Many of us are working from home and may be remotely connecting to our computers at the office. If so, you’ll need to not remotely connect and must use your home computer, smartphone, iPad, or some other device that you physically possess. If you try to participate in a Zoom meeting while remotely connecting to your office machine, it will be just as if you were sitting at your office desk. We can’t tell you the number of times we were looking at an empty desk chair. And because you are not sitting in your office, participants can’t hear you either. In other words, when you remotely connect to your office computer, Zoom uses the microphone and camera of that office machine. It seems pretty silly, but invariably there’s at least one participant in a Zoom meeting who remotely connects to their office computer and wonders why we can’t see or hear them. Good thing there is a chat function in Zoom. All you need to do is have some way to access the meeting invite details from a physical device you have control over and that is in your possession. If the invite went to your firm’s email address, just access it from your smartphone (assuming you can get to your firm email from your phone); otherwise, just forward the message to a personal email account you can access from your home machine or other personal device. Remember: when participating in a Zoom meeting, the video camera must be able to “see” you and the microphone must be able to “hear” you. When you’re at home, your office machine can’t do that. We’ve also had experiences where we couldn’t hear a participant even though they

were unmuted in Zoom. The likely cause is that the microphone was muted on the actual device they were using or the wrong microphone was selected. The key to checking if your computer microphone is muted varies by computer manufacturer and model. The bottom line is that you should check to make sure the microphone/ sound is not muted on your physical device. That even applies if you use a headset. Most wired headsets have some type of switch assembly

It seems pretty silly, but invariably there’s at least one participant in a Zoom meeting who remotely connects to their office computer and wonders why we can’t see or hear them.

in the cable to adjust volume and mute the microphone. Apparently, inadvertently bumping up against the microphone mute button is fairly common. Meeting Management While you are in a meeting, clicking the Participants icon in the bottom menu bar pops a panel to the right that shows all the participants for the meeting. You can see the status of the users’ microphone (muted or unmuted) and the status of their video camera. Obviously, there will be no camera icon if the participant dialed in with a phone number. The participants panel is where the host can manage and control the

participants. The host can “mute all” or mute participants individually. The host has other options as well, such as changing the name of the participant, stopping a participant’s video, preventing screen sharing, and requesting a participant to start their video. If enabled, the host can put participants on hold, send them to the waiting room, and so on. When you click on a meeting link, you will be prompted to open the Zoom application. The default view shows the participants across the top bar with the speaker showing in the center panel. If someone else starts talking, the video will shift to that speaker. If you have more than a handful of participants, it is difficult to see who is in the meeting. Taking your mouse to the upper-right corner of the screen will give you the option to change the view to gallery. The gallery view shows all participants in their own “square” with the speaker’s box having a yellow outline. The outline will bounce around to the various speakers and is less annoying than the speaker’s video constantly being switched out. Think of the view as similar to the introduction of the Brady Bunch TV show or the TV game show Hollywood Squares, where each person had a separate “box.” Many new Zoom users have no clue about how they can change the view to “gallery.” That is something we have to explain in most meetings. Zoom’s popularity hasn’t gone unnoticed by the competition either. Zoom’s gallery view is very popular, so much so that Microsoft and Google are scrambling to catch up. Zoom can display up to 49 participants in gallery view on a single screen. You’re going to need a pretty big monitor or hook up to your big screen TV to see that many people. Google just released an update to Meet that can only display up to 16 people simultaneously. Microsoft Teams is supposed to support nine people in a gallery view shortly. It seems like Zoom has won the gallery view battle. Zoom has released an update that will be most visible to those hosting meetings. There is now a new Security icon in the lower menu that replaces the Invite button. The icon allows the host to quickly and easily find and enable/ disable security features. When you click the icon, hosts and cohosts will be able to lock JUNE 2020

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the meeting, remove participants, restrict a participant’s ability to perform some actions (rename themselves, share screens, etc.) and enable the Waiting Room even if it’s not already enabled. Features The primary function of Zoom is to facilitate videoconferencing. It supports video and audio transmission for each connected user over the internet. There’s also a dial-in number for audio-only connections. Some people use Zoom as an audioconference bridge so that users won’t have to incur potential long-distance phone charges. You can also configure Zoom to allow file transfers and screen sharing. Screen sharing is very common when observing a product demo. It is even used when giving a webinar. The presenter can mute all the attendees and share their PowerPoint slides from their computer desktop. There is also a whiteboard feature that participants can annotate for all to see. There are a lot of meeting controls available to the host. For example, you can control the audio of the participants. All participants can be muted when they first join the meeting. Audible tones can “announce” the joining of a participant. Sessions can be recorded. There used to be a feature to let the host know if a participant is not paying attention, but Zoom has permanently removed that feature in a nod to privacy concerns. Another helpful feature for mediators is the breakout rooms feature, which is disabled by default. You create the rooms and then assign participants to a specific room. You even have the option to pre-assign participants to specific breakout rooms when you first schedule the meeting. When the host opens the breakout rooms, each participant gets a notice to move to the room. Each room is isolated from the others, just like you would be in a real mediation. The participants can take advantage of the Zoom features (e.g., screen share, chat, etc.) among everyone in the room. The host and cohost can freely move among the breakout rooms. However, that feature only works for the host at this time. The cohost must be assigned a room, but the host can move them among the various

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rooms as needed. When the host closes the breakout rooms, the participants get a notice that the room will close in a certain amount of time and need to return to the main meeting space. Of course, the mediator should be the meeting host. We would not recommend allowing one of the parties to be the host in a mediation unless separate Zoom meetings were created for the appropriate participants, which would ensure separation of the parties. The disadvantage with separate meetings is that you can’t easily move among the various rooms as you would in a real physical mediation.

When configuring Zoom, do not enable the cloud settings or automatically record. It is possible to record without the host, but we recommend against it.

You can record Zoom meetings too. The paid subscriptions offer local and cloud recording. The Pro plan includes 1GB of cloud recording storage. You can add more storage space for an additional fee. We would highly recommend not recording to the cloud. Cloud recording means Zoom stores the recording and manages it. Local recording means you have control over the distribution of and access to the recording. One downside is that local recording is not available in the iOS or Android app. You must use a computer to be able to record locally. Another concern is the issue of encryption. Encryption

is not possible for the recorded information. The good news is that local recording is only available for the host unless the host allows participants to record locally. We are asked how the recordings are handled when you are using breakout rooms, especially if used for mediations. If you elect to do cloud recording, only the main room is recorded. The breakout rooms are not recorded. Local recordings are done for whatever room the host is in. That typically means the main meeting room, but a breakout room would be recorded if the host (mediator in our example) went into one of the breakout rooms. The host always has the option to stop the recording and then go into the breakout room to prevent recording the breakout room session. The host could then resume the recording once the host exits the breakout room and returns to the main room. When configuring Zoom, do not enable the cloud settings or automatically record. It is possible to record without the host, but we recommend against it. Before initiating a local recording, make sure the option is enabled. Log in to your account from a browser and go to Settings and then the Recording tab. Make sure the “Allow hosts and participants to record the meeting to a local file” is enabled. You can also configure the host to allow the participants to record locally. To start a recording, click on the Record button in the bottom menu. Select the “Record on this computer” choice. The host and participants will see a visual indicator in the upper left to indicate that recording is in progress. There will be an audio notification too if you have configured it. You can stop or pause the recording at any time during the meeting. Once the meeting is over, the recording will get converted and downloaded to your computer. The host needs to stay connected to the internet during the entire download process. The default location to save the recording is in the Zoom folder in the host user’s Documents folder. Once all the intended participants have joined, close the meeting. You do this by selecting “Manage Participants” icon in the bottom menu and then clicking “More” at the bottom of the panel, or by clicking the new Security icon. Select “Lock Meeting” to prevent anybody else from joining. As you can

see, the intent is to create as many barriers as possible to prevent unintended attendance to your meeting. Without those barriers, so-called “trolls” could join for mischievous reasons, including Zoom-bombing with inappropriate content. Cost There is a free version of Zoom, but there is a 40-minute limit for meetings with three or more participants. The Pro version is the most popular for solo and small firm attorneys. The cost is $14.99/month per host account. (The host is the one who schedules the meeting.) Each session is limited to 24 hours (don’t invite us) and you can have up to 100 participants. There are additional admin controls as well. If you pay annually, the cost is $149.90 ($12.49/month). The next level up is the Business subscription, which is $19.99/month per host and requires a minimum of 10 hosts. There are a lot of enterprise features available with the Business plan, such as a vanity URL and the ability for on-premise deployment. We’re confident the Pro plan is more than adequate for most law firms. If you need more than one host, just purchase an additional Pro plan subscription. Configuration Settings We’re not going to go through all the various ways you can use or control Zoom. Assuming you have purchased a Zoom subscription, we will make some suggestions for configuring and using Zoom in a more secure fashion. First, make sure you are using the most up-to-date version of Zoom. If you have previously used Zoom, you probably already have it installed. To manually download the latest version, launch the Zoom application, log in to Zoom, and click on your user icon in the upper right (it probably has your initials). Select “Check for Updates” and follow the instructions. Periodically check your configuration settings after updating. We have experienced some of our configuration settings getting changed back to defaults after an update. Consider changing some of the default settings before scheduling the meeting. The first one is screen sharing. The default is to allow all participants to screen share. That means anyone

can share a screen with inappropriate content. Yes, even bizarre sexual content. You definitely want to change the default to set screen sharing to host only. Another setting is to require a meeting password. You can configure Zoom to include the password in the meeting invite, or you can distribute the password separately. A related default password setting is to require a password for those joining by phone as well. Zoom has changed the default settings in a recent release. As a security measure, passwords are now required for all meetings including those using

Be nice to your participants and turn off the Feedback to Zoom and Display end-of-meeting experience feedback survey settings. They are both enabled by default.

your Personal Meeting ID. Even though it is now the default, check your settings to make sure passwords are required for all participants, including those just using a telephone. It would be nice if all meeting participants used their video cameras so you could verify who they are. However, some participants may not want their cameras turned on, or they call in using a telephone. There is another Zoom setting to prevent someone from changing their display name to indicate they are someone else. When you are in the meeting, go back to the managing participants panel and click on “More”

again. Make sure that the “Allow Participants to Rename Themselves” is unchecked. An additional step to prevent the display of inappropriate content is disabling virtual backgrounds. Go to the “Setting” section in Zoom and select the “In Meeting (Advanced)” choice. Disable the “Virtual background” option. This will prevent someone from displaying an inappropriate image as their background. Having said that, you may consider allowing participants to use virtual backgrounds. Virtual backgrounds are useful to “hide” the clutter of your surroundings or to show a pleasant scene. We suggest leaving virtual backgrounds enabled unless you experience abuse. If you are particularly paranoid, disable them. Control when the meeting starts. Don’t let the participants join the meeting before you do. After all, it’s your meeting—and who knows what could be going on before you connect? In the “Schedule Meeting” section of “Settings,” turn off the “Join before host” option. An alternate control mechanism is the waiting room feature. Participants connecting before the host are held in the waiting room. The host then admits the participants individually or all at once. Enabling the waiting room feature automatically disables the “Join before host” option. You may have heard that there was a serious vulnerability with the waiting room feature. Independent research lab Citizen Lab did identify a problem and worked with Zoom to correct the issue. Zoom has since corrected the security issue, so it is safe to use the waiting room feature if you want. If you are particularly paranoid about what someone might pop up or write on a screen, you should turn off annotations and whiteboard in the “In Meeting (Basic)” section. Consider turning on “Allow host to put attendee on hold” in the “In Meeting (Basic)” section. This will allow you kick people out of the meeting if necessary. Hopefully, you won’t have to do that, but it’s a good idea to have the option if needed. Two other settings to disable deal with the user experience at the end of the meeting. We find it particularly annoying to have survey questions or ratings appear after visiting a site or at the end of a webinar. Be nice to your JUNE 2020

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participants and turn off the Feedback to Zoom and Display end-of-meeting experience feedback survey settings. They are both enabled by default. Scheduling It is highly recommended not to use your Personal Meeting ID (PMI) when scheduling meetings. Your PMI is a constant value and never changes. Once it is known to someone else, they could connect to the meeting whether they have been invited or not. Of course, requiring a password for PMI meetings will help, but our recommendation is to not use PMI—period. Allowing Zoom to automatically generate the meeting ID is a more secure option. This means that each scheduled meeting will have a unique random meeting ID. This greatly enhances the security of using Zoom. Another available security setting when scheduling a meeting is to require registration. You must have a paid Zoom subscription to require registration. Meeting registration means the participants register with their email address, name, and questions. There are some predefined questions such as Phone, Industry, Job Title, Address, and so on. You can also create your own custom questions. The registration option is not available in the Zoom app when scheduling meetings. You must schedule your meeting using a web browser to use the Registration Required option. The default is to automatically approve all participants after they complete the registration. You may want to change the setting to manually approve participants for the meeting. After registration is approved (manually or automatically), the participant will receive information on how to join the meeting. Meeting registration is another good way to further restrict meeting participants and help prevent Zoom-bombing. Account Security Just like any other service you use, your password should be strong and not easily guessed. In addition, two-factor authentication (2FA) should be enabled. It still amazes us that the default is not set to require 2FA. You enable 2FA for your Zoom account by selecting “Security” in the “Admin” section, under “Advanced.” Turn on the “Sign in with Two-Factor Authentication”

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option. You will only be prompted for the 2FA code when you sign into your Zoom account using a browser. Launching the Zoom app does not prompt for the 2FA code. Zoom protects your account settings by enforcing 2FA from the browser. Logging in with your Zoom credentials when launching the app does not give you access to account settings, so 2FA is less of a concern. The Zoom app is primarily used to impact the user interface while you participate in a meeting.

The easiest way to temporarily unmute yourself is to press the space bar. Just like the old-style push-totalk microphones, holding down the space bar unmutes and allows you to be heard. Videoconferencing Etiquette When you are participating in a Zoom meeting, mute yourself so that other participants don’t hear all your background noise and potential disruptions. Barking dogs, ringing doorbells, and screaming children do not leave a very professional impression. Unmute yourself when you have something to say. The easiest way to temporarily unmute yourself is to press the space bar. Just like the old-style push-to-talk microphones, holding down the space bar unmutes and allows you to be heard. Releasing the space bar mutes you again. While we’re at it, become familiar with hotkeys and keyboard shortcuts for Zoom. There are a lot of them. Zoom has a helpful article that discusses hotkeys and keyboard shortcuts for the various operating systems.5

Another etiquette consideration is positioning of your video camera. If you have a separate USB webcam, position it at face level pointed directly at you. If you use the webcam in your laptop, make sure the laptop is elevated to have a straight view of your face. Set your laptop on a few books to get it higher if needed. The last thing you want is the camera looking upward exposing your nostrils. Not pretty. Privacy Zoom is constantly being criticized for its collection of data. It’s rare that we come across an attorney who has actually read the Terms of Service, Acceptable Use Policy, or Privacy Policy. The Terms of Service for Zoom is 13 pages, which may take you a little time to plow through. In fact, Zoom just updated its privacy policy on March 18, 2020. (Coincidence, or was it in response to the sudden spike in users flocking to Zoom?) Bottom line: Zoom collects a lot of data from users about their devices, activities, and data shared/transferred. Consumer Reports pointed out that advertising campaigns could be developed from the videos and chat messages. Like Facebook, Zoom could use facial recognition technology against all the recorded videos. To be fair, Zoom has clarified and changed some of its past practices. As an example, Zoom removed the Facebook SDK (Software Development Kit) in the iOS client and reconfigured it to prevent unnecessary collection of device information. Previously, Zoom would send data about participants and used LinkedIn to match people. If a participant had a LinkedIn Sale Navigator account, they could access the other participants’ LinkedIn details without the participant knowing. Zoom has since disabled the feature. A major difference with Zoom is the amount of control hosts have over participants and their activities. We’ve already discussed some of the recommended configuration settings to restrict what participants can do. Director of privacy and technology policy at Consumer Reports, Justin Brookman, said, “Zoom puts a lot of power in the hands of the meeting hosts. The host has more power to record and monitor the call than you might realize if you’re

just a participant, especially if he or she has a corporate account.”6 Citizen Lab discovered that some participant traffic was being rerouted through servers in China. As it turns out, Zoom uses geofencing to control traffic flow. Participants outside of China do not route through China and those in China stay within servers in China. When network traffic started to increase significantly, additional servers were added to Zoom’s network. Unfortunately, a mistake was made and servers in China were improperly added. Therefore, some traffic was routed through China when it shouldn’t have been. After the report by Citizen Lab, Zoom removed the errant servers from the traffic flow. Besides removing the improperly configured servers, Zoom has released an update that allows for even greater control of network traffic. If you have a paid subscription, you can now control

which servers have the ability to handle your network traffic. Go to the In Meeting (Advanced) section of the Settings. Find the section where you can define the data center regions for your meetings/webinars. By default, all of the regions are selected. The available regions are data centers located in Australia, China, Hong Kong (China), Japan, United States, Canada, Europe, India, and Latin America. Uncheck any region where you don’t want traffic to flow through. Unchecking a region may cause trouble for those participants who are calling in with a phone number from that region. We have our account configured to allow only data centers located in the United States and Canada to handle our Zoom traffic. Encryption Security of Zoom meetings is a major concern of millions of users. Some companies and

agencies have banned the usage of Zoom. Some companies are asking their employees not to use Zoom but haven’t banned it outright. Some think that competing products are more secure and should be used instead. We believe the truth is somewhere in between. Recently, Zoom clarified their architecture and encryption schemes. The major criticism is the lack of end-to-end encryption despite Zoom’s earlier claims. Zoom was using the term end-to-end encryption in a way that is not the commonly accepted definition. Busted. Zoom explained its encryption in a blog post on April 1, 2020. “To be clear, in a meeting where all of the participants are using Zoom clients, and the meeting is not being recorded, we encrypt all video, audio, screen sharing, and chat content at the sending client, and do not decrypt it at any point before it reaches the receiving clients.”7

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Zoom clients include your computer running the Zoom app, a smartphone running the Zoom app, and a Zoom Room, which are really only seen in large firms and enterprises. Essentially, your traffic is encrypted if all participants are using the app on a computer or smartphone. In that case, the user content is inaccessible to Zoom’s servers or its employees. The exposure for most people is when someone participates via a telephone call and not with the app or if the meeting is being recorded. Zoom cannot guarantee full encryption in those cases. There are other situations where full encryption may not be possible, but they are not commonly experienced by most lawyers. If you are really concerned about making sure that your Zoom meeting is as secure as it can be, require that all participants use the computer audio and do not allow telephone participation. For those worried if Zoom can “tap” your session like a traditional communication channel, Zoom’s response is: “Zoom has never built a mechanism to decrypt live meetings for lawful intercept purposes, nor do we have means to insert our employees or others into meetings without being reflected in the participant list.”8 Zoom did not clarify the technical details for its encryption implementation. Without getting totally in the weeds, Zoom’s encryption methods are not nearly as good as they should be. A single AES-128 key is shared among all participants. Zoom also uses AES in ECB mode, rather than a stronger industry standard. Certainly, using AES-256 in a more secure industry standard mode would be preferred. To further improve security and respond to criticism about Zoom’s encryption implementation, Zoom has released an update that will implement AES-256 encryption. Version 5.0 of the Zoom client was released on April 28, 2020. You should manually update Zoom now to version 5 if it doesn’t automatically update itself. Zoom will “flip the switch” to enable AES-256 encryption on May 30, 2020. If you have not upgraded to version 5, you will not be able to participate in any Zoom meetings after May 30. Zoom has announced that a forced update will occur after May 30 if the update hasn’t already occurred.

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Ethics and Zoom Despite the media histrionics over Zoom’s shortcomings, those shortcomings are shrinking day by day as security measures and privacy safeguards are implemented. We certainly believe that a lawyer’s duty of competence (Model Rule 1.1) and the duty of confidentiality (Model Rule 1.6) are met if the lawyer has taken the time to understand the basic features of Zoom, including all security features. Final Words Zoom has become extremely popular. It is extremely easy to use even for those not technically inclined. Performance is good and there are lots of features to use. There are also features that can go awry. The jury is still out as to whether Zoom can be trusted or not. Are its intentions pure or did they just get caught? Certainly, we’ve seen some major improvements in the platform. We would certainly like to see an improvement in the encryption, and we need more time to assess Zoom’s transparency promises. Despite the concerns with Zoom’s privacy and security, there is a practical side to using technology in your law practice. While it is

desirable to control the encryption keys, the reality is that you can’t always do that today. A lot of technology providers hold a master decryption key and could technically decrypt your data. Dropbox and Apple’s iCloud are two that come immediately to mind. Another reality is that you can’t really control what you cannot see at the other end of your communication. It doesn’t matter if you are using Zoom, Webex, GoToMeeting, or calling on your iPhone. You have no control over what the person on the other end is doing. They could have software installed that is recording your entire conversation and capturing video. More old school is to record with a separate device such as a voice recorder or even taking a video with your smartphone. Nothing is 100% secure. For now, we don’t see any problem using Zoom for your videoconferencing needs as long as the subject matter is not extremely sensitive. Be smart in how and when you use it. Spend a little time to become familiar with the capabilities of Zoom, especially if you are the one hosting the meetings. © 2020 Sensei Enterprises, Inc.

Sharon D. Nelson is a practicing attorney and the president of Sensei Enterprises, Inc. She is a past president of the Virginia State Bar, the Fairfax Bar Association, and the Fairfax Law Foundation. Nelson is a coauthor of 18 books published by the ABA—snelson@senseient.com. John W. Simek is vice president of Sensei Enterprises, Inc. He is a Certified Information Systems Security Professional, Certified Ethical Hacker, and a nationally known expert in the area of digital forensics. Simek and Nelson provide legal technology, cybersecurity, and digital forensics services from their Fairfax, Virginia firm—jsimek@senseient.com. Coordinating Editor: Joel Jacobson, joel@rubiconlaw.com

NOTES

1. https://blog.zoom.us/wordpress/2020/04/01/a-message-to-our-users. 2. Id. 3. Id. 4. https://zoom.us/about. 5. https://support.zoom.us/hc/en-us/articles/205683899-Hot-Keys-and-Keyboard-Shortcuts-forZoom. 6. https://www.consumerreports.org/video-conferencing-services/zoom-teleconferencing-privacyconcerns. 7. https://blog.zoom.us/wordpress/2020/04/01/facts-around-zoom-encryption-for-meetingswebinars. 8. Id.

DEPARTMENT | WELLNESS

The Link between Well-Being and Inclusion BY PAT T Y P OW E L L

Diversity and inclusion are vital aspects of well-being because each person contributes uniquely valuable strengths to their community that help everyone thrive together. Research shows that the inclusivity skills people gain from diverse relationships leads to greater well-being. —Whitney Hopler, communications director for George Mason University Center for the Advancement of Well-Being Inclusivity is my well-being. —From poster created by staff at George Mason University

ompared to other professionals, lawyers experience higher rates of substance abuse and mental health distress. At the same time, the profession sits at the bottom of all major professions in terms of diversity and inclusion.1 A closer look at the data sounds the alarm bell regarding the extent to which we face challenges on both fronts.

In 2016, the ABA Commission on Lawyer Assistance Programs and the Hazelden Betty Ford Foundation released the “first national study on attorney substance abuse and mental health concerns.”2 This study reported that 21% of attorneys are problem drinkers, 28% have some form of depression, and 19% exhibit signs of anxiety.3 The study also reported that in the first 10 years of practice, younger

attorneys demonstrate a higher incidence of problem drinking, depression, and anxiety than their older peers.4 This finding is contrary to the former prevailing notion that only older, more experienced attorneys fall prey to these conditions, and lends credence to the growing concern that unhealthy coping habits begin in law school. The statistics regarding compositional diversity in the legal profession are also sobering. According to a 2019 ABA report, 64% of lawyers are men and 36% are women, while 85% of lawyers are white, 5% are African American, 5% are Latinx, and 2% are Asian.5 In the general population, 77% of US residents are white, 13% are African American, 18% are Latinx, and 6% are Asian.6 Over the years, many efforts have been undertaken to increase the number of diverse lawyers entering and remaining in the profession, including the formation of nonprofits dedicated to legal diversity and inclusion, trainings, and surveys. However, the retention rate for women and people of color in legal workplaces continues to lag behind other major professions.7 Whatever progress has been made can only be calculated in very small increments. Perhaps the key to effectively addressing diversity and inclusion in the legal profession is hiding in plain sight. If leaders of legal orJUNE 2020

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ganizations focus on creating more inclusive work environments, the overall well-being of individual employees and the organization will be enhanced. The reverse is also true. Organizations that promote the professional well-being of their workers naturally feel more inclusive. Well-Being beyond Physical Health Initiatives Unlike corporations and nonprofits that have made strides in developing comprehensive well-being programs, ranging from offering financial planning, time off to pursue volunteer oriented passions, to onsite meditation offerings,8 law firms that have established well-being initiatives have mostly emphasized physical health. However, creating conditions that empower all employees to be their authentic selves and contribute their unique perspectives to the success of the organization is the essence of professional well-being. As individuals, we are all different and thus diverse, but diversity is more often viewed in reference to a norm, or an ideal, which in the legal profession has historically been that of white males. The resulting dynamic has been that anyone who differs from the norm is perceived as the “other,” and any conduct that doesn’t fit into that norm or is perceived as non-assimilating leads to a sense of not belonging, thereby impeding well-being. People want to be valued and appreciated for what they do and for who they are. They want opportunities to shine and prove their mettle—to themselves and others. The inclusion of individuals with diverse characteristics permits this and aids attorney well-being. Individuals are empowered to identify their own as well as others’ unique set of differences from the vantage point of inclusion and not exception. Inclusion becomes an organizational collaboration of intentional thought in identifying individual strengths, and an active engagement in determining how those strengths can enrich the firm, enhance professional development, and provide an environment conducive for professional wellness.9

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Actively Pursuing Inclusion Inclusion is the responsibility of everyone in an organization. True diversity and inclusion means we are each open to others who are different from us, whether by age, gender, ethnic background, sexual orientation, religion, physical ability, and so on. It’s about making efforts to understand other cultures and perspectives and adjusting the way we communicate so we can build relationships with people who are not like us. Inclusion also means speaking up to address stereotyping and the microaggressions

The resulting dynamic has been that anyone who differs from the norm is perceived as the “other,” and any conduct that doesn’t fit into that norm or is perceived as nonassimilating leads to a sense of not belonging, thereby impeding wellbeing.

that can flow from unconscious bias. Studies have shown that when individuals are more inclusive, they are rewarded with the personal benefit of well-being across multiple dimensions, including happiness, physical health, decision-making, coping skills, and sociability, in addition to feeling more valued and finding greater meaning in life and close relationships.10 In other words, inclusion is healthy!

A study conducted in a global company based in the United Kingdom sought to demonstrate how practicing more inclusive behaviors resulted in greater well-being for participating employees.11 In the “Do Something Different” digital program, employees completed an online diagnostic instrument regarding their working habits “in respect of diversity and inclusiveness, wellbeing, openness to change, and personality.” These diagnostics were then used to develop personalized programs in which employees were asked to exhibit behaviors that were not a normal part of how they usually operated. Over a six-week period, each employee was sent a set of “do’s” to implement each week, along with motivational messages. The “do’s” could be performed quickly, and they were all designed to take people out of their normal behavior patterns (for example, approaching and striking up conversations with people outside of participants’ familiar circle of coworkers). The program’s primary goal was to determine whether shifting to more inclusive behaviors would also result in changes to well-being and openness. Researchers looked at the difference between program participants’ scores at the beginning and end of the intervention to determine whether more inclusive behavior resulted in greater well-being. As predicted, the more someone’s inclusiveness increased, the more their well-being scores improved. Conversely, the program findings indicated that “being biased and less open to others may be detrimental to one’s health and wellbeing.” Indeed, adopting a more flexible perspective toward others and being open to difference contributes to individual well-being.12 Collegiality, Respect, and Values Those who lead legal organizations can be guided by the overarching recommendation of a recent report by the National Task Force on Lawyer Well-Being—namely that all stakeholders in the profession must “foster collegiality and respectful behavior.”13 Recognizing that well-being and diversity/inclusion issues are “symbiotic,” the report cites research regarding the direct causal connection between a collegial work environment and well-being. Respecting and valuing different perspectives is integral to

creating a diverse and inclusive culture, one where everyone, regardless of social identity, can meaningfully engage with their work and their colleagues without fear of being marginalized or excluded. The Challenge Ahead A plethora of legal diversity and inclusion programs and initiatives have been rolled out over the past 20 to 30 years. Diversity and inclusion committees have been formed and then reconstituted. Chief diversity officer positions have been created and filled. There have been countless diversity and inclusion conferences, roundtables, symposia, trainings, retreats, webinars, and career fairs. Diversity pledges have been signed, updated, and signed again. Legal organizations, including law schools, have drafted diversity and inclusion strategic plans. Diversity clerkships, fellowships, and scholarships have been created. Yet we still find ourselves struggling to figure out how to increase diversity in our legal organizations and how to retain women and people of color. Again, leaders of legal organizations have not made much progress on the well-being front largely because it’s easier to focus on physical wellness activities such as yoga, massages, and mindfulness classes than to promote overall well-being across other important life dimensions, including intellectual, social, emotional, and professional. An inclusive leader works hard to create a culture that supports achievement of these multiple goals, resulting in an environment where everyone can thrive, both personally and professionally. Leaders who recognize the crucial connection between inclusion and well-being will more likely succeed in building a work environment where everyone is valued, respected, and motivated to contribute their greatest strengths and their authentic selves to the organization.

Patty Powell is principal and owner of Counsel for Counsel, LLC, a consulting firm focused on coaching and training in the areas of diversity/inclusion and well-being in the legal profession. After graduating from the University of Denver Sturm College of Law, she practiced law for 12 years and then transitioned into law school administration, serving as director of career services and then associate dean of student affairs at DU Law. Powell also worked as assistant dean of career development at the University of Colorado Law School, and later returned to DU Law, where she served as an assistant professor of the practice and director of the Academic Achievement Program. Powell has won awards for her work in the area of diversity and inclusion in law and recently served as a member of the Colorado Supreme Court Task Force on Lawyer Well-Being. Coordinating Editor: Sarah Myers, smeyers@coloradolap.org

NOTE S

1. Laffey and Ng, “Diversity and Inclusion in the Law: Challenges and Initiatives,” ABA (May 2, 2018), https://www.americanbar.org/groups/litigation/committees/jiop/articles/2018/diversityand-inclusion-in-the-law-challenges-and-initiatives. 2. https://www.prnewswire.com/news-releases/aba-hazelden-betty-ford-foundation-release-firstnational-study-on-attorney-substance-use-mental-health-concerns-300214321.html. 3. Krill et al., “The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys” 10 J. of Addiction Medicine (Jan./Feb. 2016), https://journals.lww.com/journaladdictionmedicine/Fulltext/2016/02000/The_Prevalence_of_ Substance_Use_and_Other_Mental.8.aspx. 4. Id. 5. ABA Profile of the Legal Profession (2019), www.americanbar.org/news/reporter_resources/ profile-of-profession. 6. Id. at 8. 7. Laffey and Ng, supra note 1. 8. Milligan, “Employers Take Wellness to a Higher Level” (Aug. 21, 2017), https://www.shrm.org/ hr-today/news/hr-magazine/0917/pages/employers-take-wellness-to-a-higher-level.aspx. 9. Bullock, “The Importance of Diversity and Inclusion for Attorney Wellness,” ABA Law Practice Today (July 14, 2017), www.lawpracticetoday.org/article/importance-diversity-inclusion-attorneywellness. 10. Fletcher, “Diversity and Inclusiveness Is Good For Your Well-being,” Psychology Today (Sept. 18, 2016), www.psychologytoday.com/us/blog/do-something-different/201609/diversity-andinclusiveness-is-good-your-well-being. 11. Id. 12. Id. at 1–3. 13. National Task Force on Lawyer Well-Being, “The Path to Lawyer Well-Being: Practical Recommendations for Positive Change” (Aug. 2017), www.lawyerwellbeing.net.

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FEATURE FEATURE || TITLE ENVIRONMENTAL CRIMINAL LAW LAW

Horizontal Gaze Nystagmus Test Evidence in Colorado The Framework under Campbell v. People BY M A RY A . C E L E ST E A N D J U L I E J. VA N DY N E

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This article examines the standards for evaluating horizontal gaze nystagmus test evidence in trial courts and administrative proceedings for license revocation. It looks at the effects of the 2019 ruling in Campbell v. People.

n 1975 the National Highway Traffic Safety Administration (NHTSA) developed standard field sobriety tests (SFSTs) for law enforcement to determine alcohol driving impairment,1 and law enforcement implemented the SFSTs in 1981. Law enforcement employs three SFSTs: horizontal gaze nystagmus (HGN), walk and turn (W&T), and one leg stand (OLS). There are other tests, such as the Romberg test, but NHTSA has not sanctioned them.2 The science supporting the use of SFSTs to determine alcohol impairment is reasonably reliable3 yet still somewhat controversial.4 Many courts admit all SFSTs, with some taking judicial notice of their scientific reliability and noting their acceptance in the scientific community for alcohol impairment. But the admissibility of the science related to the HGN test has met varying results.5 As noted by the Maryland Court of Special Appeals: The majority of foreign jurisdictions that have addressed the issue have held that the test for HGN is a scientific test. Most of those few states that have held that it is not a scientific test opine that its admissibility depends upon a lesser standard because it is a mere field test and, thus, is admissible without a scientific foundation. Thus, in both the states holding that the HGN test is a scientific test (the majority) and those states holding that it is only a field test, it is, nevertheless, admissible so long as certain predicates are satisfied.6 Colorado joined the majority in 2019 when the Colorado Supreme Court held in Campbell v. People that the HGN test is scientific evidence under CRE 702.7 Post-Campbell, courts can expect to receive motions in limine seeking prevention

of prosecution evidence relating to HGN evidence. This article examines the new standards for evaluating HGN issues applicable in Colorado trial courts and administrative proceedings. The Campbell Framework In Campbell, the defense argued during pretrial proceedings that the prosecution intended to have the police officer who conducted the SFSTs, including the HGN test, testify as a lay witness. Campbell argued that the SFSTs comprised “a specialized area of knowledge,” and therefore the officer should be permitted to testify only about his observations and not be allowed to offer “any opinions that stem from those observations that are based on this specialized knowledge that the officer had.”8 The trial court did not make a formal finding during pretrial motions but indicated it would consider an objection at the appropriate time during trial, and it noted that there could be testimony by an officer on roadside maneuvers that would require expert opinion.9 At trial, the police officer testified extensively about his training and experience on conducting SFSTs, noting his estimated 700 DUI investigations over his 15-year career as a police officer, which included “wet lab” training.10 The officer explained the HGN test and described the six clues, three separate clues in each eye, that he would look for when performing the test. The officer testified that he had conducted the SFSTs on the defendant and gave specific testimony about how he performed the test in accordance with the standards, and what an officer looks for during each step of the test as the officer observes the subject’s eyes

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Colorado joined the majority in 2019 when the Colorado Supreme Court held in Campbell v. People that the HGN test is scientific evidence under CRE 702.

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tracking the stimulus. The officer’s testimony detailed where the stimulus is held, how it is moved, and what signs demonstrate each clue.11 Campbell was convicted of driving while ability impaired and appealed the conviction to the Arapahoe County District Court. He argued that the trial court allowed impermissible lay witness testimony from the officer regarding the HGN test. The district court affirmed the trial court and held that the officer had developed his opinions on the clues seen during the HGN testing by watching Campbell’s eye movement, which the court opined was something that any ordinary citizen could do. Thus, the testimony was admissible as lay witness testimony under CRE 701.12 In its analysis on appeal, the Colorado Supreme Court noted that Rule 701 states that a lay witness’s testimony in the form of opinions or inference is limited to those that are “(a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” On the other hand, Rule 702 provides that “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”13 In analyzing the officer’s testimony on the HGN test under the principles and definitions in Rules 701 and 702, the Court first noted that the officer’s testimony was not the type that could be offered without specialized experience, knowledge, or training.14 Instead, according to the officer’s own testimony at trial, it was his extensive training and experience that qualified him to perform the test, which underscored that the testimony was not lay witness testimony.15 The Court found that a lay person without training would not be familiar with the principles of the HGN test and would not be able to explain the administration and interpretation of that test. 16 Therefore, the Court found that the trial court had abused its discretion when it admitted the officer’s

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testimony as lay testimony and did not require the officer to be qualified as an expert witness under Rule 702. In analyzing the error, the Court noted the plethora of evidence supporting the jury’s determination that Campbell was impaired. This evidence included the results of the failed W&T and OLS tests; the three small bottles of alcohol, including one opened, on the floor of Campbell’s car; the two breath tests that revealed a breath alcohol content of .07 and .086; Campbell’s admission that he had consumed alcohol; and Campbell’s lack of denial that he was impaired when the officer administered the sobriety and breath tests.17 The overwhelming evidence supported the jury’s determination that Campbell drove while his ability was impaired by alcohol. The Court found that any error in admitting the officer’s testimony as lay witness testimony had not affected the defendant’s substantial rights and was thus harmless. Campbell is distinguishable from an earlier 2019 Colorado Supreme Court decision in People v. Kubuugu, where the Court found that the trial court’s error in admitting a deputy’s testimony on metabolized alcohol as lay testimony was not harmless.18 Campbell is most akin to the decision in Schultz v. State, where the Maryland Court of Special Appeals referenced drawbacks of the HGN test: One of the test’s shortcomings is that the officer administering the test may not be properly trained to understand all aspects of the test and to produce results as accurately as the NHTSA manual suggests. . . . ... To demonstrate a proper foundation, an officer must show that he is trained in the particular procedure, that he is certified in the administration of the procedure, and that the procedure was properly administered.19 Campbell ’s Effect in Trial Court Proceedings Campbell’s effect on trial proceedings differs depending on whether the SFST evidence at issue is considered during trial or at a preliminary motion hearing.

During Trial The Campbell decision signals challenges to an officer’s qualifications as an expert in cases where HGN testing was performed. In Colorado, an officer must meet the test enunciated in People v. Shreck, where the Colorado Supreme Court followed the Daubert20 standard and held that in making decisions on admissibility of expert testimony, a court must find on the record that the testimony is appropriate because it is (1) regarding scientific principles that are reasonably reliable, (2) helpful to the jury, (3) probative under CRE 403, and (4) given by a qualified expert or witness qualified to make opinions on the issues.21 Other states have seen appeals on whether their version of Rule 702 requires proof that HGN testing is reliable. In North Carolina, another Daubert analysis state, the court of appeals held in State v. Younts that a law enforcement officer trained to administer the HGN test may properly testify to the results of a test he or she administered without any determination by the trial court that HGN testing is scientifically reliable, and that N.C. Gen. Stat. § 8C-1, Rule 702(a) does not require the State to lay a foundation for the reliability of the HGN testing before a qualified expert may testify about the results of an HGN test.22 The court also noted that the North Carolina General Assembly changed the Rule 702(a) requirement for expert qualification to state: (a) If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion, or otherwise, if all of the following apply: (1) The testimony is based upon sufficient facts or data. (2) The testimony is the product of reliable principles and methods. (3) The witness has applied the principles and methods reliably to the facts of the case.23 The court pointed out that a “strict reading of Rule 702”24 would suggest that the trial court erred by admitting HGN testimony without

taking judicial notice of or inquiring into the reliability of the HGN test. However, it analyzed the adoption of Rule 702(a) and its previous ruling in State v. Goodwin to find that no Daubert reliability review is required for HGN testing because of the special admissibility language in Rule 702(a).25 The North Carolina court’s analysis of the reliability review under its Rule 702 does not appear to be the analysis that Colorado courts would apply under Shreck and subsequent cases.26 In a pre-trial Shreck hearing in Colorado, the prosecution can expect to be taxed with a showing as one point of proof the reliability of the HGN test method, and the trial judge has the gatekeeping function on this point as well as the others under Shreck. Campbell has changed how trial judges must analyze the testimony of law enforcement and drug recognition evaluators in alcohol impaired driving cases. Such witnesses who testify at trial in these cases concerning HGN testing will not be permitted to testify as lay witnesses because the standard for admissibility of this testimony has changed to that of scientific evidence under Rule 702. Judges will now have to be convinced that the witnesses have the scientific expertise to opine about the HGN test. Preliminary Hearings Other jurisdictions have dealt with the question of HGN test admissibility at preliminary hearings. Notably, in Commonwealth v. Weaver, the Pennsylvania Superior Court considered the trial court’s denial of appellant’s suppression motion.27 Appellant argued that a trooper’s probable cause finding was subject to challenge because it included HGN test results with no proper foundation established for the scientific evidence to be admitted.28 The court noted that probable cause to arrest may be supported by evidence that is inadmissible at trial, and the probable cause determination is made in the context of facts known to the police officer.29 Weaver relied on US Supreme Court precedent on evaluating probable cause determinations in Brinegar v. United States, where the Court clarified that the “criterion of admissibility in evidence, to prove the accused’s guilt” should not be applied to “the facts relied upon to

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Such witnesses who testify at trial in these cases concerning HGN testing will not be permitted to testify as lay witnesses because the standard for admissibility of this testimony has changed to that of scientific evidence under Rule 702.

” show probable cause.”30 The Wisconsin Court of Appeals followed this reasoning as well. It quoted Brinegar to find that, in a pretrial suppression hearing, a court properly relied on the arresting officer’s recorded statement that he stopped defendant because he twice observed his vehicle cross the center line, which was hearsay.31 Thus, courts have made it clear that there is a distinction between the rules applicable to proceedings to determine probable cause for arrest and search, and those governing the criminal trial itself. Campbell and Express Consent Hearings The rules of evidence applicable in civil cases generally apply to hearings conducted pursuant

to the Colorado Administrative Procedures Act (APA) under CRS § 24-4-105(7),32 and it has been held that to the extent they are consistent, both the judicial review provisions in Colorado’s express consent statute, CRS § 42-2-126,33 and the APA provisions govern the procedures applicable to administrative hearings.34 However, hearing procedures under Colorado’s express consent statute differ from those under the APA generally. The express consent statute specifies that the Colorado Department of Revenue (Department) and the hearing officer conducting the hearing “shall consider all relevant evidence at the hearing, including the testimony of any law enforcement officer and the reports of any law enforcement officer that are submitted to the department.”35 Thus, the express consent statute is inconsistent with the APA in that all information submitted by an officer, including details of the officer’s HGN impairment examination submitted to the Department, other field sobriety tests, and his or her testimony on those tests are to be considered. The standard for examining the officer’s probable cause determination is not too different from a court’s analysis of HGN results at preliminary hearings: the “criterion of admissibility in evidence, to prove the accused’s guilt” should not be applied to “the facts relied upon to show probable cause.”36 Further, the express consent statute specifies that “the hearing officer shall have authority to . . . [r]eceive and consider any relevant evidence necessary to properly perform the hearing officer’s duties as required by this section.”37 Thus, in administrative proceedings under CRS § 42-2-126 for license revocation, a revocation element may be established by hearsay evidence alone without violating due process if such evidence is sufficiently reliable and trustworthy and possesses probative value commonly accepted by reasonable and prudent persons.38 It is not a Shreck or Daubert analysis, but an analysis of whether the process protects the “procedure’s integrity and fundamental fairness.”39 The licensee has the right to present evidence rebutting any element of the prima facie case shown by the officer.40 A driver’s license revocation hearing is an administrative hearing not governed by the strict rules of evidence and JUNE 2020

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procedure that pertain to a criminal action.41 The statute evidences a legislative intent to treat separately the administrative and criminal consequences of driving under the influence. Thus, to avoid interpreting the statute in a way that defeats the legislative intent, the hearing officer must give effect to the ordinary meaning of the language and read the provisions as a whole, “construing each provision consistently and in harmony with the overall statutory design, if possible.”42 The obligation to give a licensee a fair hearing does not include the same formalities that adhere to a criminal trial. The level of scrutiny at an administrative license revocation hearing is also unique. For example, at a preliminary hearing, a judge may not engage in credibility determinations unless the testimony is incredible as a matter of law.43 An express consent hearing has a broader scope,44 and neither the burden of proof nor the strict application of the rules of evidence required in criminal hearings applies. Thus, Campbell does not apply to the admission of the HGN results in administrative license revocation proceedings. What about Drugged Driving Cases? The use of HGN tests in drugged driving cases raises issues beyond those addressed in Campbell. Campbell involved an alcohol driving case, but what approach will the Colorado Supreme Court take in a drugged driving case where law enforcement uses SFSTs? Will it make a difference if the law enforcement officer is a drug recognition evaluator or an ARIDE (Advanced Roadsides Impairment Detection Enforcement) officer?45 Does special training in drug detection automatically allow the admission of HGN test results because of the underlying scientific training? Will this place a new burden on law enforcement officers by requiring them to have additional training? HGN clues indicating impairment are not observed with all drug use. The HGN test is valid for central nervous system depressant drugs, inhalants, and PCP (phencyclidine), because they affect the same neural centers as alcohol.46 However, cannabis does not produce similar HGN clues.47 The HGN test along with other SFSTs was addressed in Massachusetts v. Gerhardt, a recent marijuana driving case

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in which the state’s supreme court held that law enforcement officers may testify as to their observations related to conducting SFSTs, including the HGN test, but may not offer an opinion as to whether those observations equate to driving impairment.48

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Post Campbell, Colorado trial courts can expect pretrial motions on HGN test evidence, and trial judges must make specific findings under Shreck on the admissibility of HGN test results.

” Conclusion Post Campbell, Colorado trial courts can expect pretrial motions on HGN test evidence, and trial judges must make specific findings under Shreck on the admissibility of HGN test results. Practitioners should note the limitation of the ruling as it applies to preliminary hearings and administrative license revocation hearings. But unresolved questions remain about how Campbell will apply to drugged driving cases, so practitioners should remain alert for further developments in this regard.

Mary A. Celeste served on the Denver County Court bench from 2000 through 2015. She was the presiding judge in 2009–10 and the cofounder of the Denver County Court Sobriety Court. Celeste is currently a law school professor teaching marijuana and the law at California Western School of Law, and she performs research for the NHTSA and the National Opinion Research Center on the prosecution of drugged driving cases. She has written many articles and is a national speaker on the topics of marijuana, marijuana and drug impaired driving, drugged driving, and specialty courts— www.judgemaryceleste.com. Julie J. Van Dyne is an administrative hearings officer with the Colorado Department of Revenue. Previously, she served as a prosecutor in Colorado and the Commonwealth of the Northern Marina Islands, and as an administrative hearings officer in Texas and Colorado—jjvandyne@hotmail.com. The views expressed in this article are the authors’ own and do not necessarily represent the views of the Colorado Department of Revenue or any other state agency. Coordinating Editor: Judge Adam Espinosa, adam.espinosa@denvercountycourt.org

NOTES

1. NHTSA, Validation of the Standardized Field Sobriety Test Battery at BACs Below 0.10 Percent (Aug. 1998), https://www.ncjrs.gov/ pdffiles1/Photocopy/197439NCJRS.pdf. 2. The Romberg test requires subjects to stand erect with their feet together and eyes closed, and sometimes perform the finger-to-nose test. 3. Stuster, “Validation of the standardized field sobriety test battery at 0.08% blood alcohol concentration,” Hum Factors 48:608-14 (Fall 2006). 4. NHTSA, Horizontal Gaze Nystagmus: The Science and the Law, https://www.nhtsa. gov/sites/nhtsa.dot.gov/files/documents/ horizontal_gaze_nystagmus-the_science_and_ the_law.pdf. 5. Rubenzer, “The standardized field sobriety tests: a review of scientific and legal issues,” 32:4 Law and Human Behavior 293–313 (2008); Busloff, “Can Your Eyes Be Used Against You—The Use of the Horizontal Gaze Nystagmus Test in the Courtroom,” 84 J. Crim. L. & Criminology 216–33 (Spring 1993). See also Cowan and Jaffee, Proof and Disproof of Alcohol-Induced Driving Impairment Through Evidence of Observable Intoxication, 9 Am.Jur. Proof of Facts 3d 459 (Lawyers Coop. Publ’g 1990); Taylor and Oberman, Drunk Driving Defense § 4.4.5 (Wolters Kluwer 3d ed. Supp.

1994); Rouleau, Unreliability of the Horizontal Gaze Nystagmus Test, 4 Am. Jur. Proof of Facts 3d 439 (Lawyers Coop. Publ’g 1989); Erwin, Defense of Drunk Driving Cases (Matthew Bender 3d ed. 1985); State v. Superior Court, 718 P.2d 17 appendices A and B (Ariz. 1986). 6. Schultz v. State, 664 A.2d 60, 63 (Md.App. 1995). 7. Campbell v. People, 443 P.3d 72, 74 (Colo. 2019). 8. Id. 9. Id. 10. Id. Wet labs are officer alcohol testing workshops where volunteers consume alcohol and have their intake monitored. The volunteers are then taken through the SFSTs by officers. The results of these SFTS are analyzed in conjunction with the subjects’ tracked alcohol consumption. 11. Id. at 74–75. 12. Id. at 75. 13. Id. at 76. 14. Id. at 76. 15. Id. at 76–77. 16. Id. at 77. 17. Id. at 77–78. 18. People v. Kubuugu, 433 P.3d 1214 (Colo. 2019). 19. Schultz, 664 A.2d 60, 62 (quoting Busloff, supra note 5). 20. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). 21. People v. Shreck, 22 P.3d 68, 77 (Colo. 2001). 22. State v. Younts, 803 S.E.2d 641 (N.C.App. 2017). 23. Id. at 645–46 (citing 2011 N.C. Sess. Laws ch. 283, §1.3 (emphasis added)). 24. Id. at 648. 25. Id. at 646 (citing State v. Goodwin, 786 S.E.2d 34, 38 (N.C.App. 2016), aff’d in part and rev’d in part by 800 S.E. 2d 47 (N.C. 2017)). 26. Shreck, 22 P.3d at 77; Kinny v. Keith, 128 P.3d 297, 314 (Colo.App. 2005) (noting that when deciding the admissibility of expert testimony, a court must make findings on the record under Shreck that the testimony is reasonably reliable, along the other Shreck test elements); People v. Jimenez, 217 P.3d 841, 866 (Colo.App. 2008) (citing Shreck and People v. Ramirez, 155 P.3d 371, 378 (Colo. 2005) (“To determine reliability, the court considers whether the scientific principles underlying the testimony are reasonably reliable” along with whether the expert is qualified)). 27. Commonwealth v. Weaver, 76 A.3d 562 (Pa. Super.Ct. 2013). 28. Id. at 567 (citing Brinegar v. United States, 338 U.S. 160 (1949), and Commonwealth v. Devlin, 289 A.2d 237 (Pa.Super.Ct. 1972)). 29. Id. 30. Brinegar, 338 U.S. at 172. 31. State v. Zamzow, 874 N.W.2d 328, 331 (Wis. App. 2015). 32. Dep’t of Higher Educ. v. Singh, 939 P.2d 491 (Colo.App. 1997).

33. CRS § 42-2-126(10)(a). 34. Meyer v. State, 143 P.3d 1181, 1186 (Colo.App. 2006). See also CRS § 42-2-126(11); Gilbert v. Julian, 230 P.3d 1218, 1221 (Colo.App. 2009). 35. CRS § 42-2-126(8)(c). 36. Brinegar, 338 U.S. at 172. 37. CRS § 42-2-126(8)(d)(IV). 38. Colo. Dep’t of Revenue v. Kirke, 743 P.2d 16, 21 (Colo. 1987). See also Partridge v. State, 895 P.2d 1183 (Colo.App. 1995); Colo. Div. of Revenue v. Lounsbury, 743 P.2d 23 (Colo. 1987); Charnes v. Olona, 743 P.2d 36 (Colo. 1987); Heller v. Vasquez, 743 P.2d 34 (Colo. 1987); and CRS § 24-4-105(7). 39. Id. at 21 (citing Richardson v. Perales, 402 U.S. 389, 410 (1971) (upholding the use of hearsay reports in Social Security disability hearings)). 40. Id. at 22. 41. Campbell v. Dep’t of Revenue, 491 P.2d 1385, 1388 (Colo. 1971). 42. Whitaker v. People, 48 P.3d 555, 558 (Colo. 2002). See also Francen v. Colo. Dep’t of Revenue, 328 P.3d 111, 115 (Colo. 2014). 43. People v. Smith, 597 P.2d 204, 207 (Colo. 1979), overruled on other grounds by People v. Vance, 933 P.2d 576 (Colo. 1997), overruled by Griego v. People, 19 P.3d 1 (Colo. 2001); Hunter v. Dist. Court, 543 P.2d 1265, 1268 (Colo. 1975); People v. Ramirez, 30 P.3d 807, 809 (Colo. 2001) (Testimony is “incredible as a matter of law” if it is “in conflict with nature or fully established or conceded facts. It is testimony as to facts which the witness physically could not have observed or events that could not have happened under the laws of nature.”). 44. A licensee may request the issuance of a subpoena to support a defense, and the Department has an obligation to grant a subpoena as part of its statutory obligation to provide a meaningful opportunity for a fair hearing. Gilbert, 230 P.3d 1218. A licensee may not be denied the opportunity to present rebuttal evidence challenging breath test results. Mameda v. Colo. Dep’t of Revenue, 698 P.2d 277, 279 (Colo.App. 1985). 45. See https://www.codot.gov/safety/alcoholand-impaired-driving/law-enforcement/aride. 46. Nat’l Inst. on Drug Abuse, Prescription CNS Depressants, https://www.drugabuse. gov/publications/drugfacts/prescriptioncns-depressants; Adler and Burns, Drug Recognition Expert (DRE) Validation Study: Final Report to Arizona Governor’s Officer of Highway Safety (1994); Smith et al., “Drug recognition expert evaluations made using limited data,” 130 Forensic Science Int’l 167–73 (Dec. 2002). 47. See Porath-Waller and Beirness, “An Examination of the Validity of the Standardized Field Sobriety Test in Detecting Drug Impairment Using Data from the Drug Evaluation and Classification Program,” 15 Traffic Injury Prevention 125 (Canadian Centre on Substance Abuse 2014), http://www.txsfst. org/content/uploads/SFST/Validity%20 of%20SFST%20in%20Detecting%20Drug%20 Impairment.pdf.

48. Commonwealth v. Gerhardt, 81 N.E.3d 751 (Mass. 2017). See also Celeste, “The Impact of the Gerhardt Decision on Marijuana Driving Cases,” vol. 53, iss. 4 Court Review at 170 (American Judges Ass’n 2017), http://www. amjudges.org/publications/courtrv/cr53-4/ CR53-4Celeste.pdf.

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FEATURE FEATURE || TITLE PROFESSIONAL CONDUCT AND LEGAL ETHICS

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In-House Counsel, Whistleblowing, and Ethics BY JAC K TA N N E R

This article discusses ethical issues that in-house lawyers must consider before reporting a client’s improper conduct. It also covers factors that must be considered in determining whether the lawyer can obtain relief based a client’s subsequent retaliation.

thics rules have traditionally provided a client with complete and unfettered discretion to fire its lawyer for any reason whatsoever. Previously, ethics rules also did not allow a lawyer to disclose client information to third parties, absent a few exceptions. Thus, an in-house employee lawyer who was discharged for reporting client conduct to higher-ups in the organization, to regulators,

or to other authorities was unlikely to prevail on a claim for wrongful discharge. Recent changes in ethics rules and case law have modified these points. Lawyers now have more leeway to disclose client information, including by “whistleblowing,” which is notifying higher-ups in the client organization or authorities outside the organization of perceived improper conduct by the client.

Further, protections for whistleblowers have undercut the client’s authority to discharge a lawyer for any reason (including in retaliation for whistleblowing) without consequences. A lawyer who considers reporting a client constituent to a higher-up within an organizational client or reporting a client to an outside authority must analyze several ethical issues before doing so. If a lawyer reports a client and is JUNE 2020

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discharged as a result, several factors can affect a claim for retaliatory (wrongful) discharge. These factors include whether the lawyer notified those inside or outside the client organization, whether protections offered are state or federal, and the relief sought. This article explores this relatively new and yet evolving area of the law. Ethical Foundations for Client Confidentiality Under the former Colorado Code of Professional Responsibility (Code), a lawyer was required to maintain “confidences and secrets” of the client with few exceptions.1 One exception was the “intention of [the] client to commit a crime and the information necessary to prevent the crime.”2 There was no exception that allowed disclosure of client confidences and secrets to prevent a wrong that was not a crime, or to mitigate or rectify damage done by a client. There were exceptions for fee disputes and for defending against malpractice claims, but not for other disputes with a client.3 Further, under the Code, there was no requirement to report ongoing unlawful conduct to higher-ups within an organizational client. Under the Colorado Rules of Professional Conduct (Rules) adopted in 1997, the prohibition on disclosing “confidences and secrets” was expanded to prohibit a lawyer from revealing any “information relating to the representation of a client” to third parties, regardless of whether the information was confidential or secret, with only a few exceptions.4 As originally adopted, these exceptions allowed disclosure to prevent a crime, but not to prevent noncriminal wrongs or to mitigate or rectify damage caused by a crime.5 The Rules also expanded a lawyer’s ability to disclose client information in a dispute with a client. Under the Code, such disputes were limited to those regarding fees or malpractice claims, but the Rules allow disclosure “to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and client,” among other things.6 The adoption of the Rules also created, for the first time, the obligation to report “up the ladder” within an organizational client under certain circumstances. When the client constituent was planning or engaging in unlawful conduct, or

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Previously, there were numerous factors a lawyer could consider that effectively made the reporting permissive rather than mandatory, but with the rule changes, the only exception remaining is when the lawyer ‘reasonably believes that it is not necessary in the best interest of the organization to do so . . . .’

” when the client constituent was violating his or her obligations to the organization, the lawyer was generally required to report this conduct to higher-ups within the organizational client.7 This process was to be repeated as necessary to change the client’s conduct until the lawyer reported to the “highest authority in the organization,” generally thought to be the board of directors.8 However, Rule 1.13 as originally

adopted also included numerous factors the lawyer could consider in deciding whether to make a report; thus it essentially made this reporting permissive rather than mandatory.9 In the 1990s a series of corporate financial disasters rocked the United States, including those of Enron, Tyco International, Adelphia, and WorldCom. Lawyers for those companies, even when testifying before Congress, refused to disclose certain client information, including how much the executives in the companies knew about the fraudulent conduct and where missing funds might be located.10 These lawyers correctly relied on the then-applicable ethical rules in refusing to do so.11 As a result, significant changes were made to the ABA Model Rules of Professional Conduct in the “Ethics 2000” rule changes (adopted by Colorado effective February 1, 2008). New exceptions to Rule 1.6 allowed a lawyer to reveal information to “prevent, mitigate, or rectify” even noncriminal financial injury under certain circumstances,12 and “to comply with other law or a court order.”13 Perhaps more fundamentally, the exceptions to Rule 1.13’s requirement of up-the-ladder reporting were significantly reduced.14 Previously, there were numerous factors a lawyer could consider that effectively made the reporting permissive rather than mandatory, but with the rule changes, the only exception remaining is when the lawyer “reasonably believes that it is not necessary in the best interest of the organization to do so . . . .”15 Another 2008 change to Rule 1.13 requires that, if the lawyer reasonably believes he or she has been discharged for reporting up the ladder, the lawyer must report the termination in such a way that the highest authority within the organization becomes aware of the discharge.16 Finally, if reporting up the ladder fails to change the client’s conduct, Rule 1.13(c) permits—but does not require—the lawyer to disclose client information outside the organization if (1) the conduct is clearly a violation of the law, and (2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization.17 The disclosure is allowed, despite Rule 1.6, “only if and to the extent the lawyer reasonably believes

necessary to prevent substantial injury to the organization.”18 But unlike Rule 1.6(b)(4) concerning disclosure to rectify or mitigate damage, this rule only applies to ongoing or future conduct.19 Rules 1.6 and 1.13 differ in this regard: Where the client is an individual, under Rule 1.6 the lawyer may disclose client information to third parties only to prevent the client from committing a crime20 or fraud,21 when certain other circumstances are present. Under Rule 1.13, however, where the client is an organization, the permission to disclose client information is much broader and applies to prevent any “violation of law,” when other circumstances are present.22 Meanwhile, the ethical stance that the client has unfettered discretion in terminating a lawyer has remained constant. The official comment that a “client has a right to discharge a lawyer at any time, with or without cause, subject to liability for payment for the lawyer’s services” was adopted with the original Rules and has not been changed since.23 This attitude is echoed in various other places in the Rules. For example, it is an ethical violation for a lawyer to enter into a covenant not to compete24 or other agreement that restricts the lawyer’s right to practice,25 in part because such an agreement “limits the freedom of clients to choose a lawyer.”26 The Growth of Whistleblower Protections Colorado first enacted statutory whistleblower protections for government employees in 1979 with the adoption of the State Employee Protection Act.27 This statute was expanded in 2016 and again in 2017.28 In general terms, this act prohibits “any disciplinary action” against a state employee “on account of the employee’s disclosure of information.”29 It thus applies to state-employed lawyers. Colorado enacted statutory protections for private employees in 1988 in the Private Enterprise Employee Protection Act.30 This act only applies to employees of a private enterprise that has a contract with the State of Colorado.31 The state legislature expanded these protections in 2017.32 This act prohibits “any disciplinary action against any employee on account of the

employee’s disclosure of information concerning said private enterprise.”33 By its own terms, however, this act does not apply to an “employee who discloses information which is confidential under any other provision of law.”34 Colorado also recognizes the common-law tort of wrongful discharge in violation of public policy.35 This case law creates a remedy in certain circumstances for whistleblowers outside the state government context.36

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Internal whistleblowing— that is, reporting perceived improper conduct within an organization—is not only allowed under the Rules but may be required.

” There are too many federal statutes that provide protection against retaliation for whistleblowers to list in an article of this length. The Sarbanes-Oxley Act of 200237 and the DoddFrank Wall Street Reform and Consumer Protection Act of 201038 are currently the two most prominent. These acts prohibit the termination of an employee as retaliation for bringing the client’s improper conduct to light.

Internal Whistleblowing by In-House Counsel Internal whistleblowing—that is, reporting perceived improper conduct within an organization—is not only allowed under the Rules but may be required. Rule 1.13(b) requires up-the-ladder reporting in many instances. Even when not required (because, for example, the lawyer is not reasonably certain the conduct will result in substantial damage to the organization), such reporting is at least ethically permitted because the organization is the client.39 So long as the report is going to the client, there is no violation of Rule 1.6(a). The requirement to report up the ladder under Rule 1.13 only applies to ongoing or planned conduct; it does not apply to completed conduct.40 This does not mean that a lawyer discharged for such reporting will necessarily prevail in a claim for wrongful discharge. In Pang v. International Document Services,41 the Utah Supreme Court reaffirmed that the Utah at-will employment policy had an exception for those fired in violation of substantial public policy. However, it also determined that Utah’s version of Rule 1.13(b) (requiring reporting up the ladder) did not reflect a public policy of sufficient magnitude to protect the whistleblowing in-house lawyer from discharge.42 Pang, who was in-house counsel, was fired for reporting up the ladder that the client was violating usury laws.43 Before his termination, he did not disclose any information outside the company. Yet his suit for wrongful discharge was dismissed and the dismissal was ultimately affirmed by the Utah Supreme Court. Pang held that the ethical requirement of up-the-ladder reporting, standing alone, was not a statement of Utah state policy such that it gave rise to an exception to Utah’s state public policy favoring at-will employment.44 Kidwell v. Sybaritic45 is a good reminder that the exact terms of anti-retaliation statutes can matter. There, the in-house counsel sent an internal email to company management raising certain concerns. He was fired a week later, brought suit, and won a jury verdict that he had been fired in retaliation for his email. On appeal, the judgment was reversed because the Minnesota Whistleblower Act46 did not JUNE 2020

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protect communications within the scope of the employee’s regular duties. Kidwell held that the in-house counsel was not protected from retaliatory discharge under Minnesota law because it was part of his job to send emails of the type that got him fired.47

Federal courts facing this issue have made short work of such a defense under a Supremacy Clause53 analysis. They have simply held that federal whistleblower protection statutes control over state ethics rules.54

External Whistleblowing by In-House Counsel Both Rules 1.6 and 1.13 allow external whistleblowing under certain circumstances. Regarding past conduct, Rule 1.6 permits external whistleblowing to “mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services.”48 Regarding current or future conduct, under Rule 1.6 the lawyer may reveal client information to prevent reasonably certain death or substantial bodily harm,49 to prevent the client from committing a crime,50 and to prevent the client from committing a fraud that is reasonably certain to result in substantial injury to another (where the lawyer’s services were used in perpetuating the fraud).51 The permission under Rule 1.13 to report outside the organization arises only after the lawyer has reported up the ladder to the highest authority within the organization and the client’s conduct has continued or is still planned. In that instance, and if the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization, the lawyer may report the conduct outside the organization in an effort to prevent substantial injury to the organization.52

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Federal Protections for External Whistleblowing Consider an in-house counsel who has tried unsuccessfully to get the company to cease unlawful conduct, chooses to report the company to regulators, and is discharged. The lawyer then sues for wrongful discharge, perhaps relying on the Sarbanes-Oxley or Dodd-Frank Acts. The company defends on the grounds that under the Rules it has the absolute right to terminate the lawyer for any reason, or no reason at all.

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The permission under Rule 1.13 to report outside the organization arises only after the lawyer has reported up the ladder to the highest authority within the organization and the client’s conduct has continued or is still planned.

” If the whistleblower does not rely on the express protections of a federal statute such as Sarbanes-Oxley, however, the case may be more difficult. In Douglas v. Dyn McDermott Petroleum Operations,55 fired in-house counsel sued for retaliatory discharge under the Civil Rights Act of 186656 and won a substantial jury verdict. But the Fifth Circuit reversed, determining that the in-house lawyer’s disclosure of confidential

information in violation of ethical rules was not protected under § 1981. State Law Protections for External Whistleblowing The analysis is more complicated when the fired in-house lawyer relies on state anti-retaliation law. Courts faced with such a claim must analyze whether the state policy that favors protection of whistleblowers controls over state ethics rules permitting clients to fire their lawyer for any reason or no reason. As of the date of this article, the are no reported appellate cases applying any of the Colorado statutes protecting whistleblowers cited above to in-house counsel. Thus it is uncertain whether the Rules fall within the exception to the State Employee Protection Act or the Private Enterprise Employee Protection Act for information that is “confidential under any other provision of law.”57 Cases from other states vary in their analyses of similar statutes and similar ethical rules. In Pang, the Utah Supreme Court held that the ethical requirement of reporting up the ladder within a company did not override the state’s employment-at-will doctrine. However, Pang expressly stated that this did not mean that all ethical rules were subordinate to the at-will employment doctrine.58 Pang expressly left open, for example, whether permissive reporting outside the company to prevent a serious crime under Utah Rule 1.6 might qualify for protection.59 In Balla v. Gambro,60 the Illinois Supreme Court held that an in-house lawyer did not have a claim for retaliatory discharge under Illinois’ Whistleblower Protection Act. The Court held that because of the special place that in-house counsel hold in a company, they do not have protection from retaliatory discharge. The Court reasoned in part that the retaliatory discharge exception to the at-will employment doctrine was intended to encourage employees to come forward and report acts that contravene public policy. But because lawyers have an ethical obligation to report such acts under Illinois’ version of Rule 1.6(b), however, in-house counsel could not take advantage of the Illinois statutory whistleblower protection.61

Perhaps reflecting a swing in public sentiment toward protecting whistleblowers, the Illinois intermediate appellate court later limited Balla in Crowley v. Watson.62 There, the court affirmed a jury verdict for a fired in-house lawyer on his claim for retaliatory discharge because the in-house lawyer’s duties were primarily administrative, not legal.63 In Crandon v. State,64 the Kansas Supreme Court summarily affirmed the dismissal of a former in-house counsel’s wrongful discharge claim. The court quoted, then affirmed, the order on summary judgment: Mr. Dunnick was well within his discretion to end a public and professional relationship [that] Ms. Crandon had completely and inappropriately destroyed without fear of legal recourse by Ms. Crandon.65 In Heckman v. Zurich Holding Co. of America,66 a federal court applying Kansas law rejected the defendant’s reading of Crandon as prohibiting all claims for retaliatory discharge by a fired in-house counsel. “The Court finds nothing in Crandon which suggests that Kansas courts would refuse to allow in-house counsel to maintain retaliatory discharge claims.”67 Finally, the California Supreme Court determined that a company did not have unfettered discretion to fire in-house counsel under California law in General Dynamics Corp. v. Superior Court.68 There, in response to a claim for retaliatory discharge brought by former in-house counsel, General Dynamics filed a demurrer arguing that the official comment to Rule 1.2 means what it says: A client can fire a lawyer at any time for any or no reason.69 The court disagreed and held that, under proper circumstances, the company’s conduct can create the reasonable expectation that the lawyer would not be fired without cause. Further, if an amended complaint alleged the attorney was fired in retaliation for following a mandatory ethical obligation, a claim would exist on that basis.70 Remedies Unlike the courts’ varied approaches to liability, there seem to be a general consensus regarding remedies. In cases where an in-house lawyer proves wrongful discharge, courts generally

award monetary damages. There are numerous cases allowing not just lost past and future wages, but punitive damages as well.71 In Cage v. Harper, 72 the former general counsel of Chicago State University sued the school alleging wrongful termination for being a whistleblower both under 42 USC § 1983 and the Illinois Ethics Act. School regulations provided that, in the event of termination, someone at

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In cases where an in-house lawyer proves wrongful discharge, courts generally award monetary damages. There are numerous cases allowing not just lost past and future wages, but punitive damages as well.

” Cage’s level of seniority was entitled to a year’s notice and pay during that year. On a motion to dismiss under Fed. R. Civ. P. 12, the court ruled that Cage’s federal claim was valid under § 1983. As a lawyer, although he could be terminated for any reason or no reason, Cage was still entitled to his one-year notice and payment during that period.73

Reinstatement is another matter. Even an in-house attorney who prevails in a wrongful discharge suit generally cannot obtain reinstatement for the simple reason that that client gets to choose the lawyer.74 However, in one case involving a Kansas state government attorney, the door was left open to reinstatement, at least at the pleading stage, in the event the discharged in-house counsel prevailed in his claim for wrongful discharge.75 Conclusion Just a short time ago, it was unthinkable that an in-house counsel would have a claim for wrongful discharge for any reason, let alone for reporting client conduct outside the organizational client. Recent developments in the law, however, have swung the pendulum away from the client’s absolute right to choose counsel as an ethical matter and toward protection of whistleblowers. Lawyers considering reporting client conduct, whether internally or externally, must proceed carefully with strict attention to the Rules. Reporting internally in many instances is required, but reporting externally is at most permissive. A lawyer discharged for such reporting may or may not have a valid claim for discharge in violation of public policy depending on numerous factors, particularly the applicable state or federal whistleblower protection statute. In-house counsel should stay tuned for further developments in this evolving ethical arena.

Jack Tanner is a director at Fairfield and Woods, where he has practiced since 1987. He represents clients in all aspects of commercial litigation, including contract disputes, receiverships, intellectual property, and construction matters—jtanner@fwlaw.com. The author gratefully acknowledges the assistance of his friend and colleague Cecil Morris with this article. Coordinating Editor: Stephen G. Masciocchi, smasciocchi@hollandhart.com

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N OT E S

1. Code DR 4-101. 2. Code DR 4-101(c)(3). 3. Code DR 4-101(c)(4) (a lawyer may reveal “[c]onfidences and secrets necessary to establish or collect his fee or to defend himself or his employees or associates against an accusation of wrongful conduct”). 4. Colo. RPC 1.6. 5. Colo. RPC 1.6(b)(2) (1997). 6. Originally Colo. RPC 1.6(c); later changed to Colo. RPC 1.6(b)(6). 7. Colo. RPC 1.13(b). 8. Colo. RPC 1.13, cmt. [4]. 9. Id. 10. E.g., “Enron Lawyers: If Only We Knew,” Forbes (Mar. 14, 2002) (describing testimony before House Energy and Commerce Committee of Enron outside counsel Joseph Dilg, stating he could not reveal what senior Enron executives Ken Lay and Jeff Skilling knew of Enron’s fraudulent conduct). 11. At the time, Rule 1.6 allowed for disclosure to prevent a crime but not to rectify or mitigate the financial consequences thereof. There was then no exception to the Rule 1.6 requirement to comply with a subpoena or other court order. 12. Colo. RPC 1.6(b)(4) (2008). 13. Colo. RPC 1.6(b)(6) (2000) (now found at Colo. RPC 1.6(b)(8)). 14. Colo. RPC 1.13(b). See also Glenn and Berger, “The New Colorado Rules of Professional Conduct: A Survey of the Most Important Changes,” 36 Colo. Law. 71 (Aug. 2007). 15. Colo. RPC 1.13(b). 16. Colo. RPC 1.13(e). 17. Colo. RPC 1.13(c). 18. Colo. RPC 1.13(c)(2). 19. The only time the Rules require disclosure outside the client is when a client is engaging in, or has engaged in, criminal or fraudulent conduct in the course of an adjudicative proceeding (such as lying under oath) and the client refuses to remediate the conduct. Rule 3.3(b). See also CBA Ethics Comm. Formal Op. 123 (2011). 20. Colo. RPC 1.6(b)(2). 21. Colo. RPC 1.6(b)(3). 22. Colo. RPC 1.13(c)(2). 23. Colo. RPC 1.16, cmt. [4]. 24. Colo. RPC 5.6(a). 25. Colo. RPC 5.6(b). 26. Colo. RPC 5.6, cmt. [1]. 27. CRS §§ 24-50.5-101 et seq. 28. Id. 29. CRS § 24-50.5-103(1). 30. CRS §§ 24-114-101 et seq. 31. CRS § 24-114-101(3) and (4). 32. CRS §§ 24-114-101 et seq. 33. CRS § 24-114-102(1). 34. CRS § 24-114-102(1)(b). 35. E.g., Kearl v. Portage Envtl., Inc., 205 P.3d

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496, 499–500 (Colo.App. 2008) (reversing dismissal of wrongful-discharge claim based on allegations that employee was fired in retaliation for urging company to not participate in fraudulent scheme). 36. See id. 37. 15 USC §§ 1701 et seq. 38. 12 USC §§ 5301 et seq. 39. Colo. RPC 1.13(a). 40. Colo. RPC 1.13(b). 41. Pang v. Int’l Document Servs., 356 P.3d 1190 (Utah 2015). 42. Id. at 1192–93. 43. Id. at 1193. 44. Id. at 1204. 45. Kidwell v. Sybaritic, Inc., 749 N.W.2d 855 (Minn.App. 2008). 46. Minn. St. § 181.932. 47. Kidwell, 749 N.W.2d at 867. 48. Colo. RPC 1.6(b)(4). 49. Colo. RPC 1.6(b)(1). 50. Colo. RPC 1.6(b)(2) 51. Colo. RPC 1.6(b)(3). 52. Colo. RPC 1.13(c). 53. U.S. Const. art. VI, § 2 (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding”). 54. E.g., Wadler v. Bio-Rad Labs., Inc., 212 F.Supp.3d 829, 854–57 (N.D.Cal. 2016) (under Supremacy Clause analysis, federal whistleblower protections preempt state ethics rules); Kachmar v. Sungard Data Sys., 109 F.3d 173, 181 (3d Cir. 1997) (same). 55. Douglas v. Dyn McDermott Petroleum Operations, 163 F.3d 223 (5th Cir. 1998). 56. Civil Rights Act of 1866, 42 USC §§ 1981 et seq. 57. CRS § 24-50.5-103(1)(c); CRS § 24-14-102(1) (b). 58. Pang, 356 P.3d at 1203. 59. Id. at 1203–04. 60. Balla v. Gambro, Inc., 584 N.E.2d 104 (Ill. 1991). 61. Id. at 108–10. 62. Crowley v. Watson, 51 N.E.3d 69 (Ill.App. 2016). 63. Id. at 76–80. 64. Crandon v. State, 897 P.2d 92 (Kan. 1995), cert. denied 516 U.S. 1113 (1996). 65. Id. at 99. 66. Heckman v. Zurich Holding Co. of Am., 242 F.R.D. 2d. 606 (D.Kan. 2007). 67. Id. at 609. 68. Gen. Dynamics Corp. v. Superior Court, 876 P.2d 487 (Cal. 1994). 69. Id. at 491.

70. Id. at 505. 71. Wadler v. Bio-Rad Labs., Inc., 2017 U.S. Dist. LEXIS 71532 at *16–18 (N.D.Cal. May 10, 2017), aff’d in part and rev’d in part on other grounds, 916 F.3d 1176 (9th Cir. 2019). 72. Cage v. Harper, 2018 U.S. Dist. LEXIS 147947 (N.D.Ill. 2018). 73. Id. at *12. 74. E.g., General Dynamics Corp., 876 P.2d at 495 (reinstatement not available as remedy in wrongful discharge case brought by former in-house counsel); Kachmar, 109 F.3d at 180 (noting this holding with approval); Sands v. Menard, Inc., 787 N.W. 2d 384, 387 (Wis. 2010) (arbitrator exceeded authority in ordering reinstatement of former in-house counsel). 75. Prager v. State Dep’t of Revenue, 20 P.3d 39 (Kan. 2001) (reversing order of dismissal and reinstating claims, including one for injunctive relief seeking reinstatement of terminated government attorney).

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FEATURE | TITLE REAL ESTATE LAW

Navigating Commercial Leases and Real Estate Loans during COVID-19 BY ROBI N L . NOL A N A N D A DA M F. A L DR IC H

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This article discusses issues that commercial landlords and tenants, and real estate loan borrowers and lenders, are facing in connection with their contractual obligations during the COVID-19 pandemic.

s the spread of COVID-19 causes the closures or severe cutbacks of businesses, many in the commercial arena are left to consider their options as landlords and tenants in commercial leases, and lenders and borrowers in real estate loans. Concepts such as force majeure, material adverse effect, and frustration of purpose are becoming part of the current lexicon for these commercial actors. The next step is to understand how such concepts operate in lease provisions and loan documents to determine how they can work for the parties in these unsettling times. This article provides the legal groundwork to understand commercial lease and real estate loan terms and noncontractual common law defenses that are particularly relevant in the COVID-19 environment. It reviews how commercial landlords and tenants, and real estate loan borrowers and lenders, are tackling pandemic issues with these terms in mind. Legal Concepts in Commercial Leases and Real Estate Loans Parties typically contract to provide who bears the burden of risk for events that commonly affect performance. Such events include acts of God, and financial, business, and property conditions. Parties also rely on noncontractual common law principles that excuse performance.

Force Majeure Force majeure clauses are contract provisions that excuse a party’s nonperformance when acts of God or other extraordinary events prevent a party from fulfilling its contractual obligations.1 Whether certain events triggered by the COVID-19 pandemic constitute force majeure depends on whether and how force majeure is defined in a particular contract.2

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If a party is contemplating termination based on a force majeure event, it should provide notice of the event as soon as practicable, even if it does not know whether the event will result in its inability to perform.

” When considering the applicability of a force majeure clause, courts analyze (1) whether the event qualifies as force majeure under the contract,3 (2) whether the risk of nonperformance was foreseeable and able to be mitigated,4 and (3) whether performance is truly impossible.5 The primary focus is on whether the clause encompasses the type of event a contractual party claims is causing its nonperformance.6 Force majeure clauses are generally interpreted narrowly; therefore, for an event to qualify

as force majeure, the clause at issue must use precise terms such as “war” and “pandemic” to state the event.7 Even when a clause encompasses a potential force majeure event, a party cannot invoke force majeure where the potential nonperformance was foreseeable and could have been prevented or otherwise mitigated.8 Further, nonperformance will not be excused if it is merely financially or economically more difficult to satisfy contractual obligations.9 Some jurisdictions, however, may only require that performance be impracticable.10 A party that considers terminating a contract or delaying its performance based on the existence of a force majeure event should carefully consider the specific events upon which it relies in asserting that right. There will likely be disagreement about whether the event was beyond the terminating party’s control; was reasonably foreseeable and could have been prevented; or fits the contractual definition of a force majeure as opposed to a change of economic circumstances, the risk of which the terminating party assumed. If a party is contemplating termination based on a force majeure event, it should provide notice of the event as soon as practicable, even if it does not know whether the event will result in its inability to perform. Doing so reduces the risk of an unnecessary dispute about the timeliness of any notice. Material Adverse Effect Commercial real estate loans typically allocate significant financial, business feasibility, and property condition risks to the borrower. Borrowers often seek to mitigate these risks by negotiating for “material adverse effect” (MAE) clauses, which provide an option to terminate the contract where certain circumstances occur that result in a material or adverse change to the JUNE 2020

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FEATURE | TITLE REAL ESTATE LAW

property’s condition before closing. Sometimes the term “material adverse change” (MAC) is used interchangeably to refer to an MAE clause. Whether an event falls within the definition of an MAE depends on (1) how MAE is defined, (2) the scope of any carve-outs to the MAE definition, and (3) whether the adverse event is material to the agreement as a whole. The applicability of the provision may also depend on the extent to which the parties could foresee the event in question and/or negotiated specifically regarding the risk of the event. An adverse event is generally considered material if it “substantially threaten[s]” the fundamental agreement “in a durationally-significant manner.”11 To qualify as an MAE, the adverse event “must be expected to persist significantly into the future.”12 Whether an MAE has taken place usually presents a factual inquiry, and expert testimony and detailed financial information are almost always necessary.13 A party seeking to terminate a contract based on an alleged MAE bears the burden of proving that the risk was unforeseeable at the time the party executed the contract and that the event in question will significantly impact the property in the long term.14 Similar to force majeure clauses, courts evaluate whether the party’s decision to terminate the contract based on an MAE was due to a circumstance that was reasonably foreseeable and has a long and lasting impact. For example, in Capitol Justice LLC v. Wachovia Bank, N.A., Wachovia Bank asserted its rights under an MAE clause to terminate a loan commitment for a loan intended to be secured through commercial mortgage-backed securities (CMBS) financing when the CMBS market ceased to function in 2007.15 In its analysis of whether a material change had occurred, the court focused on whether significant changes in the CMBS market were reasonably foreseeable when the contract was drafted.16 The court held that “parties often include MAC clauses to protect against unknown, not known, events[,]”17 but that the MAC clause at issue was ambiguous “because there is more than one interpretation that a reasonable person could give to the MAC clause . . . .”18 Even where COVID-19 has led to dramatic governmental actions and shutdowns, it cannot

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be assumed that such conduct would justify triggering an MAE clause. Each case must be evaluated based on its specific factual circumstances, the language in the agreement, and the context of the transaction. If negotiations are

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Governmentally imposed stayat-home orders implicate numerous issues in commercial leases involving nonessential businesses. With an understanding of those potential issues, landlords and tenants can work to craft solutions as they arise.

” ongoing for a prospective transaction, careful consideration should be given to crafting the MAE clause in light of the COVID-19 pandemic. A review of recently filed complaints illustrates that contractual provisions other than MAC/MAE have been relied upon by parties seeking to avoid contractual obligations in the COVID-19 era, including failing to comply

with obligations to continue operations in the normal course of business due to compliance with government-mandated shutdowns; specific performance, for failing to comply with the scheduled closing; breach of contract, for refusing to close on a merger because financial information the seller provided the buyer did not take into account the effects of coronavirus; and declaratory judgment seeking a declaration that a buyer validly terminated a Transaction Agreement under which it would acquire a majority interest in the seller’s retail business because the seller breached covenants, representations, and warranties by substantially altering its business operations.19 Noncontractual Common Law Principles that Excuse Performance Even in the absence of contractual MAC or force majeure clauses, parties may turn to common law defenses of impracticability or frustration of purpose as potential options to discharge their obligations under real estate contracts. Each of these defenses is incorporated into the Restatement (Second) of Contracts,20 which is followed in Colorado.21 Under the doctrine of impracticability, a party’s contractual obligations may be discharged if, after the contract is made, the party’s performance becomes impracticable by the occurrence of an event that is outside of a party’s control and the nonoccurrence of which was a basic assumption on which the contract was made.22 Similarly, under the doctrine of frustration of purpose, a party’s contractual obligations may be discharged if, after the contract is made, the party’s principal purpose is substantially frustrated without the party’s fault and where the occurrence or nonoccurrence of an event was a basic assumption on which the contract was made.23 The application of each of these defenses depends on whether an unanticipated circumstance has made the performance of the contract materially different from what reasonably should have been within the contemplation of both parties when they entered into the contract.24 Economic conditions generally do not constitute an unanticipated circumstance.25 A governmental regulation or order, the nonoccurrence of which

was a basic assumption of the contract, may constitute commercial impracticability,26 but a party must overcome a high bar to succeed on a commercial impracticability argument.27 Potential COVID-19 Issues with Commercial Leases Governmentally imposed stay-at-home orders implicate numerous issues in commercial leases involving nonessential businesses. With an understanding of those potential issues, landlords and tenants can work to craft solutions as they arise.

Force Majeure The force majeure provision in a commercial lease often provides for delayed performance of an obligation under the commercial lease for items such as acts of God, weather, inability to obtain labor or materials, pandemics, governmental actions, or other reasons similarly beyond the party’s control. Thus, tenants will want specificity in the list of force majeure events while landlords may prefer less precise terms. Stay-at-home orders and business shutdowns may amount to a force majeure event. Also, slowdowns in construction and material shortages caused by the COVID-19 situation may impact either party in the performance of the landlord or tenant work. However, many commercial leases exclude monthly payment obligations, such as those for rent and common area maintenance, from the application of force majeure. So even if the COVID-19 situation invokes the force majeure clause, tenants subject to such terms will be unable to use the provision to justify nonpayment of monthly payment obligations. A party who raises the force majeure clause to delay performance under a commercial lease is typically required to provide timely notice to the other party that the event has occurred. Therefore, if a party wants to avail itself of a force majeure provision, it must be sure to abide by the applicable notice requirements. Use and Maintenance of Common Areas Commercial lease provisions regarding use of common areas and the responsibilities of a landlord for those common areas should be reviewed. A landlord that is responsible under

the lease for the maintenance and cleaning of the common area will likely have a duty of care to its tenants for enhanced cleaning during this period of the COVID-19 outbreak. Further, along with that duty of care, a landlord may need to assist with social distancing by preventing access to common areas such as food courts, bathrooms, workout facilities, and rest areas. Given the lack of access to these areas, a tenant may assert that its payment of operating expenses should be lowered. However, at the same time, the increased cleaning procedures will likely lead to increased operating expenses. The lease terms will govern whether a landlord can pass these costs along to a tenant and whether such increase has a cap. Changes to how a common space may be used must be communicated to the tenant. Landlords should review the lease terms to determine whether such modifications trigger ramifications such as rent abatement, the landlord’s default, or the tenant’s termination rights. If the tenant requests modifications to the use or cleaning of the common areas, the parties should assess any relevant lease provisions that need to be followed or modified. Complicating matters, a vendor who provides required maintenance to common areas may be unable to perform the work due to its status as a nonessential business under a governmental order. In such case, a landlord may use a force majeure clause to delay the maintenance but must keep in mind its general duty of care to tenants when deciding whether to invoke the clause. Some leases give the tenant certain responsibilities for common areas. In this situation, a landlord may ask the tenant to clean the common areas more thoroughly. Landlords should make such requests directly to the tenant and in accordance with the lease. Space Alterations to Decrease Density To further the social distancing efforts due to COVID-19, a tenant may want to alter the premises to decrease occupation density, which may require the landlord’s consent. Alternatively, a governmental order can require that businesses allow a certain percentage of the workforce to work from home. The lease terms may have

specific notice provisions for obtaining landlord consent for such alterations and may require the tenant to provide the landlord certain items when making such a request, such as the plans and specifications for such work and the contractors who will perform the work. Most leases do not have provisions for emergency alterations to be completed by a tenant. Nonetheless, before undertaking emergency alterations, a tenant should approach the landlord with any ideas or conceptual plans for emergency alterations. The landlord will want to weigh financial considerations resulting from less use of the premises against the potential economic benefits of helping to mitigate the spread of COVID-19. Operational Issues Commercial leases routinely require tenants to operate for a certain number of hours per day or week and/or during set hours within a day. Also, the lease may not allow a tenant to abandon the premises. Yet despite such provisions, commercial leases typically have a “permitted use” clause that obligates a tenant to comply with all laws. Thus, if a governmental order mandates the closure of nonessential businesses, a tenant could be faced with conflicting lease requirements when it closes the premises to comply with a governmental order. One solution is for the tenant to request a short-term accommodation from the landlord to allow for fewer employees, reduced in-person hours, and/or changes in operating hours to help combat the spread of COVID-19. The force majeure provision may allow for this accommodation. The landlord’s goal should be to make sure that such accommodations are indeed short term, because continuing such accommodations may not be sustainable. To allow tenants continued operations, commercial leases normally require landlords to provide tenants with access to the premises. Governmental closure orders may also affect the landlord’s ability to provide the tenant the amount of premises access that is required under the commercial lease, which may result in a landlord running afoul of the lease. Here again, the force majeure clause may become operative to allow landlords to limit access. JUNE 2020

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Tenants facing decreased access should review the lease to determine whether they are entitled to withhold rent under such circumstances. Construction Improvements A commercial lease may require a landlord to complete construction work before delivering property to a tenant. Additionally, a tenant may be required to make construction improvements to the premises after delivery of the premises. Such construction projects may run up against force majeure provisions in construction contracts that allow contractors to discontinue or slow down work due to shortages of labor or construction materials, or lack of a building permit. A contractor’s use of a force majeure provision will have cascading effects to the other parties, potentially causing a landlord’s delayed delivery of the premises to the tenant or a tenant’s failure to timely complete its improvements before the rent commencement date. Where a date for delivery of the premises to a tenant is not set a landlord may not face consequences. But if such a date is set, a landlord facing construction delays may be able to rely on the force majeure clause to allow for such delays. If the premises are delivered to the tenant with incomplete construction due to a work stoppage or slow down, the tenant should evaluate whether the force majeure clause permits delayed rent. Casualty The parties may also want to review the casualty provisions in the commercial lease. Those provisions cover the parties’ obligations in the event of a casualty to the premises, such as the tenant’s notice requirements to the landlord of the casualty, the landlord’s determination whether to restore the premises, the parties’ rights to termination, and rent abatement to the tenant during the restoration. Normally, such provisions apply only to physical damage to the premises, so whether the presence of the COVID-19 virus constitutes physical damage is unresolved. Depending on the specific lease, premises closures due to COVID-19 concerns or stay-at-home orders could qualify as a casualty if they do constitute

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physical damage where the casualty provision is expansive. Therefore, parties should review the applicability and notice requirements for casualties. Quiet Enjoyment The quiet enjoyment clause in a commercial lease generally provides that a tenant’s use of the premises will not be disturbed so long as the tenant abides by the lease provisions. Therefore, where a governmental order is not in place, if a landlord closes the premises and does not allow the tenant to enter due to COVID-19 concerns, a tenant may have a claim for breach of quiet enjoyment. If a landlord’s closure is due to a governmental order, the landlord may be able to assert that a force majeure event prevents its compliance with a quiet enjoyment provision. Hazardous Materials A hazardous material clause may cover the presence of the COVID-19 virus in the premises. Such a clause in a commercial lease normally requires a tenant to agree to not have hazardous materials on the premises and to indemnify the landlord from damages for the presence of such materials. A landlord may have the same duty to a tenant. Therefore, either party may be able to rely on the hazardous materials clause for relief from performance during the pandemic. Co-Tenancy Provisions A tenant may be allowed to pay reduced rent or have rent abated if the co-tenancy clause in a commercial lease is violated. Such a provision generally provides that if a certain anchor store or a specified percentage of stores in a shopping mall close, the co-tenancy provision is violated. With the current COVID-19 concerns and governmental orders, some anchor tenants may close down temporarily or permanently. In such case, a tenant may be allowed to terminate the commercial lease. Condemnation A commercial lease may provide for rent abatement or termination if the premises are taken by the government. Depending on the wording of the specific lease provision, a taking might occur if the government temporarily takes the

premises for its use or, through a governmental order, bars access to the premises. Options for Resolution Regardless of the issues affecting their commercial lease, parties should communicate as soon as issues arise and properly document all of their communications. Communication is key to obtaining an expedient and mutually satisfactory solution. Parties will generally have multiple solutions at their disposal, either through the express terms of the lease or negotiations to agree on a separate solution. For example, a landlord can consider deferring rent until a tenant is allowed back in the space. Depending on the situation, this solution could require the landlord to obtain lender approval for a deferral in payments. A landlord can also look at other payment options, such as reducing the amount of rent to be paid in a certain month or allowing the tenant to pay only the operational expenses for that month. Additionally, a landlord can agree to use the deposit amount to cover a month’s rent with a tenant who agrees to replenish the security deposit by a certain time. A commercial lease also has various late fee provisions related to late rent or operating expense payments. A landlord can waive fees that normally would be assessed against a tenant for late payments. In that event, a landlord is not formally deferring payments, but also is not penalizing a tenant for late payments. COVID-19 and Real Estate Loan Documents Many commercial real estate lenders and borrowers are working through the impacts of the COVID-19 pandemic on their loan documents. Adding to the complex and evolving impact of the pandemic, federal regulators have advised banks to work constructively with borrowers affected by COVID-19 by, among other things, modifying or restructuring debt obligations and modifying loan terms due to temporary hardships resulting from COVID-19 related issues.28 Given the business and legal uncertainties, lenders must assess their options case-bycase and balance business and legal risks in

determining their next steps. There will likely be situations in which funding a loan or approving draw requests is simply not advisable. In most cases, the lender and the borrower should evaluate their loan documents and use the tools discussed below to manage the business and legal risks. Financial Covenants Lenders and borrowers should assess the impact of COVID-19 on the borrowers’ ability to comply with their financial covenants. Most commercial loan documents contain financial covenants including (1) cash flow covenants, (2) leverage ratios comparing total debt to cash flow, (3) liquidity covenants, and/or (4) net worth covenants.29 Additionally, in commercial real estate lending, loans are typically subject to loan-to-value and/or loan-to-cost covenants, which limit the principal amount of the loan to a percentage of the fair market value of the encumbered real estate, or the cost of acquisition and completing improvements on such real estate.30 In the real estate loan context, cash flow covenants are typically based on a net operating income formulation, which is generally based on the gross revenue derived from the operation of the property less its operating expenses, management fees, and often capital reserves.31 The measurement and reporting of financial covenant compliance is typically done on a quarterly basis and in some instances may be based on annualized quarterly results. It is likely that the economic effects of COVID-19 will manifest in many borrowers’ quarterly results, which could compromise the borrowers’ financial covenant compliance, placing them at risk of a default under their loan documents. Thus, borrowers who anticipate difficulties complying with financial covenants as a result of the pandemic’s economic effects should consider approaching their lenders now to discuss obtaining waivers or permanent amendments to such covenants. Addressing Defaults The operational disruptions and financial stresses on borrowers resulting from the COVID-19 pandemic substantially increase the risk of defaults under loan documents. Moreover,

borrowers whose real estate becomes devalued because of declining rental or operational revenues may have difficulty complying with financial covenants that require a minimum loan-to-value ratio to maintain the outstanding loan balance. Events of default typically act as a “draw stop” with respect to the lender’s obligation to fund subsequent committed borrowings under multiple draw facilities, enabling the lender to refuse to fund a committed loan at a time when the borrower is likely in most need of liquidity to fund working capital. Thus, it is important to understand exactly what constitutes an “event of default” under the loan documents in question. Lenders should assess the loan documents and liens for any defects that could be significant in a default scenario and subsequent collection efforts and determine whether the defects can be addressed through a workout. As an inducement to the lender to enter into a workout arrangement, the borrower may be willing to provide guaranties, collateral, or other protections that were not included in the original deal. This is also a time to assess intercreditor arrangements. There may be agreements that require the lender to give notice before exercising remedies or stopping payments on subordinated debt. The Reservation of Rights Letter is an important tool for lenders in the COVID-19 environment. Despite the advantages of a Forbearance Agreement, there usually are delays while forbearance terms are negotiated and documents are drafted, especially now when the economy has been severely impacted with large numbers of borrowers in distress. The Reservation of Rights Letter will help establish that the lender considers existing defaults to be material; is not waiving defaults or agreeing to forbear; and is providing continued funding as an accommodation to the borrower and not as a waiver or affirmation of an obligation to fund in the future. The letter can also encourage the borrower to comply with proposed reporting deadliness, such as providing projections or cash flows by a date certain. If the borrower does not meet the requirements, the letter can serve as a marker in the paper trail showing the lender’s efforts and the borrower’s failure to follow through.

Representations and Warranties Loan documents should be evaluated to determine to what extent representations and warranties are continuing or whether they are fixed as of a stated time. Most construction loan agreements require, as a condition to further advances, that representations and warranties be true and correct as of each borrowing event. However, with single funding obligations, representations and warranties may only be made or deemed made as of the closing date or funding date. It is likely that the impact of COVID-19 on certain borrowers will invalidate a representation and warranty, create a MAC, or rise to the level of a default event, any of which would serve as a basis for a lender to suspend additional funding to a borrower under the applicable loan terms. It could also result in disclosure requirements and potentially trigger a default event resulting in the lender’s right to accelerate the loan and declare all outstanding amounts immediately due and owing. Notices Required of Borrowers Borrowers should monitor and assess whether and at what point a notification requirement has been triggered as a result of the pandemic. Generally, commercial loan documents require borrowers to provide notice of certain events or occurrences, including notice of pending or threatened litigation, any defaults or events of default that have occurred, or an existing MAC or any event that would result in a MAC, all or any of which may be implicated by the effects of COVID-19 on a borrower and its business, assets, or finances. Force Majeure Loan documents may contain force majeure provisions that limit the borrower’s required performance for certain specified events. Such force majeure provisions do not typically cover monetary obligations, nor do they excuse a borrower from making required payments. Such provisions are typical in construction loan agreements and excuse failures to continue construction or delays in completion of construction by a date certain as a result of certain specified events. Whether a pandemic JUNE 2020

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such as COVID-19 would qualify under a force majeure clause is the subject of much discussion and speculation, but the determination will depend on the specific language of the clause at issue. Some clauses may specifically contemplate pandemics, epidemics, public health emergencies, or declared national emergencies, each of which would appear to cover the current pandemic. Default Avoidance and Relief under the CARES Act On March 29, 2020, President Trump signed into law the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), a stimulus package designed to mitigate the effects of COVID19.32 Significant for real estate, the legislation (1) establishes forbearance, foreclosure, and eviction limitations for owners/lenders of certain properties secured by government-backed loans; (2) establishes a loan guarantee program to help small businesses retain employees and cover necessities; and (c) extends $454 billion to businesses, states, and cities impacted by the coronavirus and not receiving loans through any other provision in the Act. Section 4023 of the Act provides that during the “covered period” a “multi-family borrower” with a “federally backed multifamily mortgage loan” that was current on its payments as of February 1, 2020, may submit a request for forbearance under § 4023(a) to the borrower’s servicer affirming that the multifamily borrower is experiencing a financial hardship during the COVID-19 emergency. Section 4023(f ) of the CARES Act defines “multifamily borrower” and “covered period”: ■ “multifamily borrower” is “a borrower of a residential mortgage loan that is secured by a lien against a property comprising 5 or more dwelling units”; and ■ “covered period” is “the period beginning on the date of enactment of this Act and ending on the sooner of (A) the termination date of the national emergency concerning the novel coronavirus disease (COVID–19) outbreak declared by the President on March 13, 2020 under the National Emergencies Act (50 U.S.C. 1601 et seq.); or (B) December 31, 2020.”33 42

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It is presently unclear whether seniors housing fits within the definition of “multifamily” properties under § 4023 of the CARES Act, but it is notable that the Fannie Mae Multifamily Selling and Servicing Guide defines34 “Asset Class” as the “type of Multifamily Property securing a Mortgage Loan (e.g., conventional, Seniors Housing, Manufactured Housing Community, Cooperative, etc.).”35 Thus, it seems reasonable to expect that senior housing facilities should be afforded the benefits of the CARES Act. The CARES Act does not impose a blanket moratorium on foreclosures by lenders on multifamily or other commercial borrowers. The Small Business Authority (SBA) Paycheck Protection Program (PPP) is a loan guarantee program incorporated into the CARES Act to help small businesses keep employees on the payroll and cover necessities such as rent and utilities. If certain conditions are met, the loans are forgivable. To be eligible for a PPP loan, a company must be either (1) a small business concern under the SBA regulations, or (2) a business concern, nonprofit organization, veterans’ organization, or Tribal business concern that employs no more than 500 employees whose principal place of residence is in the United States (or the number of employees in the size standard applicable to the borrower’s industry, which for some industries is up to 1,500 employees). SBA defines “business concern” broadly to include any business entity organized for profit, with a place of business located in the US, that operates primarily in the US or makes a significant contribution to the US economy through payment of taxes or use of American products, materials, or labor. 36 Thus, most real estate asset classes, and most real estate owners, landlords, tenants, and borrowers that are based or operating primarily in the US will constitute “business concerns” for purposes of this prong of SBA loan eligibility. If a potential applicant cannot access relief under Title I because it employs more than 500 employees, there may be relief available pursuant to Title IV for “severely distressed” businesses.37 Additionally, under Title II of the CARES Act, a federal excise holiday applies to the use of alcohol and distilled spirits in the production

of hand sanitizer.38 This could be meaningful for owners and tenants of restaurants, bar space, and other food and beverage operations. Title III will be relevant to owners/tenants in health care because it provides an extensive program to support the health care system in its response to COVID-19.39 The CARES Act also provides $1 billion for purchases under the Defense Production Act, which may be relevant for industrial logistics, warehousing, food storage, and similar assets involved in supply chain security. In its Fourth Interim Final Rule, the SBA amended its prior guidance for gaming businesses such that a business that is otherwise eligible for a PPP loan is not rendered ineligible due to its receipt of any legal gaming revenues.40 This amendment could be meaningful for legal gaming businesses (such as casinos) impacted by COVID-19. Potential Solutions for Lenders and Borrowers Both borrowers and lenders should review their loan documents and be proactive in addressing potential default and covenant compliance issues. Borrowers should particularly review what notices they may be required to give their lenders. Advance notice to the lender and an honest assessment of the situation by the borrower are key to developing a successful workout plan. Moreover, the lender must have confidence in the borrower’s financial reporting and the borrower’s management. Even if anticipated issues are not currently required to be disclosed under the loan documents, borrowers should consider informing their lender of the likely impact COVID-19 may have on their business, to explore collaborative solutions to anticipated problems that may lie ahead. Such open discussions may encourage lenders to proactively address financial and cash flow stress with the borrower and search for mutually beneficial solutions. For example, lenders can amend financial covenants in advance, and to the extent borrowers have available cash, they may wish to consider whether to exercise equity cure rights, or to add such a cure right if none exists, to bring them into compliance in the event of a financial covenant breach. Lenders should also consider extending

time periods for a borrower to cure defaults, or amend the loan documents proactively to avoid anticipated defaults. Given the pervasive effect that COVID-19 has had on the global economy, the responses of creditors to borrowers for covenant and loan defaults should be measured and collaborative. In the context of sales and acquisitions of real property, buyers may request and sellers should consider renegotiated purchase prices, extended diligence periods (to assess the impact of COVID-19), financing contingencies in light of the potential difficulties in obtaining financing, and delays in closing or termination of contracts based on force majeure or other closing con-

ditions. Purchasers who use financing should begin the process early given that it may be more difficult to obtain financing despite historically low interest rates. Conclusion Given the current climate caused by the spread of COVID-19, parties to commercial leases and real estate loans should identify provisions in their documents that affect their abilities to perform. Understanding these provisions will allow parties to navigate contractual minefields during these uncertain times. In the end, cooperation may prove to be the parties’ best weapon against the COVID-19 pandemic.

Robin L. Nolan is a partner at Spencer Fane in Denver, where she practices commercial real estate law in the areas of development, leasing, financing, acquisitions, and dispositions—(303) 592-8314, rnolan@spencerfane.com. Adam F. Aldrich is the founder of Aldrich Legal, LLC, a Denver-based law firm focused on real estate and business transactions and litigation—(303) 325-5683, adam@aldrichlegal.com. Coordinating Editor: Christopher D. Bryan, cbryan@garfieldhecht.com

NOTES

1. Black’s Law Dictionary (Thomson West 11th ed. 2019). See also 1 Am. Jur. 2d, Act of God § 13 (Lawyers Coop. Publ’g 2016). 2. Gillespie v. Simpson, 588 P.2d 890, 892 (Colo. App. 1978) (discussing whether the language in a lease’s force majeure provision excused the tenant from paying rent due to government action). 3. Moncrief v. Williston Basin Interstate Pipeline Co., 880 F.Supp. 1495 (D.Wyo. 1995). 4. In re Cablevision Consumer Litig., 864 F.Supp.2d 258, 264 (E.D.N.Y. 2012). 5. Pillsbury Co. v. Wells Dairy, 752 N.W.2d 430, 440 (Iowa 2008) (citing Black’s Law Dictionary). 6. See Lord, 30 Williston on Contracts § 77:31 (Lawyers Coop. Publ’g 4th ed. 2004) (“What types of events constitute force majeure depend on the specific language included in the clause itself”). 7. Kel Kim Corp. v. Cent. Markets, Inc., 70 N.Y.2d 900, 902 (N.Y. 1987) (“contractual force majeure clauses—or clauses excusing nonperformance due to circumstances beyond the control of the parties—under the common law provide a similarly narrow defense”). 8. See Lord, supra note 6 at § 77:31 (noting that a party seeking the benefits of a force majeure clause must show that continued performance is impossible “in spite of skill, diligence, and good faith”).

9. Id. (“Nonperformance dictated by economic hardship is not enough to fall within a force majeure provision”). 10. Pillsbury Co., 752 N.W.2d at 440. 11. See Akorn, Inc. v. Fresenius Kabi AG, 2018 WL 4719347 at *53 (Del. Ch. Oct. 1, 2018). 12. See Hexion Specialty Chems., Inc. v. Huntsman Corp., 965 A.2d 715, 738 (Del. Ch. 2008). See also In re IBP, Inc. Shareholders Litig., 789 A.2d 14, 67 (Del. Ch. 2001) (the adverse event must be “consequential . . . over a commercially reasonable period, which one would think would be measured in years rather than months”). 13. See Alliance Indus., Inc. v Longyear Holdings, Inc., 854 F.Supp.2d 321 (W.D.N.Y. 2012) (denying cross-motions for summary judgment on whether an MAE had occurred because although both parties had submitted expert opinions, neither party presented sufficient evidence to show the financial effect on the target’s total assets and bottom line). 14. See Hexion Specialty Chems., 965 A2d at 738 (“A buyer faces a heavy burden when it attempts to invoke a material adverse effect clause in order to avoid its obligation to close” and as of the date of this decision, “Delaware courts have never found a material adverse effect to have occurred,” which “is not a coincidence.”) 15. Capitol Justice LLC v. Wachovia Bank, N.A.,

706 F.Supp.2d 23, 26–27 (D.D.C. 2009). 16. Id. at 29–34. 17. Id. at 30. 18. Id. at 29 (citing Hexion, 965 A.2d at 738). 19. Chancery Blog, Delaware Corporate Litigation in the Time of Coronavirus, http:// chanceryblog.com/court-procedure/#covid-19litigation. 20. Restatement (Second) of Contracts (Am. Law Inst. 1981). 21. Littleton v. Emps. Fire Ins. Co., 453 P.2d 810, 812 (Colo. 1969) (impossibility of performance); Beals v. Tri-B Assoc., 644 P.2d 78, 80–81 (Colo. App. 1982) (frustration of purpose). 22. Littleton, 453 P.2d at 812. 23. Beals, 644 P.2d at 81. 24. Littleton, 453 P.2d at 812. 25. Beals, 644 P.2d at 81 (“The risk that economic conditions may change, or that government actions of the type involved here may impair the profitability of a real estate development, are not so unforeseeable that they are outside the risks assumed under the contract”). 26. See Ruff v. Yuma Transp. Co., 690 P.2d 1296, 1298 (Colo.App. 1984) (delay of approval from Interstate Commerce Commission is not so unforeseeable as to excuse performance). But see UNCC Props., Inc. v. Greene, 432 S.E.2d 699, 702–03 (N.C.Ct.App. 1993) (finding impossibility of performance where the county had condemned the real property to be sold). 27. Beals, 644 P.2d at 80–81 (finding that a party seeking to avoid contractual obligations under the doctrine of frustration of purpose must demonstrate total, or near total, destruction of the essential purpose of the transaction). 28. FDIC Statement on Financial Institutions Working with Customers Affected by the Coronavirus and Regulatory and Supervisory Assistance, https://www.fdic.gov/news/news/ financial/2020/fil20017a.pdf. 29. Stern, Structuring and Drafting Commercial Loan Agreements, § 7.03 (Lexis Nexis rev. ed. 2019). 30. Uchill, Anatomy of a Mortgage: Understanding and Negotiating Commercial Real Estate Loans (ABA 2d ed. 2019). 31. Stern, supra note 29 at § 7.03. 32. H.R. 748. 33. H.R. 748 § 4032(f). 34. Multifamily Selling and Servicing Guide, https://multifamily.fanniemae.com/documentsforms/selling-servicing-guide (effective Apr. 13, 2020). 35. Id. at 630. 36. 15 USC § 632. See also 13 CFR Part 120. 37. H.R. 748 § 4002(4). 38. H.R. 748 § 2308. 39. H.R. 748 §§ 3001 et seq. 40. https://home.treasury.gov/system/files/136/ Interim-Final-Rule-on-Requirements-forPromissory-Notes-Authorizations-Affiliationand-Eligibility.pdf (issued Apr. 24, 2020).

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History of the Orange Book Forms An Enduring Product of Its Times BY F R A N K T. H I L L

This article explores the history of CBA-CLE’s Orange Book Forms: Colorado Estate Planning Forms. It highlights the major legislation and primary players in the book’s development.

his article provides a chronological history of CBA-CLE’s landmark publication Orange Book Forms: Colorado Estate Planning Forms1 (Orange Book Forms) and the key roles played by several prominent Colorado attorneys in its development. The story of the Orange Book Forms begins in earnest in the early 1970s. The setting was the then-extant federal wealth transfer tax system and the then-current Colorado trust and estate law.

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Development of the Federal Wealth Transfer Tax System The current federal wealth transfer tax system had its origin in 1916. It evolved throughout the Great War, the Great Depression, and World War II. This federal system consisted of an estate tax on wealth transmitted at death and a gift tax on lifetime transfers. By 1935, the top estate tax rate was 70%, the exemption had been lowered to $40,000,2 and an alternate valuation date concept had been enacted.3 In 1940, the top estate tax rate

was increased to 77%.4 The Revenue Act of 1942 increased the estate tax exemption to $60,000, set the gift tax exemption at $30,000, and inaugurated the gift tax per-donee annual exclusion of $3,000.5 Finally, the Revenue Act of 19486 introduced the 50% estate and gift tax marital deductions in an attempt to bring parity to federal wealth transfer tax treatment between common law states and community property jurisdictions. Thereafter, not much changed in federal wealth transfer taxation law for the next 28 years.7

During this period of wealth transfer tax legislative inactivity, changes in the economy were working to expand the reach of the wealth transfer tax system. Increasing numbers of donors and decedents were drawn into its grasp by inflationary forces.8 As a result, for at least the next 50 years, avoiding or at least minimizing the impact of wealth transfer taxes became the central focus of estate planning for most clients. Then came the earthquakes. The Probate Avoidance Revolution In 1966 Norman F. Dacey published How to Avoid Probate! 9 Rocketing to the top of national best-seller lists, this book decried the archaic state of the regime then almost universally used to settle decedents’ estates across the country, a lawyer-intensive process in which all but the smallest estates were administered under ongoing court supervision (including court audit of final accountings). Nothing could be accomplished without court hearings and orders; executors, administrators, heirs, and devisees were merely spectators. Dacey’s work was soon regarded as a shot across the bow of the probate and trust bar and a harbinger of the revocable trust tsunami soon to come. The term “probate” had become a dirty word, and “avoiding probate” soon became the mantra of nearly every prospective estate planning client. In the early 1970s, it was considered very sophisticated for banks to publish form books for attorneys to consult for guidance in preparing documents that might later end up being administered by the bank. The first such work I encountered was put together by renowned Denver attorney William S. Huff. It was a compilation of some of the most commonly used basic estate planning forms (e.g., general power of attorney, simple will, will with contingent trust, and marital deduction will) with accompanying comments on their appropriate use and modification. These were assembled into a small loose-leaf book and distributed to bar members by the Trust Department of what was then the United Bank of Denver. Origin of the Colorado Forms Throughout the 1960s, in a project conceived and led by the late attorney William P. Cant-

well, a team of quite a few Colorado attorneys volunteered countless hours of valuable time to help create an estate planning handbook for Colorado lawyers. It was recognized that such

“

Dacey’s work was soon regarded as a shot across the bow of the probate and trust bar and a harbinger of the revocable trust tsunami soon to come. The term ‘probate’ had become a dirty word, and ‘avoiding probate’ soon became the mantra of nearly every prospective estate planning client.

” a work would be strengthened by including a set of forms that attorneys could adapt to their practices. An initial set of suggested forms was originally contributed by trust departments of several prominent Colorado banks. These forms

were then refined by a select committee of four Colorado attorneys and included as Chapter 27 of the original edition of the handbook, Colorado Estate Planning,10 published in 1972. This work was released in conjunction with CLE’s presentation of a major institute on estate planning. This first edition was produced in a 6" x 9" orange loose-leaf binder. Therefore, it quickly came to be referred to as the “Orange Book,” and its forms became known as the “Orange Book forms.” Impact of the Uniform Probate Code The next major development in Colorado’s probate world was the enactment in 1973 of the Uniform Probate Code (UPC) as the Colorado Probate Code (CPC),11 effective July 1, 1974. The CPC addressed many of the long-standing abuses cited in Dacey’s book and revolutionized the world of estate administration. It replaced a judicial-based system premised on presumed mistrust with a new administrative-based system built on presumed good faith. The CPC was designed to allow for more expeditious and economical estate settlements, with minimal court involvement intentionally limited to resolving controversies as they might arise. This new system was so revolutionary that it necessitated a full three-day roll-out program, which was sponsored by CLE and the CBA’s Probate and Trust Law Section and held in the grand ballroom of the Regency Hotel in Denver. Hundreds of lawyers attended from all over the state. The CPC altered the decades-long era during which probate and trust lawyers had reaped generous “commissions” dictated by “minimum fee schedules” that were universally promulgated by state supreme courts, state bar associations, and ethics committees. Such schedules (including one created by the CBA) were designed, ostensibly, to eliminate the unseemly aspect of competition from the profession. The UPC introduced the novel concept of “reasonable compensation” for both fiduciaries and their counsel, which was the idea that they should only be compensated for the value of services actually rendered. This idea was bolstered by a related development when attorneys filed a major case challenging state JUNE 2020

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supreme court blanket prohibitions against lawyer advertising as violating their right to constitutionally protected commercial speech.12 The US Supreme Court determined that merely advertising the fees at which routine legal services would be performed falls within the scope of First Amendment protection and does not undermine true professionalism. Shortly after this double-barreled assault, the CBA withdrew its minimum fee schedule. Enactment of the CPC dramatically transformed probate law and practice in Colorado, so the forms comprising Chapter 27 of Colorado Estate Planning were completely revised by a small committee of prominent Colorado probate and trust attorneys led by the late Walter B. Ash. These revised forms were then published as a dedicated estate planning form book rather than as a chapter in the comprehensive handbook. The form book was printed in 8½" x 11" looseleaf format, which, together with larger type size and generous line spacing, was designed to accommodate the direct use of the forms as reproducible mark-up masters. Envisioned as a companion publication to the also-revised handbook, CLE published the form book in 1975 in a separate one-inch, orange loose-leaf binder as the first edition of Orange Book Forms. The Modern Era The “modern era” of federal wealth transfer taxation began with the Tax Reform Act of 1976.13 Under this Act, the estate and gift tax systems were substantially integrated (coupled). The separate gift tax exemption and estate tax exemption were replaced by a unified credit against tax liability. At the time of enactment, the amount of the unified credit had the effect of increasing the former estate tax exemption from $60,000 to $120,000.This unified credit was then scheduled in the statute to be raised annually over the next few years, which would create the effect of gradually increasing the exemption from $120,000 to $175,625 by 1981. Also, the maximum estate tax rate was reduced from 77% to 70%, special use valuation was introduced to give relief to capital-intensive farms and small businesses, and a new generation-skipping transfer (GST) tax and the short-lived income tax carry-over basis regime were created. 14

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Thus, the first two legs (estate tax and gift tax) of the current triad federal wealth transfer tax structure were put in place. Then, in 1979, the Colorado inheritance tax was repealed. Before its repeal, this annoying tax affected the administration of nearly every decedent’s estate in Colorado. It was replaced by the Colorado estate tax,15 which was a “pick-up” tax, so called because it picked up the maximum amount allowed as a credit against the federal estate tax for state death tax paid. Once again, a small committee of prominent trust and estate attorneys worked to revise Orange Book Forms to reflect the tax law changes brought about by the Tax Reform Act of 1976 and the Revenue Act of 1978.16 Again edited by William S. Huff, this second edition, published in May 1979, contained the second generation of Colorado’s tax planning forms. The next major development in the wealth transfer tax system occurred with the Economic Recovery and Tax Act of 1981 (ERTA),17 which continued the upward increase of the unified credit annually in steps so that by 1986 the estate tax exemption effectively would be raised from $175,625 to $600,000. Significantly, it also completed the evolution of the marital deduction with the introduction of the “unlimited” marital deduction. In addition, the top estate tax rate was dropped from 70% to 50% and the gift tax annual exclusion was raised from $3,000 to $10,000.18 The late J. Michael Farley soon recognized the need to update the existing Orange Book Forms in light of ERTA’s introduction of the unlimited marital deduction. In 1982, he assembled an ad hoc committee of the Probate and Trust Law Section, which set about revising and updating all the forms in light of ERTA and recent developments in Colorado law. Having completed its work, the ad hoc committee was disbanded. This committee’s work product, the third generation of Colorado tax planning forms, was promptly published as the third edition in May 1983. The Tax Reform Act of 198619 soon followed. It retroactively repealed the original 1976 version of the GST tax and replaced it with the current version of that tax.20 Now the third leg of the current triad of the federal wealth transfer tax

structure, the GST tax, was finally in place. Although it would go through another 20-plus years of refinement, the basic fundamental elements of that system had been firmly set. Soon thereafter, the late Clifton B. Kruse Jr., then chair of the Probate and Trust Law Section, recognized that it was a disservice to CBA members to have static Orange Book forms in the face of ever-evolving federal tax law and Colorado state law. Accordingly, in 1989, together with his co-chair, David W. Kirch, Clif was instrumental in convincing the section council to inaugurate his nascent Colorado Estate Planning Forms Committee (the Committee) as a standing committee of the section, charged with the mission of keeping the forms current to meet the increasing demand for additional practitioner guidance. Clif remained the Committee’s guiding hand for the next four years. Rather than taking a band-aid approach, the Committee’s monumental effort entailed a major overhaul of every form in the book, especially those of a tax-planning nature. The result was the fourth generation of tax planning forms, which included expanded Notes on Use of the forms, illustrations of alternative distributions from family trusts, and alternative mandatory versus discretionary distribution provisions. This was a period of intense work on all of the then-existing forms; it included the introduction of several new forms as well as the Tab A “matrix,” a comparative compilation of all administrative provisions across all will and trust forms in the book.21 This result of the Committee’s nearly four-year effort was finally published as the fourth edition in 1993. Now firmly established and still in full stride, the Committee continued charging ahead. Each form in the 1993 edition was carefully reviewed and revised in light of the revisions to CPC Article II, effective July 1, 1995. The Committee also added a new medical durable power of attorney, a revocable disclaimer trust, an engagement letter for married couples, and the very first irrevocable life insurance trust.22 This work product of the Committee was then published as the fifth edition in 1996. Since there had been no federal tax legislation increasing the unified credit, the $600,000

federal estate tax exemption had been on a static plateau for the previous 10 years. The Taxpayer Relief Act of 199723 finally resumed the upward increase of the unified credit annually in progressively larger steps so that by 2006 the estate tax exemption effectively would be $1 million. It also introduced the first ever inflation-indexing to the wealth transfer tax system, directing that subsequent amounts of the gift tax annual exclusion, the GST tax exemption, and the IRC § 2032A special use valuation exemption be indexed annually for inflation.24 The Committee’s work continued apace. In these years before CLE started annual or biennial supplementation of the Orange Book Forms (which began in 2004), CLE would accumulate several years of the Committee’s work product until CLE deemed it feasible to publish another complete edition. This next edition, the sixth in October 2001, became the great “Maroon Book” fiasco! Apparently, someone in the CLE hierarchy thought it desirable, for economy and uniformity, to have maroon-colored binders for all of its loose-leaf publications. Flying in the face of revered tradition and oblivious to the possibility that an uproar might ensue, CLE proceeded to distribute this latest edition of the “Orange Book” forms in a maroon binder. The predictable outrage of trust and estate practitioners was barely assuaged by having the Notes on Use printed on orange paper. The Almighty can be thanked that this ignominy has never again been foisted upon us in any later edition. The Maroon Book was published as the sixth edition in October 2001. The year 2001 also saw the passage of the Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA),25 game-changing legislation that nearly led to the phased-in permanent repeal by the end of 2010 of the federal estate and GST taxes. Over the next eight years, the administration of the transfer tax system headed toward the great experiment of a one-year temporary estate and GST tax repeal, brought about by gargantuan leaps in the estate and GST tax exemptions from $675,000 to $3.5 million, which were accompanied by a rapid decline in the top tax rate from 55% to 45%. But all was not to be rosy, as the repeal

of the estate and GST taxes was replaced by the resurrection of yet another iteration of the ill-fated income tax carry-over basis regime. Further, EGTRRA had a sunset provision that repealed itself prospectively on December

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The opening of 2010 found planners in shock and disbelief that the estate and GST taxes had been repealed, if only for this one year, and that the return of the Taxpayer Relief Act of 1997 freight train (with its paltry $1 million estate tax exemption) was fast approaching!

” 31, 2011 “as though this Act had never been enacted.” This effectively would bring about the subsequent reinstatement of the Taxpayer Relief Act of 1997, which had not been repealed but only temporarily superseded by EGTRRA. Thus, pervasive uncertainty as to the structure of future transfer tax legislation became the

order of the day for practitioners and clients for nearly a decade. For three years the Committee grappled with the mission of revising the (Maroon Book?) forms in light of the temporary 10-year evolving wealth transfer tax system imposed by EGTRRA. For its part, CLE likely saw that this “moving target” tax act might call for frequent updates to the forms, so it decided to update the forms book by annual or biennial supplements rather than by publishing new editions every few years. The Committee’s cumulative work was then published as the 2004 supplement to the sixth edition, and (voila!) it all came out in a sparkling new orange binder (and all was forgiven). Subsequent supplements through 2009 saw the addition of GST tax provisions, forms for single persons, an estate-planning questionnaire, a community property agreement, and trust-funding deeds. The opening of 2010 found planners in shock and disbelief that the estate and GST taxes had been repealed, if only for this one year, and that the return of the Taxpayer Relief Act of 1997 freight train (with its paltry $1 million estate tax exemption) was fast approaching! How could a practitioner plan for clients in such an uncertain environment? How could a Committee of trust and estate lawyers charged with providing guidance to the Bar proceed under these chaotic circumstances? Happily, from the Committee’s perspective, a constant stream of changes in state law provided it with plenty of projects to focus on while Congress sorted out the nation’s wealth transfer tax system. This work product of the Committee was then published as the seventh edition in 2010. On December 17, 2010, the president signed the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 (2010 Tax Act),26 which retroactively reestablished the federal estate tax with a new basic exclusion amount of $5 million, and reunified (recoupled) the federal estate and gift taxes. It also retroactively reestablished the GST tax with a new base amount of $5 million for the GST exemption, set the top estate tax and GST tax rates at 35%, and finally introduced inflation-indexing to the amount of the estate tax basic exclusion amount. Most suprising, the 2010 Tax Act also provided JUNE 2020

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for the revolutionary concept of “portability” of the first deceased spouse’s unused estate tax exclusion amount to the surviving spouse. But this temporary act still had a two-year sunset provision, so the return to the dark days of the Taxpayer Relief Act of 1997 (with its $1 million estate tax exemption) remained a real possibility. The American Taxpayer Relief Act of 2012 (2012 Tax Act)27 finally relieved the country from the uncertain future of its wealth transfer tax system by repealing the 2010 Tax Act’s sunset provision and thus making it as permanent as any Congressional act can be. Notably, the 2012 Tax Act also increased the top estate tax and GST tax rates from 35% to 40%. In the stream of supplements published each year since the release of the seventh edition, the Committee foremost tried to assist practitioners with recognizing the implications of the new tax acts while asking practitioners to understand that it could take several years to address the impacts of the new acts on all Orange Book Forms will and trust forms. The Committee continued updating and revising the forms to include, among other things, provisions regarding the rule against perpetuities, guidance to clients on funding their revocable trusts, and guidance on dealing with Colorado’s Civil Union Act and the national focus on the validity of nontraditional marriage.28 Orange Book Forms Evolves From its outset way back in 1972, the Orange Book Forms has served as a collection of example forms (as opposed to model forms) to address the most likely needs of practitioners in normal estate planning situations. The forms have been paired with extensive Notes on Use designed to alert practitioners to issues involved in drafting various aspects of each form. Thus, Orange Book Forms has always served as a teaching tool; it was never intended to be a compendium of model estate planning forms covering every variation of a given planning approach. And it does not replace the practitioner’s duty to draft appropriately for each client, but aims to assist practitioners by providing some guidance, some examples, and some alternatives, and most important, by raising issues deserving the drafting attorney’s careful attention.

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Over the past decade, it had become apparent that the “collage of forms” structure was becoming cumbersome as more and more forms were added to the collection. It had become difficult even for experienced Committee members to navigate their way through the book, to say nothing of practitioners new to the estate planning field, arguably those whom the book was intended to serve.

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Thus, Orange Book Forms has always served as a teaching tool; it was never intended to be a compendium of model estate planning forms covering every variation of a given planning approach.

” A New Approach Enter the new functional structure of the current 2017 eighth edition! Three years ago, a subcommittee of the Committee worked with CLE to redesign the structure and format of the book to make it more user friendly. While the substance of the forms, Notes on Use, and caveats has not changed, the user interface has been dramatically improved. Hopefully, it is now easier for practitioners to access information

in the book and choose the planning approach most related to each client’s needs. Current Matters The Tax Cuts and Jobs Act of 2017, also known as the Budget Reconciliation Act of 2017 (depending on one’s political persuasion),29 temporarily doubled the 2010 Tax Act’s $5 million estate tax basic exclusion amount and the $5 million GST tax exemption to $10 million each (indexed for inflation). But both of these temporary increases are scheduled to sunset at the end of calendar year 2025. While this tax legislation may not have any noticeable impact on the content of Orange Book Forms, it should encourage practitioners to focus even more on non-transfer tax planning opportunities, especially for clients whose estates, at least temporarily, have been sheltered by its dramatically increased exemption amounts. A special subcommittee of the Committee has brought together some of the original members of the 1989 Committee, the very architects of what were then the “new” tax-sensitive forms (the fourth generation of forms) created for the 1993 edition. For more than four years now, the participants in this reunion have been working to develop a group of nine new will and trust forms aimed at suggesting a fresh approach to wealth transfer tax planning (which will constitute the fifth generation of tax planning forms) in light of the planning revolution brought about by the 2010 and 2012 Tax Acts. The full Committee will thoroughly review this subcommittee’s work product, after which it is anticipated that new forms will be forthcoming in a future supplement or perhaps in a new eighth edition. Lastly, before 2019, the Committee only had meager existing statutory and case law upon which to rely for drafting provisions governing trusteeships in will and trust forms. Therefore, the forms have always reflected what were believed to be “best practices.” However, with the advent of the Colorado Uniform Trust Code (CUTC), another subcommittee is thoughtfully considering the CUTC’s impact on these existing best practices as reflected in the Orange Book Forms trusteeship and administrative provisions.

Conclusion Hopefully, this walk down memory lane has been informative and entertaining. At a minimum, it illustrates the acumen of the CBA’s trust and estate law practitioners and their ongoing dedication to upholding the highest standards of Colorado practice.

Frank T. Hill is a retired sole practitioner. His Englewood practice was limited exclusively to estate planning. Hill has been an active member of the CBA Trust and Estate Section for over 35 years and formerly chaired the standing Orange Book Forms Committee. He has also been a long-standing member and former chair of the Statutory Revisions Committee, a member of the Rules and Forms Committee, and a member of the Trust and Estate Section Council. Hill is a frequent lecturer on trust and estate topics at continuing legal education programs—fhill. net@comcast.net. This article is an update of an earlier iteration presented for CBA-CLE on December 8, 2017. Coordinating Editors: David W. Kirch, dkirch@ dwkpc.net; Emily Bowman, ebowman@dwkpc.net

NOTE S

1. Estate Planning Forms Committee—CBA Trust and Estate Section, Orange Book Forms: Colorado Estate Planning Forms (CLE in Colo., Inc. 8th ed. 2017). 2. Revenue Act of 1935, Pub. L. No. 74-49, § 201, 49 Stat. 1014, 1021. 3. Revenue Act of 1935, Pub. L. No. 74-62, § 201(a), 49 Stat. 1014, 1021–1022. 4. Revenue Act of 1940, Pub. L. No. 76-54, § 201, 54 Stat. 516, 520. 5. Pub. L. No. 77-753, § 414, 56 Stat. 798, 951 (estate tax exemption); Pub. L. No. 77-753, § 454, 56 Stat. 798, 953 (gift tax annual exclusion); and Pub. L. No. 77-753, § 455, 56 Stat. 798, 953 (gift tax exemption). 6. Revenue Act of 1948, Pub. L. No. 80-471, § 361, 62 Stat. 110, 116 (estate tax); Revenue Act of 1948, Pub. L. No. 80-471, § 372, 62 Stat. 110, 125 (gift tax). 7. McCaffrey and McCaffrey, “Our Wealth Transfer Tax System—A View from the 100th Year,” 41 ACTEC L.J. 1, 14–15 (2015). 8. Id. at 17. 9. Dacey, How to Avoid Probate! (Crown Publ’g Group 1966). 10. Huff, ed., Colorado Estate Planning (CLE in Colo., Inc. 1972). The forms in this book were based on federal transfer tax law as it then existed and constituted the first generation of Colorado’s tax planning forms. 11. CRS §§ 15-10-101 et seq. 12. Bates v. State Bar of Ariz., 433 U.S. 350 (1977). See also Kerr, “Bates v. State Bar of Arizona: A Consumers’ Rights Interpretation of the First Amendment Ends Bans on Legal Advertising,” 55 Den. L.J. 103 (1978). 13. Pub. L. No. 94-455, § 2001-06, 90 Stat. 1520, 1846–79 (1976). 14. McCaffrey and McCaffrey, supra note 7 at 18. 15. CRS §§ 39-23.5-101 et seq.

16. Pub. L. 95-600, 92 Stat. 2763 (1978). 17. Pub. L. No. 97-34, § 441, 95 Stat. 314, 319 (1981). 18. McCaffrey and McCaffrey, supra note 7 at 19. 19. Pub. L. No. 99-514, §§ 1432–33, 2515, 100 Stat. 2085, 2729–32 (1986). 20. McCaffrey and McCaffrey, supra note 7 at 19. 21. Estate Planning Forms Committee—CBA Trust and Estate Section, Orange Book Forms: Colorado Estate Planning Forms Introduction (CLE in Colo., Inc. 1993). 22. Estate Planning Forms Committee—CBA Trust and Estate Section, Orange Book Forms: Colorado Estate Planning Forms Introduction (CLE in Colo., Inc. 1996). 23. Pub. L. No. 105-34, § 501, 111 Stat. 788, 845–46 (1997). 24. McCaffrey and McCaffrey, supra note 7 at 19. 25. Pub. L. No. 107-16, § 501, 115 Stat. 38, 69 (2001). 26. Pub. L. 111-312, 124 Stat. 3295 (2010). 27. Pub. L. 112-240, 126 Stat. 2313 (2013). 28. Orange Book Forms, supra note 1 at Introduction. 29. An Act to Provide for Reconciliation Pursuant to Titles II and V of the Concurrent Resolution on the Budget for Fiscal Year 2018, Pub. L. 115-97, 131 Stat. 2053 (2017).

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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.

Appreciation Boxes for Healthcare Workers

Docket Zoom Meetings

Attorney Laura Groen was inspired by her sister to send care packages to those who have the toughest jobs right now—healthcare workers who care for the families of strangers while trying to care for and protect their own. Laura’s sister is a nurse who is working on the frontlines of the COVID-19 crisis, and Laura wanted to say thank you to essential healthcare workers by mailing them handmade masks, gift cards, snacks, and toiletries, along with a handwritten thank you card. Laura is a senior associate at Hogan Lovells who recently transferred from the firm’s Los Angeles office to its Denver office.

There’s no stopping the Docket Council Committee from getting together for a brainstorming session. Committee members and staff are holding their bimonthly meetings on Zoom, where they continue to discuss new ideas for entertaining DBA members through The Docket.

San Francisco, inside the White House, WE ARE EVERYWHERE! 2

Correction

1 1 2

Items to support frontline workers. Laura Groen.

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.

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The individuals in the photo below were misidentified in last month’s Bar News. The correct names are, left to right, Ian McCargar, Anda Lincoln Stephenson, and Dan St. John. We apologize for the error.

CBA Congratulates OYLY Winner and Finalists The CBA is pleased to announce that Laura Wolf is the CBA YLD Gary McPherson Outstanding Young Lawyer of the Year. Laura is a partner at Rathod Mohamedbhai LLC. Her practice includes advocating for individuals suffering from civil rights Laura Wolf. Jennifer Carty. Mairead Dolan. abuses, including minors suffering from violation of their rights by school officials, persons whose liberties are lost at the hands of the police and other government officials, and employees facing discrimination in the workplace. The CBA also congratulates OYLY Award finalists Jennifer Carty and Mairead Dolan. Jennifer is an assistant attorney general in the criminal appeals section at the Colorado Attorney General’s Office. Before that, she worked as an associate family law attorney at Robinson & Henry, P.C. Mairead represents a wide array of clients on complex litigation matters at WilmerHale. Previously, she was a law clerk for the Honorable Allison H. Eid of the Colorado Supreme Court.

DBA Awards Recipients The annual DBA Awards recognize outstanding attorneys and legal programs in the Denver area. The award recipients below were nominated by their peers as examples of the very best our legal community has to offer. This year’s award recipients are: ■ Award of Merit—Judge Christine Arguello ■ Young Lawyer of the Year—Justin Cohen ■ Judicial Excellence—Judge Gary Jackson ■ Volunteer Lawyer of the Year—James Rufus Garts ■ Outstanding Program/Project—Our Courts Colorado. The DBA congratulates these exceptional members for their service to the bar and community.

Judge Christine Arguello. Justin Cohen. Judge Gary Jackson. James Rufus Garts.

2 3 4

Legal Aid Foundation’s Associates Campaign The Legal Aid Foundation’s 2020 Associates Campaign, which concluded on April 15, raised nearly $230,000 for legal aid in just six weeks. An impressive result even under normal circumstances, the fact that it was accomplished despite a global pandemic and a completely shuttered economy makes it truly extraordinary. The Associates Campaign, which typically runs through the month of March, kicked off this year, as usual, on March 1, just days before the first case of COVID-19 was reported in Colorado. The effort, led entirely by young lawyers, got off to a strong start, but as law firms transitioned to remote work and schools closed, a decision was made to pause the Campaign. Despite the challenges of working from home and balancing child care and home-schooling demands, the dedicated young lawyers responsible for the Campaign reignited it on April 1, and thanks to newly improvised fundraising strategies, including Zoom happy hours, the end result surpassed all expectations. Over 77% of associates at 65 Colorado law firms donated to legal aid, and over 400 others in the legal community supported the cause as well. In addition, 33 firms achieved 100% participation among their associates. This was the 16th year that Colorado’s young lawyers have demonstrated their commitment to equal justice through their leadership of the Associates Campaign. The Campaign is organized as a friendly competition between similarly sized firms.

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Happy Lawyer Book Club

Sashiko Stitching Class

The CBA is hosting a virtual book club for members. Discussions will focus on the broad theme of “finding happiness as a lawyer,” and book selections will be relevant to lawyers of all stripes. The goal will be to explore new ideas in practice management, the modern practice of law, business development, professional identity, and other topics of interest. The group will meet for an hour every other Thursday on Zoom, covering one book a month over the two sessions. For details on upcoming meetings and book selections, simply follow the Happy Lawyer Book Club discussion thread on CBA Community.

On April 6, Cari Roberts led a virtual stitching class as part of the DBA’s attorney wellness program. Cari taught the 20-plus attendees how to work with needle and thread, emphasizing Sashiko, a hand-sewing technique developed in Ancient Japan. 1 2

Cari Roberts. Preparing for Sashiko.

Modern Law Revolution

The book club discusses Atomic Habits by James Clear at its inaugural meeting on April 16.

The CBA’s new Modern Law Revolution podcast showcases lawyers who are revolutionizing the practice of law in Colorado through modern representation. On the first episode, cohosts JP Box and Erika Holmes described their respective journeys, detailing what they saw in traditional law practices that made sense and what didn’t. After exploring the (often discouraging) current state of the legal market, JP and Erika discussed a new model for legal practice: the Four Pillars of Modern Representation—empowerment, focus, technology, and value. Modern Law Revolution is a project of the CBA’s Modern Law Practice Initiative.

Cohosts JP Box and Erika Holmes in the studio.

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Gettin’ Legal With It The CBA YLD has officially launched its new podcast series—Gettin’ Legal With It. The series, hosted by YLD Executive Council member Kevin Cheney, will release roughly two episodes a month. The inaugural episodes featured interviews with Jennifer Chamberlain, managing partner at Bowman & Chamberlain, and Todd Rogers, assistant dean for career development at Colorado Law.

1 Guest Jennifer Chamberlain, producer Rick Pontalion, and host Kevin Cheney. 2 Kevin Cheney and Todd Rogers discuss career development.

DU Law School Hosts LawMeet Competition

On April 3, 2020, 12 teams from across the United States competed in the 2020 Transactional LawMeet, held online and hosted by the University of Denver Sturm College of Law. In this year’s competition, student teams negotiated an acquisition of a business by a private equity firm. The drafting stage took place over two months, with students drafting letters of intent, interviewing their clients, and marking up opposing teams’ drafts. The competition culminated with online negotiations on April 3, which were originally slated to be in person. Teams not only had to compete online, but preparations for the competition were forced to change to online formats with physical distancing requirements from the global pandemic in place. The following teams were the overall winner from each side of the transaction: ■ University of Arkansas School of Law (Isabel Thoma, Erin James, and Julian Sharp) ■ DU Sturm College of Law (Kelsey Kubiak, Sean Magraw, and Kaley Rickert) DU Law congratulates all the participants and thanks the local attorneys who judged the online competition.

DU Law champions (clockwise from top left): Kaley Rickert, Kelsey Kubiak, coach Alexandra Wilde, and Sean Magraw.

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A Triumph for Justice Burg Simpson’s Win in the Body Parts Case

ichael Burg is one of America’s leading trial lawyers, the best-selling author of Trial By Fire, 1 a legal expert, and the founding shareholder of Burg Simpson Eldredge Hersh & Jardine. A legal champion for victims of corporate and individual malfeasance, negligence, overreach, and abuse, Burg has successfully litigated some of the country’s most high-profile cases of the past four decades. Under his leadership, Burg Simpson has expanded to more than 70 attorneys across seven cities. The firm is a national leader in mass tort and class action litigation and has won more than $1 billion in verdicts, judgments, and settlements on behalf of its clients. During his 43-year career, Burg has represented thousands of individuals and helped their families overcome catastrophic injuries and immense hardship. He has taken on big pharma in multiple dangerous drug mass tort cases, including Fen-Phen, Yaz/Yasmin, Ortho Evra, and Pradaxa. Burg stood up to corporate greed fighting against UBS for selling risky mortgages to investors, creating the blueprint for many similar actions by states, municipalities, government regulators, and other aggrieved investors. In 2019, Burg secured a $58.5 million verdict in compensatory and punitive damage for families who had donated bodies of their deceased loved ones to the Biological Resource Center (BRC). He represented the victims of a scheme to illegally sell parts of donated bodies that were intended for scientific and medical education and research. The verdict is one of the largest civil case results in Arizona history and the subject of this month’s Q&A with Burg.

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This kind of practice should not occur in a civilized society. I have been a trial lawyer for over 40 years, and until I became aware of the details of this case, I did not think I could be surprised at the levels to which humans can stoop to make money off of the tragedy of others. Fortunately our trial team, which in addition to myself included Burg Simpson shareholders David TeSelle, Holly Kammerer, and Paul Friedman, was in a position to fight this injustice by representing the families who had suffered so much.

Michael Burg.

Before you took this case, were you aware of the magnitude of the illicit body broker industry in the United States? Before I agreed to represent my clients in the case against the BRC, in what the national media has called the “Body Parts Case,” I was not aware of a body parts industry that profited from selling and trafficking human body parts without family consent. What the BRC did is akin to body-snatching, but without the effort of unearthing the human remains. The descendants and families of the deceased donated the bodies of their loved ones based on misrepresentations that the remains would be used solely for medical or scientific research. The BRC claimed that the remains would be treated with dignity and respect and would not be sold. But based on a price list, the BRC sold whole human bodies and body parts for profit.

The details of this case are disturbing. What was the most challenging aspect of trying this case? The bodies of the deceased were donated under the guise of medical or scientific research, but were not stored, treated, or disposed of with dignity or respect. They were dismembered, and the body parts unceremoniously piled into buckets, coolers, and freezers. The severed body parts were sold to other body brokers and then to buyers across the globe for hundreds of thousands of dollars—without regard to the requests made by the deceased or the family about how the body was to be used. Delving into the gruesome details of this case was challenging enough, but working with the family members and witnessing their horror as they discovered the details of how their loved ones remains had been mistreated was much more difficult. But, this is what we do at Burg Simpson—we fight for our clients who have been wronged by the actions of others. How did your clients discover they had been deceived by the BRC? BRC claimed to be a legitimate body donation center where the deceased could have their

bodies donated for medical advancement, but in 2014, the facility was raided by the FBI. Until the time of the FBI criminal investigation, the families affected by the BRC’s actions believed they had donated their deceased family members’ bodies to science and medical research and that the bodies had been treated with appropriate dignity and respect. They also relied on the BRC representatives that the bodies would not be sold. In what became a living nightmare, the family members, along with the rest of the nation, became aware of the horrifying truth about the BRC’s macabre practices on the national news. From the beginning of this case, our legal team at Burg Simpson focused on seeking to secure justice for the grieving families. Can you give us an overview of the procedural history of the case? The case filed against the BRC, and numerous other defendants, came before the court on October 24, 2019 for a trial by jury. The case originated in Phoenix, and was tried in the Superior Court of the State of Arizona in and for the county of Maricopa. It was first assigned to Judge Bergen, but when she was transferred out of the court’s docket, the case was reassigned. Judge Timothy Thomason presided, and the jury entered its verdicts on November 19, 2019. Organ transplant donation is regulated by the US government. Do you believe the body donation industry should also be federally regulated? Whole body facilities are also known as non-transplant tissue banks, and unlike the organ and tissue transplant industry, body donations are not regulated by the US government. While selling hearts, livers, tendons, and other human tissue for transplant is illegal, there are no federal laws that govern the sale of cadavers or body parts for use in medical research or education. There are only a few state laws that provide some regulation, and in many states, there is no oversight whatsoever. We believe the government standards that are applied to the organ and tissue transplant industry should also be used for non-transplant tissue banks. We hope that we will soon have both

federal and state regulations for whole body donation facilities. The study of human bodies is vital to those in the medical profession. Physicians and medical researchers use donated human body parts to develop new surgical instruments and implants, and new medicines and treatments for diseases. Whole-body donations have led to advancements in everything from surgical techniques to automobile safety. But when body brokers act without donor consent, and their practices are based only on deceit and greed, we as a society need to stand up and fight back. Are you aware of other black-market body brokers in the United States? We soon discovered that the BRC was not the only black-market body broker using what appeared to be a legitimate business to source its grisly body parts supply. In 2018, the FBI also raided the Sunset Mesa Funeral Home in Montrose, Colorado, which had been running a body brokerage business from the same location. Instead of providing the cremated remains of the deceased to the grieving families, Sunset Mesa’s owners kept the corpses and presented the families with urns of powdered concrete or other false ashes instead of the deceased’s “cremains.” In 2019, Burg Simpson filed a case against Sunset Mesa Funeral Home that is ongoing. The jury awarded a significant verdict in the BRC case. What kind of a message does that send to body brokers across the country? A Maricopa County jury awarded $58.5 million to the wronged families. This is one of the largest verdicts in Arizona history, and I believe it shows that this kind of practice will not be tolerated in our society. Following a four-week trial, the jury sent a loud and clear message to body brokers across the nation that selling body parts for profit without informed consent from the donors is unacceptable. How many people did Burg Simpson represent in this case? Burg Simpson represented 30 clients. Nine clients settled, and 21 clients went to trial.

Can you tell us how law enforcement contributed to the outcome of this case? The 2014 raid on the BRC in Arizona was part of a broader federal probe into the suspected practices of body brokers in Detroit, Chicago, Las Vegas, and Phoenix. The FBI testified that their agents were called in after a shipment of seven heads destined for the Middle East was stopped by customs officials. Burg Simpson’s trial team worked closely with the FBI and the Attorney General during the investigation. We were fortunate that Judge Bergen understood the extent of our circumstances and gave us the additional time we needed to work with law enforcement before completing the necessary discovery. The FBI agents who raided the BRC in Arizona discovered frozen human remains. Protected by hazmat decontamination suits and personal protective equipment, they hauled away the contents of the BRC’s freezers, filling 142 body bags. One of the Phoenix FBI special agents said he saw various unsettling things inside the BRC, including a small head sewn onto a large torso, among other disturbing scenes. Some of the agents who were there have since undergone therapy with professionals to help them cope with post-traumatic stress they experienced following the exposure to the horrors of the BRC scene. How did your clients respond to the jury’s verdict? While no amount of money can compensate these families for the trauma they have experienced, our clients hope others will be spared from similar circumstances. We have fought against injustice, righted a wrong, and protected other families.

NOTE

1. Burg, Trial By Fire: One Man’s Battle to Stop Corporate Greed and Save Lives (BenBella Books 2016).

JUNE 2020

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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.

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The Dan Caplis Law Firm is proud to announce that

Michael Kane

has joined the ďŹ rm as a Partner.

Mike is a former Marine and a veteran litigator with a history of outstanding verdicts and settlements in profound injury cases. Mike will continue to command catastrophic injury cases throughout litigation and into trial. 6400 S Fiddlerâ&#x20AC;&#x2122;s Green Circle STE 2200 Greenwood Village, CO 80111

(303) 770 5551 | dancaplislaw.com

JUNE 2020

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TITLE AROUND | THE SUB TITLE BAR | LAWYERS’ ANNOUNCEMENTS

Welcomes

Medical Malpractice Defense Attorney

ADAM FENSTERMAKER Adam is an experienced litigation attorney whose practice focuses on the defense of healthcare providers in medical malpractice actions. Adam joins the firm after six years representing doctors, podiatrists, chiropractors, and various other healthcare professionals located throughout the Commonwealth of Pennsylvania. Practice Area Focus

Professional Liability Professional Licensure afenstermaker@childsmccune.com

www.childsmccune.com DENVER / COLORADO SPRINGS / DELTA / (303) 296-7300

COAN, PAYTON & PAYNE, LLC IS PLEASED TO ANNOUNCE AMANDA T. HUSTON HAS BEEN PROMOTED TO SENIOR ASSOCIATE AT THE FIRM. Ms. Huston’s practice focuses on business and real estate law including, business entities, contracts, mergers & acquisitions, commercial real estate leases and transactions as well as land use planning and zoning.

AMANDA T. HUSTON ahuston@cp2law.com Denver | Fort Collins | Greeley www.cp2law.com

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The Colorado Bar Association is excited to launch its 100% Club, providing special benefits to large firms (25+) whose attorneys are all CBA members. This free program will offer your firm additional value and benefits, including: ▶ Recognition on the CBA website and social media ▶ A complimentary full-page advertisement in Colorado Lawyer ▶ On-site CLE luncheons on topics of your choosing ▶ A certificate and logo indicating your 100% CBA membership rate ▶ Free unlimited membership to all nonattorneys in your organization ▶ Streamlined batch billing ▶ More to come!

Join the 100% Club Members! ▶ Fairfield and Woods PC ▶ Fox Rothschild LLP ▶ Kutak Rock LLP

To register your firm as a 100% Club member for the 2019–20 bar year, please submit a request, with a list of all your firm’s attorneys, to membership@cobar.org.

JUNE 2020

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TITLE AROUND | THE SUB TITLE BAR | IN MEMORIAM

In Memoriam John D. Aylward October 11, 1950–March 4, 2020 Fort Collins attorney John David Aylward, 69, passed away on March 4, 2020. John had been ill for about five months before succumbing to cancer. John grew up in Centreville and Poland, Ohio. In 1964, the Aylward family moved to Grand Rapids, Michigan, where John was president of his senior class. John excelled in school and graduated from the University of Notre Dame in 1972. In 1976, he received his JD from Washington University in St. Louis. John and his wife Nancy had their first date on New Year’s Eve 1967. Nancy won “the prize of being John’s date by a flip of a coin.” After passing the bar exam, Nancy and John moved to Fort Collins in 1976. They lived on the west side of Old Town Fort Collins since first arriving. Their son, Jack Aylward, born in 1988, now resides in Northern Colorado. He and John always had a close relationship. John’s family described him as having a kind heart and a willingness to help many people. John was an active attorney until retiring in 2019. At various times, he was partners with David Bye, John Gascoyne, and Bill Kneeland. One of his former partners noted that there had never been a contract with John as his word was sufficient. John was known for his legal scholarship, and he was a fearless advocate on behalf of his clients. He always showed even-handedness in dealing with both colleagues and opponents. Beyond his law practice, John was an avid gardener. He was a serious student of Greek and Roman history and mythology. He also enjoyed music, reading, and playing tennis and squash. He is survived by his wife Nancy, son Jack, sister Mary Graves, sister-in-law Katherine Woltjer, and several nieces and nephews. He

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was preceded in death by his parents, John and Josephine Aylward. Memorial contributions in his name may be made to Garden Sweet Farm CSA, 719 W. Willox Lane, Fort Collins, CO 80524. George Raymond Buck Jr. October 18, 1937–April 6, 2020 George Raymond Buck Jr. was born on October 18, 1937 in Denver, Colorado, the son of George Raymond Buck Sr. and Georgia Dudley Buck. He passed away due to natural causes on Monday, April 6, 2020 at his residence at age 82. George grew up in Denver and attended Colorado State University, where he was a member of the Sigma Chi Fraternity. He went on to earn his law degree at the University of Denver. During law school he met his wife of 55 years, Frances Louise Buck. They were married on August 8, 1965. Both George and Fran settled in Cortez before the birth of their oldest child, GIII. George practiced law with a local firm for several years and then served as district attorney for many terms. He later opened his own private practice, which continued to operate until his passing. At 82, George was the longest practicing attorney in Southwestern Colorado. He was an active member of the Southwestern Colorado Bar Association and a dear friend to many. George was a man of many interests. He enjoyed travel, photography, candle making, river raft racing, bull and bronco riding, fly fishing, wood carving, hunting, competition rifle, volleyball, golf, skiing, pigeon racing, coin collecting, and his dogs. George was a committed husband and father who was actively involved in his children’s activities. He was a pivotal leader for the Cortez Leopard Sharks Swim Team from 1973 to 1987. He served as president and

coach, as well as the starter and recordkeeper during that time. He also became involved in the 4-H community when his children started to raise rabbits and chickens. While in high school, George’s children never participated in a sporting event without him there. Even when they left for college he would make the trek to Northern Colorado to cheer them on in their collegiate sports. George is survived by his sister, Mary Lou Kingery; three children, George Raymond Buck III, Kimberly Ann Martin, and Kari Lorain Buck; and six grandchildren, George Raymond Buck IV, James Edward Buck, Nicholas Andrew Buck, William Melville Murphy III, Allison Louise Murphy, and Jamison Aspen Martin. Memorial contributions in his name may be made to the Cortez Water Dragons Swim Team, c/o Mara Baxstrom, 21198 Rd. V.6, Lewis, CO 81327. Jerri L. Jenkins September 22, 1964–March 28, 2020 Foster Graham Milstein & Calisher lost a friend, partner, colleague, and world class attorney when Jerri Jenkins lost her battle with cancer. on March 28, 2020. I met Jerri on the ski slopes of Steamboat Springs over 13 years ago when we first had a chance to talk about her coming over to our law firm. Jerri was taking a little après slope side and doing what she did best—talking about real estate and the law—and I was calling from the office. We hit it off immediately. Jerri had just left a general counsel job for a significant national developer, and the prospect that Jerri would even conceive of working for our little firm was hard to imagine. In fact, I remember having a conversation with a real estate partner in a big time Denver firm asking if he knew much about Jerri, as I was doing some due diligence, and

his immediate response was “is she available?” The only response I could muster was “nope.” Thus began Jerri’s time at FGMC, and our firm was immediately better. Jerri loved the practice of law and she loved assisting her clients. There was no detail too small for Jerri. She would be more prepared than anyone in a transaction. But more important, she always anticipated her clients’ wants and needs. In the practice of law there are two important considerations: the law and your client. You are never going to be great at your job unless you have a full appreciation of these two equally important elements. Jerri excelled at both. Jerri came over to the firm as an exceptional transactional attorney. In no time, she was running the transactional side of the business for the firm. But Jerri had a curiosity to expand her practice into some land use work, and that is where she and I had the most fun. Jerri gave the firm the gravitas to handle some of the bigger deals in town and, candidly, gave me the confidence that our firm was capable of handling any challenge. She made me a better lawyer in so many ways. Jerri helped build our real estate and land use practice into a thriving business, and that will be just one of her many legacies. We will miss Jerri at FGMC. A part of our family was taken from us way too early and not on the terms we would have ever negotiated. And as much as we will suffer, Jerri leaves a wonderful husband, Ivan, and his daughters and their families, and the grandkids whom she spoke about around the office all the time. Jerri graduated from the University of Colorado at Boulder in 1988 with a degree in finance and received her JD from Southern Methodist University College of Law. She practiced as an associate attorney with Lembke, Stewart & Coates, and later with Preeo, Silverman & Green, and then went in house with Prologis Real Estate Investment Trust and Forrest City Stapleton, Inc. Jerri spent the last nearly 13 years as partner at FGMC, leading its real estate division. Jerri married attorney Ivan Koves on top of Keystone Mountain on August 26, 2000. She loved Ivan’s daughters and their families and was blessed with four grandchildren, Peyton, Everett, Holden, and Cora, who was born just a few weeks before Jerri passed.

Jerri was active with the Colorado Bar Association. She was chair of the CBA Real Estate Section from 2009–10 and was program chair for the 27th Annual Real Estate Symposium in July 2009. Jerri also served on the Colorado Real Estate Commission’s Interprofessional Committee. Life is precious. We all know this to be true, yet we live as though we will always have another tomorrow. As we all grieve this untimely loss of a wonderful person and a good soul, let’s double down on goodness and try to live our lives with more appreciation for the people whom we love. May Jerri’s memory forever be a blessing. Donations in Jerri’s name may be made to the Denver Dumb Friends League, www.ddfl.org. —David Wm. Foster James B.F. Oliphant December 11, 1938–March 30, 2020 James B.F. “Tim” Oliphant passed away on March 30, 2020, after bravely battling Parkinson’s disease. Tim was born in New York City and was raised in Upper Montclair, New Jersey. He graduated top of his class from The Choate School (’57) and Williams College (’61), where he excelled as a Spanish major. He earned his JD from the University of Colorado Law School (’66). After law school, Tim moved to Lima, Peru with WR Grace & Company but returned to the United States when hired as an assistant prosecutor to Attorney General John Mitchell, after which he served as chief counsel for the Joint Narcotics Strike Force of the Virgin Islands. Tim may never have left the Islands had it not been for a 1974 call to become a special prosecutor with the US House Judiciary Committee. He investigated President Nixon and the Watergate scandal. After Nixon resigned, Tim went to work as an attorney for the House Select Committee investigating the activities of the FBI and CIA. In 1977, Tim made his way to Steamboat Springs, where he began a 30-plus year career specializing in criminal law. He hired many new lawyers while in Steamboat, many of whom remain in their adopted hometown. A

true “City Mouse,” Tim was widely renowned for his quick wit, his creativity, and excellent litigation skills. Tim is survived by son George (Zoe) Oliphant, daughter Sarah (Jase) Wagner, and stepdaughters Adriana (Nick) Hidalgo and Alexandra Uriarte. In Tim’s honor, please consider a donation to Doctors Without Borders. Donald G. Roper October 4, 1926–April 8, 2020 Donald G. Roper passed away on April 8, 2020. He was born on October 4, 1926, in Pueblo, Colorado, to Keith and Lela Mabry Roper. He graduated from Pueblo Junior College with an Associate’s degree in engineering and then joined the Army Air Corp during World War II. After the war, he attended the University of Denver, where he received a BA in communications and met Lynita Edgar, whom he married on June 6, 1950. Don worked for radio stations in Kansas and Pueblo before returning to school in 1952 at the University of Colorado. While in school he worked for KBOL and broadcast CU sporting events. In 1955, he received a JD and passed the bar with a score in the top 10%. He went to work in the Land Department at Texaco in Denver. He continued to work for Texaco in Casper, Houston, Dallas, New Orleans, and Coral Gables, Florida. He retired in 1986 as head of negotiations and contracts for Latin America and West Africa and vice president of 41 Texaco affiliates. Don and Lynita returned to Houston in 1986 and moved to College Station in 2004. Don was active in church all of his life, teaching Sunday School and holding many administrative positions. Most recently he enjoyed being a greeter at Christ United Methodist Church. He played quarterback on his junior college football team and was a center on the basketball team. He loved attending his sons’ and grandsons’ sporting events and Aggie sports. Playing golf was a lifelong passion. His other hobbies included reading, walking, playing tennis, and playing bridge, and he traveled to all 50 states and more than 40 countries. JUNE 2020

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TITLE AROUND | THE SUB TITLE BAR | IN MEMORIAM

Don was preceded in death by his parents and sister, LaVerne Hollapeter. He leaves behind his wife of almost 70 years, Lynita; four children and their spouses, Tris (Maria), Doni (Steve), Kerry (Debbie), and Lori; sisters Winnie Callaway, Shirley Selvey, and Sylvia Minton; grandchildren Bryan, Matthew, and Lynita Roper and Amy (Mike) Maginness; and great-grandchildren David and Katie Maginness; as well as numerous nieces and nephews. Edward Trower August 9, 1943–March 13, 2020 Edward “Dale” Trower passed away on March 13, 2020, after battling Alzheimer’s disease and pulmonary fibrosis, a degenerative lung disease.

Dale was born on August 9, 1943 in San Diego, California. The first member of his family to go to college, Dale graduated from San Diego State University. He enlisted in the Navy shortly after graduation, attending Officer Candidate School in Rhode Island and Supply Office School in Georgia before serving on the USS Chemung during the Vietnam War. He later received his law degree from the University of California Hastings in San Francisco. Dale started his law practice in Denver with AMAX Inc. and Climax Molybdenum Co. in 1973, where he worked for more than 20 years and eventually served as vice president and general counsel of AMAX Exploration. His tenure at AMAX Exploration took him around the world, and he traveled regularly to a variety of countries including Brazil and South Korea. Dale served on the Colorado Bar Association’s Corporate Counsel Committee and then helped

found and teach the Corporate Internship Program for many years at the University of Denver Sturm College of Law. During that time, he moved into private law practice and became a partner at Heppenstall, Savage, Trower, and Muller. Dale also served on the board of the Rocky Mountain Multiple Sclerosis Society for many years. Due in part to his experience on the board, he went back to school to become a massage therapist, working primarily with individuals with multiple sclerosis. Dale also served on several other Denver-area nonprofit boards, where his legal expertise and caring for others were much appreciated. Dale is survived by his wife of 47 years, Pat, and his daughter Elizabeth. His family, loved ones, and friends miss him dearly. He will be remembered for his kindness, intelligence, and sense of humor. Donations in Dale’s memory can be made to the Alzheimer’s Foundation, Denver Hospice, or Denver Dumb Friends League.

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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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.

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.

JUNE 2020

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FROM THE COURTS TITLE | SUB TITLE | COURT BUSINESS

Colorado Supreme Court Rules Committees Rule Change 2020(07) Colorado Rules of Criminal Procedure Rule 24. Trial Jurors (a)–(c)(3) [NO CHANGE] (4) At any time before trial, upon motion by a party or on its own motion, the court may declare a mistrial on the ground that a fair jury pool cannot be safely assembled due to a public health crisis. COMMITTEE COMMENT [NO CHANGE] Amended and Adopted by the Court, En Banc, April 7, 2020, effective immediately. By the Court: Carlos A. Samour Jr. Justice, Colorado Supreme Court

Rule Change 2020(08) Colorado Rules of Criminal Procedure Rule 43. Presence of the Defendant (a)–(e) [NO CHANGE] (f) Public Health Crisis Exception (1) If the court finds that a public health crisis exists, it may require the defendant and counsel to appear by contemporaneous audio communication (such as by phone) at arraignment and any proceeding listed in subsections (e)(2)(I), (II), (III), (V), (VI), (VII), and (VIII) of this rule. During any contemporaneous audio communication proceeding under this subsection (f )(1), the court must allow counsel the opportunity to confer with the defendant confidentially when necessary. A contemporaneous audio communication proceeding under this subsection (f)

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(1) shall be conducted in a courtroom open to the public or in a manner that allows members of the public (including victims) to hear and, where appropriate, participate in the proceeding. (2) If the court finds that a public health crisis exists, it may, in its discretion and with the defendant’s oral or written consent, allow the defendant and counsel to appear by an interactive audiovisual device for any proceeding that does not involve a jury. The defendant’s oral or written consent is not necessary if the proceeding is listed in subsection (f)(1). During any interactive audiovisual proceeding under this subsection (f)(2), the court must allow counsel the opportunity to confer with the defendant confidentially when necessary. An interactive audiovisual proceeding under this subsection (f)(2) shall be conducted in a courtroom open to the public or in a manner that allows members of the public (including victims) to hear or watch and, where appropriate, participate in the proceeding. Use of an interactive audiovisual device under this subsection (f)(2) must comply with subsection (e)(1) of this rule. COMMENT [NO CHANGE] Amended and Adopted by the Court, En Banc, April 7, 2020, effective immediately. By the Court: Carlos A. Samour Jr. Justice, Colorado Supreme Court

Rule Change 2020(09) Colorado Rules of Criminal Procedure Rule 35. Postconviction Remedies (a) [NO CHANGE]

(b) Reduction of Sentence. The court may reduce the sentence provided that a motion for reduction of sentence is filed (1) within 126 days (18 weeks) after the sentence is imposed, or (2) within 126 days (18 weeks) after receipt by the court of a remittitur issued upon affirmance of the judgment or sentence or dismissal of the appeal, or (3) within 126 days (18 weeks) after entry of any order or judgment of the appellate court denying review or having the effect of upholding a judgment of conviction or sentence, or (4) at any time pursuant to a limited remand ordered by an appellate court in its discretion during the pendency of a direct appeal. The court may, after considering the motion and supporting documents, if any, deny the motion without a hearing. The court may reduce a sentence on its own initiative within any of the above periods of time. (c) [NO CHANGE] Amended and Adopted by the Court, En Banc, April 16, 2020, effective immediately. By the Court: Carlos A. Samour Jr. Justice, Colorado Supreme Court

Rule Change 2020(10) Unauthorized Practice of Law Rules Rule 229. Legal Regulation Committee (a) Legal Regulation Committee. The Legal Regulation Committee (Regulation Committee) is a permanent committee of the Supreme Court. See C.R.C.P. 251.2. (b) Powers and Duties. In addition to the powers and duties set forth in C.R.C.P. 251.2, the Regulation Committee is authorized and empowered to act in accordance with this rule by: (1) Requesting investigations as authorized by Chapter 19, Unauthorized Practice of Law Rules (“these Rules”); (2) Determining whether to authorize filing petitions for injunction or contempt, to authorize entry into stipulations with respondents, to place proceedings in abeyance, to direct further investigation, or to dismiss proceedings with or without conditions, or to make other

determinations as authorized by these Rules; (3) Reviewing dismissals by Regulation Counsel under these Rules; and (4) Recommending to the Advisory Committee proposed changes to these Rules. (c) Disqualification. Regulation Committee members must refrain from taking part in a proceeding under this rule in which a judge, similarly situated, would be required to abstain. A Regulation Committee member must also refrain from making determinations under C.R.C.P. 232.5 where a lawyer associated with the member’s law firm is in any way connected with the matter pending before the Regulation Committee. (d) Special Counsel. If the Regulation Counsel has been disqualified or if other circumstances so warrant, the Regulation Committee or its Chair may appoint special counsel to conduct or assist with investigations and prosecutions in accordance with these Rules.

be lawyers admitted to practice in Colorado and at least two of the members must be nonlawyers. The supreme court appoints the members with the assistance of the Advisory Committee. Diversity must be a consideration in making appointments. Members serve one term of seven years. Members’ terms should be staggered to provide, so far as possible, for the expiration each year of the term of one member. So far as possible, appointments should be made to ensure an odd number of members. (2) Dismissal, Resignation, and Vacancy. Regulation Committee members serve at the pleasure of the supreme court, and the supreme court may dismiss them at any time. A Regulation Committee member may resign at any time. The supreme court will fill any vacancies. (3) Chair and Vice-Chair. With the assistance of the Advisory Committee, the supreme court appoints the Chair and Vice-Chair from the

membership of the Regulation Committee. The Chair and Vice-Chair may serve in their respective roles for up to an additional seven years after their initial membership term, such that each may serve a total of 14 years on the Committee. The Chair and the Vice-Chair serve at the pleasure of the supreme court. (4) Quorum. A majority of the members of the Regulation Committee constitutes a quorum, and the action of the majority of those present and comprising a quorum constitutes the official action of the Regulation Committee. (5) Reimbursement. Regulation Committee members are entitled to reimbursement for reasonable travel, lodging, and other expenses incurred in the performance of their official duties. (c) Powers and Duties. The Regulation Committee is authorized and empowered to act in accordance with this rule by: (1) Making deter-

Amended and Adopted by the Court, En Banc, April 16, 2020, effective immediately. By the Court: Monica M. Márquez Justice, Colorado Supreme Court

Rule Change 2020(11) Colorado Rules of Procedure Regarding Attorney Discipline and Disability Proceedings, Colorado Attorneys’ Fund for Client Protection and Mandatory Continuing Legal Education and Judicial Education Rule 251.2. Legal Regulation Committee (a) Permanent Committee. The Legal Regulation Committee (“Regulation Committee” or “Committee”) is a permanent committee of the supreme court. (b) Membership and Meeting Provisions. (1) Members. The Regulation Committee comprises at least nine members, including a Chair and Vice-Chair. At least six of the members must JUNE 2020

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minations as authorized by C.R.C.P. 251.1 et seq. regarding Attorney Discipline and Disability Proceedings (“these Rules”); (2) Adopting practices needed to govern the internal operation of the Regulation Committee, subject to the supreme court’s or the Advisory Committee’s approval when needed; (3) Periodically reporting to the Advisory Committee on the operation of the Regulation Committee; and (4) Recommending to the Advisory Committee proposed changes to these Rules. (d) Disqualification. Regulation Committee members must refrain from taking part in a disciplinary proceeding in which a judge, similarly situated, would be required to abstain. A Regulation Committee member must also refrain from making determinations under these Rules where a lawyer associated with the member’s law firm is in any way connected with the matter pending before the Regulation Committee. (e) Special Counsel. If the Regulation Counsel has been disqualified or if other circumstances so warrant, the Regulation Committee or its Chair may appoint special counsel to conduct or assist with investigations and prosecutions in accordance with these Rules. Rule 254. Colorado Lawyer Assistance Program (1) Colorado Lawyer Assistance Program. The Colorado Supreme Court hereby establishes an independent Colorado Lawyer Assistance Program (“COLAP”). The goal of such program is: (a) To protect the interests of clients, litigants and the public from harm by judges and lawyers experiencing cognitive, emotional, mental health, substance use, or addiction issues (behavioral health issues); (b) To assist members of the legal profession with behavioral health issues that negatively impact their career, ability to practice, and/or well-being; and (c) To educate the bench, bar and law schools about behavioral health issues impacting members of the legal profession. Such program and its Executive Director (Director) shall be under the supervision of the Supreme Court Advisory Committee (Advisory Committee) as set forth in C.R.C.P. 251.34(b)(3). The Advisory Committee

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is a permanent committee of the Colorado Supreme Court. See C.R.C.P. 251.34. (2) COLAP Services. COLAP may provide the following services: (a) Consultation with members of the legal profession experiencing issues that negatively impact their career, ability to practice, or well-being; (b) Providing tailored clinical, therapeutic, recovery support, or other resource referrals to members of the legal profession based on information shared with COLAP; (c) Educational programing and outreach to increase awareness and reduce stigma about behavioral health issues impacting the legal profession, including information about signs and symptoms; the impact these issues have on members of the legal profession; methods of prevention, mitigation and treatment; and the assistance available through COLAP; (d) Assisting family, friends, staff, colleagues, or other members of the legal profession to communicate with a judge, lawyer, or law student they believe is experiencing a behavioral health issue or could benefit from COLAP services; and (e) Voluntary monitoring for members of the legal profession residing in Colorado to assist ongoing recovery of behavioral health issues. Monitoring supports continuity of care following treatment, a clinical assessment, or an aftercare service plan and may include tracking attendance at counseling, therapy, and support group meetings and reviewing drug and alcohol test results. (3) Director. The Advisory Committee shall appoint a COLAP Director who serves at the pleasure of the Advisory Committee. The Director shall coordinate the annual budget of COLAP with the Advisory Committee. A portion of the annual attorney registration fee shall be used to establish and administer COLAP. (4) Qualifications. The Director shall have sufficient experience and training to enable the Director to assist members of the legal profession experiencing behavioral health issues. (5) Powers and Duties. The Director is authorized and empowered to act in accordance with this rule, under a budget approved by the supreme court, by: (a) Maintaining and supervising a permanent, central office;

(b) Hiring and supervising a staff to carry out the duties of the Director; (c) Adopting practices needed to govern the internal operation of COLAP; (d) Providing initial responses to requests for assistance and educational programming; (e) Maintaining regular contact with entities and individuals that work with or for the legal community, including treatment providers, bar associations, agencies, organizations, and committees; (f) Recruiting and training COLAP volunteers; (g) Maintaining information on referrals resources; (h) Establishing and administering voluntary monitoring of behavioral health issues for whom monitoring is appropriate; (i) Reviewing and amending COLAP programing, support services, and educational outreach when necessary to further the goals of COLAP, maintain best practices, and provide updated behavioral health information; and (h) Perform such other duties as the Colorado Supreme Court or Advisory Committee may direct. (6) Confidentiality. (a) Information and actions taken by COLAP shall be privileged and held in strictest confidence and shall not be disclosed or required to be disclosed to any person or entity outside of COLAP, unless such disclosure is authorized by the member of the legal profession to whom it relates. Such information and actions shall be excluded as evidence in any complaint, investigation or proceeding before the Supreme Court Attorney Regulation Committee, the Presiding Disciplinary Judge of the Supreme Court, or the Colorado Supreme Court. (b) COLAP employees, and volunteers recruited under this rule shall be deemed to be participating in a lawyer’s peer assistance program approved by the Colorado Supreme Court as provided in Colo. RPC 8.3(c). (c) The Director, pursuant to a valid subpoena, is prohibited from disclosing information, files, records or documents that are confidential as provided by this rule unless the Colorado Supreme Court orders otherwise. (7) Immunity. (a) Any person reporting information to COLAP

employees or agents including volunteers recruited under rule 254 shall be entitled to the immunities and presumptions under C.R.C.P. 251.32(e). (b) COLAP members, employees and agents including volunteers recruited under rule 254 shall be entitled to the immunities and presumptions under C.R.C.P. 251.32(e). (c) COLAP members, employees and agents including volunteers recruited under rule are relieved of the duty of disclosure of information to authorities as imposed by Rule 8.3(a). Comment to Rule: The confidentiality provision under 254(6) does not supersede state laws that impose a duty upon behavioral health and medical professionals to warn and protect should threats of imminent harm to self, others, or locations be communicated to them, or state laws requiring mandatory reporting of child and elder abuse or neglect.

Rule 255. Colorado Attorney Mentoring Program (1) Colorado Attorney Mentoring Program. The Colorado Supreme Court hereby establishes a Colorado Attorney Mentoring Program (“CAMP”). Through the fostering of mentoring relationships between lawyers seeking mentoring and experienced lawyer mentors, the goals of such program are to assist: (a) Lawyers during the transition from law student to practitioner; (b) Lawyers new to the practice of law in Colorado; (c) Lawyers transitioning practice area, practice environment, or practice location; (d) Lawyers to adopt and uphold the professional qualities of honesty, integrity, fairness, and civility in the legal profession; (e) Lawyers to adopt high standards for client representation; (f) Lawyers to acquire the knowledge of how to

exercise professional judgment and carry out the highest ideals in the practice of law; (g) Lawyers in the development of practical legal skills, knowledge of legal customs, and the use of best practices; and (h) Lawyers in the appreciation of the law practice tradition of community service and pro bono activities. CAMP and its director shall be under the supervision of the Supreme Court Advisory Committee (“Advisory Committee”) as set forth in C.R.C.P. 251.34(b)(3). (2) CAMP Services. The Colorado Attorney Mentoring Program shall provide the following services throughout the state of Colorado: (a) Promotion and support of lawyer mentoring generally within the legal community; (b) Programming to increase the awareness and understanding of CAMP-approved mentoring programs and their benefits;

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(c) Establishment and maintenance of a mentoring resource library of electronic materials for the development of educational programs, including but not limited to the following purposes: to promote professionalism, to teach lawyer practical skills, to increase knowledge of legal procedures and best practices and to otherwise improve new-lawyer legal abilities and professional judgment; (d) Programming to increase mentoring skills within the legal profession; (e) Assistance to lawyer groups and organizations that are developing CAMP-approved mentoring programs; (f ) Support services for lawyer groups and organizations in maintaining a successful CAMP-approved mentoring program; (g) Support services and resources for successful mentoring relationships, and to increase mentoring skills;

(h) Oversight of CAMP-approved mentoring programs to ensure compliance with CAMP protocols, policies and procedures; and (i) Maintenance and amendment of policies and procedures guiding CAMP-approved mentoring programs. (3) Director. The Advisory Committee shall appoint a CAMP Director who serves at the pleasure of the Advisory Committee. The Director shall coordinate the annual budget of CAMP with the Advisory Committee. A portion of the annual attorney registration fee shall be used to establish and administer CAMP. (4) Qualifications. The director shall have a Juris Doctor (“J.D.”) degree; at least five years of legal experience; and sufficient supervisory, management and training experience that may be necessary to properly administer CAMP. (5) Powers and Duties. The CAMP Director shall act in accordance with these Rules and shall:

(a) Collaborate with existing mentoring programs in Colorado to further the goals of CAMP outside of CAMP-approved mentoring programs; (b) Create, modify and maintain all requisite forms, agreements and online resources for administration of CAMP; (c) Receive, review, and, where appropriate, approve organizations’ submissions of their mentoring programs for preapproval to be a part of CAMP; (d) Receive, review, and approve mentee applicants for participation in CAMP; (e) Receive, screen, and recommend mentor applicants for appointment; (f) Receive, review, approve where appropriate, and transmit to the Board of Continuing Legal and Judicial Education (Attorney Registration/ CLE office) the certificates of completion, certificates of partial completion, and CLE affidavits; (g) Coordinate and perform ongoing monitoring and evaluation of the effectiveness of CAMP programs, and make recommendations accordingly; (h) Recruit, hire, train, and supervise appropriate staff in administering CAMP; (i) Recruit, select, and train lawyer volunteers for assistance in administering CAMP; (j) Establish and maintain a permanent, central office to carry out the above duties and responsibilities; (k) Maintain all records necessary for the successful administration of CAMP; (l) Prepare and present the annual budget of CAMP in coordination with the Advisory Committee; (m) Establish appropriate policies to assure that participants in CAMP shall be protected from any forms of discrimination or harassment; (n) Perform all other tasks necessary to facilitate administration of the CAMP; and (o) Perform such other related duties as the Supreme Court and the Advisory Committee may direct. Amended and Adopted by the Court, En Banc, April 16, 2020, effective immediately. By the Court: Monica M. Márquez Justice, Colorado Supreme Court

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Rule Change 2020(12) Colorado Rules of Juvenile Procedure Rule 3.5 Jury Trial (a) [NO CHANGE] (b) Examination, selection, and challenges for jurors shall be as provided by C.R.C.P. 47, except that challenges for cause and challenges to the pool shall be as provided by Crim.P. 24(b) and Crim.P. 24(c). Amended and Adopted by the Court, En Banc, April 16, 2020, effective immediately. By the Court: Richard L. Gabriel Justice, Colorado Supreme Court

Rule Change 2020(13) Colorado Rules of Civil Procedure Rules 4, 106.5, and 304 Rule 4. Process (a)–(g) [NO CHANGE] (h) Manner of Proof. Proof of service shall be made as follows: (1) If served personally, by a statement, certified by the sheriff, marshal or similar governmental official, or a sworn or unsworn declaration by any other person completing the service as to date, place, and manner of service; (2) Repealed eff. March 23, 2006. (3) If served by mail, by a sworn or unsworn declaration showing the date of the mailing with the return receipt attached, where required; (4) If served by publication, by a sworn or unsworn declaration that includes the mailing of a copy of the process where required; (5) If served by waiver, by a sworn or unsworn declaration admitting or waiving service by the person or persons served, or by their attorney; (6) If served by substituted service, by a sworn or unsworn declaration as to the date, place, and manner of service, and that the process was also mailed to the party to be served by substituted service, setting forth the address(es) where the process was mailed. (i)–(m) [NO CHANGE] COMMENT

2020 Rule 4(h) on the manner of proving service was amended following the adoption in 2018 of the Uniform Unsworn Declarations Act. C.R.S. § 13-27-101 et seq. This Act defines a “sworn declaration,” which includes an affidavit, and an “unsworn declaration,” which “means a declaration in a signed record that is not given under oath, but is given under penalty of perjury.” § 13-27-102 (6) and (7). An unsworn declaration which complies with the Act is sufficient to prove service under Rule 4(h). Rule 106.5. Correctional Facility Quasi-Judicial Hearing Review (a)–(c) [NO CHANGE] (d) Service of Process. (1) [NO CHANGE] (2) If the inmate files a motion to proceed in forma pauperis status and that motion is granted, service of process shall be accomplished in the following manner: The clerk of the District Court shall scan the complaint and serve it by electronic means on the Attorney General, the Executive Director of the Department of Corrections, and the Warden of the Facility (or the designee of each of these officials), along with a notice indicating the fact of the inmate’s filing and the date received by the Court. Each person notified shall send a confirmation by electronic means indicating that the specified official has received the electronic notice and the scanned copy of the complaint. (e)–(k) [NO CHANGE] Rule 304. Service of Process (a)–(f) (g) Manner of Proof. Proof of service shall be made as follows: (1) If served personally, by a statement, certified by the sheriff, marshal or similar governmental official, or a sworn or unsworn declaration by any other person completing the service as to date, place, and manner of service. (2) Repealed eff. March 23, 2006. (3) If served by mail, a sworn or unsworn declaration showing the date of the mailing, with the return receipt attached, where applicable. (4) If served by publication, by a sworn or unsworn declaration that includes the mailing of

a copy of the summons, complaint and answer form where required. (5) If served by waiver, by a sworn or unsworn declaration admitting or waiving service by the person or persons served, or by their attorney. (6) If served by substituted service, by a sworn or unsworn declaration as to the date, place, and manner of service, and that the process was also mailed to the party to be served by substituted service, setting forth the address(es) where the process was mailed. (h)–(j) [NO CHANGE] COMMENT 2020 Rule 304(g) on the manner of proving service was amended following the adoption in 2018 of the Uniform Unsworn Declarations Act. C.R.S. § 13-27-101 et seq. This Act defines a “sworn declaration,” which includes an affidavit, and an “unsworn declaration,” which “means a declaration in a signed record that is not given under oath, but is given under penalty of perjury.” § 13-27-102 (6) and (7). An unsworn declaration which complies with the Act is sufficient to prove service under Rule 304(g). Amended and Adopted by the Court, En Banc, April 17, 2020, effective immediately. By the Court: Richard L. Gabriel Justice, Colorado Supreme Court

Rule Change 2020(14) Colorado Probate Code Forms Rule change 2020(14) amends JDF 718 of the Colorado Probate Code Forms. Amended and Adopted by the Court, En Banc, April 23, 2020, effective immediately. By the Court: Richard L. Gabriel Justice, Colorado Supreme Court

Rule Change 2020(15) Rules Governing Admission to the Practice of Law in Colorado JUNE 2020

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Rule 205.8. Emergency Rule Concerning Certification for Limited Practice as a Graduate Before Admission By Examination (a) Duration of Rule. If the July 2020 Colorado bar examination is postponed, this Rule shall take effect on the date such postponement is announced by the Office of Attorney Admissions and expires seven days after the swearing-in ceremony following the first Colorado bar examination that is held after the effective date of this Rule or when otherwise repealed by the Court. The Court, in its discretion, may extend the time limits set forth in this Rule. (b) General Statement. In its discretion, the Supreme Court may certify an applicant for admission by the Colorado bar examination to be a certified limited practice graduate under the conditions and requirements of this Rule. (c) Eligibility. An applicant for admission by the

Colorado bar examination under C.R.C.P. 203.4 may apply to become a certified limited practice graduate under the procedures set forth in this Rule. Applicants who are eligible for temporary practice under C.R.C.P. 205.7(2)(b)(i)(A) may, but are not required to, be certified as a limited practice graduate under this Rule. To be eligible as a certified limited practice graduate, an applicant must demonstrate through a form, affidavit and any other evidence required by this Rule that the applicant: (1) has submitted an application to the Office of Attorney Admissions pursuant to C.R.C.P. 203.4; (2) has never been licensed to practice law in another state in the United States, the District of Columbia, or U.S. Territories; (3) has graduated with a J.D. or LL.B. from a law school accredited by the Council of the Section of Legal Education and Admissions to the Bar of the American Bar Association;

(4) affirms an intent to practice law in Colorado under the supervision of a licensed attorney who meets the requirements of this Rule; (5) has not yet had an opportunity to take the Colorado bar examination, or deferred such opportunity in 2019 to serve a judicial clerkship; and, (6) has satisfied all other requirements for admission as a Colorado-licensed attorney, or the Office of Attorney Admissions has determined that the applicant may reasonably be expected to satisfy all such requirements prior to admission, except for obtaining a passing score of the Colorado bar examination. (d) Filing Requirements and Effect of Registration. (1) In order to perform the services set forth in this Rule, the applicant must request certification as a limited practice graduate through a form provided by the Clerk of the Supreme Court

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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Office of Attorney Registration, with all the information requested on the form, together with a fee of $50. The Clerk of the Supreme Court Office of Attorney Registration shall send a copy of all applications for graduate limited practice certification to the Office of Attorney Admissions to determine eligibility to provide services under this Rule. (2) Upon being notified that the Office of Attorney Admissions has determined the applicant is eligible to be certified as a limited practice graduate, the applicant may register with the Clerk of the Supreme Court Office of Attorney Registration for supervised practice. (A) The applicant shall affirm that the applicant has read, is familiar with, and will be governed by the Colorado Rules of Professional Conduct. (B) The applicant must include with the registration the identity of the applicant’s supervising attorney and an affidavit from the supervising attorney sufficient to establish that the attorney agrees to undertake the supervision of the applicant in accordance with this Rule. (C) The applicant must include with the registration an attestation from the dean of the law school where the applicant was enrolled on graduation that the applicant meets the graduation requirements of this Rule, and, to the best of the dean’s knowledge, is qualified by ability, training, and character to provide the services permitted by this Rule. (3) The applicant must advise the Clerk of the Supreme Court Office of Attorney Registration immediately of any change in circumstances that renders the applicant ineligible for certification as a limited practice graduate. (4) Nothing herein shall relieve an applicant of the continuing duty to inform the Office of Attorney Admissions of supplementary information and developments, including those relating to character and fitness, affecting the applicant’s pending application for admission as a licensed attorney. (5) Certification as a limited practice graduate confers no rights or presumptions bearing on the applicant’s pending application for admission as a licensed attorney, and in no way restricts the Supreme Court’s authority to determine an applicant’s admission to the practice of law in Colorado.

(e) Supervision. (1) An applicant may be certified as a limited practice graduate only if a supervising attorney who meets the requirements of this Rule, as determined by the Clerk of the Supreme Court Office of Attorney Registration and Attorney Regulation Counsel, has agreed to supervise the applicant. Under no circumstances may a certified limited practice graduate engage in the practice of law as a sole practitioner. (2) The supervising attorney must through affidavit show that he or she: (A) is admitted and in good standing in Colorado; (B) has been engaged in the active practice of law for at least three of the past five years; (C) is not the subject of any pending formal disciplinary or disability matters in any jurisdiction at the time of the applicant’s registration under this Rule; (D) expressly agrees to: assume all professional responsibility for the direct supervision for the professional work of the applicant, including the applicant’s compliance with the Colorado Rules of Professional Conduct; provide any necessary assistance to the applicant to ensure the protection of the clients for whom the applicant provides services; either directly or through the services of another Colorado-licensed attorney associated with the supervising attorney’s firm or organization, review, sign and file pleadings, briefs, and other legal documents that the applicant has prepared; and either directly or through the services of another Colorado-licensed attorney associated with the supervising attorney’s firm or organization, be present for designated court appearances as required by this Rule or by order of any court or tribunal; and (E) expressly agrees to notify the Clerk of the Supreme Court Office of Attorney Registration within seven days if the supervising attorney has terminated supervision of the applicant or if the supervising attorney becomes aware that the applicant no longer meets the requirements of a certified limited practice graduate. (f) Termination of Certification. The privilege to engage in supervised practice through certification as a limited practice graduate under this Rule may be terminated by the Supreme Court at any time without notice or hearing

and without any showing of cause, and also expires without action by the Court upon any of the following circumstances: (1) the applicant’s withdrawal of the application for admission under C.R.C.P. 203.4; (2) the supervising attorney’s withdrawal of an agreement to supervise the applicant, unless a substitute supervising attorney meeting the requirements of this Rule has filed an affidavit reflecting an agreement to supervise the applicant; (3) the applicant’s admission to practice law in any state, the District of Columbia, or U.S. Territory; or (4) seven days after the Office of Attorney Admissions notifies, through publication or otherwise, the applicant that he or she did not achieve a passing score on the Colorado bar examination. (g) Services Permitted. Under the supervision of and with the approval of the supervising attorney, and with the written consent of the person or entity on whose behalf the certified limited practice graduate is acting, a certified limited practice graduate may render the following services: (1) A certified limited practice graduate may counsel and advise clients, negotiate in the settlement of claims and charges, represent clients in mediation and other non-litigation matters, and engage in the preparation and drafting of pleadings, briefs, memoranda, instruments, and other legal documents. Any communication, other than internal communications signed by the applicant, must include the designation “Certified Limited Practice Graduate” and also must be signed by the supervising attorney or another Colorado-licensed attorney associated with the same firm or organization as the supervising attorney. (2) A certified limited practice graduate may provide short-term limited legal services to a client as contemplated by Colo. RPC 6.5 by disclosing to both the legal services program and any individual participating in the program with whom the graduate makes contact that the graduate is a “Certified Limited Practice Graduate” and not a licensed attorney. A Colorado-licensed attorney must be available to assist the certified limited practice graduate in the provision of such services. JUNE 2020

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(3) A certified limited practice graduate may appear in the courts and administrative tribunals of this state, including court-sponsored mediation, subject to the following qualifications and limitations: (A) All required consents to the certified limited practice graduate’s appearance in a matter shall be brought to the attention of the judge or presiding officer; (B) Appearances, pleadings, motions, briefs and other documents to be filed with a court prepared by the applicant must include the designation “Certified Limited Practice Graduate,” and also must be signed and filed by the supervising attorney or another Colorado-licensed attorney associated with the same firm or organization as the supervising attorney; (C) In criminal cases in which the defendant has not been charged with a felony, and in civil or criminal contempt proceedings, all prior to appeal: the certified limited practice graduate may participate as long as the supervising attorney or another Colorado-licensed attorney associated with the same firm or organization as the supervising attorney is available, but not necessarily physically present in the courtroom, in the event that the client in question wants to consult with a licensed attorney. However, a supervising attorney or other Colorado-licensed attorney associated with the same firm or organization as the supervising attorney must be physically present in the courtroom if the proceeding is a testimonial motions hearing or trial; (D) In all other civil cases, the certified limited practice graduate may conduct all pretrial, trial, and post-trial proceedings, other than appellate proceedings, with the supervising attorney or other Colorado-licensed attorney associated with the same firm or organization as the supervising attorney physically present, unless the judge or presiding officer orders that the certified limited practice graduate may participate without the presence of a licensed attorney and the client consents to the absence of a licensed attorney; (E) In matters before appellate courts, the certified limited practice graduate may prepare briefs and other appellate filings, subject to the signature and filing requirements of this section. Upon motion by the supervising attorney or

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other attorney associated with the same firm or organization as the supervising attorney, the certified limited practice graduate may request authorization to argue the matter before the appellate court but, in all cases, the moving attorney must be present at the argument. (F) A court or presiding officer may at any time and in any proceeding require the supervising attorney or other Colorado-licensed attorney associated with the same firm or organization as the supervising attorney to be physically present in a proceeding with a certified limited practice graduate. (h) Compensation. A certified limited practice graduate rendering services authorized by this Rule shall not request or accept any compensation from the person for whom the certified limited practice graduate renders the services. The certified limited practice graduate may be compensated as an employee of a firm or other organization, and may request such compensation consistent with other law. (i) Disciplinary Complaints. (1) Any disciplinary complaint or request for investigation concerning a certified limited practice graduate should be directed to the Attorney Regulation Counsel. The Attorney Regulation Counsel may pursue immediate suspension of the certification of the limited practice graduate on a discipline or disability basis through petition to the Supreme Court, in exercise of its plenary authority. The Court in its discretion may request that the Presiding Disciplinary Judge serve as a special master for purposes of conducting any evidentiary hearing that the Court deems necessary. Nothing herein shall limit the authority of the Supreme Court to suspend or revoke certification of the limited practice graduate pursuant to subsection (f ) of this Rule. (2) The Attorney Regulation Counsel shall have jurisdiction over any requests for investigation against both the certified limited practice graduate and the supervising attorney, and may also refer all information pertaining to the certified limited practice graduate to the Office of Attorney Admissions and the Character and Fitness Committee. The Attorney Regulation Counsel may disclose to the supervising attorney any requests for investigation pertaining to the

certified limited practice graduate. (j) Public Information. The Clerk of the Supreme Court Office of Attorney Registration may disclose the identity and registered business contact information of both a certified limited practice graduate and that person’s supervising attorney, and disclose the dates such certification was effective and is terminated. (k) Use of the title “Certified Limited Practice Graduate.” (1) A certified limited practice graduate may use the title “Certified Limited Practice Graduate” only in connection with services performed pursuant to this Rule. (2) A certified limited practice graduate shall not hold himself or herself out to anyone as a licensed attorney. (3) Nothing in this Rule prohibits a certified limited practice graduate from describing his or her participation in this program on a resume, biographical summary, or application seeking employment as long as the description is not false, deceptive, or misleading. Amended and Adopted by the Court, En Banc, April 23, 2020, effective immediately. By the Court: Monica M. Márquez Justice, Colorado Supreme Court

Rule Change 2020(16) Colorado Rules of Probate Procedure Part 9. Remote Witnessing of Documents Rule 91. Remote Witnessing of Certain Non-Testamentary Instruments (a) Any of the following documents is signed in the presence of a witness if the witness observes the signing through real-time audio-video communication in accordance with this rule: (1) Declaration as to medical treatment, as provided under §15-18-104, C.R.S.; (2) Behavior health order for scope of treatment, as provided under § 15-18.7-202, C.R.S.; and (3) Anatomical gift, as provided under § 1519-205, C.R.S., including an anatomical gift contained within a declaration as to surgical

treatment described in subsection (a)(1) or within a medical durable power of attorney, as provided under § 15-14-506, C.R.S. (b) The use of real-time audio-video communication to witness the signing of a document described in subsection (a) is subject to the following requirements with respect to each remotely located witness: (1) “Real-time audio-video communication” means an electronic system of communication by which remotely located individuals are able to see, hear, and communicate with one another, substantially simultaneously and without interruption or disconnection. Delays of a few seconds that are inherent in the method of communication do not prevent the interaction from being considered to have occurred in real time. (2) At the time of the document’s signing: A. Each signer and witness must be a domiciliary of and located within the State of Colorado; and B. Each witness must be otherwise qualified to sign the document under any applicable statute. (3) During real-time audio-video communication: A. Prior to the document’s signing, the signer of the document must: (i) Make available for remote examination by the witness a complete copy of the unsigned document and, if the signer is not personally known to the witness, the signer’s government-issued photo identification; and (ii) Orally state to the witness the signer’s name; the name, purpose, and number of pages of the document to be signed; and the signer’s current location and State of domicile. B. Prior to the document’s signing, each witness must: (i) Confirm the identity of the signer either by personal knowledge or by examining the signer’s government-issued photo identification; and (ii) Confirm that the name, purpose, and number of pages of the document to be signed as described by the signer match the copy of the unsigned document examined by the witness. C. The signer must sign the document; and the witness must observe the signer’s signing of the document. (4) The signer must transmit a copy of the signed document by fax, email, or other means to the

witness within a reasonable period after signing the document. (5) Within 14 days after receiving a copy of the signed document, each remotely located witness must: A. Certify his or her witnessing of the document’s signing in a form substantially similar to the following: I certify that on _______________, 20__, I witnessed, through the use of realtime audio-visual communication, ________________ (the “signer”) sign the ____________________ (the “document”); and during the audio-visual communication I (a) confirmed the identity of the signer, (b) observed the signer’s signing of the document, and (c) confirmed that the signed document had the same name, purpose, and number of pages as represented to me by the signer prior to his or her signing. B. Transmit a copy of the signed document with the completed witness certification to the signer by fax, email, or other means. (c) Except as otherwise provided by statute, a non-testamentary instrument executed pursuant

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to subsection (b) of this rule is effective as of the date the signer signed the instrument. (d) This rule shall be effective during any period in which the Governor of Colorado, by executive order, has formally declared the existence of a public health crisis that, by the terms of such order, requires social or physical distancing throughout Colorado. COMMENT 2020 This rule was promulgated by the Colorado Supreme Court’s Probate Rules Committee during the COVID-19 pandemic to address issues arising from the Governor’s Order D 2020 017, dated March 25, 2020, concerning social and physical distancing. Rule 92. Remote Witnessing of Certain Testamentary Instruments (a) A will, as defined under § 15-10-201(59), C.R.S., that is signed by a testator and attested by two qualified witnesses through the use of

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COVID-19 Business Interruption: Is Your Insurance Company Denying or Delaying Your Claim? Thomas W. Henderson

David K. TeSelle

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real-time audio-video communication, or by one witness in the testator’s physical presence and the second qualified witness through the use of real-time audio-video communication, as defined in Rule 91(b)(1), shall constitute a valid attested will under C.R.S. § 15-11-502(1)(c)(I) if each of the following conditions is satisfied: (1) Each of the witnesses must be either (a) a licensed Colorado attorney of whom the testator is a current client within the meaning of the Colorado Rules of Professional Conduct, or (b) if that attorney is a participant in the document’s execution, any other lawyer or nonlawyer assistant whose professional activities are regularly performed under the authority of the attorney or the attorney’s law firm. (2) The requirements set forth in subsection (b) of Rule 91 must be satisfied and certified with respect to each witness’s attestation of the will, subject to the following modifications: A. The certification of a remotely located witness, in the form required by subsection (b)(5)A of Rule 91, must be contained in the will. A separate document of certification by a remotely located witness cannot be used to attest a will under this rule. B. If more than one remotely located witness attests the will, the will must contain multiple certifications. (3) After the will has been signed and attested: A. Within a reasonable time after the will’s signing, the original, signed will must be presented to an attorney who has witnessed the will’s signing, or who is affiliated with or supervising other witnesses, as provided under subsection (a)(1) of this rule; B. Within a reasonable time after receiving the original, signed will, the attorney must confirm that the document is identical to the will remotely witnessed under subsection (a) (2) of this rule; and C. Within a reasonable period after confirming the will’s status under subsection (a)(3)B of this rule: i. The original, signed will must be presented to each witness who remotely attested the will’s signing under subsection (a)(2) of this rule; and ii. Each such witness must sign a witness certification in the original will in the same manner as that witness’s certification was completed

and signed for purposes of subsection (a)(2) of this rule. (b) A will signed and attested in accordance with subsection (a) of this rule is executed as of the date the testator signed the will. (c) If any portion of a will is executed pursuant to this rule, the will must be presented to the court in a formal testacy proceeding pursuant to C.R.S. 15-12-401 et seq. (d) This rule shall be effective during any period in which the Governor of Colorado, by executive order, has formally declared the existence of a public health crisis that, by the terms of such order, requires social or physical distancing throughout Colorado. COMMENT 2020 This rule was promulgated by the Colorado Supreme Court’s Probate Rules Committee during the COVID-19 pandemic to address issues arising from the Governor’s Order D 2020 017, dated March 25, 2020, concerning social and physical distancing. Amended and Adopted by the Court, En Banc, April 24, 2020, effective immediately. By the Court: Richard L. Gabriel Justice, Colorado Supreme Court

Rule Change 2020(17) Colorado Probate Code Forms Rule Change 2020(17) updates JDF 807 of the Colorado Probate Code Forms. Amended and Adopted by the Court, En Banc, April 30, 2020, effective immediately. By the Court: Richard L. Gabriel 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.

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

Disciplinary Case Summaries No. 20PDJ006. People v. Barker. 3/31/2020. The Presiding Disciplinary Judge suspended Tametha D’lyn Barker (attorney registration number 36797) for three years, effective May 6, 2020. To be reinstated, Barker must formally petition for reinstatement; she will be required to prove by clear and convincing evidence that she has been rehabilitated, has complied with disciplinary orders and rules, and is fit to practice law.

This is a reciprocal discipline case arising out of discipline imposed upon Barker in the State of Texas. The State Bar of Texas entered orders in two separate attorney discipline cases. Both orders suspended Barker from the practice of law for three years, to run from mid-November 2019 through mid-November 2022. This discipline was premised on findings that Barker had neglected two client matters, failed to keep her clients reasonably informed

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about their cases, and failed to cooperate in the disciplinary proceedings. The State Bar of Texas concluded that Barker had violated Texas Disciplinary Rules of Professional Conduct 1.01(b)(1) (a lawyer shall not neglect a legal matter entrusted to the lawyer by a client); 1.03(a) (a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information); and 8.04(a)(8) (a lawyer shall not fail to timely respond to a disciplinary inquiry, unless a privilege or other legal grounds for not doing so is timely asserted). Through this conduct, Barker engaged in conduct constituting grounds for reciprocal discipline under CRCP 251.21. The case file is public per CRCP 251.31. No. 18PDJ067. People v. Brown. 4/17/2019. A hearing board disbarred Larry D. Brown (attorney registration number 17409). The Colorado Supreme Court affirmed the hearing board’s decision on February 24, 2020. Brown’s disbarment was effective April 22, 2020. Brown recklessly converted disputed funds that he held in his trust account for a client. He made misrepresentations to the client about the status of those funds. He then intentionally made several material misrepresentations to a bankruptcy court about the disputed funds. Later, he intentionally disobeyed the bankruptcy court’s order to turn over the disputed funds, prejudicing the administration of justice. Brown’s conduct violated Colo. RPC 1.15A(a) (a lawyer shall hold property of clients separate from the lawyer’s own property); Colo. RPC 1.15A(c) (a lawyer shall keep separate any property in which two or more persons claim an interest until there is a resolution of the claims); Colo. RPC 3.3(a)(1) (a lawyer shall not knowingly make a false statement of material fact or law to a tribunal or fail to correct a false statement of material fact or law); Colo. RPC 3.4(c) (a lawyer shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists); Colo. RPC 8.4(c) (it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); and Colo. RPC 8.4(d)

(it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice). The case file is public per CRCP 251.31. No. 19PDJ061. People v. Lawrence. 10/2/2019. The Presiding Disciplinary Judge dismissed a petition for readmission to the practice of law filed by Michael Richard Lawrence on October 2, 2019. The Colorado Supreme Court affirmed the Presiding Disciplinary Judge’s order on March 19, 2020. Under CRCP 251.29(g), Lawrence may not petition for readmission for another two years. In 2009, Lawrence was convicted of three felonies: attempting to influence a public servant, forgery, and offering a false instrument for recording. On the basis of his criminal convictions, Lawrence was disbarred in December 2010. He sought readmission to the practice of law in August 2019. The Presiding Disciplinary Judge concluded that Lawrence’s petition for readmission must be dismissed under CRCP 12(b)(5). Although eight years had elapsed since his disbarment, Lawrence neither took nor passed the Colorado bar exam before petitioning for readmission. Further, he did not allege in his petition any facts or provide any evidence to support a claim that he is fit to practice law, has complied with all disciplinary orders and rules, and has been rehabilitated. As a result, the Presiding Disciplinary Judge found that Lawrence failed to state a plausible claim that he is entitled to be readmitted to the practice of law in Colorado. The case file is public per CRCP 251.31.

customer, including offering legal advice and drafting a letter on the customer’s behalf that threatened further legal action against the tenant. Through this conduct, McMenaman violated Colo. RPC 3.4(c) (a lawyer shall not knowingly disobey an obligation under the rules of a tribunal); Colo. RPC 5.5(a)(1) (a lawyer shall not practice law without a law license or other specific authorization); 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. 20PDJ020. People v. Morgan. 3/17/2020. The Presiding Disciplinary Judge approved the parties’ conditional admission of misconduct and suspended Steven Louis Morgan (attorney registration number 38542) for six months, 45 days served and 135 days stayed upon the

successful completion of a one-year period of probation. Morgan’s suspension was effective April 24, 2020. During a disciplinary investigation into Morgan’s representation of a client, Morgan submitted to the Office of Attorney Regulation Counsel an altered copy of a fee agreement and a falsified letter concerning the representation. Through this conduct, Morgan violated Colo. RPC 8.1(a) (a lawyer shall not knowingly make a false statement of material fact in connection with a disciplinary matter) and Colo. RPC 8.4(c) (providing that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation). The case file is public per CRCP 251.31. No. 20PDJ015. People v. Sinclair. 3/23/2020. The Presiding Disciplinary Judge approved the parties’ conditional admission of miscon-

No. 19PDJ018. People v. McMenaman. 3/8/2020. A hearing board disbarred Paul X. McMenaman (attorney registration number 16407), effective April 8, 2020. McMenaman has been suspended from the practice of law since 2006. In 2018, while his law license was suspended, McMenaman sought customers through several Craigslist postings, implying that he could complete the same work as a lawyer. In response, a customer contacted McMenaman for assistance with a landlord-tenant dispute. For an hourly rate, McMenaman provided legal services to the JUNE 2020

C OL OR A D O L AW Y E R

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

duct and suspended Charlene Happ Sinclair (attorney registration number 25308) for 90 days, all stayed upon the successful completion of a one-year period of probation. Significant weight was given to the imposition of other penalties or sanctions. The probation took effect March 23, 2020. Sinclair represented a client in easement negotiations in which the parties signed off on a partial agreement reached during mediation. A few hours after the mediation session ended, opposing counsel notified Sinclair that the parties had mistakenly signed a draft version of the agreement and provided her with the final version. Sinclair replied, “I don’t see a real problem . . . I’ll get [my client] to look over the new version and get back to you.” Over the following five months, the parties continued to negotiate the matters not covered by the agreement. Sinclair never raised concerns

about the mediated easement agreement; her client signed the final version of the agreement and received the stipulated monetary payout directly from opposing counsel. After opposing counsel filed for entry of judgment on the easement matter, and after the appropriate time to file a response had passed, Sinclair filed a motion to set aside the easement agreement due to fraud, coercion, and misrepresentation by the adverse party and counsel. In her motion, Sinclair knowingly misrepresented communications between the parties and included no case law or legal argument to support her claims. The court denied the motion and found it to be “not well-grounded in fact or law” as well as “frivolous, groundless, and vexatious.” The court awarded $10,186.50 in attorney fees against Sinclair personally. Sinclair appealed the order and, later, the reasonableness of the amount of fees awarded.

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The appeals court denied both appeals, noting a lack of legal analysis or support. Ultimately, Sinclair was personally ordered to pay $19,696.50 in attorney fees for the first appeal and $6,750.07 for the second appeal. Sinclair has paid the $36,633.07 total attorney fees awarded against her. Through this conduct, Sinclair violated Colo. RPC 3.1 (a lawyer shall not assert frivolous claims); Colo. RPC 3.3(a)(1) (a lawyer shall not knowingly make a false statement of material fact to a tribunal); Colo. RPC 8.4(c) (providing that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); and Colo. RPC 8.4(d) (providing that 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. 20PDJ005. Sunoo v. People. 3/8/2020. Following an appearance as required by CRCP 251.29(j), the Presiding Disciplinary Judge approved the parties’ stipulation and reinstated Chan Michael Sunoo (attorney registration number 38595) to the practice of law, effective April 8, 2020. The parties agreed that Sunoo has been rehabilitated, has complied with disciplinary orders and rules, and is fit to practice law. No opinion was issued. The case file is public per CRCP 251.31. No. 20PDJ022. People v. Tauger. 3/17/2020. The Presiding Disciplinary Judge approved the parties’ conditional admission of misconduct and suspended Michael J. Tauger (attorney registration number 01902) for three years, effective May 22, 2020. Tauger’s law license has been suspended since 2011. In May 2019, Tauger was contacted by a former client about a commission dispute with another brokerage company from the sale of real property. Tauger told the client he was suspended. Nevertheless, the client requested that Tauger review the matter. The client paid Tauger $1,900 to review documents and assist him, though no written fee agreement was entered. On several occasions Tauger emailed other parties involved in the matter; these

emails included legal analysis, statements about tortious interference, and references to confidential settlement communications. The email address Tauger used included the domain name “taugerlaw.” The other parties believed he was a lawyer representing the client based on the nature and content of his emails. When he was asked directly about his relationship and status, Tauger was vague and stated that he was semi-retired and assisting in the matter. He did not clarify that he was suspended and unable to practice law. Through this conduct, Tauger violated Colo. RPC 3.4(c) (a lawyer shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists) and Colo. RPC 5.5(a)(1) (a lawyer shall not practice law without a license, unless otherwise specifically authorized). The case file is public per CRCP 251.31. No. 20PDJ017. People v. Vahsholtz. 3/17/2020. The Presiding Disciplinary Judge approved the parties’ amended conditional admission of misconduct and suspended George Robert Vahsholtz (attorney registration number 07179) for one year. The suspension took effect April 17, 2020 and runs concurrent to the suspension imposed on Vahsholtz in case number 19PDJ033. Vahsholtz was suspended from the practice of law for one year and one day in case number 19PDJ033; his suspension took effect on July 29, 2019. In summer 2019, a long-time friend and former client told Vahsholtz that she had been unable to get information about her deceased father-in-law’s estate. Vahsholtz told her that he personally knew the lawyer on the case and would call as a friend for an update. Vahsholtz did not believe that calling for information constituted the practice of law, and he had no expectation of payment. In late October 2019, Vahsholtz called the lawyer’s office and told a paralegal that he was a lawyer representing his friend. He then asked for an accounting of the estate on his friend’s behalf. During his communications with the paralegal, Vahsholtz never disclosed that his law license was suspended. About a week later, Vahsholtz

spoke with the lawyer; he related that his friend was concerned about the lack of information she had received. This time, Vahsholtz made clear that his law license was suspended and that he was calling as a favor for a friend. Through this conduct, Vahsholtz violated Colo. RPC 3.4(c) (a lawyer shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists) and Colo. RPC 5.5(a)(1) (a lawyer shall not practice law without a license, unless otherwise specifically authorized). 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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uniformed service, and his pension payments are therefore subject to the WEP. The judgment was affirmed.

Summaries of Selected Opinions No. 18-3240. Kientz v. Commissioner, SSA. 4/1/2020. D.Kan. Judge Carson. Social Security Retirement Benefits—Windfall Elimination Provision—Uniformed Services Exception. Plaintiff served as a dual service technician with the Kansas Army National Guard for nearly 30 years. A dual service technician is a hybrid role that includes civilian and military responsibilities. Plaintiff worked primarily as a mechanic and simultaneously served as a member of the National Guard, a second job with separate pay and responsibilities. He paid Social Security taxes on the National Guard wages but not on his civil service pay. Upon plaintiff’s retirement, the Social Security Administration (SSA) applied the windfall elimination provision (WEP) to proportionally reduce his Social Security retirement benefits. Plaintiff unsuccessfully appealed the reduction to the SSA. The district court ultimately held that plaintiff’s Social Security retirement benefits

were subject to the WEP because his civil service pension was not based wholly on service as a member of the uniformed services. On appeal, plaintiff contended that the WEP’s uniformed services exception applied to his dual service technician position. He maintained that his civil service pension was based wholly on his service in the National Guard because Congress required Guard membership as a condition of holding the dual service technician position. The word “wholly” in the uniformed services exception indicates that a qualifying pension payment must be entirely or exclusively from military service. Here, plaintiff’s dual status technician work was at least partially distinct from the performance of his military duties, and he received separate compensation and separate pensions for performing those distinct roles. Thus, plaintiff ’s civil service pension is not wholly based on service as a member of a

No. 19-4008. United States v. Mayville. 4/7/2020. D.Utah. Judge Baldock. Fourth Amendment—Criminal History Check—Reasonableness. Trooper Tripodi stopped defendant for speeding and noticed that he was hunched over in his vehicle as if trying to hide something. During their initial interaction the trooper noted defendant appeared drowsy or confused, he had difficulty locating paperwork, and he couldn’t produce a vehicle registration. Trooper Tripodi returned to his patrol car and asked dispatch to run a criminal history check on defendant and dispatch a drug dog. Trooper Mackleprang arrived with his drug dog and asked defendant to exit the vehicle. Defendant initially refused, but ultimately exited the vehicle, and the dog alerted to a narcotics odor in the vehicle. Less than 30 seconds later dispatch responded that defendant had a criminal record. The entire initial traffic stop lasted approximately 19 minutes. The troopers then searched defendant’s vehicle and discovered two guns, one with a silencer; methamphetamine; and heroin. A grand jury indicted defendant for possession of methamphetamine with intent to distribute,

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

JUNE 2020

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FROM COURTS TITLE THE | SUB TITLE | US COURT OF APPEALS FOR THE TENTH CIRCUIT

possession of heroin with intent to distribute, possession of an unregistered firearm silencer, and being a felon in possession of a firearm. Defendant filed two motions to suppress the evidence seized during the traffic stop. As relevant here, he moved to suppress evidence of the drugs and firearms as fruit of an unlawful seizure under the Fourth Amendment. The district court denied the motions. Defendant pleaded guilty to possession of methamphetamine with intent to distribute and possession of an unregistered firearm silencer, reserving his right to appeal the denials of his motions. On appeal, defendant argued that Trooper Tripodi’s decision to run a criminal history check was unrelated to the purpose of the traffic stop and extended its duration in violation of the Fourth Amendment. An officer is permitted to run a criminal history check as a safety precaution during a traffic stop as long as the check does not

unreasonably prolong the stop. Here, Trooper Tripodi was entitled to inquire into defendant’s criminal record during the traffic stop because defendant provided an out-of-state license and was driving an out-of-state vehicle; Trooper Tripodi developed concerns based on defendant’s behavior and demeanor; and defendant was unable to provide registration paperwork for the vehicle. Given these circumstances, Trooper Tripodi’s decision to run a check through dispatch, as opposed to limiting his records check to his patrol car’s computer, did not unreasonably prolong the stop in violation of the Fourth Amendment. The judgment was affirmed. No. 19-4070. United States v. Samora. 4/8/2020. D.Utah. Judge Baldock. Constructive Possession of Firearm—Sufficiency of Evidence—Intent Element. Defendant borrowed his ex-girlfriend’s vehicle and drove it by himself to a restaurant. Officers

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waited outside the restaurant to arrest defendant on an outstanding warrant. Defendant left the restaurant alone and officers converged to arrest him. Defendant fled on foot but was captured. Officers searched the vehicle and found a loaded firearm inside the center console. A jury convicted defendant of being a felon in possession of a firearm. On appeal, defendant argued that there was insufficient evidence to sustain a conviction based upon constructive possession. Here, defendant was the sole occupant of the vehicle where officers found the firearm and had sole possession of the vehicle in the hours leading up to his arrest and the discovery of the firearm. But because he borrowed the car from his ex-girlfriend, this was a “joint occupancy case,” which required the government to show a nexus between defendant and the firearm to prove his knowledge of and access to the firearm. Here, the nexus element was satisfied because the firearm was found in proximity to defendant in the center console, and DNA testing of the firearm established that defendant’s DNA matched the major profile on the firearm. Thus, the government presented sufficient evidence to support the conviction. Defendant also argued that the district court improperly instructed the jury concerning constructive possession by failing to require it to find that he intended to exercise control over the firearm. The law is clear that constructive possession requires a defendant to have the intent to exercise control over the firearm. Here, the district court failed to instruct on the intent element, and this omission was plainly erroneous. Alternatively, to prove actual possession, the government was required to show that defendant held the firearm on the date specified in the indictment. The evidence of actual possession was too weak to affirm on the alternative basis. The conviction was reversed and the case was remanded for a new trial. No. 18-1421. Caldara v. City of Boulder. 4/10/2020. D.Colo. Judge Seymour. Firearm Regulation—State Preemption—Home Rule Authority—Pullman Abstention Doctrine. Pursuant to its home rule authority, the Boulder City Council passed two ordinances (the ordinances) that prohibit the sale or pos-

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FROM COURTS TITLE THE | SUB TITLE | US COURT OF APPEALS FOR THE TENTH CIRCUIT

session of assault weapons and large-capacity ammunition magazines in the city and raise the legal age for firearm possession from 18 to 21. Plaintiffs are citizens of the City of Boulder and entities with interests in the sale or possession of firearms within the city. They filed suit in federal district court against the City of Boulder and several city officials, alleging that the ordinances violated the US Constitution, the Colorado Constitution, and two state statutes. As part of their claims, plaintiffs contend the ordinances are preempted by CRS §§ 29-11.7-102 and -103, which provide that a local government may not enact an ordinance that prohibits the sale, purchase, or possession of a firearm that a person may lawfully sell, purchase, or possess under state or federal law. Shortly after this action was filed, other individuals and entities challenged the ordinances in state court. Due to uncertain state

law issues, the district court decided to abstain under Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941), and stayed the federal proceedings pending a state court determination as to whether the ordinances are preempted by state statute. On appeal, plaintiffs argued that the district court erred in abstaining under Pullman. The Pullman doctrine is a narrow exception to the federal courts’ general duty to decide cases and is used only in exceptional circumstances to avoid premature constitutional adjudication. To justify abstention under Pullman, (1) an uncertain and complex issue of state law must underlie the federal constitutional claim; (2) the state issues must be amenable to interpretation, which interpretation obviates the need for or narrows the scope of the constitutional claim; and (3) the district court’s incorrect decision of state law would hinder important state law

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policies. Here, (1) a complex issue of state law underlies the federal constitutional claims; (2) if the state court were to conclude that the Colorado statutes preempt the Boulder ordinance, there would be no need to resolve the federal constitutional questions; and (3) an incorrect prediction by the district court as to the correct interpretation of the applicable Colorado statutes and constitutional provisions would disrupt an important state interest in balancing state policies. Therefore, the Pullman factors were satisfied. Further, the district court properly exercised its discretion in abstaining. The abstention ruling was affirmed. No. 18-2010. United States v. Manzanares. 4/17/2020. D.N.M. Judge Briscoe. Armed Career Criminal Act—Violent Felony—New Mexico Armed Robbery. Defendant pleaded guilty to being a felon in possession of a firearm and possession of a controlled substance. His plea agreement provided for a 15-year sentence if the district court determined that he qualified as an armed career criminal. Relying on his prior New Mexico convictions for armed robbery, aggravated assault with a deadly weapon, and aggravated battery, the district court determined defendant had three prior violent felony convictions under the Armed Career Criminal Act (ACCA) and thus qualified as an armed career criminal. It therefore sentenced him to 15 years. After defendant’s conviction was final, the US Supreme Court invalidated the ACCA’s residual clause, one of the ACCA’s three clauses that define a violent felony, and made its holding applicable to cases on collateral review. Relying on this authority, defendant filed a motion under 28 USC § 2255 to vacate or correct his sentence, asserting that without the residual clause, his underlying convictions no longer qualified as violent felonies. The district court denied the § 2255 motion because it determined that all three of defendant’s convictions qualified as violent felonies under the ACCA’s elements clause. On appeal, defendant argued that his armed robbery conviction does not satisfy the elements clause. A conviction satisfies this clause if it “has as an element the use, attempted use, or threatened use of physical force against the

person of another.” The Tenth Circuit used the categorical approach to determine if the conviction satisfied the clause, which requires comparing the minimum force needed to violate the state statute with the ACCA’s requirement of physical force. Under US Supreme Court precedent “physical force” in this context means “violent force,” and New Mexico’s robbery statute also requires that level of force. Defendant’s New Mexico armed robbery conviction thus qualified as a violent felony under the ACCA’s elements clause. Defendant also moved to expand the certificate of appealability (COA) to challenge his other two prior convictions. The other convictions also satisfy the elements clause. The denial of defendant’s § 2255 motion was affirmed. Defendant’s motion to expand the COA and the government’s motion for summary affirmance were denied. No. 18-7007. Dobbs v. United States Forest Service. 4/20/2020. E.D.Okla. Judge Eid. Access to Wilderness Inholdings—Wilderness Act—Administrative Procedures Act. Plaintiff owns a parcel of land that is completely surrounded by a National Wilderness area. He applied to the US Forest Service (the agency) for a special use permit to build a permanent, private gravel road through the wilderness area, about one mile in length, to his inholding. The agency denied his request based on two environmental assessments and the regulation defining “adequate access,” and the district court upheld its decision. On appeal, plaintiff argued that the agency’s finding that he would have adequate access to his property without motorized access to it was arbitrary and capricious. The Wilderness Act allows for adequate access to privately owned lands within designated wilderness areas. However, permanent roads, motorized vehicles, and motorized equipment are generally prohibited in wilderness areas. The agency based its denial on how other similarly situated properties were accessed and on the potential adverse impacts of plaintiff’s proposed road. Its finding that plaintiff would have adequate access to his property without the road was neither arbitrary nor capricious because the

agency considered all relevant factors and the decision was not clearly erroneous. Plaintiff also argued that the agency’s finding that he did not have a preexisting right to build his proposed road was arbitrary and capricious. Plaintiff cannot show that his land could formerly be accessed via private road, nor does he identify a statute or title conferring such a right onto him. Therefore, plaintiff failed to identify a procedural or substantive error substantial enough to overcome the deference owed an agency under the arbitrary and capricious standard of review. The judgment was affirmed.

These summaries of selected Tenth Circuit opinions are written by licensed attorneys Frank Gibbard (Denver) and 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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FROM THE COURTS | COLORADO COURT OF APPEALS

Summaries of Published Opinions April 2, 2020

2020 COA 56. No. 18CA0673. People v. Anderson. Criminal Law—Competency—Constitutional Law—Due Process. Defendant was charged with 11 counts related to sexual assaults on three children and various sentence enhancers. During his case, defendant made multiple requests for appointment of new counsel and to proceed pro se. Over the course of the case, nine attorneys were appointed to represent defendant or to serve as advisory counsel. The majority of these attorneys withdrew because of defendant’s refusal to work with them and lack of communication. Defendant was also generally disruptive throughout the case. In evaluating defendant’s competency to stand trial, two psychologists found that defendant did not have a mental disability that would prevent him from interacting with counsel or understanding the facts surrounding the charges against him. Based on these evaluations and its own questioning of defendant, the district court concluded that defendant was competent to proceed. He was eventually tried and convicted of all charges. On appeal, defendant contended that the court erred in finding him competent to stand trial. A person is incompetent to proceed in a criminal case if he or she lacks a rational and factual understanding of the criminal proceedings or the sufficient ability to consult with his or her lawyer with a reasonable degree of rational understanding to assist in the defense. Here, while defendant’s statements appear somewhat delusional on their face, they reflect a larger, yet atypical, anti-government belief system shared by others in the country. An atypical belief system cannot by itself be the basis upon

which a defendant is incompetent to stand trial. Given the contents of the evaluations, the lack of any objection by defendant or his counsel to the conclusions stated therein, and the court’s ability to observe defendant, the court did not abuse its discretion in determining him competent to stand trial. Defendant also argued that the court misapprehended the governing law, as demonstrated by its determination that he was competent to proceed but not competent to waive his right to a lawyer and represent himself. While the court occasionally stated that defendant was not competent to represent himself, when considered in context, the court did not misapprehend the competency standard. The judgment of conviction was affirmed. 2020 COA 57. No. 18CA2295. People v. Bryce. Criminal Procedure—Postconviction Remedies— Sentence Reduction—Limited Remand on Appeal. Defendant was sentenced on October 18, 2018. He moved for a limited remand of his pending appeal to allow the district court to consider an emergency motion for a reduction of sentence, which he intended to file under Crim. P. 35(b). Defendant sought immediate release due to the health risk arising from the COVID-19 pandemic. Under the plain language of Crim. P. 35(b), defendant was required to seek sentence reconsideration within 126 days of his sentence date or, alternatively, no more than 126 days after the issuance of the appellate mandate. Because more than 126 days had passed since sentencing and the Court of Appeals had not yet issued its mandate, defendant’s proposed motion did not fall within either time period. It was therefore either untimely or premature.

Defendant must wait until the mandate issues in this case to file a motion for reconsideration. The motion for a limited remand was denied. 2020 COA 58. No. 18CA2307. Western Stone & Metal Corp. v. DIG HP1, LLC. Contracts—Prevailing Party—Fee-Shifting Provision. The commercial lease agreement between landlord, DIG HP1, LLC (DIG), and tenant, Western Stone & Metal Corp. (WSMC), contained a fee-shifting provision that awards attorney fees to the “prevailing party” as defined in the contract. WSMC initiated litigation for a number of claims that all arose under the lease. The district court found in WSMC’s favor on some claims and in DIG’s favor on others. On competing requests for an attorney fees award, the court found that neither party was the prevailing party, but it awarded WSMC damages on one claim that it described as arising from the controlling issue in the case. On appeal, DIG argued that the court erred in applying the common law definition of “prevailing party” instead of the definition specified in the parties’ contract. Here, the court applied a definition from case law analyzing contracts that does not resemble the lease at issue, which lays out in detail which party should be deemed “prevailing” under a number of specific circumstances. Thus, the court’s analysis defies the interpretive principle that this provision must be enforced as written. Therefore, the court erred in applying the common law definition of “prevailing party.” The order was reversed and the case was remanded for the court to determine which party, if either, is entitled to attorney fees and costs according to the lease’s prevailing party provision. JUNE 2020

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2020 COA 59. No. 19CA0124. Huffman v. City and County of Denver. CRS § 24-72-708(1)(a) (II)—Sealing Municipal Conviction for Domestic Violence. Huffman pleaded guilty to a single count of municipal assault where the underlying facts involved domestic violence. He successfully completed his supervised probation and has incurred no additional charges or convictions since then. Huffman petitioned the district court to seal his municipal conviction. The court found his conviction ineligible for sealing because it involved domestic violence, and it denied his petition. Huffman contended on appeal that the court misinterpreted CRS § 24-72-708(1)(a)(II) by applying its domestic violence prohibition to all municipal convictions. He argued that the statute’s plain language only applies this prohibition to defendants who have committed a new offense and whose convictions would not otherwise qualify for sealing under CRS § 24-72-708(1)(a)(I). CRS § 24-72-708 authorizes a district court to seal a defendant’s municipal criminal conviction records. Based on its plain language and structure, CRS § 24-72- 708(1) (a)(II) applies only to petitioning defendants who have been charged with or convicted of a new offense following their original municipal conviction, and it does not categorically bar the sealing of all municipal convictions involving domestic violence. Huffman satisfied all of the criteria under CRS § 24-72-708(1)(a)(I) and was thus eligible to file a petition to seal the municipal conviction. Accordingly, the court erred. The order was reversed and the case was remanded. 2020 COA 60. No. 19CA0349. Credit Service Co., Inc. v. Skivington. Civil Procedure—CRCP 12(b)(5)—Appealability. Skivington suffered a stroke and went to a University of Colorado Health hospital (the hospital) for treatment. The hospital billed him $30,536.10. He didn’t pay the bill and the account was assigned to plaintiff, Credit Service Co., Inc. (CSC), a collection agency. CSC sued Skivington. Skivington filed two CRCP 12(b)(5) motions to dismiss: one main-

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tained that the complaint was invalid because CSC hadn’t filed a response to his answer; the second alleged that the evidence showed that the hospital treated not him, but another person, so the complaint failed to state a plausible claim for relief. The district court denied both motions, and the case was tried before the court. The court ruled in CSC’s favor. Skivington filed a CRCP 59 motion for a new trial, which the court denied. On appeal, Skivington first contended that it was error to deny his Rule 12(b)(5) motion to dismiss for failure to state a claim. However, a denial of a motion to dismiss for failure to state a claim is not reviewable on appeal following a trial on the merits. Skivington also argued that the court erred by admitting CSC’s Exhibit 2, which showed inputs of his personally identifiable information, and Exhibit 4, an itemization of the hospital’s charges. Exhibit 2 was properly admitted for the limited purpose of rebutting Skivington’s defense that he was wrongly identified, and there was no showing that Skivington was prejudiced by its admission. Further, neither exhibit violated the Health Insurance Portability and Accountability Act (HIPAA); Skivington didn’t raise this issue in the trial court, but even if he had, and HIPAA was found to apply, the proper remedy would have been to redact portions of the exhibit containing personal information or receive it under seal, not exclude it. Skivington further contended that the trial court erred by denying his Rule 59 motion for a new trial because irregularities in the trial proceedings prevented him from having a fair trial, and he produced a newly discovered report that he couldn’t have reasonably discovered before trial that would change the trial’s result. Skivington’s claims about trial irregularities were unsupported by the record, and the trial court didn’t abuse its discretion by denying his motion because the report wouldn’t have changed the trial’s outcome. The judgment and order were affirmed. April 9, 2020

2020 COA 61. No. 15CA0126. People v. Rojas. Criminal Law—Theft—Res Gestae—Evidence— Retroactive Application of Amended Statute.

Defendant began working as a restaurant manager on January 1, 2013. Later that month she applied for food stamps, and from February 1, 2013 to July 31, 2013, she received $1,000 per month in food stamps. During this same period, she received over $29,000 in work income. The Department of Human Services (Department) sent monthly notices reminding her that she was required to report if her household’s gross monthly income exceeded $3,785. In her August 9, 2013 application for food stamps, defendant again represented that she had no work income. When a Department employee questioned her about the application, defendant falsely stated she had no earned income. Defendant was charged under CRS § 18-4401, the theft statute applicable until June 2013, for receiving food stamps between February 1, 2013 and June 1, 2013. She was also charged under amended CRS § 18-4-401 for receiving food stamps on July 1, 2013. The trial court admitted the August 9, 2013 application, over defendant’s pretrial objection, as res gestae of the charged offenses. Defendant was convicted of a class 4 felony for the thefts occurring before June 5, 2013 and a class 6 felony for the thefts occurring after June 5, 2013. On appeal, defendant contended that the trial court abused its discretion by admitting, as res gestae, evidence that she misrepresented her work income on the August 9, 2013 application as proof that she intentionally misrepresented her work income on the January 14, 2013 application, and therefore she is entitled to a new trial. When evidence is part of a continuous transaction that explains the setting in which the crime occurred, it is admissible as part of the res gestae. Financial applications that are unrelated to a charged crime are admissible as res gestae if they are evidence of the defendant’s mental state and intent to make false statements. Here, defendant contended that she did not intentionally submit false information in the January application. However, the false application submitted in August could not simply be explained away as a misunderstanding of the food stamp requirements. Because defendant’s August application provided evidence of her mental state and intent to knowingly provide false information on food stamp applications, and it demonstrated that

she had knowingly received a thing of value of another by deception, it was part of the crime charged. Further, defendant’s additional act showed a pattern and practice that the jury was entitled to hear. Therefore, the evidence of her false application in August was properly admitted as res gestae. Defendant additionally contended that the trial court erred by not retroactively applying the 2013 amendment to the theft statute to her case. Effective June 5, 2013, the General Assembly amended the theft statute to provide that a theft of at least $2,000 or more but less than $5,000 was classified as a class 6 felony, and a theft of $5,000 or more but less than $20,000 was classified as a class 5 felony. Defendant contended that the prosecution was required to aggregate the total amount of the thefts into one count because they occurred within a six-month period and the classifications under

the amended theft statute should be applied. Although some of defendant’s thefts took place before the amendment and some after, defendant was convicted and sentenced after the June 2013 amendments to the theft statute. A defendant who committed thefts before the 2013 amendment is entitled to benefit from the amendment at sentencing insofar as it reduces the classification of the offenses. Thus, the classifications under the amended theft statute should apply to defendant’s convictions. The convictions were affirmed and the case was remanded for resentencing and correction of the mittimus to reflect two class 6 felony convictions. 2020 COA 62. No. 16CA0244. People v. Ornelas-Licano. Criminal Law—Attempted Second Degree Murder—Attempted First Degree Assault—Equal Protection—Expert Testimony.

Officers attempted to arrest defendant on a warrant while he sat in his parked truck. Defendant fled the scene, and during the ensuing chase, defendant approached a marked police vehicle at an intersection. As the vehicles drew closer, a shot went off inside defendant’s truck, resulting in a bullet hole in his truck’s windshield. No one was hit, and the chase continued. Defendant eventually ran into another car, abandoned his truck and his gun, and fled on foot. Police ultimately apprehended him without further incident. A jury convicted defendant of attempted second degree murder, eluding police, reckless driving, leaving the scene of an accident, possession of a defaced firearm, and prohibited use of a weapon. On appeal, defendant argued that his conviction for attempted second degree murder violated equal protection guarantees because it requires a harsher punishment than, but is

JUNE 2020

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FROM THE COURTS | COLORADO COURT OF APPEALS

indistinguishable from, the lesser offense of attempted first degree assault–extreme indifference. However, attempted second degree murder requires a substantial step toward causing death, while attempted first degree assault–extreme indifference requires only a substantial step toward causing serious bodily injury. Therefore, the crimes are distinguishable, and defendant’s attempted second degree murder conviction does not violate equal protection guarantees. Defendant also argued that the trial court abused its discretion by admitting expert testimony of a police officer analyzing the shape of a bullet hole in a windshield to determine where the shot came from and evidence of the result of a windshield experiment. The trial court erred by admitting the officer’s expert testimony because his experience did not qualify him to opine on the relationship

between the angle of impact and shape of the bullet hole, and there is nothing in the record beyond the officer’s own assertions to show that someone can determine from the shape of a bullet hole in a windshield where the bullet came from. Further, because of the lack of other reliable evidence, this error was not harmless. The conviction for attempted second degree murder was reversed and the case was remanded for a new trial on that charge. 2020 COA 63. No. 16CA1109. People v. Espinosa. Criminal Law—Sexual Assault on a Child by One in a Position of Trust—Sexual Abuse Definition—Jury Instruction. Defendant was charged with having sexual contact with his then 15-year-old daughter, A.E. A jury convicted defendant of sexual assault on a child by one in a position of trust.

On appeal, defendant argued that the trial court erred by improperly instructing the jury as to the definition of “sexual abuse.” To convict defendant, the prosecution had to prove that he knowingly subjected A.E. to “sexual contact.” During deliberations, the jury asked the trial court to provide the legal definition of “abuse” in the context of the term “sexual contact.” Here, the trial court’s instruction that pain, injury, or significant discomfort can be either of a physical or emotional nature correctly stated the law. However, the trial court erred by instructing the jury that the nature of the act rather than the perpetrator’s motivation renders the abuse sexual, because a defendant must act for the purpose of causing sexual humiliation, sexual degradation, or other physical or emotional discomfort of a sexual nature. Thus, defendant’s purpose is not irrelevant to determining whether the abuse

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was sexual. The inclusion of this instruction potentially misled the jury. The judgment was reversed and the case was remanded for a new trial. 2020 COA 64. Nos. 16CA2157, 17CA2242, 18CA0346 & 18CA1094. Matter of Black. Probate—Conservators—Trusts—Person under Disability—In Rem Jurisdiction—Personal Jurisdiction—Due Process—Recusal—Attorney Fees. Renata Black died in New York in 2012 leaving an estate valued at more than $4.7 million. She created two trusts relevant to this appeal: a supplemental needs trust benefiting her daughter Joanne (the SNT), and an irrevocable trust for the benefit of her issue (the Issue Trust). Bernard and Joanne were Renata’s only children. Bernard is a resident of Illinois, and his son Samuel is a resident of Maryland. Joanne, who has schizophrenia, was homeless in Denver when this case began and currently resides in New York. Dain, who resides in California, is one of Bernard and Joanne’s cousins. The co-trustees of the SNT are Bernard, Dain, and Samuel. Neither trust has been registered in Colorado and the assets of both trusts are in Illinois. Bernard was appointed as Joanne’s conservator by the Denver Probate Court in 2013. He then created a trust (the 2013 Trust) to receive Joanne’s governmental benefits (collectively with the SNT and the Issue Trust, the Trusts). Samuel was not involved in Joanne’s conservatorship proceedings. Litigation later ensued over misappropriation of the SNT assets. The matter at issue here is an appeal of the Denver Probate Court’s (1) orders entered in October 2016 and October 2017 authorizing Dain to disburse assets from the SNT; (2) a January 2018 order suspending Bernard and Samuel as trustees of the SNT and directing them to send the SNT’s information and assets to Joanne’s counsel and Dain; and (3) an April 2018 order holding that the probate court could exercise jurisdiction over Bernard and Samuel, authorizing Dain to disburse additional funds from the SNT, and voiding certain disclaimers it had previously authorized Bernard to make in his capacity as Joanne’s conservator. On appeal, Bernard and Samuel contended that the probate court erred in exercising

jurisdiction over themselves and the Trusts. Bernard and Joanne acknowledge that the probate court has subject matter jurisdiction over the administration of Joanne’s conservatorship because Bernard filed the petition to establish the conservatorship in the probate court. Additionally, even though Bernard improperly diverted assets from a Colorado conservatorship to out-of-state trusts, the probate court had the authority to continue exercising in rem jurisdiction over those assets. Further, the court properly exercised personal jurisdiction over Bernard because Bernard waived his objection to personal jurisdiction by participating in proceedings before the probate court without objection, by accepting appointment as conservator, and through his contacts with Colorado. Whether the probate court properly exercised personal jurisdiction over Samuel was not addressed because the probate court did not afford Samuel due process. Bernard also argued that the probate court lacked jurisdiction to void the disclaimers during the pendency of his appeal of the September 2015 Order, in which the probate court surcharged him the value of the funds he had diverted from Joanne’s conservatorship, and declined to void the disclaimers. Here, the probate court entered the April 2018 Order, in which it voided the disclaimers and ordered Bernard to deposit the diverted conservatorship funds into the court registry. However, the probate court exceeded its authority in voiding the disclaimers while Bernard’s petition for writ of certiorari was pending. Bernard further contended that the probate court erred in granting Dain’s and Joanne’s motions to authorize the SNT to pay Joanne’s professional fees. Because the funds Bernard diverted to the Trusts were at all times assets of Joanne’s conservatorship, the expenditure requests were not subject to the limitations in the SNT instrument. Therefore, the probate court did not err in allowing the expenditures for Joanne’s professional fees. Bernard and Samuel also asserted that the probate court violated their due process rights by suspending them as co-trustees of the SNT and 2013 Trust and requiring them to transfer information and assets regarding

the SNT to Joanne’s counsel and Dain. Here, Bernard received advance notice of the court’s action. And given the emergency situation resulting from Bernard’s transfer of SNT funds in violation of court orders and his attempts to permanently deprive Joanne’s conservatorship of assets through consent judgments, the court did not abuse its discretion in suspending Bernard as a trustee of the SNT and 2013 Trust to protect the conservatorship’s assets. However, the probate court did not afford Samuel due process in sua sponte suspending him as a trustee of the SNT without providing him with any notice. Bernard also contended that the probate judge should have recused herself because there was record evidence of the court’s bias against him and his family. Because Bernard did not seek to disqualify the probate judge until the sixth year of this litigation, he waived his recusal argument. Further, Bernard’s arguments for recusal lack merit. In his reply brief, Samuel asserted that he is entitled to recover appellate attorney fees because Joanne’s counsel or conservator unnecessarily expanded the proceedings. Here, Samuel’s need to retain Colorado legal counsel and spend attorney fees in connection with this appeal can be traced to his failure to honor his fiduciary duties to Joanne and efforts to deprive her conservatorship of the assets that Bernard misappropriated. His request for attorney fees was denied. The portion of the April 2018 Order voiding the disclaimers was vacated. The portions of the January 2018 Order suspending Samuel as a co-trustee of the SNT and ordering him to provide all information concerning the Trusts to Joanne’s counsel and Dain were vacated. All other portions of the January 2018 Order and the April 2018 Order were affirmed, as were the portions of the October 2016 Order and the October 2017 Order challenged in this appeal. The case was remanded to the probate court for further proceedings consistent with this opinion, including for a determination of whether the disclaimers should be voided. 2020 COA 65. No. 17CA1096. People v. McDonald. Colorado Organized Crime Control JUNE 2020

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

Act—Federal Racketeer Influenced and Corrupt Organizations Act—Enterprise. Defendant confessed to participating in the theft of Rolex watches from a retail jeweler in a shopping mall. Among other crimes, he was convicted of engaging in a pattern of racketeering in violation of the Colorado Organized Crime Control Act (COCCA). Further, the trial court adjudicated defendant a habitual offender, which resulted in the quadrupling of his 24-year COCCA sentence to 96 years. On appeal, defendant contended that the prosecution failed to present sufficient evidence to prove the existence of, and his participation in, an “enterprise associated in fact” under COCCA. He asserted that the trial court should have imported the three-part test for an “association-in-fact enterprise” required in prosecutions of federal Racketeer Influenced and Corrupt Organizations Act (RICO) offenses, and that applying the RICO standard, the evidence was insufficient to support his COCCA conviction. Under RICO, two US Supreme Court cases require the prosecution to demonstrate three factors to prove there was an “enterprise associated in fact.” However, People v. James, 40 P.3d 36 (Colo.App. 2001), rejected that reasoning, concluding that “enterprise” under COCCA is a complete definition that doesn’t require the prosecution to demonstrate the three additional factors under federal RICO precedent. Further, COCCA requires that an enterprise consist of at least one more person or entity other than the defendant, and the enterprise does not have to be separate and distinct from the racketeering activity. The evidence presented at trial satisfies these requirements. Defendant next contended that the trial court erred because the jury instructions did not include RICO’s requirements for an associated-in-fact enterprise. Here, the trial court’s instruction on the elements of the COCCA charge tracked the applicable statute and the pattern jury instruction. Thus, the trial court provided the jury with legally accurate instructions. Further, the trial court did not abuse its discretion by declining to give defendant’s tendered additional instructions because the tendered instructions were not accurate statements of the law, and nothing in the events during trial

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or the case law would have alerted or indicated to the trial court that the phrase “associated in fact” is sufficiently complicated that it required further definition. The conviction was affirmed. 2020 COA 66. No. 19CA0806. In re Petition of M.G. Stepparent Adoption—Indian Child Welfare Act—Definition of Indian Child. The child’s stepmother filed a petition for stepparent adoption and a motion to terminate the biological mother’s parental rights. Stepmother alleged that the child may be eligible to enroll in a tribe under the Indian Child Welfare Act (ICWA), and she sent notices to various tribes. The Comanche Nation responded that the child was eligible for enrollment. The juvenile court found that the ICWA did not apply because although the child was eligible for tribal membership, she was not residing with a parent who was an enrolled member. The court terminated biological mother’s parental rights and entered an adoption decree. On appeal, biological mother contended that the juvenile court erred by not applying the ICWA. For the ICWA to apply, the child must be an Indian child. Here, neither the child nor the parents were members of the Comanche Nation. Therefore, the child does not meet the ICWA’s definition of Indian child. Accordingly, the juvenile court did not err. The judgment was affirmed. 2020 COA 67. No. 19CA1671. BlueMountain Credit Alternatives Master Fund L.P. v. Regal Entertainment Group. Appraisal—Intent and Motives of Controlling Stockholder—Apex Doctrine—Choice of Law. Regal Entertainment Group (Regal), a Delaware corporation, owns and manages movie theaters throughout the United States. The Anschutz Corporation is Regal’s controlling stockholder, and Philip F. Anschutz (Anschutz) is the founder and chief executive officer of Anschutz Corporation. Petitioners are noncontrolling minority stockholders of Regal. Regal was acquired by another company in a merger. The minority stockholders contended that they did not receive fair value for their shares in Regal. They dissented from the merger and

sought appraisal of their shares in a statutory proceeding in the Delaware Court of Chancery. To obtain information for the appraisal proceeding, the minority stockholders served a deposition subpoena on Anschutz pursuant to CRS § 13-90.5-103 of the Uniform Interstate Depositions and Discovery Act (UIDDA). Anschutz did not comply with the subpoena, so the minority stockholders filed a motion to order him to comply. They argued that discovering why Anschutz sold his share of Regal was critical and relevant to the appraisal proceeding. The trial court denied the motion, finding the questions were not “relevant and necessary” to the Delaware appraisal case. On appeal, the minority stockholders contended that the district court erred in denying their motion. The UIDDA allows a party to submit a foreign subpoena to the appropriate Colorado district court for discovery to be conducted in Colorado. Because Regal was incorporated in Delaware and the minority stockholders seek enforcement of a subpoena to obtain Anschutz’s testimony in connection with the appraisal proceedings in a Delaware court, Delaware law applies to resolve substantive legal matters. The only issue in an appraisal proceeding under Delaware law is the valuation of the dissenting stockholder’s stock by considering “all relevant factors,” including the deal price. CRCP 26(a)(1) allows for discovery of any matter that is relevant to the claim of any party. Colorado has a liberal stance on discovery, and Anschutz’s motive, intent, and personal considerations for divesting his Regal shares would allow a Delaware court to evaluate the reliability of and weight to attribute to the deal price. Therefore, Anschutz’s testimony is relevant and discoverable. Anschutz argued that even if his testimony is relevant to the appraisal proceedings, the trial court’s order should be affirmed because the minority stockholders’ subpoena violated the “apex doctrine.” The apex doctrine is rooted in Fed. R. Civ. P. 26(c)(1), which provides that a court may issue a protective order to a party or person from whom discovery is sought. The apex doctrine shields high-level corporate officers from depositions to protect them from “annoyance, embarrassment, oppression, or undue burden or expense.” Federal courts

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do not uniformly follow the apex doctrine, and a growing number of state courts have rejected it. In addition to the doctrine’s waning influence, it is inconsistent with Colorado law, which presumes that such executives should be deposed unless they can show good cause why the deposition should not be held. Therefore, the trial court erred in denying the minority stockholders’ motion. The trial court’s order denying the minority stockholders’ motion to compel Anschutz to testify at a deposition was reversed. The case was remanded to the trial court to grant the minority stockholders’ motion to compel unless, after an evidentiary hearing, the court determines that it should issue a protective order under CRCP 26(c). April 16, 2020

2020 COA 68. No. 17CA1399. People v. Gillis. Criminal Law—First Degree Burglary—First Degree Criminal Trespass—Third Degree Assault—Lesser Included Offense—Merger—Right to Counsel—Right to Preliminary Hearing. Defendant went to his girlfriend E.G.’s apartment to collect his belongings, which E.G. had placed outside the apartment. Defendant kicked in E.G.’s locked apartment door and physically assaulted her. E.G.’s friends arrived during the altercation and defendant left the apartment. During the trial proceedings, defendant requested several continuances to obtain counsel. Ultimately, he obtained a public defender. A jury found defendant guilty of first degree burglary, first degree criminal trespass, and third degree assault. On appeal, defendant contended that the trial court erred by finding that he impliedly waived his right to counsel and subsequently waived his right to a preliminary hearing. While the court did find that defendant waived his right to a preliminary hearing, the court did not find that he waived his right to counsel. Defendant appeared pro se at the March, April, and May preliminary hearings only because he failed to retain private counsel after informing the court of his intention to do so. At the May preliminary hearing, defendant first disclosed that he planned to ask the public defender’s

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office to represent him, and the court instructed him to immediately apply there. A public defender entered her appearance as defendant’s counsel and represented him throughout the case. Thus, defendant was not deprived of his right to counsel. Defendant’s argument that he was denied his right to a preliminary hearing is moot because he failed to seek relief under Crim. P. Rule 21 before his case proceeded to trial. Defendant also asserted that the court erred by failing to merge his convictions for first degree criminal trespass and third degree assault into his conviction for first degree burglary. Pursuant to the statutory elements test, first degree criminal trespass is a lesser included offense of first degree burglary. Thus, the court’s failure to merge these convictions was plain error. Third degree assault is a lesser included offense of first degree burglary when the assault is charged as the predicate offense for first degree burglary. Because defendant assaulted E.G. twice—first in the bedroom and later as she emerged from the bathroom after texting a friend for help—the conviction for third degree assault does not merge. Defendant’s conviction for first degree criminal trespass was vacated. His convictions for first degree burglary and third degree assault were affirmed. 2020 COA 69. No. 18CA1716. Dill v. Rembrandt Group, Inc. Corporations—Piercing the Corporate Veil—Horizontal Piercing. Dill sold several trade schools to Rembrandt Group, Inc. (RGI), a Colorado corporation. RGI financed the purchase by borrowing $3.69 million from Rocky Mountain Mezzanine Fund II, L.P. (RMMF), which was evidenced by a note (RMMF note). As a financing condition, RMMF required Dill to execute an Intercreditor and Subordination Agreement (IC agreement), which included provisions that it was a senior creditor to Dill and could assign its debt to any third party without notice to or consent from Dill. The IC agreement also authorized RMMF to issue a payment blockage notice to suspend RGI’s payments to Dill under any notes payable to him if RGI defaulted on the senior indebtedness, and such blockage would remain effective until RGI satisfied the senior

indebtedness. RGI defaulted on its obligations to Dill. As part of a settlement with Dill, RGI executed two new promissory notes payable to Dill (Dill notes) that are secured by a stock pledge agreement. At that time, Dill reaffirmed the IC agreement. RGI also owes money to Pikes Peak Acquisitions, LLC (PPA), its current senior creditor and intervenor in this case. PPA is wholly owned by Intellitec Executives, LLC (Intellitec), which is not a party to this case. Intellitec, in turn, is owned by five individuals who also own 81.25% of RGI’s stock (the five common owners). In 2012, PPA purchased the RMMF note for the discounted price of $1.5 million. RMMF assigned its rights under the RMMF note and the IC agreement to PPA. RGI later defaulted, and in 2015, it exercised its right to defer payment under the Dill notes for 12 months. Then, pursuant to the IC agreement, PPA issued a payment blockage notice to Dill prohibiting him, as the subordinate creditor, from receiving further payments on the Dill notes until the senior debt has been fully satisfied. Dill sued RGI to collect on his subordinate indebtedness alleging that RMMF’s assignment of the RMMF note to PPA in 2012 extinguished the senior debt because the members of Intellitec own 81.25% of RGI. Dill contended that because they have common owners, RGI and PPA are alter egos, and RGI had essentially purchased its own debt through PPA. The trial court found RGI and PPA to be alter egos and that piercing the corporate veil would yield an equitable result by extinguishing the senior indebtedness and allowing Dill to obtain what he had bargained for contractually. On appeal, RGI and PPA contended that the trial court erroneously pierced the corporate veil to find that RGI’s indebtedness to PPA was extinguished when RMMF assigned the RMMF note to PPA. Colorado corporate law permits horizontal veil piercing between entities that do not share direct common ownership but that indirectly share common ownership through another entity in an ownership chain. However, horizontal piercing may only occur if the veil of each corporate entity and its owners is first pierced. Because nothing in the record showed that RGI was the alter ego of the five common

owners, that Intellitec was the alter ego of the five common owners, or that PPA and Intellitec were alter egos of each other, the court erred by finding that RGI and PPA were alter egos of each other and, consequently, that RGI’s senior indebtedness was extinguished. Further, even if RGI and PPA were alter egos, insufficient evidence supports the court’s finding that PPA was formed to defeat Dill’s rightful claim. The judgment was reversed and the case was remanded for entry of judgment in favor of RGI and PPA and the computation and award of their reasonable attorney fees and costs as prevailing parties. 2020 COA 70. No. 19CA1458. In the Interest of Chavez. Appellate Procedure—Final Appealable Order. In the underlying case, daughter filed a petition for appointment of a conservator for her mother, alleging that son had misappropriated mother’s assets. Daughter was appointed as conservator and she filed a petition against son claiming breach of fiduciary duty, civil theft, unjust enrichment, and surcharge. A jury returned verdicts against son for breach of fiduciary duty, civil theft, and unjust enrichment. The district court entered an order on the jury verdicts but reserved on claims for fees and costs pending further submittals. Counsel for son then filed a notice of appeal with a “motion to determine jurisdiction,” stating that there was a question whether judgment was final. On cross-appeal, daughter pointed out that the district court had not yet ruled on certain issues. The Court of Appeals deferred ruling on the motion to determine jurisdiction and ordered counsel to address why it should not award attorney fees and costs against her related to the premature notice of appeal. The motion to determine jurisdiction concedes that the issue of prejudgment interest has not been decided and an issue of attorney fees is outstanding. For both of these reasons, there is no final judgment for appeal. Further, counsel has the obligation to determine in the first instance whether there is a final, appealable order. Instead, counsel seeks what is potentially an advisory opinion on finality from a motions division. The Court’s

motions division explicitly disapproved of the practice of filing such motions. The appeal and cross-appeal were dismissed without prejudice. April 23, 2020

2020 COA 71. No. 17CA0026. People v. Maloy. Constitutional Law—Equal Protection—Sentencing—Patronizing a Prostituted Child—Child Prostitution Crimes—Mistake of Age Defense—Due Process—Jury Instructions— Complicity—Prosecutorial Misconduct. Defendant met 17-year-old M.C. at a bus stop after she had run away from a group home. Defendant introduced M.C. to prostituting herself. He let M.C. stay with him and his girlfriend at their apartment on the condition that M.C. prostitute herself to pay them. Defendant’s girlfriend helped M.C. find men who would pay to have sex with her. A jury found defendant guilty of patronizing a prostituted child, pimping of a child, keeping a place of child prostitution, and inducement of child prostitution. The court sentenced defendant to four years in Department of Corrections custody on all counts except patronizing a prostituted child, for which he was sentenced to four years to life under the Colorado Sex Offender Lifetime Supervision Act. On appeal, defendant contended that CRS § 18-7-406(1)(a), which criminalizes patronizing a prostituted child, is unconstitutional as applied. He argued that the statute violated his right to equal protection because it prohibits essentially the same conduct, or less culpable conduct, as soliciting for child prostitution, pandering of a child, and inducement of child prostitution, while carrying a much higher sentence. As applied to defendant’s conduct, soliciting for child prostitution does not proscribe the same conduct as patronizing a prostituted child, but defendant’s conviction for patronizing violates equal protection because pandering and inducement penalize the same or more culpable conduct with lighter sentences. Further, this violation was obvious and substantial because it resulted in defendant’s potential lifetime imprisonment rather than a determinate sentence of four to 12 years. JUNE 2020

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Defendant also contended that the district court erred by refusing to allow him to introduce evidence that he thought M.C. was at least 18 and assert a reasonable mistake of age defense. However, CRS § 18-7-407 specifically provides that in criminal prosecutions under CRS §§ 18-7-402 to -407, mistake of age is not a defense. Therefore, the district court did not err by ruling that the affirmative defense of reasonable mistake of age wasn’t available to defendant. Defendant further argued that disallowing a mistake of age defense for child prostitution crimes but allowing it for other crimes involving minors as victims violates equal protection. The state has an interest in protecting the welfare of minors, and imposing harsher penalties for prostitution-related offenses involving minors is directly related to this goal. There is thus a rational basis for disallowing a mistake of age defense for child prostitution crimes while not precluding such a defense to other offenses involving minors as victims. Defendant also argued that applying CRS § 18-7-407 violated his substantive due process rights because it creates a strict liability offense. The child prostitution statutes are not strict liability crimes (which have no culpable mental state requirement) merely because defendants can’t present an affirmative defense to the age element. The inability to defend against one element of a crime through an affirmative defense does not mean the entire offense lacks any mens rea. Therefore, defendant’s substantive due process rights were not violated. Defendant also contended that the district court erred by refusing to give the jury his tendered instructions relating to complicity. A court has no obligation to give the jury specific instructions, even if they are legally accurate and appropriate given the evidence. Here, the district court correctly determined that the other instructions already covered the concepts in defendant’s tendered instructions. Lastly, defendant contended that the prosecutor committed prosecutorial misconduct by referring to him as the protection, the muscle, and the enforcer; by referencing M.C.’s trauma; and by misstating the evidence about where defendant was living. A prosecutor has wide

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latitude to make arguments based on facts in evidence and reasonable inferences drawn from those facts, and the prosecutor did not go outside of those bounds here. The conviction and sentence on patronizing a prostituted child were vacated. The judgment was otherwise affirmed. 2020 COA 72. No. 17CA2267. People v. Roddy. Criminal Law—Restitution—Sentencing—Time Limit. Defendant and the victim are divorced. For years they have engaged in post-dissolution litigation. In 2014, defendant filed a motion to temporarily restrict parenting time and included photographs of the victim’s home, which he obtained by illegally entering the home. Defendant and his wife also accessed the victim’s personal emails and digital files by using the victim’s son’s iPad. Defendant and his wife were each ultimately charged in separate cases with one count of stalking and one count of computer crime. After defendant pleaded guilty in this case to an added count of first degree criminal trespass, he was given a two-year deferred judgment. About 15 months after his deferred judgment was entered, the trial court ordered him to pay restitution of $688,535 to reimburse the victim’s attorney fees and investigation costs incurred in connection with defendant’s conduct in the civil and criminal proceedings. No restitution was sought or ordered in defendant’s wife’s case following her guilty plea to a computer crime. As an initial matter, the People contended that defendant waived his right to appeal the restitution order because, as part of the deferred judgment, he successfully withdrew his guilty plea and obtained dismissal of the criminal charge against him, and payment of restitution was a condition of that deferred judgment. Because restitution can be enforced after completion of a deferred sentence, and restitution is a separately appealable order, a defendant does not waive the right to appeal a restitution order by withdrawing a guilty plea. Therefore, defendant was entitled to appeal his restitution order. Defendant contended on appeal that the trial court lacked authority to enter the restitution

order against him because it was entered more than 91 days after entry of his deferred sentence. The 91-day time limit in CRS § 18-1.3-603(1) limits only the time within which the prosecution must present its restitution request. Further, the court may extend the 91-day time limit for good cause. Here, the court found that good cause was shown (1) to allow the People to file their amended restitution requests, because the victim continued to incur and pay attorney fees; and (2) to allow defendant to lodge his objections to the restitution request. Given these good cause findings, the court had good cause to likewise extend its own determination of restitution. Defendant next argued that the court erred in concluding that his unlawful conduct proximately caused the victim’s losses because he pleaded guilty only to the physical trespass of her home and did not plead guilty to any computer crimes. A defendant is only liable for restitution for the losses caused by the conduct to which he pleaded guilty. Here, the deferred judgment agreement did not detail the charges for which defendant would be required to pay restitution, so it is unclear whether the district court awarded restitution only for the losses proximately caused by defendant’s conduct. Defendant also argued that the trial court erred in concluding that the attorney-client privilege applied to the victim’s attorney billing records and the victim waived it by placing the records at issue. The holding that restitution may not be ordered with respect to conduct for which defendant did not plead guilty renders the court’s previous restitution award obsolete, and to the extent some of the billing records relate only to conduct for which he was not convicted, those records are irrelevant. Defendant next contended that the prosecution abdicated its constitutional and statutory responsibility to independently determine whether restitution is proper by relying on the victim’s civil attorney’s representations. The prosecution is statutorily required to compile all information pertaining to restitution through victim impact statements or other means. Accordingly, there was no error in the prosecution’s reliance on assistance from the victim’s counsel in determining her losses.

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Defendant also argued that he should have been provided with email communications between the prosecution and the victim’s civil attorney because they were relevant to the basis of the restitution request and whether the prosecution independently determined that restitution was proper. Given the other rulings here, to the extent this issue remains relevant on remand the district court must determine whether and to what extent such disclosure should be granted. The restitution order was reversed and the case was remanded for further proceedings. 2020 COA 73. No. 19CA0191. Aurora Public School District v. Stapleton Gateway LLC. Eminent Domain—Condemnation Deposit. Stapleton Gateway LLC (Stapleton) purchased a commercial property (property) that is adjacent to the Aurora Public School District

(APS) school and parking lot. APS adopted a resolution to expand the school by purchasing Stapleton’s property. Stapleton refused the purchase offer. APS filed a condemnation petition but did not seek immediate possession. While the parties were scheduling the valuation trial, APS informed Stapleton that it needed to demolish the structures on the property no later than spring 2018 and requested “limited possession of the property” for any lawful purposes. The parties filed a stipulation for limited purposes with the court that allowed APS, upon depositing $2.7 million into the court registry, to take limited possession of the property several weeks before the valuation trial. The stipulation also allowed Stapleton to withdraw 100% of the deposit without notice or consent from APS. APS deposited the money into the registry. Stapleton then moved, with APS’s consent, to withdraw the entire deposit.

The court granted the motion, and the deposit was disbursed. Stapleton used the money to fund two new real estate purchases. APS then abandoned the condemnation and filed a motion for return of the deposit to the court registry. Stapleton moved to preclude abandonment based on equitable estoppel. The district court denied Stapleton’s attempt to preclude abandonment and a division of the Court of Appeals affirmed the order. The parties then filed a joint motion agreeing that Stapleton had a claim for abandonment damages and the right to pursue all consequential damages in a separate action. The district court granted the joint motion and denied APS’s motion for return of the deposit. The only issue on appeal was whether Stapleton must return the $2.7 million to the registry before the court determines abandonment damages as part of a separate case. The Court

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decided that the deposit did not have to be returned because (1) a condemnation deposit functions as security for payment of damages suffered by a landowner due to abandonment; (2) the district court retains jurisdiction and control over the deposit, whether it resides in the registry or is invested in real estate; and (3) CRS § 38-1-105(6)(b) recognizes a relationship between the deposit and the total value of the condemned property and permits the court clerk to offset withdrawals from the deposit against compensation due or damages awarded to a condemnee in the event of abandonment of the condemnation proceeding. Further, as a practical matter, it makes little sense for Stapleton to incur additional expenses to sell the property that it acquired to replace the parcel that APS condemned just to return the $2.7 million to the registry, given that Stapleton may be entitled to some of the deposit following the damages hearing. The judgment was affirmed. April 30, 2020

2020 COA 74. No. 18CA0245. Sandra K. Morrison Trust v. Board of County Commissioners of Eagle County. Taxation—Residential Land— Property Tax—Undeveloped Parcel. The Sandra K. Morrison Trust (the Trust) owns two adjoining parcels of land: the subject parcel, and the residential parcel, on which the Trust owns a half-duplex. The residential parcel was taxed as residential land, while the subject parcel was taxed at a higher rate as vacant land. The Trust sought reclassification of the subject parcel from vacant to residential land, retroactive for two tax years. The Board of County Commissioners of Eagle County (BCC) affirmed the county assessor’s classification of the subject parcel as vacant land. The Board of Assessment Appeals (BAA) found that the subject parcel was not “used as a unit in conjunction with the residential improvements” on the residential parcel and upheld the BCC’s classification. On appeal, the Trust argued that the BAA erred in failing to reclassify the subject parcel as residential for property tax purposes. For an undeveloped parcel to be classified as residential land in a situation involving multiple parcels,

it must be (1) contiguous with residential land; (2) used as a unit with residential land; and (3) under common ownership with residential land. Additionally, the undeveloped parcel must not be used for nonresidential purposes such as commercial or agricultural use. Further, the plain language of CRS § 39-1-102(14.4)(a) does not require each parcel of land in a multi-parcel assemblage to contain a residential improvement. Finally, only the current use should be analyzed, not whether the parcels will likely be sold separately in the future. Here, the BAA applied the incorrect test for “used as a unit.” It thus erred in rejecting the Trust’s petition for reclassification of the subject parcel. The BAA’s denial of the Trust’s petition was reversed. The case was remanded to the BAA for a redetermination of whether the subject parcel should be reclassified as residential land using the correct analysis of “used as a unit.” 2020 COA 75. No. 19CA0155. May v. Petersen. Vehicle and Traffic Regulation—Duty to Yield to Individuals with Disabilities—Crosswalk —Standard of Care for Person in Wheelchair. During a morning school drop-off, May exited his child’s school and was navigating his wheelchair down the sidewalk toward the roadway so he could cross at the crosswalk and return to his car. Petersen was the first vehicle in the school drop off lane, situated just inside the crosswalk. Petersen dropped off her child and looked but did not see anyone in the crosswalk. As she moved her vehicle forward, it collided with May’s wheelchair, causing him to suffer a head injury. Following a bench trial, the trial court found that Petersen had not been negligent and the accident was more likely than not caused by May’s negligence. The court entered judgment in favor of Petersen. On appeal, May argued that under CRS §§ 42-4-807 and -808, Petersen was negligent as a matter of law for failing to yield the rightof-way to him. In cases involving vehicle and wheelchair collisions, questions of negligence and liability depend on the circumstances and usually must be resolved by the finder of fact. Here, competent evidence supports the trial court’s factual findings on negligence. Therefore,

CRS §§ 42-4-807 and -808 didn’t require entry of judgment as a matter of law for May. May also argued that the trial court applied the term “crosswalk” too restrictively, to include only the path in the roadway and not the handicap ramp. He contended that if the court had properly interpreted “crosswalk” to include the handicap ramp, it necessarily would have found that he was in the crosswalk when Petersen started to move, and thus he had the right of way and Petersen was at fault for the accident. However, a crosswalk for purposes of CRS § 42-4-802(1) doesn’t include a handicap ramp, so the trial court didn’t err in its interpretation and application of the term. May further contended that the trial court erred in applying an ordinary standard of care to his actions rather than modifying the standard to reflect his wheelchair-using status. Here, the trial court properly assessed all of the relevant circumstances, including May’s disability status, in assessing his actions. 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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the speedy trial period was tolled. The Court here reaffirmed the well-established principle that a defendant has no duty to bring himself or herself to trial. Rather, the duty to pursue trial within the speedy trial deadline rests with the People and the district court. Because this duty went unmet here, the Court made the rule absolute. Defendant’s charges must be dismissed with prejudice.

Summaries of Published Opinions April 1, 2020

2020 CO 23. No. 20SA100. In re Interrogatory on House Joint Resolution 20-1006. Original Jurisdiction—Colo. Const. art. V, § 7—Joint Rules—Length of Regular Session. The Supreme Court exercised its original jurisdiction to review an interrogatory propounded by the General Assembly asking whether language in article V, § 7 of the Colorado Constitution limiting the length of the regular legislative session to 120 calendar days requires that those days be counted consecutively, or whether the legislature may, during the exceptional circumstance of a public health disaster emergency, count only “working calendar days” toward the 120-day maximum. The Supreme Court concluded that article V, § 7 is ambiguous as to whether the 120 calendar days allotted for a regular legislative session must be counted consecutively. The Court further concluded that the General Assembly reasonably resolved the ambiguity in article V, § 7 through its unanimous adoption of Joint Rules 23(d) and 44(g), which together operate to count the 120 calendar days of a regular session consecutively except during a declared public health emergency disaster, in which case only days on which at least one chamber convenes count toward the 120-day maximum. Because the General Assembly’s interpretation is consistent with the constitutional text and fully comports with the underlying purposes of article V, § 7, the Court concluded that Joint Rules 23(d) and 44(g) are constitutional. April 13, 2020

2020 CO 24. No. 18SC684. People v. Donald. Criminal Law—Evidence—Sufficiency of the Evidence.

This case required the Supreme Court to determine (1) what role, if any, the prohibition on inference stacking set out in Tate v. People, 247 P.2d 665 (Colo. 1952), should play in sufficiency of the evidence challenges in criminal cases; and (2) whether sufficient evidence supported defendant’s conviction for violation of bail bond conditions. The Court concluded, contrary to the apparent understanding of the division below, that the presence of stacked inferences is not alone dispositive of a sufficiency of the evidence claim. Rather, it is one factor that a court may consider in determining whether the evidence presented satisfied the prevailing substantial evidence test for evidence sufficiency. The Court further concluded that the prosecution presented sufficient evidence to support defendant’s conviction for violating the bail bond condition prohibiting him from leaving the state without permission. Accordingly, the Court reversed the judgment of the division below and remanded the case for further proceedings. 2020 CO 25. No. 19SA252. In re People v. DeGreat. Criminal Trials—Speedy Trial—When Delay is Attributable to Defendant. In People v. DeGreat, 2018 CO 83, 428 P.3d 541, the Supreme Court affirmed the Court of Appeals’ reversal of defendant’s convictions and remanded the case for a new trial. In this original proceeding, defendant contended that respondents failed to pursue retrial within the statutory speedy trial deadline set forth in CRS § 18-1-405(2). Defendant argued that the remedy for this speedy trial violation is dismissal of his charges with prejudice. Respondents countered that because all parties failed to comply with a court-issued scheduling order, the delay in this case is at least partially attributable to defendant such that, pursuant to CRS § 18-4-405(6)(f ),

April 20, 2020

2020 CO 26. No. 18SC582. People v. Lujan. Sixth Amendment—Right to a Public Trial— Trivial Courtroom Closures. In this case, the Supreme Court considered whether a brief courtroom closure to reread a previously given jury instruction violates a defendant’s right to a public trial under the US and Colorado Constitutions. Specifically, the Court considered the propriety of a triviality standard under which some courtroom closures are so trivial that they do not violate a defendant’s public trial right. The Court first held that the triviality standard is appropriate in Colorado and therefore elected to adopt that standard. The Court then held that the courtroom closure in this case was trivial because it did not undermine the purposes of the public trial right guaranteed by the US and Colorado Constitutions; hence, the closure here did not violate defendant’s right to a public trial. Accordingly, the Court of Appeals’ judgment was reversed and the case was remanded to that court to address defendant’s remaining contentions on appeal. 2020 CO 27. No. 18SA244. Santa Maria Reservoir Co. v. Warner. Application for Change of Use of Water—Native Water—Imported Water—Hydraulic Divide. The Supreme Court affirmed the water court’s approval of the change-of-use application submitted by the Santa Maria Reservoir Company (SMRC) with respect to the water it diverts from the Rio Grande into the Closed Basin. Like the water court, the Court concluded that the water SMRC diverts into the Closed Basin is imported water because it does not naturally flow into the Closed Basin and, once there, does not naturally return to the Rio Grande. In so doing,

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the Court rejected appellant’s contention that the water in question cannot be imported water because the Rio Grande and the Closed Basin are hydraulically connected. Instead, because the record established that a hydraulic divide currently exists between the two stream systems, the Court found them to be unconnected. Relying on longstanding precedent establishing that downstream users of return flows from imported water do not have a vested right in the future importation of such water, the Court ruled that appellant was not injured by the water court’s approval of SMRC’s change-of-use application. Contrary to appellant’s contention, the Court held that SMRC is entitled to fully consume all of the water it imports into the Closed Basin. Further, the Court upheld the water court’s rulings recognizing the historical irrigation use of SMRC’s water rights on lands served by the Monte Vista and Rio Grande Canals and the historical irrigation practice of recharging the unconfined aquifer of the Closed Basin with SMRC’s water rights. April 27, 2020

2020 CO 28. No. 19SA272. Coke v. People. Fifth Amendment—Due Process—Right to Counsel—Voluntary Statements—Fourth Amendment—Self-Incrimination. In this interlocutory appeal, the Supreme Court reviewed the trial court’s suppression of statements defendant made to the police and evidence obtained from her cell phone. The Court concluded that because defendant was not in custody at the time she made the statements at issue and because there is no evidence of government coercion, the statements were not taken in violation of defendant’s right to avoid self-incrimination and were voluntary. It also concluded that the search warrant permitting the search of defendant’s cell phone was constitutionally overbroad because it authorized a search of virtually the entire contents of defendant’s phone. Therefore, the search violated the Fourth Amendment’s particularity requirement. Accordingly, the Court reversed the portion of the trial court’s order suppressing defendant’s

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statements, affirmed the portion suppressing the evidence from her cell phone, and remanded the case for further proceedings consistent with this opinion. 2020 CO 29. No. 19SA143. Amica Life Insurance Co. v. Wertz. Non-Delegation Doctrine— Interstate Compacts—Suicide Exclusion Policies. This case required the Supreme Court to answer the following certified question from the Tenth Circuit Court of Appeals: May the Colorado General Assembly delegate power to an interstate administrative commission to approve insurance policies sold in Colorado under a standard that differs from Colorado statute? Answering the certified question narrowly, the Court concluded that the General Assembly did not have the authority to delegate to the Interstate Insurance Product Regulation Commission the power to issue a standard authorizing the sale of life insurance policies in Colorado containing a two-year suicide exclusion when a Colorado statute prohibits insurers doing business in Colorado from asserting suicide as a defense against payment on a life insurance policy after the first year of that policy. 2020 CO 30. No. 19SC651. Yakutat Land Corp. v. Langer III. CRCP 106(a)(4) Claims—Zoning—Development Codes—Judicial Review— Administrative Review. This case arose out of a zoning dispute involving the propriety of constructing a gravity-based mountain roller coaster in the Estes Valley. The Supreme Court was asked to decide whether the local authorities tasked with making and reviewing zoning determinations abused their discretion in interpreting and applying the Estes Valley Development Code when they determined that the proposed mountain coaster could be constructed. Applying the deferential standard of review required for an action brought pursuant to CRCP 106(a)(4), the Court concluded there was no abuse of discretion. The Court was also asked to consider whether the constitutionality of the Estes Valley Development Code could be appropriately raised or considered on appeal to district court in a suit brought exclusively as a CRCP 106 claim. CRCP

106 proceedings are reserved for challenges to the judicial and quasi-judicial actions of government actors rather than the law itself. As such, the Court concluded that the constitutionality of the Estes Valley Development Code could not be appropriately raised or considered in district court in a CRCP 106 action. Accordingly, the district court’s judgment was reversed. 2020 CO 31. No. 19SC650. Langer III v. Board of Commissioners of Larimer County. Land Use Classifications—CRCP 106(a)(4). This is a companion case to Yakutat Land Corp. v. Langer III, 2020 CO 30, __ P.3d __, decided the same day. Both cases were before the Supreme Court on a transfer from the Court of Appeals pursuant to C.A.R. 50. Here, the Court was asked to decide whether the Board of County Commissioners (BOCC) misconstrued applicable law and abused its discretion in finding that defendant’s mountain coaster project was properly classified as a “park and recreation facility” rather than an “outdoor commercial recreation or entertainment establishment.” The Court concluded that the BOCC correctly construed the applicable code provisions and, applying the deferential standard of review mandated here, that the BOCC did not abuse its discretion in classifying the mountain coaster project as a park and recreation facility. Accordingly, district court’s judgment was affirmed.

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.

CILS BENEFACTORS INC. 1815 Central Park Drive PMB 366 Steamboat Springs, Colorado T 970 4601232 / F 509 3560077 / www.cilsbenefactors.org / E office@cils.org

Dear Colleague. CILS Benefactors Inc. is a Colorado-based charity that supports international legal education and training. We are proud of our receipt of the 2019 best-nonprofit award (see below) from the Steamboat Springs Chamber of Commerce and our affiliation with the Colorado Nonprofit Association, Fidelity Charities, ALMA Philanthropies, and the Network for Good. There will be a new line on our Colorado income tax form for 2020 (2019 tax year): "Donate to a Colorado Nonprofit Fund," allowing Colorado taxpayers to donate a part of or all their state tax refunds to a nonprofit registered in Colorado. You need only indicate the amount of the donation and identify the nonprofit that will receive your gift.

To be eligible, a nonprofit must have been registered with the Colorado Secretary of State for charitable solicitations for at least five years and be in good standing. CILS Benefactors Inc. meets those requirements. There is full information about our activities at www.cilsbenefactors.org. I hope that you will keep us in mind when you submit your state tax returns in 2020. Thank you.

DENNIS CAMPBELL President

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

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

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GOT KNOWLEDGE? Pass It On! Every CBA member is an expert at something, and we encourage you to share this expertise with your colleagues. Writing for Colorado Lawyer is a great way to:

Build your rĂŠsumĂŠ Earn CLE credits Flex your writing muscles Connect with others Promote your expertise Become even more of an expert Best of all, your contributions promote competence and professionalism among your peers.

Turn to page 110 to contact a coordinating editor today and share your ideas!

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

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

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

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

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

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

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

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

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WRITING FOR

ENVIRONMENTAL LAW

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

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

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

COORDINATING EDITORS FOR SUBSTANTIVE LAW ARTICLES

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

ALTERNATIVE DISPUTE RESOLUTION

Marshall A. Snider msniderarb@comcast.net

CANNABIS LAW

ANIMAL LAW

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

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

ANTITRUST AND CONSUMER PROTECTION LAW

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

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

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

APPELLATE LAW

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

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

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

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

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

C OL OR A D O L AW Y E R

GOVERNMENT COUNSEL

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

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

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

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

CONTRACT LAW

BUSINESS LAW

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

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JUVENILE LAW

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

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

NATURAL RESOURCES AND ENERGY LAW

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

COORDINATING EDITORS FOR DEPARTMENT ARTICLES 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

AS I SEE IT

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

REAL ESTATE LAW

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

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

JUDGES’ CORNER

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

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

TORT AND INSURANCE LAW

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

LEGAL RESEARCH CORNER

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

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 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

MORE WAYS TO CONTRIBUTE

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

Kevin Cheney Kevin Cheney is on the CBA YLD Executive Council and recently was appointed to the CBA Board of Governors.

PROFILE

Describe yourself in five words. Fiancé, Lawyer, Laugher, Leader, and Tall. What’s the best advice you’ve ever been given? It’s actually a quote from Bill Gates that someone showed me: “Most people overestimate what they can do in one year and underestimate what they can accomplish in 10 years.” In the short-term life can have ups and downs, but you have to keep your eyes on the long-term prize.

Hometown: Casper, Wyoming Law School: University of Colorado Law School Lives in: Denver, Colorado Works at: Cheney Galluzzi & Howard, LLC

What’s your favorite memory from law school? While working in the criminal defense clinic, I had the opportunity to challenge the City of Boulder’s “Use of Fighting Words” ordinance. I handled the oral argument at the trial court and at the appellate court. We won both arguments and the law was ruled unconstitutional. Boulder changed the law soon thereafter. What do you like the most about your practice area? I get to represent real people with real problems against powerful interests, whether that is the State in criminal defense cases or massive insurance companies in personal injury cases. What organizations are you involved in? Outside the CBA, I’m very active in the Colorado Trial Lawyers Association, where I serve on its executive, new lawyer, and legislative committees. I’m also involved with an organization called Learn Your Rights in Colorado (LYRIC), which offers workshops in high schools and middle schools to teach young people how to exercise their rights

Practice Area(s): Personal Injury, Insurance Bad Faith, and Criminal Defense CBA Member Since: 2011

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

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when interacting with law enforcement. These are all great organizations, and anyone should feel free to reach out to me if they are looking to get involved! Favorite Denver restaurant: La Loma. Love its green chili! Favorite spot in Colorado: This one is easy: Red Rocks. I try to see between seven to 10 concerts there each year. Who is your hero and why? Bryan Stevenson, founder of the Equal Justice Initiative. People may know him from the new film Just Mercy. I’m inspired by the work he’s doing and his quest for a more just America. I use two of his quotes—“we are all more than the worst thing we have ever done” and “the opposite of poverty isn’t wealth; it’s justice”—all the time. What advice would you give a new lawyer? Always be networking. Whether you’re starting your own firm and need clients or hoping to make partner one day, who you know is just as important as what you know. To take that one step further, I’d add that quality is always more important than quantity in networking. Why are you a dues-paying member of the CBA? I think it’s important for lawyers to come together to advance the profession, and there’s no better place to do that than the CBA. Plus the CBA provides great benefits, such as Casemaker and access to wonderful CLE programs.

Continue Exploring Community CBA!

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

Learn Find out about upcoming CBA and CLE events.

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

Log on and explore community.cobar.org.

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