2015 September

A Denver Bar Association Publication I 37 Issue 8 I Sept. 2015

ARTISTS & ACCOLADES

Read more about our services at

www.my-watson.com or call (720) 305-9910 today!

More Focus. More Freedom.

WATSON Client Focus:

Watson has redefined back office support for Colorado’s legal community

Given our high-touch style of practice, my partner and I are frequently on-site with our clients and away from the office. Watson allows us to keep our practice mobile and efficient. Regardless of where we are working, Watson is there to provide us with the paralegal, billing and bookkeeping services we need to keep our focus where it belongs – on our clients. Watson shares our entrepreneurial spirit and “roll up your sleeves and get it done right” attitude.

They understand what we are doing here at H+K, on a fundamental level. We also love how well Watson handles our clients, always friendly and professional.

Thank you, Watson!

Admin and Paralegal Support Billing and Bookkeeping Law Firm Startup and Administration

Laura Hazen, Member H&K Law, LLC

WITH WATSON

WITHOUT WATSON

BEFORE

Admin

WATSON

Billable

Biz Dev

Biz Dev Other

AFTER WATSON

2 The Docket I Sept. 2015

Billable Other

Vol. 37 Issue 8 I Sept. 2015

6

17

9 17 20

20

ARTISTS & ACCOLADES The Denver Lawyers’ Arts & Literature Contest Winners FIRST AMENDMENT LEGEND RELINQUISHING OWNERSHIP OF LEGENDARY TATTERED COVER BOOK STORES 2014-15 DBA ANNUAL REPORT

Sept. 2015 I The Docket 3

INSIDE 6

From the President

7

Briefly

19

Volunteer Corner

28

The Docket Sits Down With Newly Appointed Supreme Court Justice Richard Gabriel

29

“JUDGES ARE NOT POLITICIANS”

31

Bradford Publishing Chooses Colorado Bar Association Continuing Legal Education to Carry On Legal Tradition

32

How Regulators Are Blocking the Flat-Fee Revolution

33

Flat Fees: You Are Only Limited by Your Creativity — and Your Oath

IN EVERY ISSUE 37

Bar Resources

38

Dates on the Docket

37

Briefs

39

Legal Affairs

42

Picture This

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

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.

Deadline for articles is five weeks prior to the issue date: for example, February articles are due December 16.

Editor: Jessica Volz, jvolz@cobar.org Managing Editor: Heather Folker, hfolker@cobar.org Chair: Ryan T. Jardine Graphic Designer: Kate Schuster, kschuster@cobar.org Advertising: advertising@cobar.org The Docket Committee: Norman Beecher, Jerry Bowman, Adam Brown, Becky Bye, Mariya Cassin, Craig C. Eley, David L. Erickson, James Garts, Peter E. Grandey, Ryan T. Jardine, Thomas L. Kanan, Jr., Robert J. Kapelke, Elizabeth Leder, Paul F. Kennebeck, Keith Lewis, Natalie Lucas, Kyle Martelon, Alicia J. McCommons, Daniel R. McCune, Margaret McMahon, Douglas I. McQuiston, William R. Meyer, Makenzie Morgan, Barbara J. Mueller, Peter Mullison, Heather O’Donnell, Gregory D. Rawlings, Judith Rosenblum, Alison Ruggiero, Frank Schuchat, Julie Simmons, Marshall A. Snider, Daniel A. Sweetser, Erica Vargas, Anthony J. Viorst, Dennis P. Walker and Rachel Young DBA Officers: Janet S. Drake, President; Nancy Cohen, President-Elect; Richard M. Murray, First Vice President; Kevin E. McReynolds, Second Vice President; John M. Vaught, Immediate Past President; Daniel A. Sweetser, Treasurer; and Patrick Flaherty, Executive Director Board of Trustees Members: Erich L. Bethke, Gillian M. Bidgood, Jaclyn K. Casey, Sarah M. Clark, Richard L. Gabriel, Franz Hardy, Margrit Lent Parker, Gerald D. Pratt and Shannon W. Stevenson

Visit Blog:

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 jvolz@cobar.org.

303-860-1115 • dbadocket.org Copyright 2015. The Docket (ISSN 1084-7820) is published monthly, except for the combined issue of July/August, by the Denver Bar Association, 1900 Grant St., Suite 900, Denver, CO 80203-4336. All rights reserved.

DBAdocket.org 4 The Docket I Sept. 2015

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.

RAISE THE BAR

with the BEST INSTRUCTORS, the most DYNAMIC PROGRAMS and the TOP STUDIOS in Denver.

IT’S ALL YOURS Join by September 22 and start to

earn back your enrollment.

Call 303.861.5646 or visit ColoradoAthleticClubs.com to get started today! *Restrictions may apply. First time guests only. Cannot be combined with other offers. Offer ends September 22, 2015. ©2015 Wellbridge

Sept. 2015 I The Docket 5

From the President

MAKE A DIFFERENCE! me for the DBA Art Party on September 17 at the Mike Wright Gallery.

I keep the following words framed in my office as a reminder to find peace and beauty despite the adversarial nature of litigation:

B y Jane t S . D r ake

I

’ve committed myself to a career in public service because I want to use my law degree to make a positive difference to individuals and the community. During the course of the next year, I encourage you to make a difference by actively participating in the Denver Bar Association.

Attorneys have the unique skills and training to navigate the justice system in the pursuit of justice on behalf of people in crises. You can increase the public’s access to justice by taking pro bono cases for Metro Volunteer Lawyers. You can promote professionalism by mentoring a young lawyer or law student. You can improve the quality of the community

6 The Docket I Sept. 2015

by supporting a nonprofit with your time and/or your financial contributions.

Your law degree is a powerful tool that can and should be used to serve others.

Regardless of how you chose to make a difference, I urge you to answer this call to action.

Over the next year, I intend to spotlight some Denver nonprofits that are making a difference. Each month, The Docket will focus on different topics and will offer you ways to engage with the DBA and the Denver community. I welcome your suggestions and invite you to share your ideas with me and the other Denver Bar Association members.

This month, we celebrate attorneys who have creative talents in art, poetry and literature. I hope that you will join

“Go placidly amid the noise and the haste, and remember what peace there may be in silence. As far as possible, without surrender, be on good terms with all persons.

Speak your truth quietly and clearly; and listen to others, even to the dull and the ignorant; they too have their story. Avoid loud and aggressive persons; they are vexations to the spirit. If you compare yourself with others, you may become bitter or vain, for always there will be greater and lesser persons than yourself.

Enjoy your achievements as well as your plans. Keep interested in your own career, however humble; it is a real possession in the changing fortunes of time.

Exercise caution in your business affairs, for the world is full of trickery. But let this not blind you to what virtue there is; many persons strive for high ideals, and everywhere life is full of heroism. Be yourself.

Especially do not feign affection. Neither be cynical about love; for in the face of all aridity and disenchantment, it is as perennial as the grass. Take kindly the counsel of the years, gracefully surrendering the things of youth. Nurture strength of spirit to shield you in sudden misfortune. But do not distress yourself with dark imaginings. Many fears are born of fatigue and loneliness.

Beyond a wholesome discipline, be gentle with yourself. You are a child of the universe no less than the trees and the stars; you have a right to be here. And whether or not it is clear to you, no doubt the universe is unfolding as it should. Therefore be at peace with God, whatever you conceive Him to be.

And whatever your labors and aspirations, in the noisy confusion of life, keep peace in your soul. With all its sham, drudgery and broken dreams, it is still a beautiful world.”

From the Writings of Max Ehrmann, 1927

BRIEFLY

“We lawyers are always curious, always inquisitive, always picking up odds and ends for our patchwork minds, since there is no knowing when and where they may fit into some corner.”

— Charles Dickens, Little Dorrit, Book II, Chapter XII Celebrated novelist, whose career began as an attorney’s clerk and court reporter

Just Google it Winston Churchill, Ernest Hemingway

and Leonardo da Vinci were proponents of “standing desks.”

Did You Know? To celebrate the 125th anniversary of the birth

of Agatha Christie, academics have come up with formulae that they believe will assist the reader in beating the likes of Miss Jane Marple and Hercule Poirot in identifying the killer:

Whodunnit formula: k (r, δ, θ, c) = f {rk + δ + θ {P, M}, c(3≤ 4.5} Key: k Identity of the killer; r Relationship to the victim; δ Primary means of transport associated with the novel; θ Method of murder and the detective characterized in the novel; P Poirot; M Marple; c Chapter of introduction of the killer; f Female

Success formula: k(l,n,s)=f[((m-1(k))/(f+1(k))) + n + s] Key: k Identity of the killer; l Sentiment of the language used in association with the killer; n Number of mentions per new novel (over time); s Setting for the novel; m Male; f Female Source: Taylor Herring

Sept. 2015 I The Docket 7

Since 1984 44,000 Cases Filed, 100,000 People Served!

8 The Docket I Sept. 2015

2015 Denver Lawyers’ Arts & Literature Contest Winners This year, we are celebrating the fourth annual Denver Lawyers’ Arts and Literature Contest. The Docket Committee would like to thank all of those who participated. The number of superior entries that we received made the judging process a particularly challenging and rewarding endeavor.

Here at The Docket, we are well-versed in the law-related accomplishments of our members. However, we seldom have the opportunity to witness the ways in which many Denver lawyers use art and literature to bring work and life into balance.

The following pages showcase this year’s winning entries and highlight the stories behind them.

Please join us in congratulating the winners and praising all entrants at the Denver Lawyers’ Arts & Literature Contest Party on Thursday, September 17. The event will be held from 5:30 p.m. to 7:00 p.m. at the Mike Wright Gallery. If you would like to see and hear the winning works and mingle with local artists and attorneys, please RSVP to lunches@cobar.org.

Sept. 2015 I The Docket 9

EUELL THOMAS:

Fiction Winner for “Mint Julep” B y J uli a C . M art ine z

“Storytelling and narratives are a big part of legal advocacy,” said Euell Thomas, a stay-at-home dad and general practice attorney. “You have to use the facts that you’re

given, but you still have to tell a compelling story so you can best advocate for your client.”

In his compelling mystery, “Mint Julep,” Thomas brings his Southern roots to the winner’s circle. The story is set in a neighborhood in Phillips County, Arkansas that is reminiscent of where he grew up. “I wanted to give it a Southern flavor and ... an unexpected protagonist,”Thomas said.

The story’s irresistible central character, Pearl, proves herself to be more

than a superficial Southern belle. After all, anything is possible with a cat named Mint Julep.

Thomas has published widely, and his oeuvre also extends to the realm of poetry. In first grade, he wrote his first play for a paper puppet show. The possibility of becoming a serious writer only dawned on him “about ten years ago.”Though he now has a novel in the works, he continues to let his age-old golden rule serve as his guiding light: “My rule is [that] if I sit down to write, I have to work on something specific.”Thomas feels that writing is necessary for him to maintain a balance in a world plagued by entropy: “It’s somewhere between a job and a passion — a passion I try to treat as a job.”

“Momma?” He said, his voice at once pleading and demanding. “Do you just sit up that house all day looking at old newspapers?”

“What are you talking about? I get outside. I work in my garden.”

Chris let out a sigh. “Momma, well-tended weeds ain’t a garden. Have you thought about going back to work?”

“Why are you always on me about going back to work? I’m on leave. That office is fine without me. I’ll go back when I’m ready.”

“Momma, when do you think you’ll be ready? It’s been almost a year since dad passed,” Chris whispered.

“I know how long it’s been. My going back to work is my business. Don’t you worry about it. Bye now, take care.”

“You too, Momma.”

She carefully placed her cell phone on the corner of a crowded dining room table covered with yellowed newspapers and stacks of mail. She scooped a cup of cat food from a sack by the back

door. She stepped outside, expecting the usual sound of meowing. She bit her lower lip, feeling the prickly beginnings of an anxiety attack in her chest.

Walking down the steps, she began to carefully search the yard. She heard a faint meow. She saw Mint Julep curled up in a sticky pool of blood.

“Oh Lord! Mint what have you gotten yourself into?”

Mint Julep let out a soft yowl.

The cat had a bullet wound just below its ribcage. She looked around. A rifle shot would have sounded like thunder in the hills of the neighborhood, echoing for miles. She stroked Mint Julep’s fur until the cat grew still. Then she saw it near the cat’s mouth. In an instant, her long-buried instincts took over. She pulled a crumpled tissue out of her pocket and picked the thing up. In a daze, she fumbled for her phone and called the police.

The police car pulled into her drive way. The officer leaned out of the window.

“I’m Officer McKelvey. Are you Pearl Williams? Dispatch said something about a dead cat.”

Pearl walked over to the car. “Yes, but not just a dead cat.

I told the dispatcher about this.” Pearl handed him up a small plastic, evidence bag.

The look of surprise on his face morphed into disgust and McKelvey threw up on his shirt. While waiting for the police, she’d carefully labeled it. Her neat handwriting read: “Tip of child’s pinky finger (fifth phalangeal), age unknown, name unknown, gender unknown. The young patrolman seemed at a loss.

“Is there someone you call? A Detective?” Pearl asked gently.

“Well, Deke is out hunting. Pheasant.” He added, as if to clarify the issue.

10 The Docket I Sept. 2015

“Is there a Desk Sergeant on duty?”

“There’s Clint, but he’s out fishing.”

Pearl paused, thinking that McKelvey would say the type of fish. Instead, he started to wipe at his shirt with a greasy napkin.

“Bass tournament,” he mumbled while looking down.

“Is the Chief in? I expect that he’d know how to handle this type of situation.”

“The Chief is … ,” Officer McKelvey looked at his watch. “No wait, the Chief is at the Country Club today … golf.”

“I tell you what … are you gone change that shirt?”

He nodded.

“Why don’t you take this back to the station with you and log it into evidence? After you do that, call the Chief and see about getting one of y’alls’ Detectives to investigate.”

Officer McKelvey opened his mouth to say something, then looked at the plastic baggy. Without a word, he started the patrol car and sped out of the driveway.

Pearl walked back into the house. She sat in her dim living room on the single piece of furniture not covered with books or folded clothing. Her eyes fell upon a photograph covered in dust. It was a picture of her and Thomas. Thomas wore his usual straw hat pushed back over his head, a lopsided smile on his face.

She was wearing a yellow summer dress with a flower print. They sat in the back yard with Mint Julep nestled between the two of them. Pearl didn’t realize she was crying, until she saw tears making streaks on the glass.

It seemed cruel to her, the things that life could steal from you. Life had stolen her husband from her and with him, her sense of control. Every day she woke up dreading the things that could happen.

Pearl wiped the tears from her face. On the coffee table was a stack of phone books. Pearl opened one to the map of Phillips County. The neat grids and lines of the map were an orderly illusion from a cartographer’s imagination. They could not fully capture the defiant, labyrinthine streets of a Southern town over a century old. Carefully searching from her street, she drew a circle and tore the page out. Pearl put on her jacket, checked the pockets and stepped out of her front door.

From the top of Reservoir Hill, she could see all of Helena and the Mississippi River running parallel to Cherry Street. There was a rusting radio antenna on the hill and a kudzu vine-covered maintenance building. The entrance to the building had been cleared of vines, and a shiny, industrial padlock chained the door shut.

Pearl crouched down at the corner of the building, in sight of the bars of the small utility window. Pearl pulled her phone out of her pocket and played a recording. A cat’s meow drifted through the humid air. First fingers, then a little girl’s dirty face appeared in the window, searching. Pearl noticed that the girl’s pinky finger was crudely bandaged.

Pearl stood up. “Hi, I’m Pearl.”

The girl ducked away from the window.

“It’s okay. Mint Julep was my cat. My name was on her tags.”

The girl reappeared. “He shot her; Duke shot her ... said he was gonna to kill me too.” Her words came out in a burst.

“Slow down, slow down. What’s your name?”

“Iris.”

“Well, Iris, let’s see if I can get you out of there. I’ll be right back.”

Pearl walked to the front of the squat building and called the police. She examined the door, testing the sturdiness of the hinges. She heard the distance sound of an engine. Peering down the hill, she saw a gray van with tinted windows speeding up the dirt road.

Pearl dashed to the utility window, testing the bars. One moved a fraction of an inch.

“Iris, honey, I need you to try to squeeze through the bars.”

“I don’t think I can do that.”

“Honey, I’m just asking you to try. Hold up a minute.”

Pearl picked up a rusty piece of rebar, wedged it between the bars and threw her weight against it. The concrete around the window crumbled, and one of the bars popped out with a groan.

“Iris, come on.”

Pearl helped the girl wiggle through.

“Honey, we gotta go. I called the police, but they ain’t here.”

Iris started crying. “That’s Duke, he’s coming to kill me.”

“You listen here, ain’t nobody going hurt you. I’m Pearl Williams, I used to … ,” Pearl stopped mid-sentence. She looked down at the frightened little girl in the tattered dress and then,caressed the heavy, reassuring weight in her jacket pocket.

“Iris, baby, I know it’s hard to believe, but it’ll be okay. Just do what I tell you to.”

“Yes ma’am.”

Pearl grabbed Iris’ hand, running for the cover of the trees.

A rifle shot rang out. Pearl threw herself on top of Iris and looked over her shoulder. Duke stood near the utility building with a rifle in hand. He couldn’t see them. He was shooting blindly, hoping to scare them into giving away their position.

Pearl gestured for Iris to crawl further ahead, deeper into cover.

Pearl picked up a handful of gravel with her left hand and with her right pulled her Smith and Wesson 1911 out of her jacket pocket. Taking a deep breath, she stood up. In one fluid motion, Pearl tossed the gravel away from her and raised her weapon.

Duke turned the rifle toward the direction of the falling gravel.

Pearl exhaled and squeezed the pistol’s trigger. His rifle fell into the dirt and Duke seemed to fold in half.

“Goddammit. You shot me,” he moaned over and over.

Pearl walked up and kneeled beside Duke. She pulled a bandana from Duke’s pocket and placed it between his clinched fingers.

“Best put pressure on that wound. I’d hate to see you bleed out,” Pearl said in a tone that indicated Duke’s suffering was the least of her worries. The sound of sirens echoed in the distance.

Iris darted up the trail to stand behind Pearl.

“Who the hell are you?”

“I’m Pearl Williams, United States Marshal Service,” she said, having forgotten how much those words filled her with purpose.

For the first time in a long time, she felt ready.

Sept. 2015 I The Docket 11

MARIE E. DRAKE:

Nonfiction Winner for “Chinese Medicine” It doesn’t take much for Marie Drake to turn ideas into brilliant prose. All she needs is a good storyline and a computer,

and the words spill onto the page. “I write pretty fast,” confessed the real estate attorney, who owns her own law firm.

She attributes her strength as a communicator to her dabbling in creative writing. “Playing around with language is what we do as attorneys,” she said. “If I can make a difficult situation somehow lighter by writing creatively about it, it helps me process it. And I think creative writing helps me be less stressed as a litigator. “ Drake describes her “Chinese Medicine” winning entry as “just a fun story about someone I used to date while working as a full-time paralegal in

I started to see a Chinese doctor in New York City in the late 1980s. His name was Dr. Fu Zhang and he had a busy, non HIPAA-compliant office off Broadway in Chinatown. On one wall were shelves and drawers filled with strange-smelling herbs, dried flowers, sticks and powders, like a prosperous, medieval apothecary, minus the guys in big floppy hats, velvet pantaloons and smelly tights trying to cure their boils. On another wall were rows of hard, plastic chairs filled with sick people waiting their turns behind the thin curtain that separated the exam room from the rest of the place.

My friend Sanjay brought me to my first appointment. Sanjay was a very hip half-German, half-Indian man of great beauty, with thick, blue-black hair in a neat ponytail that went all the way down his back. I referred to him as Klaus Kundalini after we started dating. He was so beautiful that his thick-framed, Buddy-Holly glasses had the reverse effect and made everyone who saw him only stare harder at the face juxtaposed with those nerdy glasses.

It was through a smoky haze that I first noticed Sanjay sucking down one cigarette after another, squirming slightly in his chair, eyes darting nervously. He drank cup after cup of coffee and was wearing khaki pants with low-cut, navy-blue converse tennis shoes (no socks) and a navy-blue v-neck sweater.

It was an Upper East Side uniform of sorts, but his darker skin and lush, mid-back-length shiny black hair made him seem less like a Farnsworth Biffington Blowhard St. Clair and more like a preppily-disguised outlaw, at least in my mind. I stared at him

12 The Docket I Sept. 2015

New York City and attending law school at night.”

Drake became a prolific writer at age ten to cope with her mother’s departure after the family moved from Crested Butte to the Philippines. “I started writing that day and wrote almost every day for the next 25 years,” said Drake, who calls herself the daughter of “a flaming hippie and an (Air Force) Colonel who retired to work for the CIA.” Drake is a published writer working on a book about her mother, who eventually reunited with the family. “Writing is a lot of fun and a little relief,” she said with the punctiliousness of a writer who knows fact from fiction.

for about two years before he showed up at my apartment door one night with red roses to take me to a play where one of the Redgraves would be tastefully naked on Broadway.

Since I thought we were buddies going to the theater as friendly neighbors, I was surprised he had roses. I was less surprised when he told me I was under-dressed, but I was wearing the one outfit I had that was in-between a herringbone suit and jeans and a stained sweatshirt.

I explained I had nothing else to wear other than my (yes, it was the ’80s) black stirrup pants and untucked, shoulder-padded, flowery silk shirt unless I put on a suit. Oh, well. Little did I know that soon enough I, too, would be clad in khakis, low-cut navy converse tennis shoes and a navy v-neck sweater, at least when I wasn’t going to the theater to see naked Redgraves.

We were neighbors on East 92nd between First and York, just four blocks from the DMZ at 96th Street, and ate breakfast

around the same time every day at a nearby diner. I lived in a grimy, rat-infested ground-floor apartment right out of a Willard movie, and he lived across the street. I didn’t keep food in my apartment, except in the fridge, but that didn’t stop the rats from pouring out of the burners in the stove, oblivious to the steel wool I stuffed in the holes in the wall. (They chewed right through it.) I finally put a big piece of plywood over the top of the stove, with a chair holding it down to keep the rats at bay. Sanjay was fixing up his place and hadn’t paid rent in years because there were issues with the building, like an elephantsized hole in the floor and windows that didn’t close all the way, no heat and intermittent electricity. I think squatting was the word he used.

At the diner, he always ordered scrambled eggs “soft,” so I started doing that, too. Naturally, we ended up sitting at the same booth talking about our relationships, and I took immediate dislike to his girlfriend, well, until I met her. But after becoming friends with her, Sanjay and I started dating, and I don’t think anyone let her know. The drama that ensued foreshadowed the drama of my own breakup with him some months later under similar circumstances.

After a few weeks of increased neighborliness and dodging his girlfriend, I ended up with a bad sinus infection. Drama can really make one feel run-down. Sanjay insisted I go see his doctor in Chinatown.

The good doctor took my pulse a few times, looked at my tongue and wrote out a prescription in Chinese characters. In the next room, a tiny woman, not unlike one of the thumbsized twins in the Godzilla-Mothra films, pulled powders, sticks, weeds and dried flowers out of drawers and off shelves and told me to boil the fistfuls of odd-smelling dried stuff, strain it and drink the tea twice a day. I think I paid $25.00 for both the appointment and the tea.

I followed directions, for once, and in no time I was better, without the help of antibiotics. So, I began to see Dr. Zhang whenever my health was less than perfect.

I was working full-time at a Wall Street law firm as a paralegal and attending law school four nights a week from 6 to 9 p.m. Not exactly an available girlfriend schedule, but I expected Sanjay to understand my limited time with him would have to do until I got out of school in another three or four years. In my self-centered mind, it didn’t seem like a lot to ask, but it turns out it was.

So, of course, Sanjay broke up with me as gently as possible and started dating a beautiful, waif-like waitress about ten minutes later. I was crushed. Confusing heartbreak with an actual medical problem, I went to see Dr. Zhang.

The waiting room was crowded with all kinds of New Yorkers, only a few of them Chinese. I was sniffling away with my broken heart, trying not to sob outright and also not to touch asses with the people on either side of me. (The chairs were clearly for tiny people from the Far East.) When my turn finally came, I went through the thin curtain and sat on the exam table. Dr. Zhang took my hand to feel my pulse and looked into my eyes. That simple act caused me to burst into loud sobs. In spite of Dr. Zhang’s limited English, my story spilled out about Sanjay, the beautiful waitress and poor, poor, pitiful me. I was

blubbering with such force that it was hard to catch my breath.

The waiting room became too quiet, and a few people cleared their throats, as if to let me know it wouldn’t hurt to take it down a few notches.

Dr. Zhang told me to stick out my tongue, probably to get me to stop blabbing on. He said, in a too-loud voice, as if to comfort me, “No worry. He need different woman every night.”

With that pronouncement, he held up his finger in the universal sign to hold on and disappeared through the curtain and out the door.

I reclined on the exam table, wondering what the people in the waiting room thought. I looked to see if I could exit through the window, but there was no fire escape. It was very quiet and Dr. Zhang was gone at least fifteen minutes. When he finally came back in, he presented me with a milkshake and told me to drink it. Then he patted my arm and said, “No charge today, bye bye.”

I made my way through the waiting room with my milkshake, not making any eye contact with any other patients.

Maybe it was the sugar because once I was out in the crisp, October afternoon air, I had a strong feeling everything was going to be OK, and of course it was.

And now, twenty years later, Sanjay and I are friends again: Both of us have been married a long time to good people. But I sure wish that Dr. Zhang had an office in Colorado because I still need a milkshake every once in a while.

Sept. 2015 I The Docket 13

ERIN AGEE:

Poetry Winner for “Grandpa was a Dowser” Erin Agee’s winning poem, “Grandpa was a Dowser,” strikes a relevant chord for a granddaughter practicing water law. The poem is

about her grandfather, Monroe Agee, who practiced the art of dowsing using willow sticks to help clients find groundwater for domestic wells in California.

“I was intrigued by this somewhat mystical part of my grandpa’s life that I didn’t know much about,” commented Agee, who gleaned her grandfather’s history from stories her father told her. “Being a water attorney, it was fascinating to learn about this part of my heritage,” she said.

Agee is an Assistant Attorney General in the Natural Resources and Environment Section of the Colorado Attorney General’s Office. Her grandfather’s avocation does not seem to have steered the direction of her current career. “Nonetheless, my family has a history of working with water and on rivers, so I believe that something subliminal was at play,” she said.

Agee composed her first poems at age 8; they were mostly about friends and childhood traumas, such as her dead hamster. Her adult poems, which often evoke a connection between people and landscapes, have won The Docket’s contest for the past three years.

She enjoys the camaraderie of other attorneys who have artistic pursuits that lead them outside the realm of law. “I like the creative aspects of poetry,” Agee said, “and I enjoy being part of the artistic community within the Bar.”

Monroe walks the field with polio, remembers with seeking eyes, lets the earth know he’s back with thick boots.

Steady hands hold willow branch cleaved in two as it bends to the gravity of cricket grass and fawn droppings, then bows at scent of water.

Points its precise tip to the earth, does not stop the quiver dance.

ANDREW J. CARAFELLI:

Painting Winner for “Morning Solitude”

Andrew Carafelli’s passion for the American West gleams from the surface of his winning painting, “Morning Solitude.” His piece depicts a lone cowboy accompanied by his two best friends — a horse and a dog. They appear to be reflecting on the trials that the day would bring. “I tried to capture the emotion that ordinary people can identify

14 The Docket I Sept. 2015

with,” said Carafelli, a trial lawyer whose practice spans several Western states.

His piece, though ageless, captures a hint of contemporary conveniences. “Yes, that’s definitely a cup of coffee in his hand,” he emphasized. Like the practice of law, the painting relies on what Carafelli described as “attention to detail and attention to commitment and to doing a job well.”

“Morning Solitude” is an oil interpretation of a Carl Scofield photograph set in Summit County in the 1990s. It is a far cry from the Maryland of Carafelli’s roots. He grew up painting cityscapes and held his first public art show in seventh grade.

“My artistic style has changed to Western over the years,” confessed the East Coast transplant.

His lifestyle, too, has changed: “I ride horses, own a dog.

I’ve been on cattle drives — even ridden a few bulls,” Carafelli said, laughing. “I drank with (cowboys) in bars.”

The artist’s identification with the ineffable freedom that the American West exudes is unmistakable: “To me there is something very cathartic about being on a horse — a feeling of freedom, being out on the open range, no cares, no worries — just you and the horse.”

MAHA KAMAL:

Mixed Media Winner for “The Little Prince’s Fox”

There was something about the fox in Antoine de Saint-Exupéry’s The Little Prince that has intrigued Maha Kamal since childhood. “I do

art almost every night,” she said. “It’s a way of expressing how I see my career as a family lawyer.”

While growing up, The Little Prince was her mother’s favorite book. Yet it was always the fox — not the Little Prince — that spoke to her imagination. “For me, the fox represented risk and the conflict between wanting to be adventurous and remaining in your comfort zone,” she said.

In 2013, Kamal opted to pursue an adventure with the Lebanon Tribunal in The Hague, Netherlands instead of graduating with her class from law school. “It was super-scary to me, but I wanted to do it,” she recalled. “I worked

as a legal intern helping them prepare for trial. It was exciting. I definitely don’t regret it.”

Upon returning to Denver, Kamal graduated and took the bar exam. Filled with energy and determination, she re-ignited her artistic passion in a marvelous watercolor illustration titled “The Little Prince’s Fox.” She also began writing and illustrating a children’s book.

Kamal is a staunch advocate for the therapeutic benefits of art for children caught in the trauma of a divorce or custody battle. “Maybe the fox represents fun and adventure and my inspiration to continue doing art,” she said.

She is hopeful that the power of art can help to make for a more positive and cohesive world.

Sept. 2015 I The Docket 15

DIANE B. DAVIES:

Photography Winner for “Nesting” Diane Davies’ passion for birdwatching and wildlife photography has prompted her to travel extensively to capture stunning images of birds and other wildlife in their natural habitats.

The real estate lawyer and partner is also passionate about her profession and makes a philosophical connection between her avocation and her legal career.

“The process of looking for things to photograph and getting a different vantage point and viewpoint transfers to the practice of law,” she said. “There are different ways to look at things.”

For her winning “Nesting” photograph, Davies didn’t have to go far: She captured two great blue herons building a nest in the middle of Kountze Lake at Belmar Park in Lakewood. The photograph, shot with a telephoto lens, depicts an intimate moment in a courting ritual after one bird arrives at the nest with twigs and sticks and is greeted by the other, as if to say, “thank you.”

Davies observes that the “same ritual occurs every time one of the birds arrives. ”The photograph represents “new beginnings” as the herons prepare to welcome their family.

Davies’ photographic repertoire ranges from other wildlife to surreal landscapes, including lunar eclipses and the red moon. “I’ve gotten really serious about photography only in the last five to seven years in terms of developing my technique and upgrading my equipment,” she explained.

About the Author: Julia C. Martinez is an Emmy-nominated writer and editor based in Denver. Previously, she worked for The Denver Post, The Philadelphia Inquirer and the Associated Press in New York.

16 The Docket I Sept. 2015

First Amendment Legend Relinquishing Ownership of Legendary Tattered Cover Book Stores

B y K ei t h Le w is Fifteen years ago, Joyce Meskis, Owner of the Tattered Cover Book Store since 1974, stood up to federal and local law enforcement to defend the First Amendment rights of her customers. In exercising her own right to freedom of expression, Meskis achieved a unanimous ruling out of Colorado’s highest court, whereby a third-party bookstore is now entitled to a hearing before a warrant seeking its customers’ records can be executed. During such a hearing, the government must demonstrate a compelling interest that outweighs the harmful affects of government access to these records by applying a specific balancing test. The ruling was a resounding victory for freedom of speech that also propelled Meskis and the Tattered Cover into the pages of legal lore. Following the historic victory of City of Thornton v. Tattered Cover Bookstores, 44 P.3d 1044 (Colo. 2002), Meskis and her longtime attorney, Dan Recht of Recht & Kornfeld, garnered some well-deserved attention from the media; her story even became the focus of a PBS documentary called Reading Your Rights. In view of the stipulations provided in the First Amendment, the protection of privacy in the context of book purchase records has not been questioned by any U.S. court since.

July 1, 2015 marked the start of the Tattered Cover’s twoyear transition into the ownership of longtime husband-and-wife booksellers, Len Vlahos and Kristen Gilligan. In 1974, Meskis purchased the small Cherry Creek bookstore, which was only three years old at the time, and transformed it into the presentday literary legend, which has boasted locations in LoDo, East Colfax, Union Station, Highlands Ranch (before relocating to Aspen Grove ~ Littleton) and Denver International Airport. The Tattered Cover is renowned worldwide for its dynamism as an independent bookstore in the Amazon Age and for its commitment to freedom of expression. When the Tattered Cover passes

into the care of its new owners, Meskis will close the chapters of her successful and intrepid 40-year career.

However, don’t be fooled: Meskis is no one-hit wonder in the courtroom. In 1984, the Colorado General Assembly passed a set of statutes criminalizing the sale of obscene and sexual literature to minors in Colorado. The statutes also criminalized the display of such material at public newsstands and commercial establishments that minors might frequent. The Tattered Cover was one of several named plaintiffs that successfully declared the Act unconstitutional by citing its overbreadth and potentially chilling effect on content protected under the Constitution. The Denver District Court struck down several provisions as unconstitutional while severing and letting stand some portions of the Act. The Colorado Supreme Court declared the entire law unconstitutional in Tattered Cover, Inc. v. Tooley, 696 P.2d 780 (Colo.

1985). It remains Colorado’s preeminent case analyzing so-called “Ginsberg material,” which derives its name from the landmark obscenity case Ginsberg v. New York, 390 U.S. 629 (1968). The Tattered Cover’s victory also foreshadowed the larger legal triumph that would take place less than two decades later.

In the spring of 2000, a team of law enforcement agents from the North Metro Denver Drug Task Force and the federal Drug Enforcement Agency (DEA) investigated a suspected methamphetamine operation in Adams County. During a trash pull, officers discovered a mailer containing books sent to a suspect from the Tattered Cover Book Store. Officers also seized two books on methamphetamine manufacturing from the same suspect’s home; they reasoned that they could tie the illegal drug operations to the purchaser of the books.

Playing on this hunch, law enforcement agents descended on the Tattered Cover’s LoDo location one afternoon, brandishing a warrant for the suspect’s purchase records. Meskis immediately phoned Denver First Amendment lawyer Dan Recht for help.

After some initial negotiating with the District Attorneys of Denver and Adams Counties, prosecutors agreed to a hearing before executing the warrant. That hearing culminated in a 54-page victory in the Colorado Supreme Court that was authored by Chief Justice Michael Bender. The power of the document’s words has not been undermined by any U.S. court since.

At first glance, the threat to freedom of expression might not be readily apparent. Justice Bender’s statement outlines the issue with coherent persuasion and is still worth a read. If the government can track what people read, expression becomes dangerously self-censored. If we don’t have the freedom to listen to or read certain material, then we don’t truly have the freedom to speak or write about it.

Recht, who is no stranger to high-profile cases, speaks highly of Joyce Meskis, whom he views as both a friend and a client.

He recounts how the two met while serving on the Board of the Colorado chapter of the American Civil Liberties Union (ACLU) in the mid-1980s. To borrow his words, “Joyce has a wonderful and highly unusual combination of traits that has led to her sucSept. 2015 I The Docket 17

cess: She is a brilliant businesswoman, a zealous and passionate First Amendment advocate, and a compassionate, sensitive human being.”

“She is an American hero of which stories are and should continue to be made. “ In the trial court below, the ruling held that law enforcement could not access the suspect’s 30-day purchase history; police could only obtain information pertaining to the sender. Recht confesses that he considered the trial court’s ruling as a “half a loaf.” While deciding whether or not to continue on with an appeal, he remembers partaking in a war-room strategy session during which Meskis’ principled purity got him a bit choked up. The conference call included perhaps a dozen First Amendment experts, including law professors and practitioners, as well as Meskis herself. The question as to the outcome of an

appeal, especially given the lack of favorable precedent, did not sway Meskis.

She said, “Sorry guys, it’s just not right.”

Recht followed his client’s instructions and helped to pave the path to what has been read as a historic triumph.

Meskis and her bookstore’s legal endeavor to protect her customers’ privacy under the First Amendment became even more remarkable when the truth came out that one of the books in question was not even criminal in nature: It was actually a book on Japanese calligraphy. Although Meskis and her legal team were aware of the exculpatory subject matter of the book, she still fought for her customer’s privacy and her own moral principles. She is an American hero of which stories are and should continue to be made.

Meskis makes the ordeal sound simpler than it undoubtedly was: “We stood firm the whole time.” As she elaborated, “The police were just so sure of themselves, and, according to my attorneys, they had plenty of other evidence to convict this guy.” That was her real problem with the situation — the fact that “the police could not let it go.”

Meskis is proud to be a First Amend-

ment champion, although it is doubtful that she would ascribe herself that title.

For her, it’s about freedom of information; it’s about hearing a range of ideas. “Whether you are in agreement or opposition to a political philosophy, you should know what the other side is thinking,” she says. Access and privacy are of paramount importance.

Weighing in on Meskis’ retirement, Recht regards representing Meskis as “one of the highlights of [his] career.”

Without a doubt, the Tattered Cover will continue to thrive under its new ownership. In the end, Meskis’ legacy will be bookended by her efforts as a champion of freedom of expression and as the creator of one of the nation’s most admirable independent bookstores. D The author, Keith Lewis, is an attorney in Denver with his own appellate and trial litigation practice. He can be reached at Keith@ LewisLawDenver.com.

AttorneyShield® PROFESSIONAL LIABILITY INSURANCE PROGRAM AVAILABLE EXCLUSIVELY THROUGH AHERN INSURANCE BROKERAGE

Who Would You Be Without Your Reputation?

Scan this code

A reputation is like trust. It takes years to grow, but can be ruined in seconds.

Losing your reputation can damage your future success.

You’ve spent years doing things right. Make sure your professional liability carrier does too.

When you choose Ahern Insurance Brokerage and PSIC, you get the peace of mind that comes when you work with a team who values your input and is committed to protecting your assets.

Call 1-800-282-9786 to speak with an Ahern specialist.

AVAILABLE THROUGH OUR EXCLUSIVE PARTNER

18 The Docket I Sept. 2015

Professional Solutions

INSURANCE COMPANY 14001 University Ave., Clive, IA 50325

www.aherninsurance.com

Professional liability insurance is underwritten by Professional Solutions Insurance Company. A.M. Best ratings range from A++ to S. NFL 9228

PSIC

License Number 118691

Volunteer Corner:

Pro Bono Week B y L auren D icke y “We often think and talk about pro bono work as a service to the greater good and to our community. But even the biggest public impact cases require us to advocate not for the public, but for the rights of our specific clients.

The words we have chosen to describe volunteering to fight for the rights of individuals, ‘pro bono publico,’ confirm a belief that the public good is best served by protection and advocacy of individuals.

That fighting for the rights of specific people is the best way to protect the rights of us all. Fighting for the liberty of some is fighting for the liberty of all.

Pro bono work not only improves the lives of our clients and the greater public, it improves our profession. On a practical level, it gives lawyers an opportunity to stretch and hone our advocacy. More importantly, it raises our profession. It confirms that justice and the law are not limited to those who can afford a lawyer, but that our legal system is open and available to all.”

These are the words of John McHugh, recipient of the 2015 Denver Bar Association’s “Volunteer of the Year” award, who spent hundreds of hours as the lead attorney on a lawsuit challenging Colorado’s laws prohibiting same-sex marriage. During this year’s Pro Bono Week (September 14-18), the DBA’s Access to Justice Committee wants to celebrate the work of volunteers like John McHugh and highlight opportunities for Denver-area lawyers to help expand access to justice in their own communities.

On September 15 at 4:00 p.m., as part of the monthly Legal Night event at Mi Casa Resource Center, lawyers are invited to attend a family law CLE designed to train non-family law attorneys. Attorneys from the Harris Law Firm will instruct Legal Night volunteers on how to identify and provide information on family law issues. The event is co-sponsored by the ATJ Committee and the Colorado Lawyers Committee and is free for all who stay and volunteer at Legal Night. To RSVP to this CLE, please email lunches@cobar.org. This program will also be recorded for those observing Rosh Hashanah; contact Meghan Bush at mbush@cobar.org for more information.

The Committee invites all lawyers to participate in Legal Night at Mi Casa beginning at 5:30 p.m. on September 15. Legal Night is an open house where volunteer attorneys provide free legal and referral information on a variety of subjects to people who cannot afford to hire a lawyer. Attorneys interested in volunteering may contact Susan Cole at Susan.Cole@aporter.com or visit the Colorado Lawyers Committee website at coloradolawyerscommittee.org to fill out an online volunteer form.

Finally, at noon on September 16, DU Law will host a luncheon and panel discussion exploring the importance of pro bono work during and after law school. Colorado Supreme Court Justice William W. Hood, III, Metro Volunteer Lawyers’ Executive Director Dianne A. Pacheco-Van Voorhees, CBA President Loren Brown, DBA Access to Justice Committee Co-Chair Noah Patterson and Disability Law Colorado Supervising Attorney

Alison Daniels will discuss the critical role of pro bono work in the community.

Pro Bono Week is an opportunity for lawyers to explore pro bono options in the Denver area and to get involved in the community. We encourage everyone to take part! D Lauren Dickey came to Colorado three years ago for a clerkship and never left. She is now an attorney in the Consumer Protection Section of the Colorado Attorney General's Office and a member of the Denver Access to Justice Committee.

The Denver Access to Justice (ATJ) Committee is comprised of Denver-area lawyers committed to helping underrepresented individuals secure legal information, advice, and representation. The Committee sponsors clinics providing “how-to” advice on topics like small claims, bankruptcy and family law, co-sponsors bimonthly legal nights, hosts CLEs and provides support for Metro Volunteer Lawyers and Colorado Legal Services. It is the local chapter of the statewide Access to Justice Commission and meets monthly at the bar association offices. For more information, contact Co-Chairs Noah Patterson at pattersonnoah@hotmail.com and Jennifer Purrington at jpurrington@disabilitylawco.org.

DENVER LITIGATORS

www.ColMediators.org Sept. 2015 I The Docket 19

2014–15 Denver Bar Association

ANNUAL REPORT The Denver Bar Association is on a mission to help its members and the community. The DBA works to do so by promoting the administration and availability of justice to all; supporting and assisting its members; upholding the honor and dignity of the Bar; fostering respect for the legal profession; encouraging a thorough and ongoing legal education; cultivating positive relations among all Denver-area lawyers; and perpetuating the history and traditions of the profession.

This Annual Report presents a snapshot of the past fiscal year. It demonstrates what the DBA is doing to advance its mission and its goals.

DBA President’s Message In the weeks since I stepped down as President of the Denver Bar Association on July 1, 2015, I have reflected on what a humbling honor it has been to serve the DBA and our profession. It is incredible when you stop to think about the leaps and bounds that this organization has taken since its founding in 1892. After all, it didn’t arrive here by fiat. Our DBA staff works tirelessly each and every day to better the profession, to serve the poor who need pro bono legal services, to advance the cause of veterans, to enhance the professional development of young lawyers, to keep us current in our field through continuing legal education and, more broadly speaking, to support the legal profession and the community at large.

The June 2015 edition of The Docket presented a more comprehensive summary of our successes in 2014-15 than what I will detail here. One of the many pivotal highlights included the smooth transition to a new executive director, which marks the first change in command in 34 years. We also recognized Chuck Turner’s tireless service with the DBA’s Award of Merit.

Under the guidance of Patrick Flaherty, Executive Director, and Greg Martin, Deputy Executive Director, we conducted a deep dive into DBA finances to determine the actual costs of all 34 programs that the DBA supports. We listened to the “Group of 33” to learn what young lawyers want and need from a bar association. We developed new materials to bolster our marketing efforts to attract young lawyers through a program that we called “I Belong,” which was used to lead the DBA Young Lawyers Division toward the target goal of a 15% increase in membership by 2015. Given its success, I am pleased that the 15x15 program will continue into the 2016-17 calendar year.

And then we partied like it was 2014-15! As part of the 15x15 campaign, we hosted two huge parties, one at Union Station and one at the Four Seasons Hotel Denver. Hundreds of lawyers, most of whom were “young” lawyers, joined us just to see how much fun the DBA really can be. The DBA and CBA also

20 The Docket I Sept. 2015

hosted their first reception for new admittees who are graduates from out-of-state law schools.

The Barristers Ball, themed “Fire & Ice,” continued to offer black-tie and ball-gown fun and raised over $65,000 to support pro bono services provided by Metro Volunteer Lawyers (MVL).

Thousands of the poor and those of modest means, including veterans, will materially benefit from the efforts of the DBA and the proceeds from the Barristers Ball.

Last but not least, we developed the Bar Ambassadors Program to identify mentors in each major law firm in the city who will: • • • • •

Serve as an official “Ambassador” fluent in DBA programs, committees and events.

Mentor young lawyers in their firm and community.

Recruit new lawyers to join the DBA and the Young Lawyers Division.

Serve as a communications liaison between DBA leadership and the Bar’s members.

Spread enthusiasm for all DBA programs in Denver.

Let me end this retrospective by returning to where I began.

It was the highlight of my career to serve you and the Association as President of the DBA, and for that I am particularly grateful: I am a better person for it and a better professional to have risen to the challenge of such responsibility. Rest assured that the DBA remains strong, vibrant and focused on making this profession more robust and the Association more relevant to each new generation.

Executive Director’s Message B y Pat rick F l ahe rt y Hello, I’m the new guy; not the one with the bowtie.

On December 31, 2014, Chuck Turner retired as Executive Director of the Denver Bar Association after a 34-year career.

He left behind a dedicated, hardworking staff and a healthy organization that is respected by its members and its peers.

I was raised and educated in Colorado. I practiced law for nine successful years before leading nonprofit organizations for another 18 years. I am honored and excited to be here. This is my dream job: It bridges together both seemingly divergent spheres of my career.

It would be easy for the DBA to continue to operate as it has, but to do so would assure complacency and ultimate irrelevance. Indeed, the time is now to evolve and adapt. We have an opportunity to do so wisely and from a position of strength, not desperation. We must change if we are to lead, or even keep up

with, the rapidly evolving practice of law.

Immediate Past-President John Vaught began a process before my time here by simply asking staff to rate programs and projects. The task was not so simple. The DBA had never attempted to count all of its programs and projects, let alone put a number on the true costs of each. The process, which went on to include the challenge of developing and applying evaluative criteria, raised difficult but necessary questions. Most importantly, it highlighted the increasing need for comprehensive strategic planning. Given the call for action, President Janet Drake added a formal strategic planning process to her agenda, which was already full with the “Make a Difference” campaign.

This strategic process will simultaneously raise and answer crucial questions: What do you want us to be? What do you need us to be? What can we be? Should we strive to be a “jack-of-alltrades” or master just a few?

The DBA’s process of strategic transformation is just beginning, and you will hear much more about its scope over the course of the next year. Your input will be the life-giving force of positive change, and we look forward to working together to achieve sustainable progress.

2014–15 Denver Bar Association Annual Report Promoting Justice, Its Administration, and Its Availability to All The DBA Access to Justice (ATJ) Committee held an event-filled pro bono week in October 2014. The week kicked off with a lunch panel for DU students during which attorneys gave career tips and offered other advice.

The Colorado Poverty Law Project (CPLP) is one of the Committee’s most recent partners and focuses on legal issues affecting the homeless. CPLP hosts a legal clinic at the Stout Street Medical Center on the third Wednesday of every month in partnership with the Colorado Coalition for the Homeless.

In 2015, CPLP developed an Eviction Pilot Program in collaboration with the Denver County Court SelfSarah Bishop, Abby Dvorkin and Andrew Rothberg at the 15x15 Union Station event.

Help Center. In May, CPLP also hosted its first official fundraiser, A Conversation with Julie Snyder, vide clients with free and low-cost legal services. Approximately Award-Winning Producer of Serial and This American 416 volunteer attorneys took on 1,783 MVL cases in the past Life, at the Denver Art Museum. Approximately 500 people calendar year. attended the event, which raised over $18,000 for CPLP through ticket sales and donations.

Supporting and Assisting the Membership Metro Volunteer Lawyers (MVL) launched a new volunteer clinic at the Asian Pacific Development Center; it is similar DBA Membership witnessed a 3% increase in 2014-15, to the walk-in clinic at the Denver Indian Center. Now in its raising the total number of members to 9,582. The DBA has 49th year of operation, MVL manages six programs that propartnered with a new member benefit provider, Credible, which Sept. 2015 I The Docket 21

Left: Troy Rackham, Cindy Fleischner and Alli Gerkman in STRATUM. has enabled many members and their families to refinance their student loan debt quickly and easily, saving them thousands of dollars over the lifetime of the loans.

President John Vaught’s 15x15 membership recruitment initiative was launched in 2014. It implemented the ideas brought to his attention by a young lawyer focus group. In order to extend an even warmer welcome to its members, the DBA staffed several phone banks. The goal was to reach out to new members throughout the year and to personally invite them to upcoming events. The 15x15 campaign culminated in two large networking events, one at Union Station in November 2014 and another at the Four Seasons Hotel Denver in April 2015. Vaught worked with the rest of the 15x15 team to develop an ongoing program called Bar Ambassadors. The program asked many Denver-area firms to designate an attorney on staff who would be in charge of circulating information about CBA and DBA programs and events.

The DBA Young Lawyers Division invited renowned speaker Debra Fine to host a program on mastering the art of conversation. It brought together law students, new lawyers and senior lawyers in a social setting. Once equipped with a few indispensable tips, attendees conversed fluidly with their peers about a range of topics. DBA-YLD’s networking events, like Barristers After Hours and Practice Area Preview, have continued to grow; many events attract more than 100 attendees. The success of these events is largely due to DBA-YLD’s partnerships with CBA-YLD, CBA Sections and local law schools.

STRATUM, a members-only co-working space at the Colorado and Denver Bar Associations, witnessed a significant increase in usage during its second year. STRATUM offers members a stronger sense of community and collegiality while providing them with the business amenities they need to enhance their 21st-century practices. Specific amenities include: power for devices, meeting space, Wi-Fi access, printing, scanning, copying and faxing. In view of the growing demand for STRATUM, the Bar Associations hosted a CLE Ethical Co-Working seminar on November 17, 2014, to help their members be aware of how to use the space ethically and responsibly.

The DBA also administers the Waterman Fund, which provides financial assistance to qualifying Colorado attorneys who are “aged, infirm or otherwise incapacitated.”The Waterman Fund, which was established in 1954 by Anna Rankin Waterman, makes these benefits available to incapacitated attorneys

22 The Docket I Sept. 2015

in good standing who have practiced in Colorado for a minimum of ten years.

During the 2014-15 fiscal year, the volunteer administrators approved more than $200,000 in grants for attorneys in need.

The DBA Seniors Committee also hosted three popular events: the 2014 Seniors Committee Roast of Tom DeMarino on October 7; the Holiday Party on December 11; and the 2015 Seniors Committee Spring Banquet on June 3, which honored 28 DBA members who have been licensed for 50 years or more. Unfortunately, the 2014 Seniors Golf Tournament at Homestead Golf Course was cancelled due to inclement weather.

Uphold the Honor and Dignity of the Bar and Foster Respect for the Legal Profession The Community Action Network (CAN) hosted four events to benefit those in need. The legal community donated a total of $47,476.35 in money and food during the Roll Out the Barrels Food Drive in April. Several months later, approximately 300 Denver Public Schools (DPS) students received backpacks brimming with supplies needed for the 2014 school year. Another popular CAN event, Strikes for Tykes, raised nearly $9,100 for the Children’s Outreach Project in November.

In February, the legal community also donated several boxes of dental items during the Toothbrushes for Tots drive .

Erich Bethke volunteering with Reading Partners.

Denver Jewish Day School on a court tour.

Left: Melissa Ogburn, Loren Brown, Jaclyn Casey Brown and Roese Ramp at the 2015 Barristers Benefit Ball.

The Legal Community Credit Union of Colorado (LCCU) held its Annual Meeting on May 6, 2015. Members of the 2015-16 Board of Directors are: Dawn McKnight (Chair); Andrew Rubin (Vice-Chair); Glen Armani (Treasurer); Jessica Mueller (Secretary); and members John Coaty, Lisa Culpepper and Jeremy Sitcoff. The Supervisory Committee members are: Geoff Schroder (Chair), Elisa Willard and Andrew Schmidt. In October 2014, LCCU launched its m*Teller Mobile App for 24/7 Banking and Mobile Deposit Service. In May 2015, the Credit Union began offering a CBA-branded affinity Visa credit card benefitting the Legal Aid Foundation. On July 1, 2015, LCCU moved to 5935 S. Zang Street, Unit 4, Littleton, CO 80127.

Reading Partners, which has been part of Colorado’s education landscape since 2012, kicked off the year with two training sessions in August 2014. Denver Bar Association staff and 25 attorneys were trained to tutor third-grade students in Denver area schools once a week. In September, the DBA matched 20 volunteer attorneys with 25 Denver Public Schools classrooms to discuss three areas of the Constitution.

The DBA Lawyers and Schools Committee continued to assist with field trips to the Ralph L. Carr Colorado Judicial Center and the Denver City and County Building. Volunteers from the law offices of Bayer & Carey, P.C. and the DBA Lawyers and Schools Committee also teamed up with College View Elementary for the second year running to coach fifth-grade students in the College View Debate Club.

Encourage a Thorough and Ongoing Legal Education Colorado Bar Association-CLE is the nonprofit educational arm of the Denver Bar Association. Its mission is to be more than CLE credits by building a community and serving as a resource for continuing legal education. The CBA-CLE Legal Connection Blog continues to be a popular news source, providing daily updates on important opinions, case law and legislative updates.

The DBA Access to Justice (ATJ) Committee also liaised

with the Colorado Lawyers Committee to provide the first of a two-part family law CLE to volunteers at Denver Legal Nights. Every Wednesday, Lawline 9 volunteers answered hundreds of calls from 9NEWS’ 250,000 viewers. Lawline 9’s success has been entirely due to the DBA attorneys who have volunteered there. After 23 newsworthy years at 9News, Ann King decided to retire. The Lawline 9 volunteers feel fortunate to have had the opportunity to work with her.

The DBA Mentoring Program, which is run in association with CAMP, achieved more than 40 matches during the 2015 mentoring season. The Program has authored many successful events, including one on communications.

Cultivate Good Relations Among All Lawyers of Denver

The DBA Bench-Bar Committee upheld its commitment to developing events that would allow judges and lawyers to get together informally to discuss areas of mutual interest. Two particularly successful events were held at the DBA offices in December 2014 and May 2015. They encouraged judges and attorneys to move freely between rooms so as to maximize the exchange of viewpoints and ideas. The December program, “Welcome to My World: Lifecycle of a Judge,” attracted approximately 90 attendees, including 20 judges. The May program, “Lawyers are from Mars, Judges are from Venus,” was co-sponsored by the Colorado Hispanic Bar, the Sam Cary Bar and Colorado GLBT Bar and attracted over 70 attendees, including 30 judges. Both programs received very positive feedback from their participants.

The DBA offered a range of additional social events for members of all ages. On June 8, the 2015 Henry Hall Memorial Golf Tournament was held at Hiwan Country Club in Englewood. More than 65 members attended this annual activity.

Perpetuate the History and Tradition of the Profession The DBA Awards Committee honored the following recipients of its annual awards: Chuck Turner (Award of Merit); Ruben Hernandez (Judicial Excellence); John McHugh (Volunteer of the Year); Gillian Bidgood (Young Lawyer of the Year); Doug Wilhelm (Education in the Legal System); and Court Mediation Services (Outstanding Program of the Year). The Annual Awards Party took place on July 9 at the Ralph L. Carr Colorado Judicial Center.

In its 27th year, the Barristers Benefit Ball celebrated Fire & Ice on April 25, 2015. Cool guests enjoyed champagne elegance and culinary bliss while dancing to hot tunes. The Ball attracted more than 540 members of the legal community and raised approximately $50,000 for Metro Volunteer Lawyers (MVL). Since the Ball’s inception, more than $2.6 million has been raised to support MVL. Sept. 2015 I The Docket 23

DBA’s YEAR IN NUMBERS

{Let’s Talk: Networking On & Off-line}

NUMBER of DBA MEMBERS

9,582

DBA SOCIAL NETWORK UPDATE FACEBOOK: 714 likes TWITTER: 2,108 followers & 1,950 tweets LINKEDIN: 1, 426 members

BARRISTERS BENEFIT BALL: 540 attendees Since its inception 27 years ago, the Ball has raised $2.6 million for MVL 15X15 NETWORKING EVENTS: 480 attendees DENVER BAR ASSOCIATION ANNUAL AWARDS PARTY: 175 attendees

{Let’s Get to Work: Our Community Impact} PLE CLINICS, including the Bankruptcy, Small Claims, Collection,

Divorce and Family Law legal Clinics, had 1,200 attendees and 706 volunteers this year.

COLORADO LAWYERS for COLORADO VETERANS:

LAWLINE 9:

5 established clinics

312 volunteers make roughly 100 calls every Wednesday

across Colorado Volunteers: 241 Veterans served: 180 Pro bono cases assigned to attorneys: 60

Topics covered throughout the year: Accidents/Injuries Probate, Bankruptcy, Consumer/Contract, Criminal, Employment, Family, General, Immigration, Litigation and Social Security/Disability

24 The Docket I Sept. 2015

Financials

Expenses

Assets

2015*

2014

Cash and Cash Equivalents

1,749,817

1,762,170

Certificates of Deposit

53,000

53,000

Due from Colorado Bar Association

187,671

119,308

0

0

Accounts Receivable (Other)

32,309

10,245

Prepaid Expenses

23,982

30,449

Property Net of Depreciation

45,263

33,759

0

0

4,544

4,544

Total Assets

2,096,586

2,013,475

Liabilities and Membership Equity

2015*

2014

Accounts Payable Other

0

0

Due to Colorado Bar Association

0

0

G&A Human Resources Building, Equipment and Operations

Accounts Receivable Denver Bar Found.

Funds Held for Retirement Benefits Deposits

0

0

28,802

28,650

0

0

403,495

339,727

58

24

Accrued Income Taxes

-2,089

-2,089

Total Liabilities

430,266

366,312

Membership Equity

2015*

2014

Unrestricted

1,634,110

1,622,477

Restricted for Special Projects

32,210

24,686

Total Equity

1,666,320

1,647,163

Total Liabilities and Membership Equity

2,096,586

2,013,475

Revenues

2015*

2014

Dues

919,287

927,850

Member Programs

288,235

336,018

Metro Volunteer Lawyers

164,207

132,784

Misc. Income

76,579

79,363

Total Revenues

1,448,308.47

1,476,014.94

Expenses

2015*

2014

Programs, Committees & Departments

596,027

597,003

Metro Volunteer Lawyers

278,917

251,358

G&A Human Resources

293,144

282,519

Building, Equipment & Operations

254,746

242,508

Governance and Meetings

13,841

21,678

Total

1,436,675

1,395,066

Surplus/Deficit

11,633

80,949

Due to Denver Bar Foundation Accrued Compensation Accrued Retirement Benefits Deferred Revenue (Dues and Other) Accrued Sales Taxes and Property Taxes

Metro Volunteer Lawyers Programs, Committees and Departments Governance and Meetings

Revenues

Metro Volunteer Lawyers Dues Member Programs Misc. Income

*2014 figures are unaudited Sept. 2015 I The Docket 25

West to the 32nd Meridian: Researching Administrative Law B y Dan Cord ova and C hris Hud s on All Americans are familiar with administrative law, whether they realize it or not. Agencies and their rulemaking and adjudication functions have formed an intrinsic part of our society since our nation’s founding. The first federal agency was created by the First United States Congress in 1789 to collect import duties from ships and vessels (Act of July 31, 1789, 1 Stat. 29).

Originally administered under the Secretary of the Treasury, it is now part of U.S. Customs and Border Protection, a component of the Department of Homeland Security.

Administrative law is important because of its far-reaching impact on our daily lives. In addition to the hundreds of federal agencies, there are thousands more at the state and local government levels. The purpose of administrative law is to implement and help enforce the general requirements of both civil and criminal law. The process results in detailed regulations that apply to a surprisingly large number of activities and enterprises. Consequently, lawyers should know how to research and navigate this important body of law as effectively as possible.

Success requires an understanding of the law and the context in which it develops.

Civics — specifically the structure and operations of our three branches of government — forms the basis of this understanding. Knowing what each branch does, how it works interdependently with the others and where it publishes its work are fundamental to good legal research. This is especially true in administrative scenarios because the legal authority underlying an agency’s actions is always central to the research equation. Important considerations include the source of the administrative power, its scope, how it is delegated and the existence, if any, of discretion. It is also possible for legislative enactments and executive orders to amend or modify an agency’s legal authority and/or the way its power is applied in specific situations. It is therefore very important that the researcher is aware of pre- and post-promulgation processes that may affect the agency or rule in question.

The primary elements of administrative law involve fundamental constitutional principles. Separation of powers, preemption and judicial review are of particular importance.

The various and varying administrative procedures and practices that exist among the many agencies also implicate a number of other legal issues, including jurisdiction, strict filing requirements and finality. For the practitioner, understanding and carefully following administrative procedures are critical for successful practice in this field.

In addition to being aware of the differences in administrative law practices across agencies, it is also important to know that there is more than one rulemaking process: There are formal and informal processes. The formal process involves a proceeding where evidence is provided and a formal record

26 The Docket I Sept. 2015

is kept. It is, by far, the least common of the two processes.

The more common approach to rulemaking employs notice and public comment. The federal system refers to it as informal rulemaking, or “notice-and-comment rulemaking.” In Colorado, the informal process is called “permanent rulemaking.” Permanent rulemaking usually includes public notice and comment.

However, under limited circumstances an agency may adopt a temporary or emergency rule without publishing a notice.

According to the Social Science Research Network, 65% of the population could be categorized as visual learners. Infographics, flowcharts and other forms of visual communication are important tools for many people in synthesizing information. (See onforb.es/1T0S6yV.) Some helpful visuals depicting the federal and state regulatory processes are noted below. In addition to supplying a FAQ list and a sketch of the process, the Colorado Secretary of State also provides a number of calculators and flowcharts designed to assist the practitioner.

FEDERAL • http://www.reginfo.gov/public/reginfo/Regmap/index.jsp • https://www.federalregister.gov/uploads/2011/01/the_ rulemaking_process.pdf

COLORADO • https://www.sos.state.co.us/pubs/CCR/files/perm_rulemaking_process_flowchart.pdf • http://cdn.colorado.gov/cs/Satellite/DORA-OPRRR/ CBON/DORA/1251624421211 • http://www.sos.state.co.us/pubs/CCR/CCRHome.html Administrative law is directly related to legislative enactments. The Administrative Procedure Act (APA) is the original enabling act for all administrative law. It establishes the regulatory system and sets forth the requirements promulgating executive agencies must follow in order to adopt rules properly.

Subsequent legislative acts governing a particular agency, program or law delineate specific authority and responsibilities.

Sometimes these enactments are referred to as organic acts.

The power to make laws is a power exercised by the legislative branch. Since the legislature cannot always provide for every detail of a law or anticipate issues that may arise during its implementation, it may delegate its powers to executive agencies by allowing them to adopt rules. These grants of rulemaking authority may be either very specific or very broad.

Executive agencies implement and enforce the legislation in accordance with the statutory authority and through rulemaking. The agencies are managed by subject-area experts who are often given investigative and judicial authority. Judicial Branch review exists to clarify conflicts and resolve legal issues.

In Colorado, the steps involved in the permanent rulemaking process are:

• •

• • • •

Notice of rulemaking is filed with the Secretary of State and published in the Colorado Register.

Notice is also filed with the Department of Regulatory Agencies (DORA), which acts on requests for cost-benefit analyses.

Public comment is taken at public hearings.

Adopted rules are sent to the Attorney General for review of constitutionality.

Adopted rules are also sent to the Office of Legislative Legal Services (OLLS) for review of legal compliance.

Adopted rules are submitted to the Secretary of State for publication in the Colorado Code of Regulations (CCR).

Adopted rules are binding until, or unless, they are found unconstitutional or in excess of legal authority, or they are amended or rescinded by the promulgating agency. New regulations are assigned numerical designations according to a hierarchical arrangement that begins with the department and cascades down to divisions and individual work units. A subject index is produced to facilitate research navigation, and source notes trace the historical development of each regulation. Strangely, there is not a standard numbering system for individual rules in the CCR; each agency creates its own internal numbering system.

Colorado’s official administrative rules and regulations are published online by the Colorado Secretary of State. This is in compliance with the Uniform Electronic Material Act (UELMA) and is a useful benefit to lawyers and citizens alike. The Secretary of State’s official online database includes historical regulations dating back to 2007. LexisNexis publishes an unofficial print version of the CCR in loose-leaf binder form. Regulatory history can be traced back to 1977 using these binders. A 1967 set of administrative law also exists, and both are available at the Colorado Supreme Court Library.

Fluency in all of the above is helpful when embarking on an administrative law project, especially given the following: •

•

•

There is limited information about how state processes vary from federal ones. (See the selective bibliography below for sources of additional information.)

There is a lack of state government organizational charts, which are now decentralized online — if they even exist. (See the Index to CRS for laws applicable to specific agencies and actions.)

There is a lack of finding aids for administrative decisions. (Rulemaking experts are indispensable in these situations and can save you a considerable amount of time.)

SOURCES OF INFORMATION: •

•

Colorado Secretary of State, Rules and Notices of Rulemaking: http://www.sos.state.co.us/pubs/rule_ making/rules.html# Office of Administrative Courts: https://www.colorado.gov/oac

• •

•

•

•

Office of Legislative Legal Services: http://tornado. state.co.us/gov_dir/leg_dir/olls/ Brackney, Charles P., “Administrative Rule Review: Procedures and Oversight by the Colorado General Assembly.” The Colorado Lawyer 33.6 (June 2004): 83-87. Print.

Gowen, Peter J., “Insights for Practicing Before Local Government Boards and Commissions in Colorado.”

The Colorado Lawyer 36.11 (Nov. 2006): 53-58. Print.

Heupel, Kevin D., “Appealing An Administrative Order: The Exceptions Process.” The Colorado Lawyer 30.9 (Sept. 2001): 91-93. Print.

Pierce, Jr., Richard J. and Kristen E. Hickman, Administrative Law Treatise. 5th ed. New York: Wolters Kluwer Law & Business, 2010, 2015. Print. D

The authors would like to thank David Gallivan, Regulatory Analyst at the Division of Workers Compensation, Jennifer Gilroy, Revisor of Statutes, and Deborah Haskins, Assistant Director of the Office of Legislative Legal Services for their assistance with this article.

Dan Cordova is the Colorado Supreme Court Librarian. Chris Hudson is the Deputy Colorado Supreme Court Librarian. They can be reached at (720) 625-5100 or library@judicial.state.co.us.

The Denver Bar Association Seniors Committee presents

Bennett S. Aisenberg

For Roasting

Tuesday, OcTOber 6 5:30 p.m. Cocktails 6:15 p.m. Dinner 7 p.m. Roast

The universiTy club

1673 Sherman Street, Denver

Tickets are $50 per person RSVP to Heather Folker at 303-824-5350 or hfolker@cobar.org Sept. 2015 I The Docket 27

THE DOCKET SITS DOWN WITH NEWLY APPOINTED SUPREME COURT JUSTICE RICHARD GABRIEL

Left: The Honorable Richard L. Gabriel; photo courtesy of the Colorado Judiciary.

Center: Justice Gabriel with his proud and supportive family, daughters Kathleen (far left) and Laura (far right), along with his wife, Jill.

Right: Justice Gabriel with current law clerks Ben Meade (left) and Chris Chasin (right)..

B y K ei t h Le w is Justice Richard L. Gabriel was sworn in as the 104th Justice of the Colorado Supreme Court on September 1, 2015, marking a new chapter in the former Court of Appeals Judge’s prolific career. The Docket recently sat down with Colorado’s newest member of the Supreme Court to discuss his background and his thoughts about joining the Court.

Justice Gabriel is originally from Brooklyn, New York. After finishing college at Yale and law school at Penn, the future jurist, who is also an avid trumpeter, met his wife while they were both clerking for federal judges in Maryland over 25 years ago. They eventually got married, and her job offer in Denver drew the young couple to the Rocky Mountains for good.

As a lawyer, Gabriel was a litigator for the Denver mega firm Holme Roberts & Owen (now Bryan Cave). In that role, he argued trial and appellate cases primarily involving business issues, including commercial litigation and intellectual property.

He was instrumental in representing music industry copyright holders against illegal digital file sharing in the early years of the millennium. He also spent several years serving as a city prosecutor for Lafayette, by way of a contract with his firm, before his first judicial appointment in 2008.

While spending the past seven years on the Colorado Court of Appeals, Judge Gabriel reviewed a significant number of appellate cases. He points out that the Court of Appeals and the Supreme Court review, for the most part, “the exact same cases.”

A vast portion of the Supreme Court’s docket comes directly from the Court of Appeals. For Justice Gabriel, deliberating with colleagues on an appellate panel is a skill that can be “crucial for collegial decision-making.”

Given the conspicuous overlap between the functions of Colorado’s two appellate courts, it may come as a surprise that Justice Gabriel is the first Colorado Supreme Court Justice to have come from the Court of Appeals in over three decades. The

28 The Docket I Sept. 2015

current body of the Court, excluding Justice Gabriel, is made up of three former district court judges and three former government appellate attorneys. For years, the stepping stones to the Supreme Court were through the Attorney General’s Office or in a district court appointment. Any current Court of Appeals judge aspiring to the Supreme Court must have taken notice of the recent outlier.

Justice Gabriel believes that his career as a “business litigator, which was unlike the career paths of the other justices, will add insight to any case’s far-reaching, real-world impact on individuals, businesses and the economy.” He will be able to offer a unique perspective honed from his days representing clients facing real-world business constraints, similar to the way in which retiring Justice Greg Hobbs contributed exceptional insight into deliberations on water law.

{

“(1) do what you are passionate about, and (2) always take the high road.”

{

As for extrajudicial work, Justice Gabriel has a passion for advancing professionalism. He contrasts the Denver legal market on his arrival in 1990 with the larger and more competitive market of today. He remembers that in 1990, the legal community was considerably smaller. He describes the small-town feel that longtime Denver lawyers often fondly recall. By several accounts, a measure of grace characterized the practice of law much more 20 years ago than it does today.

Justice Gabriel notes that Denver is no longer sheltered from Gabriel, continued on page 30

“JUDGES ARE NOT POLITICIANS”:

US Supreme Court Upholds Florida Law Prohibiting the Personal Solicitation of Campaign Funds by Judicial Candidates

B y C h arle s C . Hall Colorado sidesteps many of the problems inherent in judicial elections by using merit-based selection for the appointment of trial and appellate judges. In merit selection, judges are appointed by the governor from a panel nominated by a non-partisan committee and are then subject to periodic retention elections. Florida, by comparison, elects its trial judges but uses merit selection for its courts of appeals. Both Florida and Colorado have similar bans on the personal solicitation of funds by candidates for judicial office.

On April 29, 2015, the U.S. Supreme Court decided Williams-Yulee v. Florida Bar, 575 U.S. ___ (2015). Chief Justice Roberts authored an opinion that has important implications for the 39 states, including Colorado, that conduct some form of judicial elections.

In September 2009, Petitioner Lanell Williams-Yulee, a Florida attorney, decided to run for a seat on the Hillsborough County Court. Yulee signed

a campaign letter that was mailed to local voters and posted on her website.

The letter announced her candidacy and requested campaign contributions of $25

persons to secure and manage the expenditure of funds for the candidate’s campaign and to obtain public statements of

“Judges are not politicians, even when they come to office by way of the ballot box.” to $500. Yulee lost in the primary but was subsequently charged by the State Bar with violating the Rules Regulating the Florida Bar that require compliance with the Florida Code of Judicial Conduct, including Canon 7(C)(1), which states: “A candidate, including an incumbent judge, for a judicial office that is filled by public election between competing candidates shall not personally solicit attorneys for publicly stated support, but may establish committees of responsible

support for his or her candidacy.

Such committees are not prohibited from soliciting campaign contributions and public support from any person or corporation authorized by law.”

T he Florida Supreme Cour t appointed a referee who recommended a finding of guilt. The Court adopted the referee’s recommendation and upheld the constitutionality of Canon 7(C)(1), holding that the Canon was narrowly tailored to serve the compelling State interest of preserving the integrity of an impartial judiciary.

Sept. 2015 I The Docket 29

The U.S. Supreme Court affirmed the Florida Court’s finding and upheld the constitutionality of Florida’s Code of Judicial Conduct Canon 7(C)(1), despite also applying strict scrutiny: “Here, Canon 7C(1) advances the State’s compelling interest in preserving public confidence in the integrity of the judiciary, and it does so through means narrowly tailored to avoid unnecessarily abridging speech. This is therefore one of the rare cases in which a speech restriction withstands strict scrutiny.”

Williams-Yulee, 575 U.S. at 8-9.

While some will view this opinion as a departure from the High Court’s removal of restrictions on campaign finance during Chief Justice Roberts’ tenure, the unique character of the Judicial Branch and judges were paramount in upholding the restriction: “Judges are not politicians, even when they come to office by way of the ballot box.” Id. at 1. Justice Roberts noted that unlike politicians, judges are not to favor one constituency over another, but are to

apply the law equally: “A State may assure its people that judges will apply the law without fear or favor — and without having asked anyone for money.” Id. at 1.

The opinion emphasized that the State’s interest in preserving public confidence in its judiciary is both compelling and unique: “[A] State’s interest in preserving public confidence in the integrity of its judiciary extends beyond its interest in preventing the appearance of corruption in legislative and executive elections. As we explained in White, State may regulate judicial election differently than they regulate political elections, because the role of judges differs from the role of politicians.” Id. at 10 (citation omitted).

In addressing whether or not the restriction was tailored to serve the State’s interest, the Court pointed out that judges could campaign and could raise funds for their judicial campaign by way of campaign committees. The Court also agreed that Florida and other

Gabriel, continued from page 28 “Rambo lawyering” by the quicker karma that typifies a small legal community. In his view, Hollywood’s portrayal of lawyers deserves at least some of the blame. Justice Gabriel reminds us that half a century ago, “the model of a lawyer was Atticus Finch in To Kill a Mockingbird.” He laments that the new model is Tom Cruise’s character in A Few Good Men, who pounds his fist on the table while over-dramatically screaming, “I want the truth!”

Justice Gabriel has mulled over the probability that on-screen lawyers have created unreasonable expectations in real-world clients, who falsely attribute strength to the “Rambo-lawyer.”

In reality, such conduct demonstrates only desperation, is rarely persuasive and seldom serves anyone.

Through it all, Justice Gabriel remains optimistic about the profession. During his time on the Chief Justice’s Commission on Professional Development and the CBA/DBA Professionalism Coordinating Council, he has written articles and helped to develop professionalism presentations, complete with edifying vignettes of real-world problems that have been incredibly wellreceived. Justice Gabriel has taken the positive feedback from these groups to heart. “I think we are heading in the right direction as a profession,” he concludes.

In addition to serving as the leading jurists of Colorado’s judicial system under principles of stare decisis, the seven-mem-

30 The Docket I Sept. 2015

states had reasonably concluded that personal solicitation created “a categorically different and more severe risk of undermining public confidence than does solicitation by a campaign committee.” Id. at 14. They also deemed that the identity of the solicitor matters, for “The same person who signed the fundraising letter might one day sign the judgment.”

Id. at 14 Public confidence in the judiciary is the theme and backbone of Chief Justice Roberts’ opinion. Colorado’s system of merit selection aims to maintain public confidence by striking a balance that gives the public a say in their judges through retention elections. This in turn averts the politicization of the Judicial Branch, the conflicts inherent in judicial campaigning and the resulting appearance of impropriety. D Charles C. Hall is an attorney with Levy•Wheeler•Waters, P.C. He is also a cochair of the communications subcommittee of the CBA/DBA Joint Judicial Task Force.

He can be reached at chall@lwwlaw.com.

ber Supreme Court also forms the virtuous leadership of the entire Colorado bench and bar. Coming from this leadership perspective, Justice Gabriel offers dual-pronged yet simple advice for younger lawyers: “(1) do what you are passionate about, and (2) always take the high road.”

That is sage advice from a role model of our profession; it reminds us that life is too short to sacrifice our passions or our credibility for fleeting gains. The value of these treasures is far too great to let slip. Justice Gabriel believes that his cultivation of both credibility and collegiality has helped him to earn the respect of even his opponents over the years. That was undoubtedly an important factor in his appointment. The highest compliment that a lawyer can receive is a positive reference from a former opponent, and there was no shortage of former opponents who regarded him highly enough to recommend his appointment to the Supreme Court. Talk about a compliment! D Justice Richard L. Gabriel replaced the retiring Justice Gregory Hobbs on September 1, 2015.

Keith Lewis is a Denver-based attorney with his own trial and appellate litigation practice. He can be reached at Keith@LewisLawDenver.com.

The attorneys and principals with Colorado Bar Association CLE and Bradford Publishing who worked hard to put the acquisition together: From left to right: Fay Chu Fong, Fortis Law Partners LLC; Craig Boyle, Bradford Publishing; Candace Boyle, Bradford Publishing; Gary Abrams, Colorado Bar Association CLE; Greg Smith, Caplan and Earnest LLC; Not pictured: Dawn McKnight, Colorado Bar Association CLE.

Bradford Publishing Chooses Colorado Bar Association Continuing Legal Education to Carry On Legal Tradition B y M ary D ilw ort h Candace and Craig Boyle, President and CIO respectively of Bradford Publishing in Denver, recently announced the sale of the company’s legal division to Colorado Bar Association Continuing Legal Education (CBA-CLE). The two organizations finalized the purchase on July 31, 2015. Candace Boyle said, “We are excited that Colorado Bar Association CLE is able to take over the production of our top-quality legal forms, books and other law-related information. We know we are leaving them in good hands.” The purchase includes Bradford’s well-known online legal forms, Bradforms. Bradford Publishing, meanwhile, will continue to manage its range of consumer and business products.

Bradford Publishing began in 1881 as the W. F. Robinson Printing Company.

It evolved into the Bradford-Robinson Printing Company before eventually becoming known as Bradford Publishing.

The company started publishing Colorado statutes in 1935 and continued to do so until 2003.

The Boyles, a brother-and-sister team, bought the company in 2007 from William Bradford, the grandson of one of the original owners. When the Boyles decided to spin off the company’s legal division, they knew that they needed to look for an organization that was similarly rooted in Colorado history — one that would carry on the tradition of providing excellent products and quality customer service to the Colorado legal community.

CBA-CLE, the educational arm of the Colorado and Denver Bar Associations, was the most logical choice. Both Bradford Publishing and CBA-CLE maintain close relationships with the Colorado legal community, from the attorneys who help craft their products to the legal professionals who purchase from their extensive libraries. CBA-CLE Assistant Executive Director Dawn McKnight said, “The transition will be smooth, and customers should have an easy time of continuing their subscription to Bradforms and obtaining any legal publications they need. Bradford Publishing and CBA-CLE are reaching out to current

customers to ensure any questions are answered.”

Members of the Colorado and Denver Bar Associations will continue to have access to the same important legal tools, which have been centralized through CBA-CLE. This acquisition complements CBA-CLE’s catalog of quality legal books and adds an invaluable dimension of online forms to its product range. CBACLE is excited for this new chapter and looks forward to offering the largest selection of legal resources for practitioners in Colorado. D Mary Dilworth is the Marketing Manager for Colorado Bar Association CLE. For any questions about Bradforms, or legal publications published by Bradford Publishing, please contact CBA-CLE at 303860-0608 or 888-860-2531; alternatively, please visit cobarcle.org.

Sept. 2015 I The Docket 31

HOW REGULATORS ARE BLOCKING THE FLAT-FEE REVOLUTION “While certainly clients deserve consumer protection from unscrupulous lawyers, our struggling profession would better serve clients and ourselves if we aimed to stabilize the market for legal services, rather than seeking to institutionally enforce buyer’s remorse.” ment is required by Rule 1.5(b). See also Restatement (Third) of the Law Governing Lawyers §§ 34, 38 (1998).

Rule 1.5(f) does not prevent a lawyer from entering into these types of arrangements.”

B y K ei t h Le w is

CLIENTS LOVE FLAT FEES because

of the cost certainty that they bring. One of the most common complaints about lawyers is the billable hour and the pervading perception among clients that lawyers are always on the clock. That is why clients are practically begging for flat fees. However, in view of the highly regulated nature of attorney fees, lawyers are discovering that there are huge disincentives for granting clients whatever they want. Perhaps a more predictable, transactional practice lends itself to flat fees.

However, flat fees in non-routine litigation do not make economic sense under the current regulatory structure.

When you browse through any of the cutting-edge legal media outlets, such as Lawyerist.com or AboveTheLaw. com, you will find dozens of articles touting the flat-fee revolution that clients are demanding and that many attorneys (and even larger firms) are starting to consider. However, the unintended consequences of ethics rules can thwart the concept of the flat-fee revolution and cost attorneys money when they try to respond to their clients’ demands by offering flat fees.

32 The Docket I Sept. 2015

Under the Colorado Rule of Professional Conduct 1.5(g): “Nonrefundable fees and nonrefundable retainers are prohibited.

Any agreement that purports to restrict a client’s right to terminate the representation, or that unreasonably restricts a client’s right to obtain a refund of unearned or unreasonable fees, is prohibited.”

Comment 12 to that rule goes on to state: “Rule 1.5(f) Does Not Prohibit Lump-sum Fees or Flat Fees [12] Advances of unearned fees, including ‘lump-sum’ fees and ‘flat fees,’ are those funds the client pays for specified legal services that the lawyer has agreed to perform in the future. Pursuant to Rule 1.15, the lawyer must deposit an advance of unearned fees in the lawyer’s trust account. The funds may be earned only as the lawyer performs specified legal services or confers benefits on the client as provided for in the written statement of the basis of the fee, if a written state-

In a recent opinion on point, the Colorado Supreme Court recognized that “[t]he flat fee merely established the maximum that the client may owe.”

In Matter of Gilbert, 2015 CO 22 at ¶36 (13SA254) (dated April 6, 2015).

Indeed, many have characterized a flatfee arrangement in Colorado as just an attorney agreeing to cap his hourly fee at a certain amount.

Our profession has long recognized a distinction between earned and unearned fees, as well as the importance of safeguarding the latter in a trust account. The legal system has also long recognized the concept of mutual consideration in contracts. For an attorney to agree to cap his fee at a fixed amount, he must receive something in return, such as the assurance of “nonrefundability.”

While clients certainly deserve consumer protection from unscrupulous lawyers, they would receive better service if the market for legal services were more consistent.

In states that allow nonrefundable retainers, clients are protected by other mechanisms. An ethics board will still step in if the lawyer simply Lewis, continued on page 34

FLAT FEES: YOU ARE ONLY LIMITED BY YOUR CREATIVITY — AND YOUR OATH B y C hip M ort ime r

I RECENTLY FINISHED RENOVATING A HOME. The financial arrangement with my contractor was simple. After paying a deposit for the materials, I paid the contractor fixed amounts at pre-determined intervals upon the work’s completion. We even agreed up-front how the cost of unforeseen circumstances would be calculated.

This was a classic flat fee arrangement.

It provided both of us with the certainty that we needed.

As long as the fee is reasonable, any lawyer could enter into an identical relationship with a client. Nothing could be simpler. Unlike my contractor, few lawyers are willing to wait to be paid until after their work is completed. This is understandable. But let’s be clear: When the fee is paid and how it is calculated are two different considerations. A flat fee can be paid at any time.

Lawyers are typically given fees in advance to hold as a fiduciary that can be applied to payments as they come due under the fee arrangement. In some arrangements, the fee is based on the performance of some predetermined task or the passage of some unit of time. A lawyer is not entitled to these funds until they have been earned by performing an agreed-upon service or conferring a benefit. The lawyer owes fiduciary duties to segregate, safeguard and account for client funds. In addition, the lawyer’s fee must be reasonable under Colo. RPC 1.5(a).

Keith Lewis suggests that lawyers receive a lump sum in advance with no corresponding duty to refund any portion, regardless of the events of the representation. His complaint is not so much about flat fees as it is about other principles that govern the attorney-client relationship. If a client terminates his or her lawyer before the representation is complete, the lawyer may keep the funds, even if the lawyer made a disaster of the client’s case or treated the client unprofessionally. If the client perceives some unfairness in this arrangement, he or she may hire a second lawyer to sue the first,

presumably after negotiating a reasonable fee agreement. Mr. Lewis calls this arrangement a “true flat fee.” He alleges, without evidence, that lawyers will not offer flat fees if they must return the unearned portion. He won’t offer a flat fee unless we reject all regulatory requirements and embrace the freedom of parties to contract for his commercially expedient “no refunds” alternative. However, lawyer and client don’t necessarily stand on equal footing, and fiduciary duties aren’t for sale.

Mr. Lewis argues that his proposal would “shift the risk of uncertainty” onto the client. It certainly would. Not only would this proposal allow the lawyer to forget his fiduciary duties and take fees before they were earned, it would also eliminate or, at the very least, completely reinterpret the requirement that all fees be reasonable. For instance, I could charge you the same flat fee to represent you, whether the case is dismissed before I answer or the matter leads to a week-long jury trial. But Mr. Lewis’ ideal of financial predictability can be achieved without such extreme results.

The current Rules allow consider-

able flexibility. For instance, engagement retainers, in which an attorney earns a reasonable sum upon receipt for taking the case and foregoing others, or for providing other consideration, are allowed.

Mr. Lewis apparently isn’t aware of this; he isn’t the only one. Many lawyers don’t seem to realize that they may charge an engagement retainer as long as the fee statement explains the basis for earning the payment upon receipt. The lawyer must actually provide the consideration so described and keep the engagement retainer distinct from the fee for other services.

Additionally, one can easily divide many types of representation with benchmarks denoting stages where a reasonable portion of the fee has been earned. Granted, flat fees aren’t compatible with all types of representation, especially the litigation matter at the center of Mr. Lewis’ argument. The unpredictable nature of general civil litigation makes the up-front calculation of a lump-sum flat fee as inadvisable as quoting your client the odds of success.

Flat fees work best in repetitive litigation situations and transactional representaSept. 2015 I The Docket 33

tion (e.g., DUI defense, estate planning and debtor representation in Chapter 7 bankruptcy). While the time that you spend on any particular matter may vary, that does not mean that charging an identical fee is unreasonable under Colo. RPC 1.5(a).

If you are concerned about losing money by being terminated in-between benchmarks, use more benchmarks and keep them close together so that the amount you earn and therefore risk between them is not as great. The Matter of Gilbert, 346 P.3d 1018 (Colo. 2015), provides additional guidance to lawyers by allowing them to retain a portion of an advanced flat fee at termination prior to the completion of the representation based on the fair value of the services provided.

In less repetitive situations, such as the civil litigation matter to which Mr. Lewis alludes, consider the possibility of hybrid fee arrangements that combine flat, hourly and contingent fees in different ways to deliver services in a manner that enhances predictability for lawyer and client. For instance, an hourly agreement could incorporate flat fees for

certain foreseeable tasks.

As Mr. Lewis points out, developing alternative fee arrangements is a critical access to justice issue. Contingent fees are the classic example of a fee structure that is intended to assist persons who might not otherwise be able to afford legal counsel. We all know that contingent fees must be reasonable and that compliance with Chapter 23.3, Rules Governing Contingent Fees is imperative if a fee is to be recovered, regardless of the social or commercial benefits of our fee agreement.

Our professional responsibilities will not yield to a one-sided deal that is struck by a client who can’t afford a lawyer and bargains from a disadvantage.

We can succeed financially while operating within the framework of existing rules. I am not aware of any client who is clamoring for the opportunity to have an attorney keep money that hasn’t been earned. Likewise, I really do not understand how simply labeling flat fees “earned upon receipt” would improve access to justice. If access to the legal system for those of modest means were reduced to little more than a game of chance — you won’t know until the representation ends

whether or not the fee that you are locked into was reasonable — our profession is failing the public. Mr. Lewis cites no evidence to suggest that these are the sort of flat fees that clients are “begging for.”

Mr. Lewis’ proposal sounds a lot like the credit industry, which shifts the risk of “uncertainty” (a synonym for “loss” in this instance) to those of modest means by charging higher interest rates to those who can afford them the least. The legal profession is a social institution, a cornerstone of our democratic society — not an engine of commerce. Access to justice is not credit: Reasonable fees are not commodities that belong only to those who can afford to bargain for them. D

Lewis, continued from page 32

ney’s commitment to the client’s case and acceptance of potential disqualification from other representations, are provided as soon as the contract is signed.”). The distinction is that other states recognize that an attorney has conferred a benefit to the client by simply agreeing to the representation.

When someone seeks an attorney after having just been served with a summons in a civil trial, one of the first questions that the prospective client will ask will be the cost. Neither attorney nor client can accurately predict the duration or scope of the litigation because the pleadings can be amended, and discovery can often take a winding course. By agreeing to a flat-fee structure, the attorney will take on a significant risk by limiting his or her fee to a particular fixed rate, even though the work to be performed remains uncertain.

Flat fees make no business sense for litigation attorneys under the current regulatory system because the attorney

assumes the client’s risk of uncertainty in litigation without being offered anything in return. In such a scenario, the attorney would have to (foolishly) agree to perform an indefinite amount of work for a definite price. I am not suggesting that clients should be denied the right to terminate representation; I am arguing that shifting the uncertainty of litigation onto lawyers is not the correct approach.

The frustration is that many ethics bylaws, including those in place in Colorado, prohibit the use of flat fees in any way that would make sense for litigators.

Sorry clients: There won’t be any flat fees until the rules are reformed. But do not fret: According to the government, it’s for your own good. D

takes the fee and ignores the client’s matter. The term “special retainers” is often used in states where an attorney may classify a retainer as nonrefundable. Special retainers acknowledge the tradeoffs that attorneys face when agreeing to represent a client; they also allow attorneys the freedom to openly contract for their fee. In those states, the Supreme Court seeks to regulate the attorney’s attention to the case — not his or her fee agreement. Other states have embraced the flat-fee trend and have created built-in incentives to encourage attorneys to meet the demand for flat-fee legal representation. Colorado, by contrast, prohibits classifying a retainer as nonrefundable.

See Colo. RPC 1.5(g); compare State Bar of Georgia Formal Advisory Opinion 03-1 (“Generally, fees paid in advance under a special retainer are earned as the specified services are provided. Some services, for example, the services of the attor-

34 The Docket I Sept. 2015

Charles (Chip) E. Mortimer received his undergraduate degree from Tufts University in 1983 and his J.D. from the College of William and Mary in Virginia in 1986. He was licensed to practice law in Colorado in 1986, and spent fourteen years in private practice, focusing on family, commercial and real estate litigation, before joining the Office of Attorney Regulation Counsel. Chip is now Deputy Regulation Counsel. He can be reached at c.mortimer@csc.state.co.us.

The author, Keith Lewis, is a Denverbased attorney with his own appellate and trial litigation practice. He can be reached at Keith@LewisLawDenver.com.

CBA-CLE Calendar

Sept. 2015

REGISTER ONLINE OR CALL TODAY!

September 1, 2015 Introduction to Mergers and Acquisitions of Franchise Companies Submitted for 1 General CLE credit

LIVE EVENTS AND LIVE WEBCASTS

September 3, 2015 Immigration Law - Asylum and Other Humanitarian Relief Submitted for 7 General CLE credits

September 11, 2015 Will Contests - Legal and Equitable Claims and Defenses Submitted for 7 General CLE credits September 16, 2015 Enterprise Risk Management Evolution for Banks Submitted for 1 General CLE credit

September 8, 2015 Doing Business in Emerging Markets - Legal Hurdles and More Regarding Natural Resources Submitted for 1 General CLE credit

September 18, 2015 Search & Seizure Law in Colorado: Update and Overview Submitted for 4 General CLE credits

September 9, 2015 Unbundled Representation in Family Law Cases Submitted for 4 General CLE credits, including 1 Ethics

September 21, 2015 Time Mastery for Lawyers Submitted for 6 General CLE credits, including 2 Ethics

Sept. 10, 17, 24, Oct. 1, 15, 22, 29, Nov. 5, 12, 19, 2015 Colorado Real Estate Practice with Willis Carpenter Submitted for 18 General CLE credits, including 4 Ethics

All classes are held at the CBA-CLE Classroom at 1900 Grant St, Ste 300, Denver, CO, unless otherwise noted.

YOUR NUMBER ONE RESOURCE FOR COLORADO LAW

LIVE WEBCASTS

LIVE EVENTS

MP3 AUDIO HOMESTUDIES

VIDEO-ON-DEMAND HOMESTUDIES

VIDEO REPLAYS September 9-11, 2015 Hanging Your Shingle 2015: Hardware. Software.

Anywhere You Want to GO Submitted for 18 General CLE credits, including 7.9 Ethics

September 13, 2015 Immigration Law - Asylum and Other Humanitarian Relief Submitted for 7 General CLE credits (video replay in Grand Junction, Colorado Springs, and Denver)

Colorado Bar Association

CLE www.cobarcle.org CLE CBA 1900 Grant St., Suite 300, Denver, CO 80203-4303 Phone: 303-860-0608 Toll-Free: 888-860-2531 Fax: 303-860-0624 Sept. 2015 I The Docket 35

You invested in your education...now invest in your career

NEW LAWYER EDGE MEMBERSHIP IS:

A 3-year membership program for attorneys in the first 5 years of practice.

YOU GET ALL THIS FOR ONE LOW PRICE! n $199 for Colorado Bar Association Members n $299 for Non-Colorado Bar Association Members

LIVE AND LIVE WEBCAST CLE PROGRAMS n Unlimited Free Attendance at Live Build Your Practice CLE Seminars (This includes Basics and Fundamentals courses) n 50% discount off all other Live and Live Webcast Colorado Bar Association CLE Seminars*

CBA-CLE HOMESTUDIES n 24/7 Free online access to CLE Content for all Basics and Fundamentals Seminars n 50% discount off all other online Colorado Bar Association CLE Homestudies

CBA-CLE BOOKS n 20% discount off Colorado Bar Association CLE Books**

ADDITIONAL RESOURCES n Online CLE Course Materials: An online PDF library with thousands of CLE course materials and outlines, produced by subject matter experts! Includes online Annual Survey of Colorado Law back to 2009 n CLE Forms Bank: This exclusive resource provides forms culled from our substantive legal publications – provided at no cost to New Lawyer Edge members

NETWORKING OPPORTUNITIES n Faculty / Author Reception: Meet other attorneys who have increased their visibility in the legal community through CLE! n Marketing for new lawyers seminars n Build your Professional Skills seminars n After-hours social events – opportunities to connect with other new attorneys - only for New Lawyer Edge members!

SIGN UP NOW!

www.cle.cobar.org/NewLawyerEdge 36 The Docket I Sept. 2015

* Exclusions may apply ** Excludes CBA-CLE Supplements, ABA and other publishers' books Colorado Bar Association

CLE

www.cobarcle.org 1900 Grant St., Suite 300, Denver, CO 80203-4303 Toll-Free: 888-860-2531 Fax: 303-860-0624

Phone: 303-860-0608

Dates on the DOCKET DBA MEETINGS All DBA meetings are scheduled at 1900 Grant St., Suite 900, in Denver, unless otherwise noted. Call Melissa Nicoletti, 303-8245321, to schedule committee meetings so they will appear in this calendar.

SEPT. 2 Docket Committee Noon–1 p.m.

Call Jessica Volz, 303-824-5336 SEPT. 3 Lawyers and Schools Committee Noon–1 p.m.

Call Meghan Bush, 303-824-5303

SEPT. 8 DBA Board of Trustees 7:30–9 a.m.

Call Leah Achen, 303-824-5327 SEPT. 9 Professionalism Coordinating Councils Noon–1 p.m.

Call Greg Martin 303-824-5317 DBA YLD Council 6–7:30 p.m.

Call Heather Folker, 303-824-5350

SEPT. 15 Community Action Network Noon–1 p.m.

Call Kate Schuster, 303-824-5312 Family Law Basics for Legal Night Volunteers El Centro San Juan Diego 2830 Lawrence St., Rm. 115 4–5:30 p.m.

Call Meghan Bush, 303-824-5303 *Will be recorded if you can’t make it.

SEPT. 16 Pro Bono Panel Discussion University Denver Law 2255 E. Evans St. Noon–1 p.m.

Email lunches@cobar.org Docket Committee Art Party and DBA-YLD Barristers After Hours Mike Wright Gallery 1412 Wazee St. 5:30–7 p.m.

Call Jessica Volz, 303-824-5336 SEPT. 24 DBA-YLD Coffee Talk 7:30–8:30 a.m.

Call Heather Folker, 303-824-5350

FOR THE PUBLIC To volunteer for the Public Legal Education programs or for more information, unless otherwise indicated, contact Meghan Bush at 303-824-5303.

SEPT. 2 Child Support Clinic 1437 Bannock St, Room 368 10–11:30 a.m.

LawLine 9 500 East Speer Blvd 4–5:30 p.m.

Legal Night At El Centro De San Juan Diego 2830 Lawrence St. 5:30–7 p.m.

Call 303-295-9470 SEPT. 8 Veterans Clinic Auraria Campus Tivoli Student Union, Room 444 900 Auraria Parkway Noon–2 p.m.

Bankruptcy Clinic U.S. Bankruptcy Court 721 19th St 1:30–3 p.m.

Legal Night at Mi Casa 360 Acoma St 5:30–7 p.m.

Call 303-573-1302

SEPT. 9 LawLine 9 500 East Speer Blvd 4–5:30 p.m.

SEPT. 16 Colorado Poverty Law Clinic Colorado Coalition for the Homeless 2100 Broadway 4–6 p.m.

SEPT. 15 Small Claims Clinic Denver City and County Building 1437 Bannock St, Room 117 11 a.m.–1 p.m.

Family Law Clinic Office of Economic Development 1200 Federal Blvd Room 1018 5:30–7 p.m.

Call 720-944-2594

LawLine 9 500 East Speer Blvd 4–5:30 p.m.

SEPT. 17 Collections Clinic Denver City and County Building 1437 Bannock St, Room 164 11 a.m.–1 p.m.

SEPT. 23 LawLine 9 500 East Speer Blvd 4–5:30 p.m.

Sept. 2015 I The Docket 37

Bar RESOURCES The DBA Waterman Fund Financial assistance for Colorado lawyers. The DBA Waterman Fund provides financial assistance for “aged, infirm, or otherwise incapacitated lawyers who have practiced in Colorado for a minimum of ten years.” Visit cobar.org/ watermanfund.htm for more information. The Fund’s address is 1900 Grant Street, Suite 900, Denver, CO 80203.

Phone number is 303-824-5319 and fax is 303-861-5274.

Fran Fontana: 303-468-2668 Sponsored by the DBA Peer Professionalism Assistance Committee.

COLAP

For more information or for confidential assistance, please contact COLAP at 303-986-3345 or (toll free) 855-9862126. Visit our website at coloradolap.org

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).

DBA Placement Services

CWBA Foundation Raises the Bar With Dinner

Barristers After Hours and The Docket Art Contest Reception

The CWBA Foundation’s Annual “Raising the Bar” Dinner will be held at the Brown Palace Hotel on Thursday, Sept. 10 at 5:30 p.m. This year, the Foundation celebrates its 10th anniversary by honoring “Five Female Attorneys Who Will Make An Impact Over the Next 10 Years.” The honorees are: The Honorable Cynthia Coffman, Colorado Attorney General; Janet Stansberry Drake, Special Prosecutions Unit, Colorado Attorney General’s Office; Cristal Torres DeHerrera, Deputy City Attorney, City and County of Denver; Carolyn F. Fairless, Managing Partner, Wheeler Trigg O’Donnell LLP; and Patricia M. Jarzobski, The Law Office of Patricia Jarzobski. Proceeds from the dinner help the CWBA Foundation fund scholarships at both Colorado law schools, provide funding for CWBA educational and mentoring programs and more. For more information, visit cwba.org/RAISING-THE-BAR.

Join the DBA Young Lawyers Division and the Docket Committee for Barristers After Hours and the Docket Art Contest Reception on Thursday, Sept. 17, from 5:30 to 7 p.m. at the Mike Wright Gallery, 1412 Wazee St. Free drinks and appetizers will be provided. RSVP to lunches@ cobar.org or call 303-860-1115, ext. 727.

term beginning July 1, 2016, serving on the CBA Executive Council and Board of Governors. Nominations are due by Friday, September 25. For more information or to send nominations, contact Dana Collier Smith at dcolliersmith@cobar.org.

Troubled by Rude and Unprofessional Attorneys?

The DBA Peer Professionalism Assistance Committee can help The following lawyers are willing to take calls on a confidential basis, offering guidance, tips, and strategies for dealing with opposing counsel.

Roger Castle : 303-839-8251 T.J. Carne: 303-526-9666

As a membership service of the Denver Bar Association, the Placement Service provides law firms and legal departments of corporations with qualified applicants in positions that match their skills, abilities and expectations.

Their 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, accounting, administrators and office assistants. Contact Mev Parsons or Amy Sreenen at 303-894-0014 or email dbaps@earthlink.net.

BRIEFS

38 The Docket I Sept. 2015

Sign Up For Dba Lawyers Football League This fall begins another season for the Denver Bar Association Lawyers Football League. The season runs from the weekend after Labor Day to the first weekend in November. Interested teams or individuals should contact John Stevens at jhs@ giffordstevens.com or 303-495-5988.

Represent The First District Of CBA The Denver Bar Association seeks nominees to serve as Colorado Bar Association Vice President representing the First District (Denver). This is a one-year

Legal AFFAIRS GOOD THINGS Gary Lozow, a partner at Foster Graham Milstein & Calisher, LLP, has been awarded the Alvin D. Lichtenstein Award for remarkable accomplishments over a lifetime of distinguished service by the Colorado Criminal Defense Bar. Miles Cortez from the class of ’64, will be inducted into the Trinity University Athletic Hall of Fame Oct. 3.

Cortez was a major contributor in one of the most successful eras in Trinity tennis history. During his final three years as a Tiger player, from 1962 to 1964, Trinity amassed three undefeated seasons.

Meshach Y. Rhoades, an attorney with Greenberg Traurig, LLP, has been selected to receive the University of Colorado’s 2015 Kalpana Chawla outstanding recent graduate award.

The Legal Aid Foundation of Colorado is pleased to welcome eight new trustees to its board: Loren Brown, a shareholder at Brown Ciancio Ciancio Brown and current President of the Colorado Bar Association; retired U.S. Bankruptcy Court Judge Bruce Campbell; Julie Gifford, a shareholder at Otten Johnson Robinson Neff & Ragonetti; Steve Levine, a partner at Husch Blackwell; Heather Perkins, a partner at Faegre Baker Daniels; Matt Pring, an associate at Houtchens Greenfield & Sedlak; Warren Thomas, general counsel for MegaStar Holdings; and Cheryl Walton, a principal at Causey Demgen & Moore.

Newly elected officers are Chairperson Chris Ford, a member of Hutchinson Black & Cook; Vice-Chair Natalie Hanlon-Leh, a partner at WilmerHale; Secretary Eric Olson, a partner at Bartlit Beck; Treasurer Cheryl Walton, a principal at Causey Demgen & Moore, and Past-Chair Jessica Brown, a partner at Gibson Dunn & Crutcher.

CHANGES Moye W hite LLP announced that Patrick Hickey has joined the firm as an associate. He will be a member of the Hickey firm’s trial section.

Treece Alfrey Musat PC welcomes Jeremy L. Swift as a shareholder, Paul D. Cooper and Dan R. Christopher as of counsel and Eric T. Lund as associate to the firm.

Lewis Brisbois announced the addition of Willow Arnold to its office as an associate in its workers’ compensation practice.

Arnold represents employers, insurers and self-insured employers in workers’ compensation matters.

Hogan Lovells is pleased to announce that partner Scot W. Anderson has been named global co-head of the energy and natural resources group.

Anderson has an international practice focusing on commercial transactions, regulatory advice, and project development involving the oil and gas, mining, and energy industries.

Kutak Rock LLP welcomes of counsel attorney Estee Sanchez to the firm’s corporate group specializing in oil and gas law. She represents oil and gas companies in all phases of acquisition, development and operation of oil and gas properties.

Jones & Keller, PC is pleased to announce that Kristin A . Lockwood has joined the firm as an associate. Lockwood ’s Lockwood practice focuses primarily on complex commercial litigation. She represents large financial institutions, private investors, public and private corporations, and individuals.

Coan, Payton & Payne, LLC is pleased to announce John W. Madden III has become of counsel to the firm.

Madden has experience with real estate ligitation, which will be his pri-

mary focus.

Fisher & Phillips LLP announced that Jocelyn Campanaro and Angelica Ochoa have joined the law firm as partners. Ochoa and Campanaro specialize in employment-based immigration law.

Porya Mansorian recently joined Evans Case, LLC, where his practice will focus on personal injury, medical negligence and nursing home abuse cases.

Matthew J. Ninneman joined Hall & Evans as a special counsel litigation attorney in the design and construction Ninneman practice group.

Ninneman’s practice focuses on commercial and construction litigation emphasizing legal representation of owners, James general contractors, subcontractors, architects, engineers, and suppliers.

Moye White LLP announced that Scott James has joined the firm as an associate. He will be a member of the firm’s trial section.

Akerman LLP announced transactional lawyer Howard Gelt joined as a partner in the real estate practice group.

Coan, Payton & Payne, LLC is pleased to announce Gelt that Curtis Sears, has become of counsel to the firm. Sears has been actively involved in real estate development, construction and brokerage Sears throughout his career.

Kilpatrick Townsend & Stockton announced the addition of Sara Bradford to the firm. Bradford joins as an associate on the engineering and software team in the intellectual property department.

Cordell & Cordell recently hired associate attorney Heather Coleman.

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 Kate Schuster at kschuster@cobar.org by the 1st day of the month.

Sept. 2015 I The Docket 39

Volz

T h e C o l o ra d o a n d Denver Bar Associations welcome Jessica Volz as their new Communications and Marketing Specialist and Editor of The Docket.

BRICKS AND MORTAR In addition to Treece Alfrey Musat PC (TAM) acquiring new office space (see the April edition of The Docket), the general liability defense practice of Cooper & Clough, PC merged into TAM effective April 27. TAM has also been elected as the Colorado member of The Harmonie Group.

Riggs Abney announced that Christopher B. Lyons & Associates, PC is merging with Riggs Abney.

Edward M. Allen and Michael P. Curry are pleased to announce the formation of their new law firm, Allen & Curry, PC. Its professionals will continue providing commercial and constructionlitigation services.

Wells, Anderson & Race, LLC is celebrating it’s 20th anniversary. They would like to thank all of their clients,

attorneys, staff, friends and supporters.

WEDDINGS

McCune & D’Aversa

Congratulations to past DBA President Dan McCune of Childs McCune on his recent nuptials to Lorraine D’Aversa. The couple were wed in the mountains on July 24.

NEW FACES Colorado and Denver Bar Associations Communications and Marketing Manager Alexa Drago and her husband Pete welCharlie comed their second son Charlie Drago on July 25. He weighed 7 pounds, 4 ounces and was almost 19 inches long. Congratulations to the Drago family!

Colorado Bar Association Public Legal Education Director Carolyn Gravit Ella and her husband Michael welcomed their daughter, Ella Jane. Ella weighed 8 pounds, 4 ounces.

2014 BEST ART GALLERY

! 4 1 2

W A Z E E

40 The Docket I Sept. 2015

S T .

ANNA BOCEK

“RED CARPET”

CONTEMPORARY ART GALLERY CUSTOM FRAME SHOP PRIVATE EVENT SPACE FINE WINE AND CRAFT BEER

“DRAMATIC, INTRIGUING PAINTINGS PEPPER THE WALLS TO GIVE THE SPACE A BOLD AND PLAYFUL VIBE... THE GALLERY’S UNIQUE STATEMENT PIECES ARE PERFECT TO DISCUSS OVER CRAFT BEERS AND WINES.” - 5280 |

D E N V E R

C O

8 0 2 0 2

|

M I K E W R I G H T G A L L E R Y . C O M

Picture THIS DBA Annual Awards More than 150 people gathered on Thursday, July 9, at the Ralph L. Carr Colorado Judicial Center for the DBA Annual Awards Ceremony and Reception. There was standing room only in the Supreme Court Courtroom, as more than 150 DBA members, family and friends joined in honoring the 2015 award recipients for their commitment to the legal field and the community before the reception in the atrium. The honorees were:

Award of Merit: Charles C. Turner.

Judicial Excellence: Ruben Hernandez.

Young Lawyer of the Year: Gillian M. Bidgood.

Volunteer of the Year: John M. McHugh.

Education in the Legal System: Doug Wilhelm, Denver Public Schools Hamilton Middle School 8th Grade History Teacher.

Projects and Programs: Denver Bar Association Court Mediation Services Program.

John Vaugh passes the gavel to Janet Drake.

Guests visit with each other.

Left: Lisa Hughes, Jeanne Busacca, Gillian Bidgood, Doug Wilhelm, Hon. Ruben Hernandez, John McHugh, Past CBA Executive Director Charles Turner, DBA President Janet Drake and DBA Past President John Vaught.

RMAIN 2015 Immigrant Liberty Awards The 2015 Immigrant Liberty Awards, a fundraiser and awards ceremony for the Rocky Mountain Immigrant Advocacy Network (RMIAN), was held on Friday, June 12, at the University of Denver’s Ricketson Law Building.

The Immigrant Liberty Award honorees were: • Tris Lester Bacani, Colorado Human Trafficking Council.

• Joe Wismann-Horther, Colorado Refugee Services Program.

• Westminster High School Latin American Student Association.

• The 7th Annual Pro Bono Service Award was given to David Kolko, Kolko & Associates, PC. He is AILA Colorado Outgoing Chair.

Immediately following the awards presentation, Immediate-Past CBA President Charles F. Garcia presented RMIAN with a check for $50,000 from the Colorado Bar Association. The donation was decided on earlier this year by the CBA Executive Council as a funds-matching challenge to RMIAN. RMIAN was able to raise $50,000 on its own, and CBA matched the funds.

Left: CBA Executive Director Patrick Flaherty, CBA Past President Charley Garcia, Mekela Goehring, Abbie Johnson and David Kolko.

Sept. 2015 I The Docket 41

Picture THIS DBA Banquet Honors Members for 50 Years in the Legal Community Approximately 90 people turned out for DBA’s annual Seniors Spring Banquet on June 3 at the University Club in Denver. Twenty-eight DBA members who were admitted to practice in 1965 made up the list; seventeen of them appeared in-person to be recognized for their achievements and service to the profession. DBA President John Vaught and past DBA President Mary Jo Gross were the presenters. The honorees in

attendance were: Andrew S. Armatas, Robert E. Benson, Alan H. Bucholtz, William V. Cox, James B. Dean, Richard A. Finke, David W. Furgason, Michael R. Homyak, William J. Hunsaker, William G. Imig, Dennis M. Jackson, Richard D. Judd, Howard M. Kirshbaum, H. Michael Miller, Robert N. Miller, John D. Pearson and Robert M. Vinton.

DBA Past President Mary Jo Gross and Bob Benson.

DBA Seniors Chair Leonard Plank.

X.

Lawyers Are From Mars, Judges Are From Venus DBA’s Bench and Bar Committee held a complimentary roundtable event titled “Lawyers Are From Mars, Judges Are From Venus” on Wednesday, May 6, at the Denver Bar Association offices. The program was also co-sponsored by the Sam Cary, GLBT and Hispanic Bar Associations. Attendees included approximately 70 attorney members and judges.

Olympia Fay, Adam Espinosa, KC Harpring and Doug Stevens.

The Docket Arts and Literature Contest Judging Party The Docket Committee held its Arts and Literature Contest Judging Party on June 4 at the Rathod Mohamedbhai LLC offices. After viewing and discussing the submissions, the group headed to Meadowlark Kitchen for a bar review.

Left: Heather Folker, Marshall Snider, Natalie Lucas, Suzanne Snider, Keith Lewis, Courtney Gibb and Becky Bye.

42 The Docket I Sept. 2015

DBA Happenings

Henry Hall Memorial Golf Tournament On Monday, June 8, 66 DBA members gathered at Hiwan Golf Club in Evergreen to compete in the annual Henry Hall Memorial Golf Tournament.

The following teams earned top honors in their respective divisions: Challenge Low Gross — Ed Timmons, Jeff Jackson, Ed Timmons, Jr. and Danny Hahn; Challenge Low Net — Josh Bugos, Julian Ellis, Chris Condit and Jim Nottingham; Champi-

Ed Timmons, Danny Hahn, Jeff Jackson and Ed Timmins, Jr.

ons Low Net — Todd Jansen, John Lumley, Marty Martineau and Frank Hamilton; Champions Low Gross—Adam McClure, John Connell, John Lumley and Frank Hamilton. On the individual side, the Champions Men’s Low Gross winner was Todd Jansen, and the Champions Women’s Low Gross winner was Susie Roh.

Jim Nottingham, Julian Ellis, Chris Condit and Josh Bugos.

Marty Martineau, Todd Jansen, Frank Hamilton and John Lumley.

Seniors Hit the Links for Their Annual Tournament Nineteen DBA senior members gathered for lunch and a round of golf at Homestead Golf Course in Lakewood for the annual Seniors Golf Tournament on July 16. The winners were:

Bill Krems, David Vigil, Fred Fielder, and Bib Litchard.

Low Gross: Dave Brougham; Low Net: Pete Willis; Longest Drive: Mark Miller; and Closest to the Pin: Chip Delap.

Chip Delap, Dave Little, Dick Harvey, and Don McMichael.

Mark Miller, Chuck Carpenter, and Bob Vinton.

Justice Hobbs Retirement Party On Tuesday, June 23, more than 75 people gathered at the Ralph L. Carr Judicial Center for a lively celebration to honor the career of Gregory J. Hobbs, Jr., who retired on August 31 after more than 19 years on the Colorado Supreme Court. Justice Hobbs received several gifts, including a rocking chair from his fellow Justices, an antique engraving print and framed poetry — a love he has shared with his friends and fellow DBA Docket readers.

Justice Gregory Hobbs, Jr. and Chief Justice Nancy Rice.

Sept. 2015 I The Docket 43

AT JAMS WE TAKE YOUR CASES AS SERIOUSLY AS YOU DO. Samuel Gordon, Esq. Elaine A. Wohlner, Esq. Hon. James S. Miller Hon. John P. Leopold Sheldon E. Friedman, Esq.

Hon Harlan R. Bockman John E. Hayes, Esq. Randall C. Mustain-Wood, Esq. Hon. William F. Downes Collie E. Norman, Esq.

410 17 TH STREET, #1600 • DENVER, CO 80202 LOCAL: 303.534.1254 • TOLLFREE: 1.866.534.1254 44 The Docket I Sept. 2015

Richard P. Myers, Esq. Hon. James C. Klein Hon. Norman D. Haglund Hon. Frank N. Dubofsky Kenneth R. Bennington, Esq.

www.jamsdenver.com