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DOCKET Official Magazine of the Denver Bar Association

Vol. 39.5 I August/September 2017


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6 11



A Message from DBA President Franz Hardy Meet the Incoming Vice Presidents and New Board of Trustees Members


C’mon in. The Water is Fine. Starting a Law Practice By Sara Scott and Danaé Woody


The Growing Threat to Cybersecurity By Mark Spitz

August/September 2017 I The Docket I 3


The mission of The Docket is to educate and entertain the Denver legal community — we hope without being sued.


Letter from the Editor




On the Town: Chapter One Franz Hardy Chats with Charles Casteel


COLAP Wellness Corner


Seat at the Bar: DBA Bench-Bar Committee Launches Courtroom Chats Series


Solo Not Alone


Ethics Column: Eleven Principles Related to the Duty to Report the Misconduct of Another Lawyer


DBA Member Highlight: Kwali Farbes


How to Get Out of Your Business Lease


Dangerous Clients: How to Protect Your Office from Current and Former High-Risk People


MVL Makes Strides Amid a Troubling Time for Legal Aid

Legal Affairs


Bar Resources


Picture This

Editor: Jessica Volz, Managing Editor: Heather Folker, Co-Chairs: Kaelyn Gustafson and Paul Miller Graphic Designer: Clair Smith, Advertising: Clair Smith, Docket Committee: Norman Beecher, Jerry Bowman, Adam Brown, Becky Bye, Ryan K. Carnes, Mariya Cassin, Craig C. Eley, David L. Erickson, Emma Garrison, James Garts, Peter E. Grandey, Ryan T. Jardine, Thomas L. Kanan, Jr., Robert J. Kapelke, Judith Keene, Elizabeth Leder, Paul F. Kennebeck, Kyle Martelon, Alicia J. McCommons, Daniel R. McCune, Margaret McMahon, Douglas I. McQuiston, William R. Meyer, Corinne C. Miller, Makenzie Morgan, Barbara J. Mueller, Peter Mullison, Heather O’Donnell, Natalie Powell, Gregory D. Rawlings, Eden Rolland, Alison Ruggiero, Sara Sharp, Julie Simmons, Marshall A. Snider, Daniel A. Sweetser, Erica Vargas, Anthony J. Viorst, Dennis P. Walker and Rachel Young 2017–18 DBA Officers: Franz Hardy, President; Maureen Watson, President-Elect; April Jones, First Vice President; Laura Liss, Second Vice President; Nancy Cohen, Immediate Past President; Daniel A. Sweetser, Treasurer; Jim Fogg, YLD Chair; and Patrick Flaherty, Executive Director


THE DOCKET A Denver Bar Association publication. Views expressed in articles are those of the author and not the views of the author’s employers, the Docket Committee or the Denver Bar Association, unless expressly stated.

2017–18 Board of Trustees: Josh Berry, Klaralee Charlton, Sarah M. Clark, Emma Garrison, Ruchi Kapoor, Matthew Larson, Margrit Parker, Ryann Peyton and Shannon W. Stevenson

Write for The Docket: DBA members are encouraged to send story ideas, photos, tips, and articles for the Docket Committee’s consideration. We are looking for content by Denver attorneys for Denver attorneys, focusing on trends, courts and practice management, in addition to opinion and satire pieces. Please send ideas and member announcements to Editor Jessica Volz at The editor has the right to accept and reject submissions at her discretion. 303-860-1115 •



Copyright 2017. The Docket (ISSN 1084-7820) is published six times a year by the Denver Bar Association, 1900 Grant St., Suite 900, Denver, CO 80203-4336. All rights reserved. The price of an annual subscription to members of the DBA ($15) is included in their dues as part of their membership. Periodicals postage paid at Denver, CO and additional mailing offices. POSTMASTER send address corrections to The Docket, Denver Bar Association, 1900 Grant St., Suite 900, Denver, CO 80203-4336.

DBADOCKET.ORG 4 I The Docket I August/September 2017

LETTER FROM THE EDITOR DEAR MEMBERS: It is not unusual for August and September to conjure to mind “back-to-school” sensations. Such déjà vu experiences are often Proustian in nature: They usurp your thoughts, plunging you into a warp of deep reflection — no madeleine or tea required, even if desired. While making our way in the world as lifelong learners, it is important to see time as a commodity that should not be distilled into mere billable hours. As Eilene Zimmerman’s July 15 New York Times article, “The Lawyer, the Addict,” reminds us, an unhealthy lust for work often breeds other forms of addiction. Life is like a balance beam; you can slip off either edge if

you overthink your steps or if you don’t think about them at all. Likewise, success and failure inspire our individual approaches to navigating along the labyrinthine balance beams that make up that journey called life. Many of the articles contained in this issue touch on the themes of beginning anew and staying on track. Our lives are the substance of which novels are made. And how monotonous those novels would be if they did not have different chapters bookended with different beginnings and endings. To echo C. S. Lewis’s words, “You are never too old to set another goal or to dream a new dream.” So, what are you waiting for?

With warmest regards,

Jessica A. Volz, Ph.D.


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ince my letter “From There to Here” appeared in the last issue of The Docket, I have received scores of responses from DBA members. They embody the inclusivity that we embrace. I was so moved and humbled by the responses (several from people I have yet to meet) that it seemed appropriate to share some of them with you, as they showcase the welcoming community that the DBA truly is. It is an honor to serve such a great group of people. Thank you again!

•“I was very touched by your story and the way you expressed it. I’m a recent transplant to Denver. I’ve seen so much hardship and know that the strength and tenacity to pull oneself up despite the odds is staggering. It’s so nice to know that the president of the DBA is a fighter and knowledgeable of the struggles that many have to overcome to succeed. I hope to meet you in the future and best of luck in your new appointment.”

•“I just read your first President’s Message and was so moved. I especially appreciate your comments about honoring each member’s path. I’m learning (just now!) that there are many paths up the mountain. It’s inspiring to hear the DBA president talk about his own professional obstacles and offer a safe place to folks, no matter where they might be on that path.”

•“I wanted to write to thank you for sharing such a personal and vulnerable part of yourself. Like you, I knew meager beginnings growing up. I appreciate your willingness to be open about this part of yourself. Thank you.”

•“We have not met before, but I wanted you to know how much I enjoyed your article. It was terrific. It was inspirational and will hopefully encourage some younger attorneys to get involved and belong.” 6 I The Docket I August/September 2017

•“First, I was so happy and proud of you for being elected DBA president; you will do a great job. Second, and more importantly, I was moved by your short bio in The Docket (not to mention that good-looking dude on the cover). As an immigrant myself, I can relate to so much of what you said. We expect great things from you, Franz, and I am completely confident that we will not be let down.” D


“In a time of universal deceit, telling

Waldman’s The Fight to

the truth is a revolutionary act.”

Vote offers a compelling

~ George Orwell

and, at times, dishearten-

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ing account of the history of voting rights in our country. In many ways, the right to vote has become the fight to vote. The Fight to Vote (New York: Simon & Schuster, 2016). $18 (paperback).

TRIVIA Q: Who was the first United States attorney general to serve a prison sentence?

elled after Elizabeth “Lizzie” J. Magie Phillips’s “The Landlord’s Game” (U.S. patents #748,626 and #1,509,312)? She sold her board game patent rights to Parker Brothers for $500 and no royalties in November 1935. That same year, when Parker Brothers started selling “Monopoly” (U.S. patent #2,026,082), they marketed it with the inspiring story of how struggling salesman Charles Darrow invented the game in his basement to support his family during the Depression. Only now is Lizzie Magie Phillips being properly credited.

A: John N. Mitchell, who was deeply mired in the Watergate scandal.

DID YOU KNOW that Monopoly was mod-

“I won’t sign a contract to purchase the real estate until after the pest inspection has been completed. I want to make sure that the house has mice.”

August/September 2017 I The Docket I 7



rom the moment when I marked the date of the interview on my calendar, I looked forward to meeting with Charles Casteel. He is one of those living legends in the Denver legal community whose presence can be felt as soon as he enters a room. True to form, Charles did not disappoint. Get ready for some knowledge and inspiration! HARDY: Charles, thanks for being here with me today. Would you please tell our Docket audience about your background and experience? CASTEEL: I went to engineering school, was a civil engineer and practiced for one year in California. That became a little sedentary, and I decided law school was going to be my focus. I’ve been at Davis Graham & Stubbs since I left law school in 1975. After three years of practice, I took a two-year hiatus and went to the U.S. Attorney’s Office in the criminal division. I prosecuted for two years, and that was a career changer for me. That’s when I finally got my sea legs and figured out my direction. I transformed from a bag carrier to someone who had some tools himself. HARDY: How did you become president of the Denver Bar Association in 1988? 8 I The Docket I August/September 2017

CASTEEL: Probably like many other bar presidents, I started out at a local bar association. I was active in the Sam Cary Bar Association right out of law school. I was its president and active with the issues that were affecting minority attorneys at that time. But I also got involved in committee work at the DBA; that led to a Board of Trustees appointment, and that led to a second vice president appointment. And, lo and behold to my surprise, one day the nominating committee asked me if I would be willing to serve as DBA president. HARDY: What was it like to be the first African-American president of the DBA? CASTEEL: That has to be responded to with context. At the time, there was a lot of movement afoot throughout a lot of communities to integrate. In law firms, there was also a lot of activity along this line. In fact, I came into Davis Graham & Stubbs as part of that kind of a focus. And when I was nominated for the DBA presidency, I think there was a lot of excitement in the legal community. I felt honored and proud of the legal community for taking that step. Now, having said that, as with any position, we take those positions on as individuals. We do what we do because it’s something we feel we’d like to do or feel strongly about or enjoy doing. And when we do them, we don’t necessar-

ily do them with an African-American hat on; we do them as any other person does them. When we take on these positions, we want to do the best we can. We want to make changes; we want to do everything. I had awareness during all this that people were greeting me and receiving me as the first African-American president, but that didn’t change my agenda for the DBA. My focus was on what’s in the best interest of the DBA, who can I put together to get something done, and how do I effectively apply myself to take charge or to do the job of a president in that position. HARDY: Did you face any particular challenges as a minority president? CASTEEL: More so when I was the president of the Sam Cary Bar Association than of the DBA. There were some issues that came up in the presidency of the Sam Cary Bar that required me to take positions that challenged some pretty high-profile professionals here in the city in terms of some of their attitudes and perspectives. I didn’t have to do that at the DBA. I don’t remember any issue that came up that made me feel that there was discrimination or something that I had to deal with. And with the DBA itself, there was never an issue. I was just another DBA president. HARDY: In your view, how has the DBA changed since you were president? CASTEEL: There are a lot of internal things that have changed in terms of administration and sophistication. Just like everything else in society, the computer age has impacted the way people view and see value in the DBA. But I don’t know that its importance has changed. I think it is very important that we have a group who can speak for us in certain contexts and present an image for lawyers as a whole in this community, and the DBA allows leaders to do that. HARDY: How has the practice of law changed since you started practicing law 42 years ago? CASTEEL: When I came to Davis Graham & Stubbs, there was an aura of camaraderie that was built around the prestige of practicing law. I felt that a lot more in the early years than I do now. The transformation into more of a business perspective for the practice of law has meant that although the positions we have are prestigious, that aura is not as significant as it once was. It’s now more about getting the job done. The people haven’t changed. They’re all good, decent people in this practice, particularly at my firm, but the collegiality of being part of something special that I felt when I came in, I don’t know if that is still there at the same level.

were the first African-American president. Do you think the Denver legal community has made progress in terms of diversity and inclusion? CASTEEL: Well, I have seen an ebb and flow of the consciousness about the injustice of discrimination. Have we made progress? Of course, compared to 10 years before I came into the practice. But there’s room for a lot more progress. I’m not one to cast stones at what’s been done or not done. I’m one to say let’s keep our efforts on track — keep the consciousness level where it needs to be and keep the pressure on those who are making decisions so

“ I learned about 20 years ago to meditate, and it is now a way of life for me. I love it. I do it daily. I practice with a group. I find a lot of joy in developing that part of my being, if you will. ” that they will see the value of what diversity and inclusion do for our community and decision-making in general. Diversity adds so much value. A monolithic perspective is just so limited. HARDY: As a more senior lawyer now, what advice would you give to your contemporaries? CASTEEL: Do not be afraid in the practice of law to be an individual, to be exactly who you are. When I came into this law firm, I had an Afro that was five inches, and I had lapels that were wide. And that was me. That was who I was, and I was accepted. It surprised me how accepting people were of someone who looked and had a cultural background that was different. And I never shied away from that. And to this day, I may not have the Afro,

HARDY: I count myself as the third AfricanAmerican president of the DBA behind yourself and Hubert Farbes, and the second Asian-American president behind Paul Chan. Nearly 30 years have passed since you August/September 2017 I The Docket I 9

but I’m still Charles. I’m going to be who I am in whatever context — whether it’s with clients or anyone else. I’m not going to try to conform to what I think I ought to be. I see a lot of practitioners over time doing that, for instance, in the courtroom when they think they need to deliver a closing argument in a certain forceful way. No, that’s not them. Be who you are in whatever context you’re in, and you’ll enjoy what you’re doing. HARDY: Maybe you have a very similar answer, but what advice would you give to the newer members of the DBA? CASTEEL: Just a small adjustment on that. I’d say the business aspect of the practice is there. Learn it. Be proficient in it. If you are not successful in it, you’re not going to be successful, so be successful in it. But relegate it to its proper level. Don’t prioritize that and let the business aspect be all that you are. There is a professional aspect to this practice of law. There is a relationship aspect. There is a people aspect. There is a service aspect to it that is equally as important. Let’s not get too far into the spectrum of making this an income-producing avocation. This is a profession. There is a lot of stature that comes with that — a lot of prestige, a lot of honor. Enjoy that.

love live music. I go around the country now. I’ve been to Lollapalooza with all the young kids; I’ve been to the New Orleans Jazz Festival five or six times. I went to Chicago just to see The Weeknd. And I love the family that I have. I have some young kids and grandkids I absolutely adore. And I also enjoy the work I do working with others. I enjoy the talent that I see around me. I enjoy the interaction that I have with young folks, young attorneys. And I enjoy the practice of law now because of that. HARDY: Is there something you wish I would have asked you? CASTEEL: This is a closing. I appreciate, Franz, what you are doing. It’s uplifting that you even called me and said you wanted to sit down and talk to me. I see you as the kind of leader and the kind of attorney who inspires me. You’re young and you have a broader view. It’s a community-related view. I’m grateful to have had this chance to sit down and talk with you. I really am. You are inspiring. D

HARDY: Beyond practicing law, tell us what you enjoy doing. CASTEEL: I learned about 20 years ago to meditate, and it is now a way of life for me. I love it. I do it daily. I practice with a group. I find a lot of joy in developing that part of my being, if you will. And I’ll call that a spiritual part of my being. I enjoy concerts. I

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MEET THE INCOMING VICE PRESIDENTS AND NEW BOARD OF TRUSTEES MEMBERS PRESIDENT-ELECT: MAUREEN “MO” WATSON Please tell us a little about yourself, personally and professionally. In my day job, I am General Counsel at CQG, Inc., a software company in the financial services industry. I started my career as a civil litigator and made the move in-house about a year ago. In my current role, I love that I learn something new every day. Whether it is tackling a new area of law for a litigation matter or dealing with nuance in a contract or managing a new regulatory change, I am constantly challenged. Most importantly, I enjoy being able to work proactively with my company to strategically manage risk and create measurable, positive change. I am married to my amazing husband, Jon, who is also a lawyer. It is great to be married to someone who understands the demands of the profession and can help me think through thorny issues. Together, we enjoy spending time with our giant dog, Atticus, and (as non-natives!) taking advantage of all that Colorado has to offer. Outside of the DBA, I am also active with the Association of Corporate Counsel, Metro Volunteer Lawyers, the Colorado Attorney Mentoring Program and the Denver Ballet Guild. What has been one of your most memorable DBA experiences? The YLD Ski CLE to Vail. We had a great presentation on the bus (where we all learned things about ski law!) and then had an awesome day on the hill capped off with pizza and some après beverages…the perfect Colorado day! If you weren’t practicing law, what career would you have chosen? Now that I am working with a business, I have to say that I hope I would have pursued something entrepreneurial. I love the complex challenges of running a business and balancing risk and reward. What is the best advice you’ve ever received? You’ll never regret giving something your best. 12 I The Docket I August/September 2017

1st VICE PRESIDENT: APRIL JONES Please tell us a little about yourself, personally and professionally. I have been practicing law for almost 26 years. I started my own law practice in 1994. I originally had a general practice in the federal and district courts but eventually narrowed it to a practice focusing primarily on family law. I am currently a commissioner on the Independent Ethics Commission, where we hold public hearings on ethics complaints. I have served on numerous boards in the community, including the Kempe Foundation and the University of Colorado Hospital Board. I have been married for 25 years, and my husband and I are the parents of three amazing young adults. We have enjoyed traveling across the country to college football and volleyball games and jazz performances. When I am not volunteering or practicing law, I enjoy reading, writing, globetrotting and spending time with family and friends. What has been one of your most memorable DBA experiences? I love attending the Barristers Benefit Ball. In 2016, the theme was “superheroes.” I dressed as Captain America in a blue gown with a toy shield. Then DBA President Janet Drake dressed as Poison Ivy, and then CBA President-Elect Patricia Jarzobski came as Robin (from Batman). If you weren’t practicing law, what career would you have chosen? I would be a news commentator with my own show addressing the issues of the day with wit and wisdom. What is the best advice you’ve ever received? My longtime mentor, Steve Farber, once told me, “If you want to do something, make up your mind and do it.”

2nd VICE PRESIDENT: LAURA LISS Please tell us a little about yourself, personally and professionally. Since growing up in the Chicago suburbs and attending Tulane University in New Orleans, I have lived in Colorado for the past eight years. I enjoy exploring new cities and traveling in my free time, as well as hiking, cooking, happily “nerding out” while reading law blogs, and watching crime/ spy TV dramas like “Blacklist” and “The Americans.” Professionally, I am a transactional franchise and corporate attorney in private practice at Brown & Kannady, LLC in Denver. I represent both franchisors and franchisees on matters ranging from creating new franchise brands to buying a franchise, buying and selling existing franchised outlets, trademark concerns, commercial lease negotiations and more, all typically relating to franchised businesses. Before joining my current firm, I practiced as a solo attorney after becoming licensed. During this time, I benefited from DU Law’s program to support new sole practitioners at the LawBank office space. How did you first get involved in the DBA, and how has it advanced your career? Early on in my career, I was invited to attend the Professionalism Coordinating Council, which is a joint CBA and DBA effort. I became involved almost immediately by co-chairing a campaign to make new vignettes highlighting professionalism. The project spanned multiple years and involved coordinating scripts, producing and filming, editing, and distributing the video vignettes showing unprofessional behavior and potential solutions one could try if one faces it. This experience instilled in me a commitment to professionalism early on. It also provided me with an opportunity to get to know many experienced professionals. If you weren’t practicing law, what career would you have chosen? I would be living in New Orleans operating cute boutique shops, listening to jazz and letting the good times roll! What is the best advice you’ve ever received? To borrow my father’s words, “the answer is always yes” when you are presented with any opportunity (even if you aren’t sure you want to do it or know how to do it). This motto has served me well by encouraging me to get involved early on. For example, after attending many fun DBA Young Lawyers Division events, I joined the DBA YLD Executive Council and now work to provide

an experience that drives membership and engagement. I have also become chair of the Franchise Subsection of the CBA Business Law Section through a similar process. The bar has served as a welcoming and helpful resource to which I enjoy giving back.

BOARD OF TRUSTEES: JOSH BERRY Please tell us a little about yourself, personally and professionally. I grew up in Topeka, Kansas and l ov e a n d r e s p e c t the Midwest. (Don’t worry — I’m not moving. I love Colorado too much!) I graduated from Knox College (Galesburg, Illinois) and then worked in DC as a paralegal at Kirkland & Ellis. After living in DC for several years, I moved to Lawrence, Kansas and started law school at the University of Kansas. I moved to Denver after graduation and worked at Pryor Johnson Carney Karr Nixon (now Nixon Shefrin Hensen Ogborn). I’m now in my seventh year of practice and absolutely love our profession. I married the love of my life, Bridget Dyer, on June 24 in beautiful Ouray. I am also a lover of all things comedy, fitness, craft beer and, yes, yard work. I make plenty of time to enjoy all four. I’m in Level III of my improv comedy training at VooDoo Comedy Playhouse and have grandiose visions of following in Stephen Colbert’s footsteps. I recently started brewing my own beer and debuted my first IPA at our wedding celebration. My mother is an avid gardener, and I never thought for a second that I would take after her in that regard. I was wrong! How did you first get involved in the DBA, and how has it advanced your career? My involvement in the DBA and CBA has been one of the highlights of my career. When I was on the Executive Council for the CBA Young Lawyers Division in 2011–12, we collaborated a great deal with the DBA Young Lawyers Division, and I met a ton of folks that way. I wanted to get more involved, and the DBA provided an easy way to do that. I started going to DBA YLD’s Barristers After Hours and soon thereafter was asked to serve as a DBA representative to the CBA Board of Governors. I guess the rest is history. Involvement in the DBA has advanced my career in so many ways. I enjoy constant referral sources, hack into the legal knowledge possessed by more experienced members and take on leadership positions that help make for a more wellrounded professional. Furthermore, I enjoy the people and the camaraderie.

August/September 2017 I The Docket I 13

What advice would you give a new lawyer? Get involved in your local bar association immediately and ask to take on leadership roles. Bar associations are not elitist and enjoy enthusiasm from their younger members. Make your participation in the bar association as critical as your participation in your firm. I would also tell lawyers to treat your partners and superiors as your clients. You want to please and impress them. To do that, become a great communicator and anticipate their needs. It’s a learning process, and I’m still learning. If you weren’t practicing law, what would you do? Stand-up comedy. That or hosting my own talk show. While Stephen Colbert is my idol, I’d give him a run for his money!

BOARD OF TRUSTEES: KLARALEE CHARLTON Please tell us a little about yourself, personally and professionally. I am a shareholder at Katz, Look & Onorato, P.C., where I practice fiduciary tax. In my position, I work primarily with clients after loved ones pass away to mitigate income and estate tax consequences and ensure tax compliance by the estate, any associated trusts, and any related business entities. I also assist executors and trustees with the proper transfer and accounting of assets and the preparation of any required income or estate tax returns. Outside the office, I am an active member of the DBA and CBA, and I enjoy participating in various community volunteer efforts. My husband and I can also frequently be found roaming the neighborhood with our pack of silky terriers. How did you first get involved in the DBA, and how has it advanced your career? Like every other young attorney — Barristers After Hours! I was fortunate to make key connections at these events that led me to the Young Lawyers Division Executive Board and now to the Board of Trustees. My involvement in the DBA has grown my personal and professional network, which, as a young attorney, is invaluable. In the process of organizing DBA events, I have had the chance to meet individuals I never would have crossed paths with otherwise. The DBA also provides opportunities for me to give CLE presentations and write articles, which, in turn, have opened doors for me to speak at local and national CLE workshops. The DBA offers unique ways for young attorneys to be involved while enabling them to gain skills that can transfer throughout their careers. 14 I The Docket I August/September 2017

What advice would you give a new lawyer? Follow up on connections. When you meet someone at a happy hour, get together with them later for coffee. When someone randomly adds you on LinkedIn, meet them for lunch to discuss how your professions intersect. Some of my best connections have been made this way, and I’ve been given amazing opportunities just from following up. If you weren’t practicing law, what would you do? I would be the next MasterChef — or at least the next MasterChef Junior.

BOARD OF TRUSTEES: RUCHI KAPOOR Please tell us a little about yourself, personally and professionally. I am currently the appellate director and legislative liaison for the Office of Respondent Parents’ Counsel (ORPC), where I have been working to create the state’s first appellate program specifically for respondent parents in child welfare cases. Our agency is only one of a handful like it in the country, which makes me very proud of Colorado. Before working for the ORPC, I was an associate at The Noble Law Firm, where I handled a caseload of appeals and criminal post-conviction work. I have always been a writer at heart, so I was drawn to appellate work in law school, and it’s always felt like a natural fit for me. I am a Colorado native, and I just got around to learning how to ski. I’m a pretty avid gardener, and I am always up for being outdoors. How did you first get involved in the DBA, and how has it advanced your career? I joined the Colorado and Denver Bar Associations right out of law school when I was clerking for the Denver Juvenile Court. I decided to attend a YLD happy hour on a whim and am so glad I did. It reminded me that networking can be FUN. What advice would you give a new lawyer? Don’t panic! You can do it! You survived law school. If you weren’t practicing law, what would you do? Assuming that I am not independently wealthy at that point, I would probably attempt to get into the cartoon voice-over game. Talk about a fun day job! D Look for a Q&A with new Board of Trustees member Ryann Peyton in the October/November issue.



By Sara Scott and Danaé Woody


he practice of law is not one-size-fits-all nor is starting a law firm. A new law practice’s success depends on a solid foundation of legal experience, as well as on the founder’s preparedness, personal drive and welldefined goals. Many solo practitioners are blissfully content with generating an annual income comparable to those in their practice areas. Others choose to manage multi-person or multicity offices. Still others aim to work part-time and contract with other firms for overflow work with the goal of focusing on

other aspects of life. As there is no one “right” way to structure a practice, there is no one set of guidelines for building a successful practice. This article explores some important considerations when one decides to venture into the world of self-employment in the legal profession. We encourage those who have gained some experience through legal employment and who are considering starting their own firm to take the leap.

August/September 2017 I The Docket I 15

MAKING THE DECISION It is a major (and exciting!) decision to practice law outside the shelter of an employer law firm. The best place to start is by determining your short- and long-term goals for the practice. Ask yourself the following: • • • • • • • •

What do you want from your new job? How much do you need to earn for it to be “worth it” for you? How quickly do you need to see returns? Who is your “ideal” client? Why are you practicing law in the first place (instead of, for instance, opening an ice cream parlor)? Do you want or like to work around other lawyers? Will you have an office space or virtual office? Write down your ideal work day in present tense, from the time you wake up until the time you go to bed. Keep in mind the following questions: Are you in an office most of the day? In court? Drafting? Seeing clients? What time do you leave and get home? Are your days varied? Do you want to carve out time to binge watch episodes of “Breaking Bad” or squeeze in a daily siesta?

MARKETING YOURSELF AND YOUR PRACTICE Determine your marketing strategies based on who you are. We recommend having an elevator speech prepared so that you never miss an opportunity to share who you are and what you do. While you should always keep your business cards handy, it is important to build relationships with other professionals. In other words, don’t just pass out business cards and call it a day. A good referral pipeline depends on regularly connecting with your contacts. Other marketing strategies include blogging, public speaking, scholarly writing, sending periodic newsletters and, of course, doing great work that showcases your expertise in the field.

business card. A few rules of thumb for being a good mentee are: •

Don’t burn out your mentors. Hopefully you will have several mentors and won’t need to go to the same person too often. Respect others’ time. Do your homework before reaching out to ask a question. Failure to do initial research can make you and your mentor uncomfortable, or even annoyed, and can sour an otherwise positive mentoring relationship. Pay it forward. There is something you can share to help someone else. Many mentoring relationships involve give and take from both sides.

MAINTAINING YOUR PRACTICE Don’t be afraid to reevaluate your plan at years one, two and five. Be thoughtful about what works and what doesn’t. Ask yourself whether your typical work days live up to your ideal. Consider the adjustments you can make to stay satisfied in your practice. Finally, analyze your bottom line and cut fat if necessary.

INVEST IN YOUR OWN PERSONAL AND PROFESSIONAL DEVELOPMENT If you are not a business person, become one. There should always be room for personal and professional growth in your practice. Keep up with the law in your practice area. Maintain the highest standards of professionalism. Then, you’ll find you’re

SET REASONABLE EXPECTATIONS We aim to dispel any notions that owning a law practice means routinely “officing” on the beach. You will likely work harder in your own business than in a traditional role in another law firm. In fact, you will need to work hard or the business won’t work. First, build the practice. Then, work-life balance will come. Nearly every new law practice will experience fits and starts. Don’t be discouraged. For every misstep, there will also be incredible small victories.

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FOSTER YOUR PERSONAL CONNECTIONS Most anyone will need help at some point, so line up your support system early. In addition to utilizing resources provided by the CBA, such as the Colorado Attorney Mentoring Program (CAMP) and the Solo Small Firm Section, it is important to cultivate mentors organically. As Sheryl Sandberg points out in Lean In, the “will you be my mentor?” approach simply doesn’t work outside of a recognized mentoring program. Instead, ask to meet someone for coffee or lunch (everyone has to eat). Ask someone to tell their own story, and don’t forget to follow up with a handwritten note and your 16 I The Docket I August/September 2017

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already on your way to providing your business with a firm foundation for success.

HANG IN THERE Sometimes the going will get tough. Lawyers experience one of the highest burnout rates among professionals. The grind can be rough, especially with the responsibility of an entire firm on your shoulders. Have a plan in place to address and manage burnout. Make and then keep promises to yourself about selfcare; your work will be better and you will be more efficient. We wholeheartedly agree with Angela Lee Duckworth’s work about “Grit.” Duckworth explains that, in a word, grit is stamina. Grit is the willingness to hang in there over the long term. She suggests that having grit is as much of an indicator of success as is any standardized test. When it comes to starting a law practice, we have both found that grit is an essential piece of the puzzle. As Eleanor Roosevelt instructed, “You must do the thing that you think you cannot do.” If we were to list the dozens of times we felt unsure, afraid or over our heads, this article would be ten times its current length. That said, the first time your firm settles a case in your client’s favor, wins a trial or receives a compliment from opposing counsel, you will be on cloud nine. Those are the moments that make opening up shop worth everything. In the meantime, let your grit keep you going and know that there are many others out there, including the two of us, who are cheering you on. D

Danaé Woody is the founder of Woody Law Firm, a boutique family law firm in Denver. She is on the CBA Young Lawyers Division Executive Council and is a member of the Modern Law Practice Initiative. She can be reached at

Sara Scott is the principal of Sara S. Scott LLC, where she practices family law. Previously, she was a founding partner of Zamani & Scott LLP in Washington, DC. She recently relocated to Denver and started her current firm. She can be reached at

August/September 2017 I The Docket I 17

COLAP Wellness Corner


By Debra Austin, J.D., Ph.D. “Mindfulness” involves increased awareness of what is happening from moment to moment. It requires letting go of ruminating about the past and worrying about the future. It has been defined as being fully attuned to the moment — without resistance or judgment. Mindfulness is, in other words, a form of self-understanding that involves self-awareness rather than thought. It is a simple concept that nonetheless requires practice to achieve. The most common method for increasing mindfulness is through meditation. In Search Inside Yourself (2012), Chade-Meng Tan discusses two approaches to meditation: The Easy Way: Bring gentle and consistent attention to your breath for two minutes, and when your attention wanders, bring it back; and The Easier Way: Sit without an agenda for two minutes; shift from doing to being. Tan states that there is no such thing as bad meditation because when you notice your mind wandering, and you return your focus to your breath, your attention becomes sharper. In this sense, meditation can be compared to weight training, as 18 I The Docket I August/September 2017

growth comes from resistance. This is the practice, or exercise, of meditation. Lawyers are perpetual doers, generally with “Type A” personalities, who suffer from higher rates of anxiety and depression than does the general population. Stress is the likely culprit. The stress response is initiated by the fight-or-flight system. Some lawyers suffer from perpetual fight-or-flight activation, causing stress hormones to be present in high levels in the body and brain. It can be hard for busy, self-demanding lawyers to calm their minds, but learning to do so provides both physical and mental benefits. Meditation can decrease the stress hormone cortisol, and it enhances attention and concentration. Meditation also improves mood and anxiety. Deep breathing stimulates the vagus nerve, activating the rest-and-digest system. The rest-and-digest system is the other half of the autonomic nervous system, and it returns the body to equilibrium after a fight-or-flight stress response. The psychological benefits of meditation that occur when focusing on your breath means you are fully present and temporarily free from reflecting on the past and worrying about the future. You are, in short, “mindful.” The objectives of mindfulness range from working to calm

the racing mind to developing poise and increasing the capacity to respond thoughtfully rather than to react mindlessly to life’s challenges. Lawyers are often perfectionists with high expectations of themselves and can be harshly self-critical. Trained to be objective, lawyers also suppress their emotions. The practice of mindfulness and meditation can become part of a commitment to zealously guard a lawyer’s wellbeing, soften self-judgment and reduce stress. Mindfulness improves information processing and decision-making. It affords space between awareness, judgments and reactions. This may empower flow, the state of effortless concentration where a lawyer loses track of time due to engagement in a task. Brain enhancements from mindfulness and meditation include increased gray matter, more effective connections between brain regions and a greater number of neurons firing together. This may explain the thinking benefits experienced by meditators. Businesses utilizing mindfulness to improve personnel development and enhance corporate culture include Google, Patagonia, LinkedIn, AirBnB and Seventh Generation. Highlyproductive meditators include: John Mackey, CEO of Whole

however, need to take the time to read a book to begin a mindfulness practice. If you just want to get started, download the free app Insight Timer on your phone and explore numerous guided meditations to find something right for you. Set aside 10 to 20 minutes per day to practice meditation and mindfulness. Research shows that this improves attention, executive function and working memory while reducing heart rate, anxiety, depression, confusion, fatigue, tension and negativity. Carve out some quiet time to empower your rest-and-digest system. It is an invaluable investment in stress reduction and improved thinking. D

Debra Austin is a professor of the practice of law at the University of Denver Sturm College of Law. She writes and speaks about how neuroscience and positive psychology research can improve law student and lawyer wellbeing and performance. Her articles can be downloaded at She can be reached at daustin@

“Set aside 10 to 20 minutes per day to practice meditation and mindfulness.” Financial Assistance for Colorado Lawyers Foods; Robert Stiller, Green Mountain Coffee; Mary Cranston, former CEO Pillsbury; Anderson Cooper, CNN; Oprah Winfrey; and Arianna Huffington. Doctors and medical students (the professional population most often compared to lawyers and law students) are using mindfulness and meditation training to reduce stress, anxiety and depression, as well as to improve wellbeing, attrition, empathy, relationships with patients and attention to detail. If you are interested in starting a mindfulness meditation practice, here are four books and an app to help you. If you have time to read, The Anxious Lawyer (2016) by Jeena Cho and Karen Gifford provides an eight-week guide to mindfulness and meditation for lawyers. The authors connect the benefits of mindfulness to the practice of law. If you love sports, George Mumford’s The Mindful Athlete (2015) is an introduction to mindfulness meditation that incorporates stories about athletes and sports organizations that employ it. Finally, Google’s “Jolly Good Fellow,” Chade-Meng Tan, authored two humorous and accessible books about the benefits of mindfulness and meditation: Search Inside Yourself (2012) and Joy on Demand (2016). You don’t,

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August/September 2017 I The Docket I 19

Seat at the Bar


By Doug Stevens and Jerry Pratt


s co-chairs of the Bench-Bar Committee for nearly 10 years, we have come to learn one thing above all else: Denver attorneys value the opportunity to interact with judges in an informal setting. Such discussions provide a unique chance for attorneys to get to know judges on a more personal level, which is different from the traditional courtroom encounter where the judge sits above the attorneys in full robe attire. It also provides the opportunity to obtain valuable tips for practicing in that judge’s courtroom. In our experience, judges also appreciate the occasion to learn how they could better accommodate the attorneys and parties appearing in their courtroom. For newer judges perhaps embarking on a docket for the first time, such discussions provide a rare chance to interact with highly experienced practitioners who could lend insight into the nuances of that area of the law. 20 I The Docket I August/September 2017

Traditionally, our committee has hosted quarterly events ranging from a couple of hours to half-day “retreats” on a Saturday morning — all with the focus of building collegiality and improving the relationship between Denver-area judges and lawyers. With the committee’s Courtroom Chats, we have tried to build upon this goal by launching a monthly discussion series in which judges from all of Denver’s state courts host an hour-long session with a small group of attorneys to discuss various topics involving the practice of law in their courtroom. So far, the series has been remarkably successful. The first presentation was hosted by Denver County Court Judges Beth Faragher and Olympia Fay and was titled, “What to Expect During a Denver County Court Criminal Case.” They spoke about the nuts and bolts of litigating criminal cases in the Denver County

Court. The event was highly interactive and served as a great benchmark for the series moving forward. The second installment of the series was, “Civil Litigation Practice in the Denver District Court.” District Judge Elizabeth Starrs, who previously served as a longtime civil litigator, spoke before a packed audience about various topics, including handling discovery disputes, dealing with pro se parties and general case management issues.

“Denver attorneys value the opportunity to interact with judges in an informal setting.” The third “Chat” was hosted by Denver County Court Judges Adam Espinosa and Clarisse Gonzales and had a heavy ethics focus. At the time of this presentation, both judges were assigned to the General Sessions Division and were handling Denver Municipal Code violations. The discussion covered the practice of law in the Denver County Court, as well as in the General Sessions Division. Judge Espinosa, who is a former senior trial attorney for the Colorado Supreme Court Office of Attorney Regulation Counsel, also discussed the Rules of Professional Conduct in an interactive question-and-answer format and covered ethical considerations in the practice of criminal law in his court. Demonstrating the breadth and diversity of topics selected for the “Chats,” District Judge Karen Brody spoke in April about successfully litigating domestic matters in the Denver District Court. Judge Brody has a background in commercial litigation. The event featured lively discussions between Judge Brody and experienced domestic practitioners about the day-to-day practice of domestic law in the Denver District Court. Judge Brody also talked about the challenges of becoming as fluent as possible in this area of the law, notwithstanding her background in commercial litigation. One of the presentation’s takeaways was that in the Denver courts, judges are often as reliant on the attorneys as the attorneys are on them to honestly and effectively discuss the law. The latest “Chat” was led by two experienced Colorado Court of Appeals judges: the Honorable John Webb and the Honorable Terry Fox. The “Chat” was titled, “Maximizing Success on Appeal: Effective Briefs and Oral Arguments.” Approximately 15 attorneys attended the event held in the Ralph L. Carr Colorado Judicial Center’s Supreme Court Conference Room. In keeping with the goal of these sessions, the event featured interactive and informal discussions about these critical areas of successful appellate practice in the Court of Appeals. Further enhancing the presentation was the presence of a third Court of Appeals judge, the Honorable Rebecca Freyre, who also contributed her own perspective. The Bench-Bar Committee is already putting together an exciting lineup for the remainder of the year following a brief summer hiatus. Colorado Supreme Court Justice Richard Gabriel

is tentatively scheduled to lead the September 14 discussion in the Supreme Court Conference Room at the Ralph L. Carr Colorado Judicial Center. He will discuss effective practices in Colorado’s highest court, including the petition for certiorari process, effective brief writing and professionalism. Be sure to look for additional information about this program as the date approaches. The committee is working to identify one or more Denver District Court judges to lead a presentation in October about the challenges to attorneys and judges associated with the District Court’s transitioning of judges from one docket to another (i.e., civil to criminal to domestic). Look for more details on this front as well. Other presentations in the works for the coming months include a discussion about the practice of law in the Denver Juvenile Court, a chat covering practice in the Denver Probate Court and another event about the practice of law in the Denver County Court. We anticipate that these events will occur from 7:45 to 8:45 a.m. on the second Thursday of the month in Courtroom 4B of the Lindsey-Flanigan Courthouse. However, be sure to read the D-Brief for the latest information. In addition to the great educational and networking opportunities associated with these “Chats,” they are also one of the best buys available to Denver-area attorneys. For only $10, CBA and DBA members receive breakfast, coffee and a CLE credit. Stay tuned for more information about these upcoming events so that you can RSVP as soon as possible. To ensure the event maintains the small discussion format that it is intended to provide, attendance is usually capped at the first 25 people to respond, and registration has closed for a couple of the chats already. Thank you for your continued support of the Bench-Bar Committee as we continue to work hard to build upon the strong relationships that already exist between Denver’s attorneys and judges. D

If you have any questions or suggestions for future Courtroom Chats or other events, please feel free to contact the Bench-Bar Committee’s co-chairs, Doug Stevens of Caplan and Earnest LLC, at and Jerry Pratt of the Law Office of Gerald D. Pratt at DOUG STEVENS


August/September 2017 I The Docket I 21

SOLO NOT ALONE Consulting Lawyers and Other Professionals When Starting Your Own Law Firm

By Damian J. Arguello


here is an old adage that virtually every lawyer has heard: A lawyer who represents himself or herself has a fool for a client. This can be especially applicable when a lawyer decides to open up his or her own practice. There are a multitude of steps that any new business owner must take to be successful. From securing financing to organizing the corporate entity to writing a thorough business plan, starting a new law firm warrants a mountain of administrative work. Because one of the main focal points is to control costs, it is tempting to try to save money by performing as much of the administrative work yourself as you can. Lawyers are typically fast learners. Thus, lawyers starting their own practice often try to perform as much of the admin22 I The Docket I August/September 2017

istrative work as they can themselves, especially if they are tech savvy. Lawyers are, after all, naturally adept at problem-solving. As lawyers, we tend to think that we can learn any area of the law quickly and that we don’t need to hire lawyers to provide legal advice for our own startup practices. That’s an incorrect assumption, however. The hidden traps that a lawyer can run into can be fatal to a new practice. For example, I found that it pays to hire lawyers in certain practice areas to provide much-needed advice early on. Just as you would advise a client starting a new business to seek legal advice in areas affecting that business, I found that it was worthwhile to have the same kind of advice myself. I decided to operate my new practice under a trade name

instead of under my own name. I knew that practicing under a trade name was something traditionally frowned upon or, in some cases, prohibited. However, I was aware of the fact that using trade names for a legal practice had recently become permissible in Colorado and certain other states. I had also heard such trade names for a variety of law firms on radio commercials. It occurred to me that my practice might be more successful if it used a trade name, as some find my surname difficult to pronounce and much of my previous practice had been out of state. Still, I knew that there were ethical issues involved in practicing under a trade name. Accordingly, I did a little research concerning the Colorado Rules of Professional Conduct to educate myself about these issues. I felt that I was on reasonably solid ground to use the trade name that I had chosen. I had also worked with a graphic designer to create a logo and brand style for my new law firm. Afterward, I was uncertain about whether the combination of the trade name and logo would be confusing for prospective clients. My research had indicated that Colo. RPC 7.5 allowed a lawyer to use a trade name in private practice if that name “does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of Rule 7.1.” So, I decided to consult an attorney whom I knew had previously practiced in the Colorado Supreme Court Office of Attorney Regulation Counsel. That was a very smart move. My ethics lawyer confirmed my conclusion that the trade name I had chosen was generally acceptable under the Rules of Professional Conduct. However, she, too, shared my concern that the combination of my trade name and logo could be challenged as potentially confusing to clients. Therefore, she recommended that I include a tagline disclaimer under my logo and trade name to clarify that my practice was a private law firm — not a governmental agency or nonprofit organization. While she felt that any complaints to Attorney Regulation Counsel about my trade name and logo without the tagline disclaimer would be unsuccessful, she believed such complaints would be more defensible if we used the tagline. My ethics lawyer also informed me that many challenges to trade names that the Office of Attorney Regulation Counsel fields come from competitors in the same practice area. Thus, she felt that any complaints to Attorney Regulation Counsel could be handled by having a letter from her opining that the trade name and logo combination with the tagline complied with the Rules of Professional Conduct. She also gave me another piece of great advice: Confer with intellectual property counsel. Her reasoning was twofold: First, this would confirm that we were not infringing on any trademarks or other intellectual property rights with the logo that I had chosen for the firm; and second, this would help us take the proper measures to prevent someone else from infringing upon our own intellectual property rights. While I was conversant in the Rules of Professional Conduct, I knew very little about intellectual property law. I reached out to an intellectual property attorney who had garnered solid endorsements from a number of people posting on the CBA’s Solo Small Firm Section Listserv. That attorney was able to con-

firm that we were not infringing on any existing trademarks with our logo. He was also able to help me seek protection for my firm’s logo and slogan from the United States Patent and Trademark Office. We also registered the logo and slogan with the Colorado Secretary of State’s office. Beyond hiring attorneys, I also learned that it makes good business and financial sense to hire other qualified professionals as well. For example, I hired an accountant, a bookkeeper, a marketing consultant, a website developer/administrator and a graphic designer. While I am perfectly capable of doing certain kinds of administrative work, such as entering transactions into QuickBooks, I have found that it is easy to get bogged down in

“GOING SOLO DOESN’T MEAN DOING IT ALONE.” these administrative tasks, leaving you fewer hours to perform the crucial duties of serving clients, marketing the practice and spending quality time with those you care about the most. I have also learned that, as with virtually any business or legal project, you secure better results through teamwork. Having a team of associated professionals working to make your practice successful not only increases the odds of success, it also helps alleviate some of the loneliness and isolation that solo practitioners (and lawyers in general) can experience. Going solo doesn’t mean doing it alone. I’ve found that strategically getting help from lawyers and other professionals really pays off, especially in the peace-of-mind currency. D

Damian J. Arguello is the founder and principal of Colorado Insurance Law Center, a private law firm dedicated to representing business and individual policyholders. He is a former claims adjuster and claims manager. Previously, he was a partner at Davis Graham & Stubbs LLP and of counsel to Levin Sitcoff PC. He can be reached at

August/September 2017 I The Docket I 23

Ethics Column

Eleven Principles Related to the Duty to Report the Misconduct of Another Lawyer

By Alec Rothrock


eporting the misconduct of a fellow attorney to the Office of Attorney Regulation Counsel (OARC) is serious and personal business. Even apart from the outcome, the disciplinary process is a dark cloud to live under. For most lawyers, filing a grievance is distasteful, to say the least. To be sure, lawyers are free to report another lawyer to OARC even if they have no duty to do so. Lawyers need not meet a standing requirement in order to report misconduct, and lawyers who report to OARC are entitled to broad, though not unlimited, civil immunity.1 This article discusses the circumstances in which lawyers do, may have or do not have a duty to report. The article sets forth 11 24 I The Docket I August/September 2017

principles followed by analysis. As a point of reference, the article begins with the text of the primary part of Colo. RPC 8.3(a): “A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.”2 1. A lawyer’s failure to report another lawyer’s misconduct may subject the non-reporting lawyer to attorney discipline. It is statistically rare for lawyers to be disciplined for failing

ing obligations imposed on Colorado lawyers by the Colorado Supreme Court are the duty to self-report a criminal conviction entered against them and the duty to self-report any attorney discipline imposed on them in another jurisdiction (Colo. RPC 251.20-21). 3. Lawyers have no duty to report another lawyer’s misconduct of which they have no actual knowledge, but since actual knowledge may be inferred in the circumstances, the standard is whether a reasonable lawyer would have actual knowledge. The duty to report arises only when a lawyer “knows” of another lawyer’s misconduct. “Knows” is defined to mean actual knowledge of the facts constituting the misconduct (Colo. RPC 1.0(f )). However, the same definition provides that a “person’s knowledge may be inferred from circumstances”: “[T]he ‘knows’ standard thus begins to merge with the ‘should have known’ standard.” 5 Although interpretations vary, the prevailing view is that whether a lawyer possesses actual knowledge is to be determined by an objective standard, i.e., whether a “reasonable lawyer under the circumstances would have formed a firm opinion that the conduct in question had more likely than not occurred.”6 Whether a lawyer has “personal knowledge” is not the standard because that question is subjective in nature.7 For example, one court found that a lawyer possessed actual knowledge because he was in possession of documents that raised more than a “mere suspicion,” though less than “absolute certainty,” that another lawyer had engaged in certain misconduct.8 CBA Formal Ethics Committee Opinion 64 states, “[w]hen an attorney is informed of an alleged ethical violation by a communication from a third party whether from a client, a fellow attorney, or otherwise but has no other information concerning the alleged violation, the attorney does not possess knowledge triggering the duty to report and does not have a duty to investigate these allegations.”9 Although CBA Opinion 64 represents the consensus view that there is no duty to investigate, one author appropriately observes that Rule 5.1, which deals with the supervisory duties of law firm “partners” (defined to include owners of professional companies), may impose on law firm partners a duty to investigate certain other lawyers in the firm.10

to report the misconduct of another lawyer. Yet it has happened. The most prominent case is In re Himmel, 533 N.E.2d 790 (Ill. 1988), in which a lawyer was suspended for one year for failing to report the fact that the client’s former lawyer converted the client’s settlement funds. 3 2. Lawyers have no duty to report their own misconduct. Lawyers have no duty to report their own misconduct. Period.4 The only misconduct that a lawyer must report is that of “another lawyer.” In some instances, it is strategically prudent for a lawyer to self-report her own misconduct, but this should not be confused with an ethical duty to report. The only self-report-

4. A lawyer’s knowledge that another lawyer has violated a Rule of Professional Conduct does not necessarily trigger a duty to report. Having knowledge that another lawyer has violated a Rule of Professional Conduct does not necessarily trigger a duty to report.11 To trigger a duty to report, the misconduct must “raise [] a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects” (Colo. RPC 8.3(a)). For example, the mere filing of a motion to disqualify opposing counsel based on an alleged conflict of interest under Rule 1.7 does not necessarily mean that the moving lawyer is also required to report the conduct to bar counsel. This phrase contains both qualitative and quantitative components. Qualitatively, not all violations of the Colorado Rules of Professional Conduct reflect August/September 2017 I The Docket I 25

adversely on a lawyer’s (a) “honesty,” (b) “trustworthiness” or as examples the reporting of a lawyer employed by a company (c) “fitness as a lawyer in other respects.” For example, a lawor law firm in a non-lawyer capacity; a lawyer employed by a yer’s knowledge that another lawyer has failed to reconcile her law school faculty who reports the misconduct of another such trust account records at least quarterly, in violation of Colo. RPC employee; the reporting of a lawyer who engages in criminal 1.15C(c), or to confirm in writing the fee agreement of a new cliconduct; and the reporting of a lawyer who submits false inforent, in violation of Colo. RPC 1.5(b), would not likely trigger a mation on an employment or insurance application or who duty to report. Standing alone, the other lawyer’s conduct may submits a false insurance claim.19 reflect poorly on her knowledge of the Colorado Rules of Professional Conduct pertaining to trust accounts and fee agreements 6. Lawyers having a duty to report may not be required to 12 but not on her honesty or trustworthiness. report the misconduct immediately, and in some situations, Nor would the other lawyer’s conduct be likely to reflect they should wait to report it. adversely on the other lawyer’s “fitness as a lawyer in other Colo. RPC 8.3 is silent on the issue of when a lawyer must respects.” This nebulous phrase includes legal competence.13 report another lawyer’s misconduct. The prevailing view nationIt also signifies something akin to professional rectitude, the ally is that “reporting should be made ‘promptly.’”20 On this absence of which “lessens public confidence in the legal profespoint, CBA Opinion 64 advises lawyers to “balance the potential sion.”14 This is the professional equivalent of “I know it when I prejudice or damage to the client against the attorney’s duty to see it.” report, . . . and . . . report the violation as soon as practical, bearing The quantitative component is that, if the conduct reflects in mind the attorney’s duties to his/her client and the judicial poorly on at least one of these three qualities, it must raise a system.”21 “substantial question” in the mind of the lawyer considering CBA Opinion 64 goes on to discuss whether a lawyer should whether she has a duty to report. The word “substantial” means report another lawyer involved in a pending action, acknowla “material matter of clear and weighty importance” (Colo. RPC edging that doing so “potentially adds a collateral issue which 1.0(l)). It “refers to the seriousness of the possible offense and not can adversely affect the fair or orderly conduct of the proceedthe quantum of evidence of which the lawyer is aware” (Cmt. ings.”22 Somewhat cryptically, the opinion seems to conclude [3], Colo. RPC 8.3). “Whether an that, unless the other lawyer’s conattorney has a ‘substantial quesduct would constitute grounds tion’ about a colleague’s honesty, for immediate suspension under trustworthiness, or fitness to pracReporting the misconduct of a what is now C.R.C.P. 251.8, “it is tice law is a subjective test that usually appropriate to wait to file fellow attorney to the Office of Attorney requires a determination of what the request for investigation until the attorney’s actual belief was at Regulation Counsel (OARC) is serious.” the conclusion of the proceeding. the time.”15 . . .”23 Grounds for immediate susFor example, CBA Formal pension include conviction of a Ethics Committee Opinion 124 serious crime, conversion of client concludes that a lawyer’s knowledge of a “materially impaired” funds and abandonment of clients (C.R.C.P. 251.8 (a)). lawyer’s failure to decline or terminate representation of clients CBA Opinion 64 also mentions another reason why lawyers would “ordinarily” raise a substantial question in the mind of should ordinarily wait to report until the proceeding has ended. the first lawyer about the second lawyer’s “fitness as a lawyer in Lawyers who file a grievance against opposing counsel during other respects,” thereby triggering a duty to report the impaired the pendency of the case risk a grievance by opposing counsel on lawyer. 16 Although the CBA Ethics Committee’s conclusion the grounds that the reporting lawyer violated Colo. RPC 4.5(a). came in the context of another lawyer’s impairment through In relevant part, that Rule states that a lawyer may not “present marijuana as affecting her professional performance, the other or participate in presenting . . . disciplinary charges solely to lawyer’s impairment could just as easily result from the use of obtain an advantage in a civil matter.” 24 “Retaliatory” grievances other substances, such as alcohol or prescription medications, often lack merit and represent nothing more than a cynical, misor from a debilitating mental condition. Law firm lawyers havguided tactic to level the disciplinary playing field. ing knowledge of the material impairment of a colleague may be able to avoid the unpleasant task of reporting a colleague by 7. A lawyer who learns of another lawyer’s misconduct during taking “reasonable steps to ensure that the impaired lawyer comthe course of a representation may not report it if Colo. RPC plies with the ethics rules.”17 1.6 would prohibit disclosure of the necessary information. A lawyer may not report another lawyer if Colo. RPC 1.6 5. A duty to report may arise even if the alleged misconduct would prohibit disclosure of the necessary information. Colo. occurs when neither the reporting lawyer nor the potentially RPC 8.3(c). Colo. RPC 1.6(a) requires lawyers to treat as confireported lawyer is engaged in the practice of law. dential “information relating to the representation.” The phrase A lawyer may have a duty to report another lawyer even “information relating to the representation” includes but goes when the misconduct occurs purely outside the practice of law.18 well beyond communications protected by the attorney-client An ABA Formal Ethics Opinion dealt with the duty to report misprivilege. Colo. RPC 1.6(a) “applies not only to matters commuconduct by a lawyer not engaged in the practice of law. It gives nicated in confidence by the client but also to all information

26 I The Docket I August/September 2017

relating to the representation, whatever its source” (Cmt. [3], Colo. RPC 1.6). As a practical matter, when reporting another lawyer’s misconduct would require disclosure of information protected under Rule 1.6, Rule 8.3(c) gives clients a right to veto the reporting. “Stated more bluntly, Rule 1.6 trumps Rule 8.3.”25 In such circumstances, a lawyer is encouraged to urge the client to consent to the disclosure, provided that reporting the misconduct would not “substantially prejudice the client’s interests.”26 Client consent would not be necessary if an exception to Colo. RPC 1.6 permitted or required disclosure, but it is difficult to conceive of an exception that would authorize disclosure to bar counsel, as opposed to other persons. 8. OARC is an “appropriate professional authority” to which a lawyer may report another lawyer’s misconduct, but it may not be the only appropriate professional authority. Colo. RPC 8.3(a) requires lawyers to inform the “appropriate professional authority.” CBA Opinion 64 states that lawyers may report misconduct to the Colorado Supreme Court Office of Disciplinary Counsel. The successor to that office is the OARC. A Comment to Rule 8.3 states that “[a] report should be made to the bar disciplinary agency unless some other agency, such as a peer review agency, is more appropriate in the circumstances.”27 Reporting misconduct to a tribunal or to a lawyer assistance program, such as the Colorado Lawyers Assistance Program (COLAP), is generally considered insufficient to discharge the duty.28 The Committee on Conduct of the United States District Court for the District of Colorado is probably an appropriate professional authority for purposes of reporting misconduct related to a federal case.29 By the same reasoning, if the lawyer who engaged in the misconduct is not admitted to practice in Colorado, or her misconduct occurred in another jurisdiction in the course of representing a client, it would be sufficient to report the lawyer, respectively, to an appropriate disciplinary agency in a jurisdiction where the other lawyer is admitted to practice or in the jurisdiction where the misconduct occurred. 9. The duty to report is applicable even if the lawyer to be reported is under suspension, on inactive or disability inactive status, or is not admitted to practice law in Colorado. The duty under Rule 8.3(a) to report “another lawyer” is applicable even if that other lawyer is not authorized to practice law in the jurisdiction, whether because she is on a form of inactive status; she is under disciplinary or administrative suspension; or she is admitted to practice law only in other jurisdictions.30 There is no duty to report a disbarred lawyer, because disbarred lawyers, having been removed from the roll of attorneys, are not lawyers anymore.31

10. A lawyer still has a duty to report even if the other lawyer already has been reported by someone else. Nothing in Colo. RPC 8.3 relieves a lawyer from reporting another lawyer’s misconduct, when required, because someone else has done so already.32 However, while encouraging lawyers to “err[ ] on the side of ensuring that all necessary information is reported,” one ethics committee encourages lawyers to exercise a “good measure of judgment” to avoid a “proliferation of cumulative reports.”33 “If an attorney is confident that a complete and accurate report of another attorney’s misconduct already has been made to bar authorities sufficient to trigger an appropriate investigation under the circumstances, there is no reason to require an additional, superfluous report.” 34 11. A lawyer is not required to report when the other lawyer consults the first lawyer about the misconduct or when the lawyer learns of the misconduct through service on a “lawyers’ peer assistance program” approved by the Colorado Supreme Court. The duty to report “does not apply to a lawyer retained to represent a lawyer whose professional conduct is in question” (Cmt. [4], Colo. RPC 8.3). Nor does it apply when the lawyer learns of the misconduct when participating in a “lawyers’ peer assistance program” approved by the Colorado Supreme Court. The “lawyers’ peer assistance programs” include the CBA Ethics Committee, COLAP and CLHL. D Alec Rothrock is a shareholder with the Greenwood Village law firm of Burns Figa & Will, P.C. and an adjunct professor of legal ethics at the University of Denver Sturm College of Law. Rothrock is a former chair of the Colorado Bar Association Ethics Committee and can be reached at August/September 2017 I The Docket I 27

NOTES 1 See C.R.C.P. 251.32(e) (immunity); People v. Rasure, 202 P.3d 1215 (Colo. PDJ 2007) (violation of immunity rule where lawyer sued lawyers in federal court for filing grievance against him or providing related information to OARC). 2 Colo. RPC 8.3(a). 3 See also V. Johnson, “Legal Malpractice Litigation and the Duty to Report Misconduct,” 1 St. Mary’s J. Legal Mal. & Ethics 40 n. 19 (2011) (collecting cases in which lawyers have been disciplined for failing to report other lawyers’ misconduct). 4 Annotated Model Rules of Professional Conduct 663 (ABA 8th ed. 2015) (collecting authorities). 5 Attorney U v. Mississippi Bar, 678 So.2d at 972 (quoting G. Hazard, Jr., and W. Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct § 402 (1993)). 6 American Bar Association (ABA) Formal Op. 04-433, “Obligation of a Lawyer to Report Professional Misconduct by a Lawyer Not Engaged in the Practice of Law” (Aug. 25, 2004) (citations omitted). 7 Attorney U v. Mississippi Bar, 678 So.2d 963, 972 (Miss. 1996). 8 Skolnick v. Altheimer & Gray, 730 N.E.2d 4, 14-15 (Ill. 2000). 9 CBA Formal Ethics Op. 64, “Duty of Attorney to Report an Ethical Violation,” adopted April 23, 1993, revised June 15, 1996, 26 The Colorado Lawyer 180, 181 (June 1997) (CBA Opinion 64); see 678 So.2d 963 (client’s uncorroborated statement to lawyer that he entered into unethical fee-splitting arrangement with another lawyer insufficient to trigger duty to report). 10 A. Greenbaum, “The Attorney’s Duty to Report Professional Misconduct: A Roadmap for Reform,” 16 Geo. J. Legal Ethics 259, 293-94 (Winter 2003). 11 See Cmt. [3], Colo. RPC 8.3 (prior rules in many jurisdictions requiring lawyers to report every Rule violation proved “unenforceable”). 12 See 2 Hazard, Jr. et al., The Law of Lawyering § 64.3, at 64-6 (3d ed., 2012 Supp.) (“Merely technical violations of the conflict of interest rules . . . would not qualify [under Rule 8.3], whereas destruction of evidence under subpoena, suborning perjury, or self-dealing with trust funds assuredly would.”). 13 See CBA Formal Ethics Op. 124, “A Lawyer’s Medical Use of Marijuana,” adopted April 23, 2012, addendum December 10, 2012. (For a lawyer’s personal use of marijuana to be in violation of federal law but in compliance with state law does not, in itself, reflect adversely on lawyer’s fitness as a lawyer.) 14 Iowa Sup. Ct. v. Marcucci, 543 N.W.2d 879, 882 (Iowa 1996); see also ABA Formal Op. 08-453, “In-House Consulting on Ethical Issues” (Oct. 17, 2008) (“It generally is agreed that reporting under [Rule 8.3] is required only when the conduct in question is egregious and ‘of a type that a self-regulating profession must vigorously endeavor to prevent.’”). 15 Board of Overseers of Bar v. Warren, 34 A.3d 1103, 1110 (Me. 2011). 16 CBA Opinion 124 at 30 (citing ABA Comm. on Ethics and Prof. Resp., Formal Op. 03-431 “Lawyer’s Duty to Report Another Lawyer Who May Suffer from Disability or Impairment,” n. 6 (2003)). 17 Id. 18 ABA Formal Op. 04-433, “Obligation of a Lawyer to Report Professional Misconduct by a Lawyer Not Engaged in the Practice of Law” (Aug. 25, 2004) (ABA Opinion 04-433). 19 Id. 20 South Carolina Bar Ethics Advisory Committee (July 18,

28 I The Docket I August/September 2017

2016), 2016 WL 6659131. 21 Id. See also 26 The Colorado Lawyer at 181 (June 1997). 22 Id. 23 Id. 24 Colo. RPC 4.5(a). 25 ABA Opinion 04-433. 26 Cmt. [2], Colo. RPC 8.3. 27 Id. 28 Annotated Model Rules of Professional Conduct 666 (ABA 8th ed. 2015) (collecting authorities). 29 2 Hazard, Jr. et al., The Law of Lawyering § 68.06, at 68-17 (4th ed. Supp. 2017). 30 Annotated Model Rules of Professional Conduct 663 (ABA 8th ed. 2015) (collecting authorities). 31 Illinois Op. 88-17 (May 10, 1989); but see In re Tolchinsky, 740 So.2d 109 (La. 1999) (disbarring attorney for, inter alia, failing to report disbarred lawyer-employee). 32 See Himmel, 533 N.E.2d at 792 (client’s complaint of misconduct to Illinois bar counsel no defense to duty of lawyer with knowledge of same misconduct to report it). Cf. In re Hickox, 57 P.3d 403, 407-08 (Colo. 2002) (lawyer’s ex-wife’s report of his criminal conviction to OARC did not relieve him of duty to report pursuant to C.R.C.P. 251.20(b)). 33 Arizona Supreme Court Judicial Ethics Advisory Committee Opinion No. 90-13, n. 8, 1990 WL 10521402 (Oct. 16, 1990). 34 Id.

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DBA Member Highlight

10 QUESTIONS: KWALI FARBES the opportunity to work with the curator of the African Collection in the Anthropology Department at the American Museum of Natural History in New York City. I noticed that I was much more interested in the objects that were used in daily life, which is the hallmark focus of a folklorist. Like anthropologists, folklorists are interested in people, the culture they create and the way that culture is articulated around the world. Cultural differences play themselves out in so many ways. I think an understanding of basic ethnographic principals has been helpful in facilitating difficult discussions and seeking an understanding of the points of view of both my colleagues and my clients.

1. Why did you become a lawyer? I wanted to have work that is intellectually challenging and to have an opportunity to give back to my community. 2. What’s the best advice you’ve ever been given? Someone once told me that the only constant in life is change. The way you react to change, which is all you can control, will significantly impact your quality of life. 3. What have been some of the most rewarding aspects of your work as a Senior Assistant City Attorney? I have some really wonderful colleagues, and I feel lucky to be able to work so collaboratively with them. I’ve also had the opportunity to work on some transformative projects, including the implementation of the new dedicated affordable housing fund. In addition, I helped develop the contract that provided a sustainable potable water supply to Red Rocks and participated in policy discussions about the redevelopment of the Denver Performing Arts Complex. 4. What are your hobbies outside of the law? I love to read, hike and quilt. I started practicing yoga two years ago, and it has become my favorite way to start the day. 5. What inspired your interest in folklore and the arts and how have you been able to apply your knowledge at the City Attorney’s Office? I interned with the curator of the Pre-Columbian Collection at the Denver Museum of Nature and Science (then known as the Denver Museum of Natural History) during the summer after my junior year in college. One day, the curator pointed out a potter’s fingerprint on a bowl that was made in 1000 AD. The fingerprint made the potter so real to me that I wanted to learn more about the potter and other craftsmen of the period. After college, I had

6. What is your favorite travel destination? My husband and I were married in New Orleans in December. New Orleans is an amazing place, and each year we try to go back to explore a little bit more of the city. Where else would there be a 4-foot-tall joey kangaroo in the women’s locker room of a yoga studio? 7. What is your biggest pet peeve? When people disagree by being disagreeable. We’re lawyers. We get paid to disagree with the other side, but being disagreeable just makes things harder for everybody. 8. If you could change anything about Denver, what would it be? I would make Denver a place where all people from all walks of life could afford to live. I can’t believe how expensive it has become to live here! 9. What is your favorite play or musical and why? I love The Brothers Size because it combines my folkloric and anthropological interests and is beautifully written and acted. 10. If you weren’t a lawyer, you’d be: I’ve always wanted to be an elementary school teacher. D Hometown: Denver, Colorado. Lives in: Capitol Hill. Lives with: My husband and the two plants that we haven’t managed to kill yet. Works at: City Attorney’s Office, City and County of Denver. Practices in: Finance, contracts and municipal law. Law school: University of Colorado School of Law.

EDITOR’S NOTE: Do you know a DBA member who should be featured? Email nominations to Jessica Volz at

August/September 2017 I The Docket I 29



igning a lease for your company is exciting, but after the initial thrill dies down and some time passes, it is possible that you may find yourself looking for an exit plan for a number of reasons. Most commonly, a commercial tenant only wants out of a lease in two situations: (a) the tenant’s business is not going well, and the tenant is having difficulty affording the leased premises; or (b) the tenant’s business is flourishing and needs more space or a different type of space.

BEFORE THE FACT. As with many things in the business world, these issues are easiest to deal with if they are considered in advance. Ideally, a commercial tenant will think through all possible scenarios and make sure they are comfortable with all applicable provisions before entering into a contractual agreement. The following are some points to consider before you sign. If you negotiate carefully on these points, you will be in good shape if you decide to break your commercial lease early:

the franchisees of national business will step in to support the tenant. Once there’s a new tenant lined up who may even want the space longer than your current lease, your landlord is much more likely to let you out of a lease. (B) Be a squeaky wheel. Work the lease terms to demand every single repair or capital improvement/replacement possible to be at the landlord’s expense. As a general rule, landlords hate spending money on tenants. Being a highmaintenance tenant may make it more likely for the landlord let you go under better terms than provided for in the lease. (C) Play up the practicalities. Carefully explain to the landlord that something is better than nothing. Landlords don’t generally like having to sue tenants, especially in situations

These issues are easiest to deal with if they are considered in advance.”

(A) Include an escape clause/right to terminate (and end

liability under the lease) after a certain amount of time, or maybe anytime, for a termination payment or if the business fails to achieve a certain level of success. (Example: Restaurant and bar lease: Two years < $800,000 gross revenue.) Also consider a tenant’s right to terminate if property taxes increase more than a certain percentage. (B) Include broad rights to sublet and/or assign the lease. (C) Resist usage restrictions for the leased premises. (D) Resist including tenant covenants “not to vacate” and for “continuous operations.” (E) Use a separate entity (LLC) with no assets but the leasehold estate to be the tenant. (F) Resist giving personal guarantees.

AFTER THE FACT. In reality, lease terms often remain ignored altogether until the need to move out arises. At that point, many tenants will find themselves looking at the terms of their commercial leases for the very first time. If the lease does not include any escape clauses, you will need to consider practical options outside the lease document itself. Sometimes a perceived disadvantage, such as the lease language itself, can actually be an advantage in the right situation. Savvy tenants will find ways to leverage a seemingly bad lease to their benefit. Here are some practical tips to help you negotiate yourself out of that lease in spite of unfavorable legal language: (A) Offer up a replacement tenant. Regardless of the terms

of the lease, find a new tenant to sublet a portion of the leased premises or find a replacement tenant. In the current market, tenants are relatively easy to come by. And sometimes

30 I The Docket I August/September 2017

where the tenant is a failing business. Experienced landlords know that such tenants are usually not solvent and not worth pursuing; at best, the landlord ends up as one of several creditors in a bankruptcy case. As an alternative to this arduous experience, the landlord may be willing accept a small lump sum to terminate the lease and waive tenant’s liability. The long and the short of it is that the best way to get out of a commercial lease is to incorporate good exit language up front. However, if that time has come and gone, you’re not completely out of luck. By obtaining a stellar replacement tenant, being an annoying tenant and strategically negotiating with your landlord, you may still liberate your business from an unwanted commercial lease. D

Sara Sharp is an attorney at Sparkman + Foote LLP. She can be reached at sharp@sparkmanfoote. com.

John Koechel is senior counsel with Sparkman + Foote LLP, where he focuses his practice on real estate and related business matters. He is licensed to practice law in Colorado and Texas and can be reached at



By Mark Spitz


n recent years, data privacy has become a serious concern in our increasingly networked world. As more and more personal, health, financial and business data are stored electronically, the security of that data has come under attack from those seeking to steal sensitive information and profit from it. Two highly publicized cyberattacks this year — the “WannaCry”

attack in May and the “Peyta” attack in June — infected hundreds of thousands of computers worldwide, targeting governments, hospitals and businesses. One victim of the Peyta attack was the global law firm DLA Piper, which, like other victims, found its computer network and phone system paralyzed. Without access to these resources, employees could not use client files, email or August/September 2017 I The Docket I 31

the phone system for several days, resulting in lost revenue and, given that DLA Piper promotes its cybersecurity practice area, some damage to its reputation as well. The term “cybersecurity” has crept into our collective consciousness. Cybersecurity is often defined as the set of policies, procedures and technologies employed to protect electronic devices and computer networks from unauthorized access or attack. Cyberattacks against businesses large and small are frequently in the news. Among the better-known incidents are the 2013 attack against Target, which compromised the credit card data of more than 40 million customers, as well as attacks against Sony Pictures, Yahoo and Home Depot. In February 2017, a small Denver car wash business lost its customer records to an attack, and in March, Denver-based Chipotle Mexican Grill suffered a data breach. Hackers sell these customer records to criminals, who, in turn, use them to engage in identity theft, fraud and other illegal activities. Law firms are no exception to the wave of cyberattacks. In 2016, two large firms, Cravath Swaine & Moore LLP and Weil Gotshal and Manges LLP, were attacked, allegedly by Chinese hackers who sought information on pending acquisitions in order to carry on stock trading before the acquisitions became public.

What, then, should lawyers and law firms be doing to protect themselves and their clients?

While law firms may not maintain customer credit card, bank account or personal health information, as do other businesses, they do have a wealth of data that make them attractive targets. They store data on various types of transactions, corporate structuring, intellectual property, and tax and estate planning — to name a few. While attacks against large law firms make headlines, smaller firms are at even greater risk. The American Bar Association reported in its 2015 “Legal Technology Survey Report” that law firms with 10 to 49 attorneys were most often attacked, with firms having fewer than 10 attorneys ranked as the next most vulnerable. In 2015, hackers disabled the network of a 10-attorney Rhode Island firm, Moses Afonso Ryan, when one of the firm’s attorneys opened an email from an unknown source, allowing malicious software to lock up their network. This resulted in the loss of more than $700,000 in billings over a three-month period because the firm could not gain access to its data, files and records. The firm paid more than $25,000 in “ransom” to get the hackers to decrypt the network and is now in litigation with its insurance carrier over coverage. The consequences of a breach can be serious and expensive. 32 I The Docket I August/September 2017

A 2016 study by the Ponemon Institute, an independent research organization, found that a breach costs an organization an average of $220 per compromised record, which can cripple the resources of a smaller organization. The consequences of a breach can include some or all of the following: • Potential lawsuits, including class action suits from customers and other affected parties. • Enforcement actions by federal or state regulatory bodies, such as the Federal Trade Commission for consumer information, Health and Human Services for personal health information, or the Securities and Exchange Commission for public companies. • Obligation to notify affected customers under state notification statutes, in effect in 48 states, along with paying for credit monitoring services. • Lost revenue due to lack of access to critical data. • Cost of rebuilding the compromised network and restoring lost data. • Damage to reputation and brand. There is another consequence of data breaches specific to law firms, based upon the Colorado Rules of Professional Conduct. Colo. RPC 1.6(c) obligates a lawyer to “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” Comment 18 to Colo. RPC 1.6 explains that various factors will help determine if the efforts to prevent inadvertent or unauthorized disclosure are reasonable, including “the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, [and] the cost of employing additional safeguards, the difficulty of implementing the safeguards.” In addition, Colo. RPC 1.1 requires attorneys to provide “competent representation” to clients, and Comment 8 to Colo. RPC 1.1 states that to do so, lawyers must stay familiar with changes in “communications and other relevant technologies.” If a lawyer or law firm fails to implement reasonable measures to comply with these professional obligations, resulting in the loss of client information, that could be grounds for discipline. In addition to possible bar discipline, law firms suffering a breach open themselves to malpractice suits from clients. Why might law firms be vulnerable to hackers? Resources and attention are most often the reason. Many law firms, even larger ones, have not invested enough in their IT systems to make attacks more difficult. They may not see the need to budget for the most up-to-date technology, or may not realize their IT systems do much more than just create and store documents. In addition, widely-used mobile devices such as laptops, tablets, and smartphones are often more vulnerable than in-house systems. Finally, many attorneys are still intimidated by technology and just want to leave things to “the IT guy.” However, with the increasing awareness of cybersecurity issues, many clients are starting to evaluate outside law firms’ data security preparedness, with some even requiring firms to complete extensive questionnaires. The Association of Corporate Counsel has been

very active in this regard, and developed such a questionnaire. Law firms must be able to respond or risk losing business. As much as attorneys may believe cybersecurity is just a technology issue, however, it is not. Cybersecurity is an enterprise-wide risk issue and involves much more than IT measures such as firewalls and anti-virus software. What then should lawyers and law firms be doing to protect themselves and their clients? The best approach is a comprehensive one that includes policies, procedures and education in addition to technology solutions. It requires developing a comprehensive cybersecurity plan, which involves doing something that lawyers are already trained in: risk assessment. They need to determine what types of data they hold, the relative importance of the data, the consequences of losing access to it, and applicable laws and regulations. As part of the risk assessment, a law firm or business may also work with an IT company specializing in cybersecurity, which can identify vulnerabilities in the firm’s computer systems and recommend solutions. At that point, the firm can take steps to create an overall cybersecurity plan, which would include policies on system access, password protection, mobile device usage, remote access and incident response — just to name a few. An IT company can assist with implementing recommended upgrades, such as firewalls, malware detection, virtual private networks and network configuration. Finally, training is critical. An increasing number of breaches now occur as the result of some action, usually unintentional,

by an employee. This includes clicking on emails containing malicious software, poor password strength and other actions. Everyone in the firm needs to be trained on how to be a good “cyber citizen,” and that training needs to be repeated periodically in order to be effective. Making everyone in your firm aware of good cybersecurity habits is the best way to lower the risk of a breach that could cripple your practice. Hackers are not going away anytime soon; their methods are getting more sophisticated and change faster than the “good guys” can keep up. There is no way to be 100 percent hack-proof, but law firms and other businesses need to address the issue and take reasonable measures to protect themselves and their client and employee data. D

Mark A. Spitz is the founder of Spitz Legal Counsel LLC in Denver. He is a former general counsel who works with small and medium-sized companies on transactions, contracts, acquisitions and entity formation. He also advises clients on cybersecurity and data privacy planning and lectures and writes on issues related to data security. He can be reached at

COURTROOM SPACE The Colorado and Denver Bar Associations have secured space at the Denver City and County building in courtroom 117 for members’ use as a practice space. To reserve time email A 24-hour notice is recommended. The courtroom is available weekdays from 8 a.m. to 4 p.m. Courtroom 117 is not available on Tuesdays and Thursdays and every third Wednesday of the month.

August/September 2017 I The Docket I 33

DANGEROUS CLIENTS How to Protect Your Office From Current and Former High-Risk People

34 I The Docket I August/September 2017

By Dr. Steve Albrecht


ncidents of attorneys being shot or assaulted by angry clients have a long history in this country, as the patched-over bullet holes in many courthouses can attest. Whether these attacks occur on the street (e.g., in front of the courthouse in Van Nuys, California in 2003), in a law office (e.g., during a mediation in Phoenix in 2013), in a high-rise complex (e.g., the 1993 rampage at 101 California Street in San Francisco), or in a Miami law office as recently as November 2, 2016, these events should give every lawyer and legal office staffer good reason to think more about workplace and personal security. School shootings have led to significant changes in school security awareness. Like-

ment Investigations (1998) suggests we have more to be worried about from people who don’t threaten violence directly to the target than those who do. People who are the most dangerous often tell third-parties, such as co-workers or family members, about using violence — not the actual target. Don’t just focus on verbal threats; look for what you don’t hear. This includes body language that is seething and controlled (like a coiled snake) as opposed to visible or “all-or-nothing statements” that the person may say matter-of-factly or under his or her breath, like, “This isn’t over” or “You won’t like it the next time you see me.” These statements are more about posing a threat than making a threat. All threats are serious, but third-party threats are more likely to be carried out.

“ Safety in your office should not be judged just on the emotionality of the clients you have to see today but as an ongoing concern. ” wise, you should take past events where lawyers were attacked as your wake-up call. It’s easy to fall back on what Hollywood security expert and author of the bestseller The Gift of Fear (1997) Gavin de Becker calls the “Myth of No Past Problems” — the theory that because yesterday was boring in the office, today will be boring as well. This can lead to blind spots when it comes to problematic clients: “Well, Mr. Jones was relatively cooperative during the last two depositions, so he’s probably going to be mostly cooperative for the deposition today.” This overlooks the fact that today, Mr. Jones feels hopeless, helpless and furious. He believes time is running out as he faces a financial loss that he feels is caused by you or your firm. Safety in your office should not be judged just on the emotionality of the clients you have to see today but as an ongoing concern. You have a duty to protect yourself, your colleagues and your staff from harm by reading the warning signs of clients’ pre-attack behaviors, creating a more secure office environment, and setting better boundaries with current or former clients, who may switch from needy to belligerent. The following security approaches can improve the way you interact with difficult, entitled, and high-risk current or former clients:


PREPARE FOR HIGH-RISK MEETINGS, DEPOSITIONS OR MEDIATIONS WITH SECURITY PEOPLE AND PROTOCOLS. In the courthouse, you can have some confidence that people who come into your space have been screened for firearms. In your office, it’s difficult to ask angry clients (from either side) to leave their bags, purses, backpacks or briefcases outside the meeting room. And even if they do, we won’t know a violent client is carrying a weapon until we suddenly see it. One novel approach for seemingly high-risk client meetings is to hire an armed female plainclothes private investigator to sit in. You can introduce her as an office staff member. This is much different than hiring a burly ex-cop who still looks like what he was and can raise the emotional temperature when the angry person guesses why he is there.

TRAIN YOURSELF AND YOUR STAFF IN THE “BIG THREE” FOR AN ACTIVE SHOOTER IN THE BUILDING. Today, the national emergency response protocol for an active shooter in a workplace environment is: Run (Evacuate from the building quickly to a place of safety). Hide (Seek shelter with as many people as possible in a safe room that can be locked or barricaded, and wait for the arrival of law enforcement). Fight (Defend yourself and others with whatever you can find, including chairs, fire extinguishers or other objects). The City of Houston, in partnership with the Department of Homeland Security, created a six-minute Run-Hide-Fight video, which is useful to watch (

It sounds counterintuitive, but research from the United States Secret Service’s Protective Intelligence and Threat AssessAugust/September 2017 I The Docket I 35

TRACK THE COMMENTS, ACTIONS, OR BEHAVIORS OF IRRATIONAL OR THREATENING CURRENT OR FORMER CLIENTS. Pay attention to news stories and other accounts of antisocial behavior involving current or former clients. Don’t underestimate the accuracy of gossip. Scan the newspapers, talk to your colleagues and pay attention to your surroundings as you go through your daily home and work routines. Was this person just arrested for a drug, alcohol, weapons, trespassing, probation, parole or a TRO violation? Have they harassed other attorneys or their staff? Is there evidence of mental illness? Do you know of a “triggering event,” like a domestic violence arrest, divorce or a court decision against them? Have they just been fired or lost their benefits? Two equations can help us understand how current or former clients can turn homicidal toward attorneys: 1.

Legal Issues + Courthouse or Law Office Visits + Emotional People = The Potential For Lethal Violence.

36 I The Docket I August/September 2017


Economic Stress + Mental Illness + The Desire for Revenge = The Potential For Lethal Violence.

When angry current or former clients think you are responsible for all their financial, legal, marital, and emotional problems, it helps to engage in security thinking on a daily basis. D

Dr. Steve Albrecht is based in Monument, Colorado and is internationally known for his writing, speaking, and training efforts in workplace violence prevention and high-risk HR and security issues. His 17 books include Ticking Bombs (1994), one of the first business books on workplace violence, which features his prison interview with a double murderer. He can be reached at


Colorado Supreme Court Committee on Civil Jury Instructions

Colorado Jury Instructions for Civil Trials contains the complete text of the Instructions as adopted by the Colorado Supreme Court Committee on Civil Jury Instructions, as well as the “Notes on Use” and the “Source and Authority” annotations by the Committee. In the 2017 Edition: In addition to updating instructions and authorities throughout the book, notable changes in this 2017 edition include the following: A Table of Cases, Table of Statutes, and Subject Index Chapter 41, “Children’s Code — Dependency and Neglect,” Instruction 41:10 was deleted because of a Colorado Supreme Court case holding that C.R.S. 19-3-102(1)(c) does not require proof of parental fault to establish that a child is dependent and neglected when he or she is in an injurious environment n Chapter 25, “Bad Faith Breach of Insurance Contract,” a new Instruction 25:5 on insurer’s unreasonable denial or delay has been added

n n

TABLE OF CONTENTS Chapter 1 General Instructions Prior to or During Trial and Upon Discharge of Jury Chapter 2 Statement of the Case to be Determined Chapter 3 Evidence Chapter 4 Jury Deliberations; Verdict Forms Chapter 5 General Instructions Relating to Damages Chapter 6 Damages for Injuries to Persons or Property Chapter 7 Legal Relationships Chapter 8 Liability Based on Respondeat Superior Chapter 9 Negligence – General Concepts Chapter 10 Wrongful Death Chapter 11 Motor Vehicles and Highway Traffic Chapter 12 Premises Liability Chapter 13 Animals Chapter 14 Product Liability Chapter 15 Professional Liability Chapter 16 Bailors and Bailees Chapter 17 Malicious Prosecution and Abuse of Process Chapter 18 Trespass to Land Chapter 19 Deceit Based on Fraud Chapter 20 Assault and Battery

Chapter 21 False Imprisonment or Arrest Chapter 22 Defamation (Libel and Slander) Chapter 23 Extreme and Outrageous Conduct – Emotional Distress Chapter 24 Intentional Interference with Contractual Obligations Chapter 25 Bad Faith Breach of Insurance Contract Chapter 26 Breach of Fiduciary Duty Chapter 27 Civil Conspiracy Chapter 28 Invasion of Privacy Chapter 29 Colorado Consumer Protection Act Chapter 30 Contracts Chapter 31 Wrongful Discharge Chapter 32 [Reserved for Future Use] Chapter 33 [Reserved for Future Use] Chapter 34 Wills Chapter 35 Mental Health – Proceedings for Long-Term or Short-Term Care and Treatment of the Mentally Ill Under C.R.S. Title 27, Article 10 Chapter 36 Eminent Domain Chapters 37 - 39 [Reserved for Future Use] Chapter 40 Children's Code – Juvenile Delinquency Chapter 41 Children's Code – Dependency and Neglect




Item Number: ZCJICT17B CBA Member Price: $109 Non-Member Price: $129

Three Convenient Ways to Order: ONLINE AT: CALL: IN DENVER 303.860.0608 TOLL FREE 888.860.2531 STOP BY: Our office and save on shipping!

1900 Grant Street, Suite 300, Denver, CO 80203

August/September 2017 I The Docket I 37



s an intern for Metro Volunteer Lawyers (MVL), I can confirm that when clients show up for an MVL legal aid clinic, they are visibly distressed — their heads down and shoulders hunched. They take a seat and wait patiently for their turn. The tense silence fills the room with palpable anxiety. During the hour-long session with a volunteer attorney, a dramatic shift occurs. The stress starts to melt away. Relief washes over these individuals as they come to the realization that they are in good hands. Every once in a while, a smile slips out — maybe even a chuckle. In more rare occasions, some clients will reward their attorneys with a surprise hug or a kiss on the cheek at the end of their session. The metamorphosis can be so striking that it’s enough to move even the most cynical among us. MVL Director Toni-Anne Dasent says seeing the positive impact that pro bono work can have on clients’ lives is what drives her every day, and she wishes more attorneys could experience the inspiration she feels. “I don’t know if you can teach someone to have a calling. I think it’s born into you. Even in law school, I was involved with legal aid and donated my time there. My staff shares my passion, and they are the reason MVL is successful,” said Dasent. “We have the chance every day to serve a need, but this need will never be completely served.” Dasent took over the leadership role for the Denver Bar’s flagship pro bono program last August, and since then, her and her staff’s mission has been to increase the number of clients that 38 I The Docket I August/September 2017

MVL serves. Hard work and determination are already paying off. “Last year MVL helped about 1,300 clients. This year, we are on pace to help 1,600 clients or more,” said Dasent. “An example of this can be seen in Adams County, where last year, we helped 269 people, and this year we have already helped 207. So we could double our outreach in some of the five counties we service.” This positive growth comes as an existential threat looms over legal aid programs nationwide. The fear lies in whether the new administration will make substantial funding cuts to programs that help people in need gain access to the judicial system. Those cuts could severely impact MVL and Colorado Legal Services (CLS). “President Trump has made it clear he wants to cut all funding for legal aid,” said Dasent. “However, I am an optimistic person. I have seen more attention and more support for legal aid across the country. I will say the positive side of all this is that people are realizing the importance of programs like MVL and CLS.” Despite the possible funding cuts, Dasent is focused on MVL’s clients and getting more Denver area attorneys involved in pro bono work. In her view, the biggest obstacle for most attorneys seems to be the belief that they don’t have the skills to help MVL, which offers free and low-cost civil legal services to eligible individuals in need in the Denver area. “I think people are busy, but the excuse that ‘this is not really an area I practice in’ is really not an excuse. We provide training and mentoring, and it’s a great learning opportunity for young attorneys,” said Dasent, who added that malpractice insurance is also provided. “The big firms can also help us with promotion, fundraising and some of our clinics. Firms like Faegre Baker Daniels have set up pro bono coordinators and they conduct seminars and training to get their attorneys involved.” If you are interested in getting involved in MVL as an attorney, it’s as easy as visiting “If you see me or anyone else from the program in public, please come up to us and let us know,” said Dasent. “We are beyond grateful for the hundreds of volunteers who consistently provide pro bono services to this community on our behalf.” D

Graham Winch is a legal intern for MVL. He is a former CNN network producer, as well as a writer for He is currently looking for opportunities to practice law in Denver and can be reached at

August/September 2017 I The Docket I 39

LEGAL AFFAIRS GOOD THINGS Caleb Durling, a partner at Rollin Braswell Fisher LLC (RBF Law), is a member of the group of lawyers given the Colorado Lawyers Committee’s 2017 “Team of the Year” award for their work on the pro bono case, Center for Legal Advocacy v. Bicha. DURLING This case created systemic change in the way people with mental illness are treated when they are accused of committing crimes in Colorado. Otis, Bedingfield & Peters, LLC is proud to announce the promotion of attorney Brandy E. Natalzia to senior associate with the firm. “This promotion recognizes the outstanding contributions Brandy has made to the firm, her NATALZIA exemplary work, and her commitment to both the firm and her community,” says Senior Partner Fred L. Otis, Esq. Ireland Stapleton attorney Kira L. Suyeishi received The Governor Ralph Carr Award awarded by the Asian Pacific American Bar Association of SUYEISHI Colorado (APABA Colorado) and has also been named to APABA Colorado’s Board of Directors. CHANGES Welborn Sullivan Meck & Tooley, P.C. is pleased to welcome Geoffrey W. Storm to the firm as an associate. His practice will focus on regulatory matters before the Colorado Oil & Gas Conservation Commission. STORM Coan, Payton & Payne, LLC is pleased to announce that Elizabeth Cypers has joined the firm. Her practice is focused on all areas of estate planning, wills and trusts, probate and estate administration, elder law, business succession planning, real estate, and small and family-owned CYPERS businesses. Ryley Carlock & Applewhite is pleased to announce that Anne Zellner has joined the firm’s litigation practice group in Denver. Zellner has significant litigation experience in insurance ZELLNER coverage issues, mortgage-backed securities, oil and gas interests, and contract disputes. Lewis Brisbois is pleased to welcome Craig Mueller and Ian Walsworth to its Denver office as partners in the firm’s intellectual property and technology practice. Mueller’s practice focuses primarily on the preparation and prosecution of applications based on mechanical devices and

related processes, while Walsworth routinely engages in patent, trade secret, trademark, and copyright litigation and other alternative dispute resolution methods Ryley Carlock & Applewhite is also pleased to announce that Greg Angstadt has joined the firm’s water and environmental practice group. Angstadt’s law practice focuses on environmental ANGSTADT litigation and environmental permitting and compliance matters. Wells, Anderson & Race, LLC is pleased to announce that Hollis A. Ploen and Aaron L. Hayden have joined the firm as associate attorneys. Ploen’s practice focuses on research, general PLOEN civil litigation and insurance bad faith. Hayden’s practice focuses on general civil defense litigation, including bad faith, personal injury, premises liability and construction matters. Cordell & Cordell, the nation’s largest HAYDEN domestic litigation firm focusing on representing men in family law cases, recently hired associate attorney Andrea Dalton to its Denver team. Hoskin Farina & Kampf, P.C. is pleased to announce that attorney John J. Cyran recently joined the firm. Lathrop Gage is pleased to announce the election of Denver-based partner Patrick McRorie to the firm’s Executive Committee. His term began on July 1. BRICK AND MORTAR Ireland Stapleton Pryor & Pascoe, PC is pleased to announce that it has opened an office in Grand Junction, Colorado. Grand Junction attorney Jeffrey S. Hurd has also joined the firm as a director, and he will lead the firm’s new office. HURD Bloch & Chapleau is pleased to announce the change of the firm’s name to Bloch & Chapleau Cates Ongert. This change reflects the contributions of its partners Sara Cates and Trenton Ongert. IN MEMORIAM The bar associations were saddened to hear that attorney Barry Stuart Engel passed away on July 21 at the age of 63 after a courageous battle with pancreatic cancer. Those wishing to honor his life are welcome to make a donation in his memory to the Pancreatic Cancer Action Network: http//support.pancan. org/goto/barryengel.

If you are a Denver Bar attorney member and you’ve moved, been promoted, hired an associate, taken on a partner, received a promotion or award or begun service on a new board, we’d love to hear from you. Talks, speeches, CLE presentations and political announcements, due to their sheer number, cannot be included. In addition, The Docket cannot print notices of honors determined by other publications (e.g., Super Lawyers, Best Lawyers, etc.) again due to volume. Notices are printed at no cost but must be submitted in writing and are subject to editing and space available. Send all notices to Clair Smith at Announcements will be placed on a first-come, first-served basis. 40 I The Docket I August/September 2017

BAR RESOURCES THE DBA PEER PROFESSIONALISM ASSISTANCE COMMITTEE The following lawyers are willing to take calls on a confidential basis and offer guidance, tips and strategies for dealing with opposing counsel: July 1 â&#x20AC;&#x201C; August 31 Barry Meinster: 303-674-5977 Nick Jonson: 303-278-3078 Roger Castle: 303-839-8251 Ben Aisenberg: 303-861-2500 September 1 â&#x20AC;&#x201C; October 31 T.J. Carney: 303-526-9666 Fran Fontana: 303-468-2668 Helen Shreves: 303-777-7833 Steve McBride: 303-740-7422 COLAP 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). For more information, or for confidential assistance, contact COLAP at 303-986-3345 or visit DBA PLACEMENT SERVICE As a membership service of the Denver Bar Association, the Placement Service provides law firms and legal departments of corporations with well-qualified applicants. Its quality approach to cost-effective staffing has made the DBA Placement Service a favorite of the legal community since 1986. It provides temporary, temp-to-hire and full-time employment opportunities for secretaries, paralegals, receptionists, accountants, administrators and office assistants. Contact Mev Parsons or Amy Sreenen at 303-894-0014 or email

PICTURE THIS SPRING COLORADO BAR ADMISSION CEREMONY Hundreds of families, friends and distinguished members of the legal community gathered at Boettcher Concert Hall on May 30 for a special session of the Colorado Supreme Court to admit into practice those who passed the February Colorado bar exam. 1: CBA President Patricia Jarzobski speaks of the importance of community. 2: John Walsh delivering the keynote address. 3: A special session of the Colorado Supreme Court. 4: All lawyers stand as Chief Justice Nancy Rice administers the Oath of Admission. 4

August/September 2017 I The Docket I 41

PICTURE THIS DBA ANNUAL AWARDS CEREMONY AND RECEPTION Approximately 80 people gathered on June 20 at the Ralph L. Carr Colorado Judicial Center to applaud this year’s recipients of the Denver Bar Association’s most prestigious awards. The honorees were: Sheila Gutterman (Award of Merit); the Honorable Maria Teresa “Terry” Fox (Judicial Excellence Award); Robin Hoogerhyde (Young Lawyer of the Year); Jennifer Holt and Leo

Milan (Volunteer Lawyers of the Year); and the Colorado Attorney Mentoring Program (Outstanding Program Award). The ceremony took place in the Supreme Court Courtroom and culminated in the passing of the presidential gavel from Nancy Cohen to Franz Hardy. The event concluded with a reception in the atrium.

A successful passing of the gavel from Nancy Cohen to Franz Hardy.

Sheila Gutterman, John Baker, J. Ryann Peyton, Nancy Cohen, Robin Hoogerhyde, Jennifer Holt, Judge Terry Fox, Leo Milan and Franz Hardy.

CU LAW SCHOOL CELEBRATES 125TH ANNIVERSARY Approximately 250 University of Colorado Law School alumni, friends, faculty and staff gathered in the Gilbert Goldstein Courtyard of the Wolf Law Building to celebrate the school’s 125th anniversary. Chief Legal Counsel to Governor John W. Hickenlooper Jacki Cooper Melmed (’03) read aloud the proclamation issued by Governor Hickenlooper declaring June 8, 2017 to be the 125th Anniversary of University of Colorado Law School Day. Dean Jim Anaya then offered a poignant account of the law school’s journey from humble beginnings to its vision for the future.

Jacki Cooper Melmed reading the proclamation. 42 I The Docket I August/September 2017

DBA HAPPENINGS SENIORS SPRING BANQUET At a May 25 banquet at the University Club, the DBA honored those individuals who have reached 50 years of participation in the legal profession. The banquet featured remarks from DBA Seniors Committee Chair Leonard Plank and DBA President

Nancy Cohen. Members of the DBA Young Lawyers Division presented medals to each of the honorees in recognition of their accomplished careers and enduring dedication to the legal community.

The 2017 honorees in attendance at the Seniors Spring Banquet.

DU STURM COLLEGE OF LAW TO RECOGNIZE 2017 LAW STARS The University of Denver Sturm College of Law will recognize its 2017 Law Stars honorees at a gala event on November 2 at the Denver Marriott City Center. DU Law Stars is celebrating its 25th year of honoring distinguished alumni and faculty at this annual event. Proceeds from this year’s event will go to three worthy beneficiaries: the Denver Law Fund, which supports the Sturm College of Law’s most important strategic priorities; the law school’s nationally recognized clinics; and the Veterans Advocacy Project. The following individuals are receiving awards this year: Catherine J. Boggs, BA ’76, JD ’81 (Thompson Marsh Award); John Sadwith, JD ’79 (William L. Keating Outstanding Alumni Award); Adam Agron, JD ’98 (Robert H. McWilliams, Jr. Alumni Professionalism Award); Professor Nancy Ehrenreich (Robert B. Yegge Excellence in Teaching Award); and Kira Suyeishi, JD ’13 (Bruce B. Johnson Outstanding Recent Graduate Award). For more information about DU’s Law Stars program, visit index.php/alumni/law-stars.






1: Catherine J. Boggs. 2: John Sadwith. 3: Adam Agron. 4: Professor Nancy Ehrenreich. 5: Kira Suyeishi. August/September 2017 I The Docket I 43


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