APRIL 2021 | PUBLISHED by the COLORADO BAR ASSOCIATION TABLE of CONTENTS April | Vol

APRIL 2021 | PUBLISHED BY THE COLORADO BAR ASSOCIATION TABLE OF CONTENTS April | Vol. 50, No. 4 | www.cobar.org

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COLORADO LAWYER BOARD Chris Levkulich, Chair Denver—(303) 861-4154 [email protected]

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ALTERNATIVE DISPUTE RESOLUTION REAL ESTATE LAW Joel M. Pratt From Gladiators to Counselors In “Case” You Missed It Colorado Springs—(719) 473-0884 [email protected] The Mediator’s Role in Encouraging Recent Real Estate Case Law Highlights Jennifer Seidman Attorneys to Problem-Solve by Lindsay J. Miller, Nathan G. Osborn, and Paul Englewood—(303) 792-5595 by Wesley Parks Sachs [email protected] PAGE 22 PAGE 36 Patrick R. iessen Arvada—(303) 420-1234 [email protected] THE CIVIL LITIGATOR WORKERS’ COMPENSATION LAW Jami Vigil Colorado Springs—(719) 452-5400 The Attorney Work Product Doctrine The Game of Liens [email protected] Untangling the Statutory Lien Scheme in Its History and Application Juan G. Villaseñor by Franz Hardy and Greg S. Hearing Colorado Workers’ Compensation Cases Fort Collins—(970) 672-7498 [email protected] PAGE 30 by Joseph W. Gren and Emily M. Miller Amy Larson PAGE 48 CBA Executive Director and CEO

ON THE COVER: This photo of Lone Eagle Peak towering above Mirror Lake was taken by Reid Neureiter in August 2020. Named in honor of pilot Charles Lindbergh, Lone Eagle Peak is in the Indian Peaks Wilderness on the west side of the Continental Divide. The base of the 11,919-foot peak can be reached via an 8-mile hike (16-mile round trip) starting at Monarch Lake, just east of Lake Granby in Grand County. Reid Neureiter has served as a US magistrate judge for the District of Colorado since August 2018.

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Untitled-2 1 11/30/20 5:56 PM Untitled-2 1 11/30/20 5:56 PM TABLE OF CONTENTS April | Vol. 50, No. 4 | www.cobar.org

cl.cobar.org

Susie Klein, Managing Editor (303) 907-1828, [email protected]

Jodi Jennings, Legal Editor (303) 824-5326, [email protected]

Kate Schuster, Graphic Designer (303) 824-5312, [email protected]

ADVERTISING Jessica Espinoza-Murillo [email protected]

MEMBERSHIP SERVICES/ ADDRESS CHANGES Teri Roberts, Membership Services Coordinator (303) 824-5376, [email protected]

COLORADO LAWYER BOARD Chris Levkulich, Chair Denver—(303) 861-4154 [email protected]

FEATURES Keith M. Olivia Boulder—(720) 310-7760 [email protected]

APRIL 2021 | COLORADO LAWYER | 1

Untitled-2 1 11/30/20 5:56 PM Untitled-2 1 11/30/20 5:56 PM WELCOME FROM THE COURTS CONSTRUCTION DEFECTS? 4 President’s Message 76 Colorado Supreme Court O ce of Leading, and Living, with Gratitude Attorney Regulation Counsel by Jessica Brown Disciplinary Case Summaries for Matters Resulting in Diversion and Private 10 Mailbag BURGSIMPSON.com Admonition From Our Readers Executive Council 80 O ce of the Presiding OFFICERS DEPARTMENTS Disciplinary Judge Jessica Brown President 12 The SideBar Disciplinary Case Summaries Joi Kush What Took So Long? 84 US Court of Appeals for the President-Elect by Mark Levy Tenth Circuit Kathleen Hearn Croshal 14 Judges’ Corner Summaries of Selected Opinions Immediate Past President Judicial O cers and Self-Represented 88 Colorado Court of Appeals Ryann Peyton CALL COLORADO’S LEADING Litigants: Tools for Working Together Summaries of Published Opinions Vice President by Nina Y. Wang, Adam J. Espinosa, and First Region CONSTRUCTION DEFECT FIRM Kelley R. Southerland, with contributions 96 Colorado Supreme Court Adam Hepp by Michael Houlberg Summaries of Published Opinions Vice President Second Region

18 Wellness Judson Hite • 25 years of Success in The Pursuit of Attorney Well-Being: ALSO IN THIS ISSUE Senior Vice President ird Region How Organizations Can Ethically Assist 98 Attention Photographers Construction Defect Cases Attorneys with Mental Health and Kyle Aber 100 Membership Perks Vice President Substance Abuse Issues Fourth Region by David P. Hersh 102 Writing for Colorado Lawyer Keith Vance • Over Half a Billion in Vice President AROUND THE BAR UNDER OATH Fifth Region 58 Bar News Leslie German Recoveries for Homeowners 104 Member Spotlight News From the CBA, Vice President Sixth Region Local Bars, and More Leslee Balten • A Team of Attorneys Dedicated to by Jessica Espinoza-Murillo Vice President Seventh Region 60 Bar News Highlight Construction Defect Litigation COVID and the Courts: A Look at Boulder COUNCIL MEMBERS County’s Response to the Pandemic Tyrone Glover • by Laurence “Trip” W. DeMuth III DBA President Authored Residential 64 Lawyers’ Announcements Spencer Rubin CBA YLD Chair Construction Law in 73 In Memoriam Zaki Robbins Diversity Bar Representative

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COLORADO | ARIZONA | FLORIDA | NEVADA | NEW MEXICO | OHIO | WYOMING APRIL 2021 | COLORADO LAWYER | 3 WELCOME FROM THE COURTS CONSTRUCTION DEFECTS? 4 President’s Message 76 Colorado Supreme Court O ce of Leading, and Living, with Gratitude Attorney Regulation Counsel by Jessica Brown Disciplinary Case Summaries for Matters Resulting in Diversion and Private 10 Mailbag BURGSIMPSON.com Admonition From Our Readers Executive Council 80 O ce of the Presiding OFFICERS DEPARTMENTS Disciplinary Judge Jessica Brown President 12 The SideBar Disciplinary Case Summaries Joi Kush What Took So Long? 84 US Court of Appeals for the President-Elect by Mark Levy Tenth Circuit Kathleen Hearn Croshal 14 Judges’ Corner Summaries of Selected Opinions Immediate Past President Judicial O cers and Self-Represented 88 Colorado Court of Appeals Ryann Peyton CALL COLORADO’S LEADING Litigants: Tools for Working Together Summaries of Published Opinions Vice President by Nina Y. Wang, Adam J. Espinosa, and First Region CONSTRUCTION DEFECT FIRM Kelley R. Southerland, with contributions 96 Colorado Supreme Court Adam Hepp by Michael Houlberg Summaries of Published Opinions Vice President Second Region

Edwin Felter Colorado, 6th Ed. Section Representative

Robin Rossenfeld Section Representative

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of anxiety that occasionally manifests as outright Some research has suggested that, for people for example when I’m driving—except that part stress. After all, gratitude is about not taking the with clinical depression and anxiety, the bene ts about “eyes closed”! good things in our lives for granted. I take almost of gratitude are not significant.8 Even those Another wonderful tool for cultivating nothing for granted—which means I simulta- studies, however, support that “people who gratitude is giving back.16 Gratitude can be neously have a pretty constant concern about have gratitude as a general trait have a lower inspired by “an awareness that you enjoy many possibly losing the things I appreciate so much: incidence of mental health problems and better basic things that others, unfortunately, lack.”17 family, health, work, friends, our professional and relationships.”9 It causes us to “re ect[] on the things that are school communities, civil liberties, this planet, my It makes intuitive sense that people who easy to take for granted.”18 One way lawyers sense of taste and smell . . . the list is long. focus on gratitude show greater optimism in can give back is by providing pro bono legal But my research turned up very little many areas of their lives.10 Moreover, the more services. My October President’s Message is all information about the connection between gratitude they experience and express, the more about pro bono opportunities and our duty, as gratitude and anxiety, other than inversely. at situations and people they may feel grateful well as our privilege, as attorneys to help people said—even for me—those under-the-surface for.11 Feelings of appreciation also help us “to and small businesses that are struggling.19 I nervous feelings are generally substantially have healthier minds, and with that healthier have also urged lawyers to consider ways they outweighed by on-the-surface feelings of bodies.”12 Research has shown that patients with can give back and make a di erence regarding considerable happiness. I particularly notice heart failure who completed gratitude journals racial justice, including in my January President’s my feelings when I’m not too distracted, such showed reduced in ammation, improved sleep, Message20 and during comments at symposiums as when I’m doing dishes or driving. In those and better moods, which reduced their medical and summits, on local bar visits, and when quieter moments, I often notice that I feel really symptoms after just eight weeks.13 addressing the Board of Governors. happy—and really grateful. Making photo collages is another way to Philosophers have been connecting gratitude Tools for Cultivating Gratitude inspire gratitude, especially for creative types. and happiness for about 2000 years.5 And (much) ere are tools that can be used to enhance I love this idea for my 10-year-old daughter, more recent psychological ndings support feelings of gratitude. One such tool is medita- Tatum, but adults can try it too. Assembling that gratitude is related inversely to sadness tion.14 I have never managed to give meditation a photo collage of your favorite people is one and positively to life satisfaction.6 According to a chance, despite knowing it probably would be approach; another is clipping photos from Harvard Medical School, “In positive psychology great for me. I thought you were supposed to magazines that represent your sources of joy.21 research, gratitude is strongly and consistently clear your mind of all thoughts when meditating. e process of making the collage is likely to associated with greater happiness. Gratitude But evidently it is acceptable to “sit with your generate feelings of gratitude, and so will seeing helps people feel more positive emotions, relish eyes closed” and “[f]ocus on all the good things the collage regularly thereafter.22 Making a ey also inspired me to write this month about good experiences, improve their health, deal in your life and start thanking your stars.”15 If collage for someone who matters to you might another trait I believe in leading, and living, with adversity, and build strong relationships.”7 that counts as meditation, then I guess I do that, enhance the experience as well—use it as a Leading, and Living, with—gratitude. Beneﬁ ts of Cultivating Gratitude Quantifying financial damages sustained to Gratitude is “the quality of being thankful; your clients due to events or the actions of with Gratitude others is critical. We can help eliminate that readiness to show appreciation for and to return burden by calculating damages, preparing kindness.”4 As a trait and a state, gratitude has reports and supporting schedules, and BY JESSICA BROWN always come to me very naturally. My parents providing expert witness testimony. Our team has extensive expertise in calculating used to tell the story of how, when I was only losses due to fraud, embezzlement, 2 or 3 years old, I opened a package of under- breach of contract, tort claims, business wear for Christmas, each pair embroidered interruption, personal injury, wrongful death and employment disputes. In February, I reprinted the Weiser, quoting author Arthur Brooks,2 observed with a di erent day of the week. My reaction: remarks Attorney General can be “addressed by two teachings from the “Underwear—just what I always wanted!” I was Phil Weiser made at our De- Dalai Lama”: (1) waiting before reacting—in too young for sarcasm. I was sincerely thankful. cember Board of Governors other words, “withholding our natural and And that “attitude of gratitude” has persisted meeting about “Leading initial judgments”; and (2) “replacing contempt throughout my life. with Empathy.”1 I put a lot with loving kindness.”3 AG Weiser’s remarks Unfortunately for me—but not, my research EIDE LIKE of stock into his message that we should avoid have inspired me to try to lead with empathy would suggest, for most people—the ip side of I’D LIKE TO KNOW THE ECONOMIC contributing to “today’s rising polarization, and have guided me as I made decisions about gratitude is anxiety. I am so grateful for my many LOSSES FROM A DAMAGING EVENT 303.586.8504 | eidebailly.com/forensics demonization, and divisive rhetoric,” which AG potential courses of action on behalf of the Bar. blessings that I generally have an undercurrent

way to thank someone meaningfully. anking and leadership. I have long believed in leading adults say they would work harder if their boss Again, none of that surprises me. I have people for their contributions to your life is with gratitude, but it turns out there is a whole were more grateful for their work.31 By contrast, had conversations with young lawyers who 15 WAYS TO SAY THANKS AT WORK another tool to cultivate gratitude.23 book about it, Leading with Gratitude: Eight just 38% report working harder because their have chosen di erent career paths and options A further tool I have read about is the “grati- Leadership Practices for Extraordinary Business boss is demanding, and only 37% work harder because the person they worked for was both Leading with Gratitude discusses a number of ways to e ectively ex- tude visit.” A study in 2005 allowed participants Results, by Chester Elton and Adrian Gostick.29 because they fear losing their job.32 demanding and ungrateful. I also have heard press gratitude in the workplace, including: one week to write and deliver a thank you e book’s basic premise is that “[b]y learning Along these lines, a 300,000-person study young lawyers say they would have stayed in letter to someone who had been especially how to express gratitude in meaningful ways, conducted during the Great Recession found their current role if they had felt their above- 1. Assume positive intent when interacting with employees or volun- kind to them but who had never been properly leaders can improve workplace culture, arrive that more grateful managers led teams with and-beyond contributions were appreciated teers—most workers care about their work and are trying to do a good thanked.24 Participants were required not only at better solutions, and make productivity higher business metrics, including up to two rather than simply expected. It seems pretty job. to express their gratitude in the letter, but also to skyrocket.”30 times greater pro tability, 20% higher customer obvious that workers want to feel valued, and 2. Understand the challenges employees or volunteers are facing: deliver the letter personally and spend time with While I have only read excerpts from the satisfaction, and signi cantly higher scores in showing gratitude is one way to accomplish 25 “Leaders who develop empathy for others are great enablers of au- the recipient discussing the letter’s contents. book, this premise makes sense to me. In my employee engagement, trust, and accountabil- that. Yet a recent study found that “people are 33 thentic gratitude.” Participants reported greater happiness for an experience, workers want to feel valued and ity. In addition, it has been shown that when less likely to express gratitude at work than entire month following the “gratitude visit” appreciated. I know I do. I have always enjoyed gratitude is regularly shown to employees, they anyplace else.”37 3. Learn (e.g., through assessments) and remember what motivates compared to a control group.26 my work most when someone—a client, another feel more positive about their contributions, your employees (e.g., beyond appreciation, is it autonomy, challenge, “Gratitude journals” are another tool.27 I have partner, another Bar leader—was grateful for less stress, and a better sense of well-being.34 Obstacles to Expressing Gratitude creativity, prestige, purpose, recognition, teamwork?)—tailor expres- frequently read that people who are feeling sad it. Feeling appreciated is motivating. I am Research also shows that gratitude leads team Why don’t more of us express gratitude in the sions of gratitude accordingly. or depressed should consider keeping a journal motivated to work even harder when my work members to express more gratitude to one workplace? I suspect many leaders (and all of 4. Do not wait for performance review time to provide feedback: “That in which they write with speci city—ideally one is valued. And I am not unique in this at all. another.35 Importantly, when leaders express us are leaders in some capacity) would point wastes golden opportunities to provide immediate positive reinforce- to three times per week and not more—what According to a recent study, 81% of working gratitude to their teams, it reduces turnover.36 to a lack of time. Yet expressing gratitude at a ment of the behaviors a leader is looking for.” they are feeling grateful for.28 I have never kept 5. Solicit and act upon input—or at least discuss with employees or one because I regularly and naturally think volunteers why their ideas are not feasible and convey authentic ap- about what I’m grateful for (and feel happy and preciation for them. slightly anxious about it). But I have suggested 6. Connect gratitude to your organization’s core values—reinforce a gratitude journal to Hadley, my 14-year-old leadership’s commitment to them through how you appreciate em- daughter, and she has tried it and reported training | coaching | mediation | investigations ployees or volunteers. feeling happier because of it. ere are a lot of ways I fall short as a mom, but I intentionally seek to instill gratitude and Here are a few more ways to express gratitude, some of which may not appreciation in both girls, and it seems to be be appropriate for every workplace. working. Feeling grateful has helped them cope with the many disappointments (e.g., closures 7. Give credit where credit is due: Do not take all or even most of the and cancellations) resulting from COVID-19, credit for your team members’ successes. which they are weathering better than some 8. Actively seek opportunities to share and highlight your team mem- of their peers. In fact, Hadley has come to bers’ achievements and wins. appreciate a lot of things about online school: 9. Give team members opportunities to present to others, including sleeping a little later, access to better snacks and Mark J. Lisa Bridget M. Kimberly Peggy Cheri senior leaders, in the organization. her dad’s good cooking, less running around, Flynn Barbeau Morris Searfoorce Penberthy Vandergrift 10. Acknowledge team members’ roles or assistance when forwarding acting programs being o ered out of New York work product they principally drafted. and Los Angeles, and a lot more time with her family. We have grown closer as a family 11. Send a gift card or gift basket to team members who are working during this period of greater togetherness. I am Attorney – Investigators: particularly hard. knocking on wood as I write that; I’m extremely Jody Luna • David Vogel • Suzanne Pariser 12. O er team members a mental health day or break after a busy grateful for these things, which makes me a Jim Long • Emily Gordon • Juliane Demarco period. bit anxious. Dennis Flynn • Karin Ranta Curran 13. Take personal responsibility when things go poorly. 14. Make sure team members know you have their backs. Beneﬁ ts of Expressing Gratitude 15. Mentor team members—take genuine interest in their career goals Although I may be among the small minority and help them accomplish their goals. who connect gratitude with anxiety, I am cer- www.coemploymentmatters.com | (303) 803-1686 tainly not the only one to connect gratitude

basic level is quick and easy. It just requires already expected of them. ere may be some workers are too needy and should not require lists a few). But, in my view, just saying thank gratitude-appreciation. 32. Id. noticing when someone else has contributed reticence to do this, especially when work is thanks for doing their jobs—that is why they you—and meaning it—is a great start. 6. Id. 33. Id. to your good results and thanking them for it. very busy and employees are needed to go are paid. But a survey of more than 200,000 Nevertheless, Elton and Gostick make clear 7. “Giving thanks can make you happier,” 34. Id. Harvard Health Pub. (Nov. 2011), https://www. I realize there are times when we are so above and beyond in performing their jobs. But employees from around the world that was the kind of gratitude their book discusses is not 35. “Leaders Need to Overcome the Gratitude health.harvard.edu/healthbeat/giving-thanks- Gap,” Soundview Magazine, https://www. busy as lawyers that adding anything more research suggests that the leader’s goal to have released in 2014 showed that the most important just “showering more ‘thank-yous’ and ‘I think can-make-you-happier#. summary.com/magazine/leaders-need-to- to our plates seems impossible. But if lead- employees work harder is actually undermined factor to on-the-job happiness is appreciation, you’re awesome’ statements on employees.”50 8. “Gratitude interventions don’t help with overcome-the-gratitude-gap. depression, anxiety,” Ohio State Univ. (Mar. ers understood how important and powerful by withholding appreciation.39 regardless of generation.41 “Globally, the most Gratitude, they posit, is best when it is heartfelt, 36. Id. See Keogh, “A simple ‘thank you’ goes 9, 2020), https://www.sciencedaily.com/ a long way in work,” Irish Times (Jan. 10, 51 it can be to express gratitude to their teams, A related thought is that leaders may believe important single job element for all people is speci c, and genuine. Developing genuine releases/2020/03/200309130010.htm 2020), https://www.irishtimes.com/business/ they might be more willing to make at least gratitude is incompatible with high expectations. appreciation for their work.”42 gratitude involves “carefully observing what (“There was a di erence, but it was a small work/a-simple-thank-you-goes-a-long-way-indi erence.”). See also “Giving thanks can work-1.4132871. a small additional investment of time to do As expressed by the former CEO of American Another possibility is that leaders think they employees are doing, walking in their shoes, make you happier,” supra note 7 (“Certainly, 37. Gostick and Elton, supra note 31. See also so. And the bene ts run in both directions: Express, “I think one of the things people get are expressing gratitude, but workers don’t developing greater empathy, and sincerely major depression or a severe anxiety disorder Keogh, supra note 36. 52 beneﬁ ts most from professional help.”). when we take the time to notice and appre- confused about is they see gratitude as simply perceive it that way. In one study, almost 90% trying to understand the challenges they face.” 38. See, e.g., Ackerman, supra note 5. 9. “Gratitude interventions don’t help with ciate the good things that are happening in being nice. is view of ‘I want to be very stingy of the CEOs surveyed felt it was important to Other authors likewise have emphasized depression, anxiety,” supra note 8. 39. See, e.g., Gostick and Elton, supra note 31. our lives, including our work lives, we also with gratitude’ gets confused to mean I’m not lead with gratitude, and 88% believed their that leading with gratitude “doesn’t mean 10. Ackerman, supra note 5. 40. Id. 38 feel happier. being demanding. In fact, it’s quite the opposite. employees would give them high marks for that all we have to do is say ‘thank you’ to our 11. Id. 41. Himelstein, “Base Pay vs. Recognition: What’s More Important?” Entrepreneur (Mar. Some workplace leaders might believe You can be very demanding and bestow gratitude it.43 But only 37% of the employees surveyed employees in order to increase their produc- 12. Id. 12, 2015), https://www.entrepreneur.com/ 40 53 (perhaps subconsciously) that if they express very often and be authentic.” indicated they were satis ed with the level of tivity.” But “a genuine recognition of your 13. Id. article/243258. Study participants represented gratitude, they unintentionally convey to em- ere also may be some generational resis- gratitude they experienced.44 is information employees’ e orts will ignite their internal drive 14. Modi, “How Practicing Gratitude Helps a broad mix of nationalities, ages, personal You Deal with Anxiety,” rtor.org (July 8, ployees that they are going beyond their job tance to expressing gratitude at work. Some Baby may be frustrating to some supervisors, but in and commitment.”54 “[I]t’s about appreciating living situations, employment statuses, and 2020), https://www.rtor.org/2020/07/08/ education. See also Strack et al., “Decoding requirements or doing something that isn’t Boomer and Gen X leaders think that Millennial a situation like this, perception is reality. and recognizing the unique qualities, traits, and how-practicing-gratitude-helps-you-deal-with- Global Talent: 200,000 Survey Responses on Those are some theories to explain the contributions they’ve made that have helped anxiety. Global Mobility and Employment Preferences,” BCG (Oct. 6, 2014), https://www.bcg.com/ “gratitude gap.” e Leading with Gratitude your organization to evolve and grow.”55 15. Id. 16. Hurst, “Learning Gratitude: 6 Ways to publications/2014/people-organization- authors also advance theories to explain why Here are 40 more ways to show appreciation Cultivate Gratitude Every Day,” https://www. human-resources-decoding-global-talent. leaders are not always mindful to express at work: https://inside.6q.io/40-great-ways- thelawofattraction.com/six-ways-to-cultivate- 42. Strack et al., supra note 41. gratitude at work. One is “negativity bias”—that to-say-thank-you-to-your-employees.56 Not all gratitude. 43. Borysenko, “Real Examples of How Leaders Show Gratitude to Their Team.” Forbes (Nov. is, as humans, we tend to pay more attention to will make sense for every workplace. e point, 17. Id. 18. Id. 26, 2019), https://www.forbes.com/sites/ problems and perceived threats than positive for leaders who wish to lead with gratitude, is karlynborysenko/2019/11/26/real-examples- 19. Brown, “Lawyers as Leaders: Stepping 45 of-how-leaders-show-gratitude-to-their- things happening around us. is bias means, to consider how best to show genuine appre- Up to Provide Pro Bono Legal Services,” 49 team/?sh=6e2f8d4572f5. unfortunately, that “we feel the sting of a rebuke ciation to the employees and volunteers who Colo. Law. 3 (Oct. 2020), https://cl.cobar.org/ 44. Id. more powerfully than we feel the joy of praise.”46 make your life easier and make you look good. departments/stepping-up-to-provide-pro- bono-legal-services. 45. Cherry, “What Is the Negativity Bias?” Another theory they put forward is that In a nutshell, expressing gratitude increases 20. See, e.g., Brown, “Promoting Racial Justice, Verywell Mind (Apr. 29, 2020), https://www. some leaders withhold positive sentiments to the happiness and well-being of the person Equity, Diversity, and Inclusivity within the verywellmind.com/negative-bias-4589618. keep pressure on team members, expecting expressing it, the motivation of the person re- Bar: We Are ‘REDI’ for Lasting Change,” 50 46. Id. Colo. Law. 3 (Jan. 2021), https://cl.cobar.org/ 47. Gostick and Elton, supra note 31. that they will work harder if they are “kept on ceiving it, and the likelihood that team members departments/promoting-racial-justice-equity- 48. Simply Placed, “Are Worry and Anxiety 47 e d g e .” Such pressure may increase anxiety, and will express gratitude to one another. diversity-and-inclusivity-within-the-bar. Undermining Your Productivity?” 48 anxiety evidently undermines productivity. It ank you for reading this Message. 21. Hurst, supra note 16. https://www.itssimplyplaced.com/worry- may be easy to forget that when, as leaders, we 22. Id. anxiety-undermining-productivity. are under pressure ourselves. 23. See id. 49. Musgrave, “Leading with Gratitude,” 24. Ackerman, supra note 5. https://www.n2growth.com/leading-with- NOTES 25. Id. gratitude. Expressing Gratitude E ectively 1. Brown, “Leading with Empathy: A Message 26. Id. 50. Gostick and Elton, supra note 31. from Our Attorney General,” 50 Colo. Law. 3 As shown, it is in our personal and professional 27. Hurst, supra note 16. 51. Id. (Feb. 2021), https://cl.cobar.org/departments/ interest as leaders to cultivate, experience, and 52. Id. leading-with-empathy. 28. https://ggia.berkeley.edu/practice/ express gratitude. As workplace motivational gratitude_journal. 53. Tanveer Naseer Leadership, “Why 2. Brooks, Love Your Enemies: How Decent 29. Gostick and Elton, Leading with Gratitude: Expressing Gratitude Through Our Leadership strategies go, expressing gratitude is relatively People Can Save America from the Culture of Eight Leadership Practices for Extraordinary Matters,” https://www.tanveernaseer.com/the- Contempt (Broadside Books 2019). quick, easy, and inexpensive. And, as Sam Business Results (Harper Bus. 2020). importance-of-gratitude-in-leadership. 3. Id. Walton once said, “Nothing else can quite 30. https://www.blinkist.com/en/books/ 54. Id. substitute for a few well-chosen, well-timed, 4. https://www.lexico.com/en/deﬁ nition/ leading-with-gratitude-en. 55. Id. gratitude. sincere words of praise.”49 ere are ways to 31. Gostick and Elton, “How Gratitude Can 56. 6Q Blog, 40 Great Ways to Say Thank 5. See Ackerman, “What is Gratitude and Why Help Leaders Navigate a Crisis” (Dec. 18, You to Your Employees, https://inside.6q. express gratitude that can be even more mean- Is It So Important?” Positive Psychology (May 2020), https://www.amanet.org/articles/how- io/40-great-ways-to-say-thank-you-to-your- ingful than just saying thank you (the sidebar 2, 2021), https://positivepsychology.com/ gratitude-can-help-leaders-navigate-a-crisis. employees.

From Our Readers Colorado Lawyer welcomes reader feedback. Letters are published with their sender’s consent and may be edited for clarity, length, or grammar. e opinions expressed are those of the sender and do not necessarily represent those of the CBA or the sender’s employer. Please send feedback to Susie Klein at [email protected] or contact article authors directly. POWERING PAYMENTS FOR THE Modern Legal Writing: Demystifying Spaces Trust Payment FEBRUARY 2021 | PUBLISHED BY THE COLORADO BAR ASSOCIATION As a practitioner devoted to e ective legal writing, I enjoyed the article by IOLTA Deposit Ginette Chapman on “Legal Writing Demysti ed” [Feb. 2021, p. 18]. I have Amount one small quibble—extremely small in the context of what everyone is dealing LEGAL with these days. Ms. Chapman directs that all double spaces after periods $ 1,500.00 INDUSTRY must be removed, in favor of one space. Perhaps this is generational, but to Reference me, one space after a period, instead of two, is just wrong. From various legal NEW CASE The easiest way to accept credit, writing seminars I have attended, I am not alone. Maybe the answer is one debit, and eCheck payments or two, depending on preference. In any event, thanks to Ms. Chapman for Card Number writing the article and to the Colorado Lawyer for running it. **** **** **** 4242 The ability to accept payments online has Marilyn S. Chappell become vital for all firms. When you need to Special Counsel, Sweetbaum Sands Anderson PC get it right, trust LawPay's proven solution.

I appreciate Marilyn Chappell’s letter. It’s always heartening to hear from people As the industry standard in legal payments, who care about the nuances of legal writing! I agree my article would have LawPay is the only payment solution vetted done well to clarify that some of my recommendations are not iron-clad rules. and approved by all 50 state bar associa- I do, however, stand by my suggestion to use only one space after a period. tions, 60+ local and specialty bars, the ABA, ough two spaces was at one time de rigueur, standards have swung sharply and the ALA. in recent decades, and today major style guides (including e Redbook) all agree that only one space belongs after a period. A lawyer’s goal generally is to persuade, and disregarding standard practices may make written documents Developed specifically for the legal industry less persuasive by appearing sloppy. If you happen to know that a judge or to ensure trust account compliance and partner for whom you’re writing prefers two spaces after a period, by all means deliver the most secure, PCI-compliant go ahead and use two spaces. But otherwise, it’s safest to follow commonly technology, LawPay is proud to be the accepted practices. In addition, using one space after a period has a practical preferred, long-term payment partner for bene t: it’s easy to nd inconsistencies in the number of spaces after a period more than 50,000 law firms. (a de nite no-no) by running a search for two spaces. In the end, what’s most important is to carefully hone one’s work. Adherence to any single practice is a relatively small matter in the overall context of your writing—and, as Ms. Chappell points out, in the overall context of these times.

Ginette Chapman Legal and Policy Editor, Legaledits.com

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Ginette Chapman Legal and Policy Editor, Legaledits.com

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Carlson a multimillionaire, as he was paid Picking up the Pace one-sixteenth of a cent for every Xerox copy e time from introduction of technology to made worldwide. Xerox became one of the consumer use continues to decrease. On April What Took So Long? 100 largest companies in America, with tens 3, 1973, a Motorola researcher and executive of billions of dollars in sales annually. made the first mobile telephone call from BY MARK LEVY Robert Kearns, Ph.D., the inventor of the handheld subscriber equipment, placing a intermittent windshield wiper, had di culty call to a Bell Labs executive, Bell Labs being convincing Ford Motor Company executives that Motorola’s rival. at mobile phone weighed drivers would want or need a delay mechanism about two-and-a-half pounds and took 10 istory is full of anomalies in the into the contents of a can. e guard could swing to swipe water from a windshield. When Ford hours to recharge. Today, 94% of Americans form of time delays. As we all know, out of the way so a second curved blade could was nally convinced to incorporate intermittent own cell phones. over four score and seven years cut around the top of the can with a saw-like windshield wipers in automobiles and trucks, In 1968, Hewlett-Packard Company referred passed between the founding of action. But after the top of the can was removed, Kearns had to bring a patent infringement to a new product as a personal computer, but Hour country until persons of color, as US citizens, the upper portion of the can had a jagged edge. lawsuit against the company. After a 12-year the advertisement was deemed too extreme for gained the right to vote (15th Amendment to It wasn’t until December 29, 1931, that Charles legal battle during which Kearns suffered a the target audience. So the company replaced the Constitution, ratified February 3, 1870). Arthur Bunker received US Patent No. 1,838,525, nervous breakdown and a divorce, the Ford the name with “programmable calculator.” Women nally achieved the same status (19th which described the rst modern can opener Motor Company agreed to settle with him Mass-market consumer electronic devices Amendment, rati ed August 18, 1920) 50 years most of us now use. for $10.2 million, and in 1992, Kearns won a with microcomputers were introduced in later. In hindsight, of course, one wonders what judgment against Chrysler for $18.7 million. 1977. Three machines—the Apple II, PET took so long. Slow and Steady Today, some 150 million automobiles are 2001, and TRS-80—were also released in Sometimes inventions are solutions looking for equipped with intermittent windshield wipers. 1977, becoming the most popular such devices Worth their Wait a problem. Consider the photocopier. Chester The 2008 Universal Pictures movie Flash of by late 1978. IBM introduced its IBM PC in Similarly, technology has its share of time delay Carlson, a patent attorney as it turned out, Genius was based on Kearns’s story. August 1981, leading Time magazine to name anomalies. The time between the invention worked in his mother-in-law’s kitchen devel- the home computer the Person of the Year of the wooden pencil by an Italian couple, oping the rst photocopier and obtaining US The Speed of Light for 1982, the first time the magazine gave Simonio and Lyndiana Bernacotti (1560), and Patent No. 2,297,691 but found that no one e time it takes for an invention to be accepted its award to an inanimate object. More than the pencil eraser assembled as part of a pencil was especially interested in his invention. He by the general population is fascinating. In one billion personal computers have been (Hymen Lipman US Patent No. 19,783, March approached 20 large corporations and the US 1876, when Alexander Graham Bell received sold worldwide since the mid-1970s. 30, 1858) was about 300 years. In other words, Navy, which could not be convinced any o ce his telephone patent, considered to be the most e accelerating time for acceptance of new someone nally thought of a convenient way or anyone would want to purchase a machine valuable patent of all time, obviously only one technology is a function of communication to erase pencil marks made by wooden pencils that made copies. or two telephones existed. Seventeen years and peer pressure. With TV and internet that had been used for three centuries. e US “We have carbon paper,” the executives of later, in 1893, only 3.2 million phones were in advertisements, the next big thing can be Supreme Court later invalidated the US patent, IBM, RCA, G.E., and Eastman Kodak said. “Why use by the United States’ 63 million people. But in the hands or on the feet or in the belly of as it turned out, stating that the patented article would anyone need a copier?” by 1918, our country had grown to 103 million consumers days or weeks—not years—after was only an aggregation of separate elements “No,” Carlson replied. “ is machine is for and the number of telephones had tripled to it is introduced to the public. (Reckendorfer v. Faber, 92 US 347 (1875)). more than two or three copies.” about 10 million. In other words, it took 42 Just as technology has accelerated the To replace glass containers, the metal “We have a local printer when we need years for the telephone to reach only 10% of development and acceptance of new products, can—actually made of iron lined with tin—was 5,000 brochures.” the population. in politics—especially voting issues—the world invented in 1810 by Peter Durand to store food. “ is machine is for making 5 or 10 or 50 Electri cation of American households has also sped up. No longer do the results of How long do you think it took for the can opener copies.” and omas Edison’s electric lightbulb are elections take weeks or months to reach us. to be invented after metal cans were introduced? “Ridiculous,” they said. “ ere’s simply no other examples. Although electricity dis- Oops, bad example. a) 1 year market for that.” tribution began in 1882, by 1925, some 43 b) 5 years Eventually, Carlson attracted the small years later, only half of American homes had Mark Levy is a registered patent attorney and intellectual property c) 10 years Haloid Company, founded in 1906 (coinciden- electricity. Edison’s incandescent lightbulb counsel for Block45Legal, LLC in e answer is an astounding 48 years. Ezra tally, the year Carlson was born), a company was demonstrated on New Year’s Eve, 1879. Denver. He has contributed humor- Warner patented the rst can opener on January with $30,000 in annual sales of photographic It wasn’t until four decades later, in the 1920s, ous essays to the public radio show 5, 1858 (US Patent No. 19,063), almost 50 years paper. Haloid decided to take a chance on his that most new homes in America were wired “Weekend Radio” for a number of years, and his essays are now available in two paperback after metal cans appeared. Warner designed invention. It became the Xerox Corporation, for electric light instead of gas xtures. at books available on Amazon: Trophy Envy and a tool with a cutting blade and a guard that which sold its rst photocopier only 34 years single invention transformed rural America They’re Only Words—[email protected]. prevented the blade from penetrating too far after Carlson started his project. Xerox made into an urban country.

o cers are responsible for making it accessible In federal court, the self-represented litigant dational requirements; and providing nality when possible. Judicial is often also incarcerated. And unlike in the ■ modifying the traditional order of taking BEST PRACTICES o cers can create a productive environment criminal justice system, there is no constitu- evidence; FOR JUDICIAL for hearings by demonstrating and requiring tional right to an attorney in a civil action. e ■ attempting to make legal concepts un- respectful and peaceful communication. Calm federal court relies on a network of dedicated derstandable; OFFICERS Judicial officers can help par- Judicial O cers and proceedings with clear structure feel fairer to professionals—from its Pro Se Clinic to volunteer ■ explaining the basis for a ruling; and ties—whether self-represented the parties involved. attorneys—to provide pro bono counsel in ■ making referrals to any resources available or not—have confidence in the At the outset of a hearing, the more detailed, certain cases. But because the demand far to assist the litigant in preparing the case. Self-Represented Litigants court and feel that justice has been plain language information that the parties outstrips the supply, self-represented parties In the case of federal courts, the expectation achieved by: are provided, the more e ective and e cient often lack access to information due to factors of liberal construction is built into the case law.5 Tools for Working Together 1. laying out the procedures at the the hearing will likely be. Litigants appreciate outside of their control. And in the case of the Liberally construing pleadings and ar- beginning of the hearing information about how long their hearing will self-represented incarcerated party, while guments is essential when working with BY NINA Y. WANG, ADAM J. ESPINOSA, 2. taking the time to ask questions last, how the time is divided between them, judicial o cers cannot act as advocates, they self-represented litigants, many of whom le that are vital to answer AND KELLEY R. SOUTHERLAND, how time will be kept, and how the judicial must be mindful of the unspoken dynamics handwritten motions on improper forms or on 3. granting leniency on motions WITH CONTRIBUTIONS BY MICHAEL HOULBERG o cer expects them to present their evidence so the litigation experience does not add to an notebook paper, and in some circumstances on and forms, and allowing for con- (e.g., informal statements versus formal testi- individual’s sense of marginalization. the backside of an envelope. Often these motions tinuances when warranted mony). e judicial o cer’s role is to provide do not use common legal terminology or state 4. balancing the needs of self-rep- this information clearly and concisely before Ensuring the Right to Be Heard the specific rule or case that supports their resented litigants with the needs starting the hearing and to allow a moment for Rule 2.6 of the Colorado Code of Judicial Conduct request for relief. For example, a self-represented of counsel. questions about procedure. sets forth the rules that judicial o cers follow litigant might seek a continuance by simply his past year has been extremely were derived from the latest research as well as Pursuant to Colorado Rule of Evidence (CRE) to ensure a party’s right to be heard in court. stating that they are “not ready” or “did not have More recommendations for suc- di cult for people—physically, emo- feedback from six experienced judicial o cers. 611, judicial o cers can conduct proceedings Speci cally, Rule 2.6(A) states that “[a] judge enough time.” A judicial o cer is well within cessfully managing cases involving tionally, and nancially. Many have This article highlights a few best practices in the manner they deem most appropriate. shall accord to every person who has a legal the Code of Judicial Conduct in interpreting self-represented litigants can be lost their jobs due to the pandemic, covered in the guide. A corollary to CRE 611, Fed. R. Civ. P. 1 like- interest in a proceeding, or the person’s lawyer, these words as a motion to continue. found in Ensuring the Right to Be Tmaking them vulnerable to loan defaults, bank- wise directs judicial o cers to interpret and the right to be heard according to law.” Comment Judicial o cers may also provide self-repre- Heard: Guidance for Trial Judges in ruptcy, and eviction. Divorce and separation Ensuring Procedural Fairness administer the rules to secure a just, speedy, 2 of Rule 2.6(A) outlines steps a judicial o er sented litigants a more meaningful opportunity Cases Involving Self-Represented lings are up. And incarcerated individuals in To achieve procedural fairness, “the law must and inexpensive determination of every action can take to ensure a self-represented litigant’s to understand the process and be heard by Litigants, available at https://iaals. the federal court system, who often have limited produce a consistent outcome for all litigants, and proceeding. With this in mind, when two right to be heard, which include: referring them to a resource or to counsel. du.edu/publications/ensuring-right- access to legal resources, have faced a host regardless of their legal representation, based self-represented litigants appear, the judicial ■ liberally construing pleadings; This could include referring the litigant to be-heard. of new challenges. Compounding the issues, on the law and facts of their case.”3 In its most o cer must more actively conduct the pro- ■ providing brief information about the court self-help centers, mediation services, many of these individuals will be representing basic sense, “procedural fairness” is a legal ceedings. When emotional issues like family proceedings and evidentiary and foun- Colorado Legal Services, the Federal Pro Se themselves in court.1 principle that ensures fair decision-making. matters are involved, judicial officers must Unfortunately, self-representation is not But self-represented litigants and judicial think carefully about how such proceedings a trend that we can expect to taper o as the officers have different views about whether will be structured. Will the judicial officer pandemic’s burdens lessen. And while self-rep- procedural fairness has been achieved. For require parties to operate formally by calling Peter Meer, MPM resented litigants face many challenges trying most self-represented litigants, the outcome witnesses and allowing cross-examination of the Expert Witness: Property Management to navigate their cases, judicial o cers likewise itself is not as important as the fairness of the parties, or will a more informal presentation of face signi cant challenges in determining how process that produces the outcome. testimony and evidence be allowed? And how • 40 Years Professional Property Management Experience to achieve fairness while remaining impartial. Judicial o cers play a critical role in pro- will the judicial o cer preside over the hearing? Judicial officers must find a way to ensure viding procedural fairness to self-represented When self-represented litigants fail to present • Proven Reliability: retained in more than 25 cases procedural fairness and a ord self-represented litigants, and when both parties are self-rep- information directly related to the statutory • Residential and commercial property management cases litigants an opportunity to be heard without resented, the judicial officer has additional factors required for the judicial o cer to make -Standards of care: residential / commercial / HOA running afoul of the Colorado Code of Judicial responsibilities and obligations to keep pro- a decision, the judicial o cer can overcome -Liability issues: all injury types / drugs 4 Conduct. ceedings balanced and fair. Judicial o cers this obstacle by taking the role of questioner. -Health and safety issues: Carbon Monoxide and others To help judicial officers balance these must take seriously the fact that self-represented CRE 611 provides this authority, but it must interests, the Institute for the Advancement litigants have important issues to resolve and be exercised with care. Judicial o cers in the • Successful For Both Plainti s and Defendants of the American Legal System (IAALS) has understand that litigants feel a tremendous role of questioner must provide litigants with created a guide for trial judges that outlines sense of nervousness in approaching the court clear verbal guidance and reasoned responses www.petermeer.com e ective practices for resolving cases involving to resolve their issues. As one of the few contacts so they know why the judicial o cer is asking 303-905-2025 self-represented litigants.2 ese best practices that parties have with the court system, judicial the questions.

Clinic, or local social services agencies. Such more about the process, research an issue, or more openly displayed because they are not particularly contentious depositions so there Nina Y. Wang has served as a US magistrate judge on the federal bench for the District of Colorado since 2015. referrals allow self-represented litigants to obtain the proper form or document. In a busy ltered through a third-party legal representative is an additional assurance that applicable Previously, she was a partner in the Intellectual Property better understand the judicial process and courtroom, a judicial o cer may simply pass a (although we are all aware of cases where the rules will be honored while providing access group of a multinational fi rm, an assistant US attorney possible options, which empowers them to case involving a self-represented litigant and attorneys appear equally, personally vested). to discovery. And when judicial o cers act as for the District of Colorado, and a judicial law clerk for the Honorable Peter J. Messitte of the US District Court for the District of Maryland. Adam J. Espi- better prepare and present their issues. is call another case that is ready, giving the litigant This is true even when the self-represented mediators, they can propose di erent settlement nosa is a Denver county court judge who has dedicated his legal career to public service, public in turn bene ts the court and all parties to the more time to prepare the case. litigant has some legal training. approaches, in addition to the traditional safety, and access to justice. He has presided at over 200 trials and is a frequent lecturer and author on various legal, ethical, and professional responsibility topics. Kelley R. Southerland serves as a case. While referring a self-represented litigant ese are just a few of the tools a judicial Second, in most cases the self-represented settlement conference, to deescalate the con ict domestic relations magistrate in the 17th Judicial District (Adams and Broomfi eld counties), where to a resource or to counsel may necessitate a o cer can use to ensure self-represented lit- litigant does not have any legal training and and minimize misinterpretation. approximately 85% of her docket involves self-represented litigants. Mag. Southerland has also served as a mediator, child and family investigator, and guardian ad litem. Michael Houlberg is a delay or continuance of the proceedings, such igants are given a meaningful opportunity to may have fewer resources than the opposing manager for special projects at the Institute for the Advancement of the American Legal System. interruption has bene ts that far outweigh any be heard. Just as Rule 2.6 does not contain an party. is imbalance can lead to a perception Conclusion Coordinating Editor: Judge Stephanie Dunn, [email protected] negatives. exhaustive list of tools a judicial o cer may of inequity for the self-represented litigant, In cases involving self-represented litigants, In fact, granting a continuance or a delay use, neither does this article. grappling with an intimidating process and it can be helpful to focus on this quote from NOTES in the proceedings is another tool a judicial unfamiliar rules, and the represented party, Albert Einstein: “Out of clutter, nd simplicity. 1. Nat’l Ctr. for State Courts, The Landscape 2. Greacen and Houlberg, Ensuring the Right to Be officer can use to ensure a self-represented When One Party is Represented by reacting to a judicial o cer who is a ording the From discord, nd harmony. In the middle of of Domestic Relations Cases in State Courts Heard: Guidance for Trial Judges in Cases Involving litigant is given a meaningful opportunity to Counsel self-represented litigant a liberal construction di culty lies opportunity.” In doing so, judicial at ii (2018), https://iaals.du.edu/publications/ Self-Represented Litigants, IAALS (Nov. 2019), landscape-domestic-relations-cases-state-courts https://iaals.du.edu/publications/ensuring-right- be heard. A continuance, short delay, or even Unique challenges and considerations may arise of their lings and perhaps extensions of time o cers should frame self-represented litigant (fi nding that 72% of domestic relations cases be-heard. a brief recess of the proceedings may a ord when one party is self-represented and the other to complete various tasks. challenges as opportunities to promote access involved at least one self-represented party); 3. Id. at 11. Nat’l Ctr. for State Courts, The Landscape of Civil that party the opportunity to meet with a self- party is not. First and foremost, while all parties ird, the dynamics of a courtroom neces- to justice and confidence in courts and the Litigation in State Courts at iv (2015), https://www. 4. Colorado Code of Judicial Conduct Rule 2.2, help center representative, counsel, or other are vested in the outcome of the litigation, the sarily change, such as the language the judicial judicial system. ncsc.org/__data/assets/pdf_fi le/0020/13376/ cmt. 4, and Rule 2.6. civiljusticereport-2015.pdf (fi nding that 76% of civil 5. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. resource. It may also give them a chance to learn emotions of a self-represented litigant are often o cer and the parties use, the pace at which the cases involved at least one self-represented party). 1991). hearing proceeds, and the levels of preparation that the judicial officer can expect from the parties. Indeed, given these dynamics, it is often most e ective for judicial o cers to consider The CBA strives to be and treat both sides as self-represented as your partner in law they attempt to balance the various competing interests to ensure fair and e cient adjudication. when you need help the most. Opportunity for Creativity In navigating this tightrope, a judicial o cer may IS ON CASEMAKER be presented with opportunities to use creative That’s why we are pleased to announce the CBA Ethics Committee approaches to resolve the underlying con ict. Assistance Program for OARC Disciplinary Matters. e ability to use more creative approaches to resolution depends on truly listening to All past issues of Colorado Lawyer are If you are facing an OARC complaint, the parties’ perspectives, acknowledging and available to CBA members via Casemaker. Once logged into the CBA website, follow the Ethics Committee may be able to assist you. addressing any judicial officer biases, and these steps: This new program was designed to connect you with stepping back from the day-to-day procedures to consider the parties’ respective goals more a volunteer attorney who can help navigate your case. 1. Visit www.cobar.org/Casemaker. holistically. 2. Select “Click here to Enter Casemaker.” Find out more and apply for assistance at Of course, the approach may change depend- 3. Select “Colorado.” cobar.org/OARC-Hearing-Assistance-for-Lawyers. ing on the stage of a case and the personalities 4. Select “The Colorado Lawyer.” before the judicial o cer. For instance, from 5. Browse issues by date, or select This program is not affiliated in any way with the the start of the case judicial officers can set “Advanced Search” to search by Office of Attorney Regulation Counsel or the Colorado Supreme Court. expectations regarding how the parties will keyword, title, or author. communicate with each other and how often that communication should occur, which helps stem Questions? Contact Susie Klein, frustration arising from perceived disrespect [email protected], or Jodi Jennings, [email protected]. or unresponsiveness. In discovery, judicial o cers can o er spaces within the courthouse to facilitate viewing sensitive documents or

The Ethics Environment and leadership set the tone and are likely in the best should encourage employees to seek help from So how do supervising lawyers4 address stigma position to convey the message that well-being the resources available. and encourage their peers and subordinate matters. ey can also destigmatize seeking help. lawyers5 to come forward and get help while re- at said, at some level the need to destigmatize Resources Available Now maining ethical and discharging their obligations well-being issues may place supervising lawyers in a Colorado has several excellent resources that are under the Colorado Rules of Professional Conduct position that con icts with the type of con dentiality accessible to all lawyers in this state. e Colorado (Colo. RPC)? How can supervising lawyers and required to “encourage lawyers and judges to seek Lawyer Assistance Program (COLAP),9 a free and subordinate lawyers work together to ensure we treatment” or help for their well-being issues.8 And con dential well-being program for the legal are all ethically pursuing and enhancing lawyer if subordinate lawyers fear the supervising lawyer community, is an independent agency of the e Pursuit well-being, especially in these days of COVID-19? will report their request for help to disciplinary Colorado Supreme Court providing con dential Supervising lawyers have obligations under Colo. authorities, that certainly could have a “chilling professional services to members of the legal of Attorney RPC 5.1.6 All lawyers are obligated by Colo. RPC e ect” on that subordinate lawyer’s request for community in need.10 Other peer assistance pro- 8.3 to report misconduct.7 What happens if a help. Returning to the initial hypothetical at the top grams such as the Colorado Attorney Mentoring Well-Being lawyer’s impairment caused or risks causing of this page, how can this legal employer navigate Program (CAMP)11 and Colorado Lawyers Helping professional misconduct? these waters to a successful outcome? Lawyers12 are excellent resources. Further, many How Organizations Can Relatedly, how can organizations establish a At a minimum, legal employers should focus health insurance policies provide employee Ethically Assist Attorneys culture that encourages lawyers to come forward, on creating an atmosphere that is conducive assistance programs as part of the policy bene ts, with Mental Health and be transparent, and seek help for well-being issues to employees seeking help and consistently including behavioral health bene ts and medical (and provide that help to those in need) while still promote the message that if employees need bene ts for in-patient and out-patient care, and Substance Abuse Issues maintaining ethical propriety? Firm management help, the rm wants them to get help. Employers intensive out-patient programs. Employers should

BY DAVID P. HERSH

egal employer A wants to estab- Supreme Court has committed to helping incidences of depression, anxiety, and substance lish a lawyer well-being program lawyers pursue well-being by convening a task abuse.2 e pandemic has only made this worse for its lawyers, encouraging them force to study the issue under the leadership of as it interrupts our work life, our social life, and to approach management for help Justice Monica M. Márquez.1 our connections to peers and family. Lwith their mental health or substance abuse. This article identifies challenges to pro- Experts tell us that “stigma” is a signi cant Lawyer B works for employer A and has a moting lawyer well-being and o ers current inhibiting factor for most lawyers, discouraging drinking problem. She wants to get help from resources that can assist with meeting those them from seeking help for well-being issues.3 her employer but fears being reported to the challenges. Hopefully, it will also stimulate Stigma arises from fear that other lawyers or O ce of Attorney Regulation Counsel. How a fruitful discussion that generates lasting judges will think poorly of the lawyer, that can employer A create a way for lawyer B to solutions. clients will become insecure, or that disci- candidly discuss her issues and get the help plinary authorities will take action if the issue she needs without subjecting her to discipline? Framing the Challenges is reported. For lawyers, this “professional e answer is: it’s complicated—but legal This pandemic has been hard on lawyers, stigma” fear is layered over the typical societal employers and their employees desperately need driving isolation, anxiety, and substance abuse fear that any individual with mental health to gure this out. Fortunately, we are not alone. to record levels. Of course, the data show that issues or substance abuse issues may face when In recent years, there has been a profession-wide lawyers—more than other “high stress” pro- contemplating asking for help and revealing discussion about well-being, and the Colorado fessions—generally suffer from heightened a vulnerability.

BY DAVID P. HERSH

ensure employees are aware of these resources. can encourage lawyers to get the help they need NOTES e answer to the hypothetical question above while protecting ethical norms. As we work together 1. See Márquez and White, “Call to Action: may not require the rm to reinvent the wheel in pursuit of enhanced lawyer well-being, it is The Supreme Court’s Task Force on Attorney Well-Being,” 96 Denver L. Rev. but rather publicize existing resources. encouraging to know that the promise of further 247 (2019), https://static1.squarespace.com/ For example, a lawyer can immediately contact guidance and resources is on the horizon.14 static/5cb79f7efd6793296c0eb738/t/5cb7a01a0 2d7bcc7a186379d/1551423412037/Vol96_Issue2_ COLAP for consultation. is would both maintain MarquezWhite_FINAL.pdf. con dentiality and ensure that the lawyer receives Dave Hersh is a trial lawyer serving as 2. See Krill et al., “The Prevalence of Substance co-chair of the Burg Simpson Eldredge Use and Other Mental Health Concerns Among excellent resources to assist her or him in obtaining Hersh & Jardine Commercial Litigation American Attorneys,” 10 J. Addiction Med. 46 help. Once COLAP is involved, further guidance Department and is also general counsel (2016). See also Buchanan et al., “The Path to to the fi rm. He serves on the Colorado will be given to the lawyer, the organization, and Lawyer Well-Being: Practical Recommendations Supreme Court Task Force on Lawyer Well-Being, for Positive Change (The Report of the National anyone else who requests it, such as the lawyer’s chairs the Arapahoe County Bar Association Law- Task Force on Lawyer Well-Being)” (2017), https:// yer Well-Being Committee, and is a member of the family. Con dentiality is assured separately for lawyerwellbeing.net/wp-content/uploads/2017/11/ CBA Ethics Committee. He is blessed with 29 years Lawyer-Wellbeing-Report.pdf. For additional everyone, and real help can be provided to the of active recovery from alcohol abuse, and he resources, visit https://www.coloradosupremecourt. enjoys sharing his experience, strength, and hope lawyer in need of well-being assistance.13 com/Current%20Lawyers/TaskForceWellBeing. with lawyer groups and organizations and volun- asp, https://lawyerwellbeing.net, and http:// teering his time to community organizations coloradolawyerwellbeing.org. promoting and assisting in recovery. Conclusion 3. This article focuses on aspects of well-being It is essential for legal employers to support law- encompassing mental health (such as depression, Coordinating Editor: Sarah Myers, COLAP exec- stress, and anxiety) and substance abuse. Of course, yer well-being, but they must also consider the utive director—[email protected]. Contact there are many other aspects to lawyer well-being. COLAP for free and confi dential assistance at 4. For convenience, the terms “supervisory lawyer” constraints imposed by the Rules of Professional (303) 986-3345 or [email protected]. and “supervising lawyer” are used here as a Conduct. A healthy in-house well-being culture shorthand for the descriptions in the Colorado Rules of Professional Conduct, such as Rule 5.1. 5. This term is lifted from Colo. RPC 5.2. 6. Rule 5.1 requires supervising lawyers to be responsible for the ethical compliance of subordinate lawyers, requires supervising lawyers Affinity University — to have in place measures giving reasonable Y Y E E N N R R O O T T T T A A O O D D A A assuranceR R O O thatL L all supervisedO O C C lawyers are complying C O L O R A D O A T T O R N E Y Y E N R O T T A O D A R O L O C with the rules, and imposes responsibility for Your FREE Member Benefit ethical violations in certain circumstances. See also M M A A R R G G O O R R P P G G N N I I R R O O Colo.T T RPC 5.2,N N addressingE E M M a subordinate lawyer’s M E N T O R I N G P R O G R A M M A R G O R P G N I R O T N E M responsibilities. 7. Rule 8.3 governs the responsibility of all lawyers to report professional misconduct and provides What You Get… exceptions and confi dentiality for certain Supreme Court-approved peer assistance programs. See CBA : : 1 1 2 2 0 0 2 2 N N I I W W A A L L E E C C I I T T S S FormalU U EthicsJ J Op.L L 64 andA A abstractsI I C C of informalO O letterS S SOCIAL JUSTICE LAW IN 2021: : 1 2 0 2 N I W A L E C I T S U J L A I C O S An Affinity University Subscription gives your entire firm access to training on the responses of CBA Ethics Committee 96/97-08 and programs your business uses every day. With over 100 courses covering more 96/97-14. 8. See Colo. RPC 8.3, cmt. 5. S S thanE E 30 differentH H C C products,N N E E yourR R teamT T will E E have anytime,H H T T anywhereM M accessO O toR R theF F S S E E V V I I T T C C E E P P S S R R E E P P PERSPECTIVES FROM THE TRENCHES S E H C N E R T E H T M O R F S E V I T C E P S R E P 9. http://coloradolap.org. training they need. 10. COLAP is one of the peer assistance programs specifi cally exempted from reporting requirements w w a a L L f f f f o o r r P P , , f f f f o o r r P P h h a a n n n n a a underH H Colo. RPC 8.3(c). See also comments 3 and 5 Hannah Proff, Proff Law w a L f f o r P , f f o r P h a n n a H n Practice Management n Time Billing and Accounting to that rule. Our registration dollars support COLAP, n n and there is no charge for its services. The dedicated Document Managementn n e e m m o o W W t t n n a a n n g g e e PDFr r P P r r o o f f s s e e t t a a c c o o v v d d A A l l a a n n o o i i t t professionalsa a N N , , o o r r at COLAPe e s s u u existL L a a tor r helpd d n n ColoradoI I Indra Lusero, National Advocates for Pregnant Women n e m o W t n a n g e r P r o f s e t a c o v d A l a n o i t a N , o r e s u L a r d n I n Microsoft Office n Affinity Educational Webinars lawyers. 11. https://coloradomentoring.org. y y c c i i l l o o P P d d n n a a w w a a L L n n o o r r e e t t n n e e C C o o d d a a r r o o l l o o C C 12. , , Coloradon n o o n n n n Lawyerse e L L i i Helpingn n a a f f f f Lawyersi i T T provides Tiffani Lennon, Colorado Center on Law and Policy y c i l o P d n a w a L n o r e t n e C o d a r o l o C , n o n n e L i n a f f i T Visit affinityuniversity.com and create your FREE account. Access over 150 confi dential support group meetings for judges, training videos. Use code CoBarMember for a 100% discount. lawyers, and law students in need, https://www. n n o o i i t t a a d d n n u u o o F F r r a a B B o o g g a a c c i i h h C C , , z z r r a a n n d d cobar.org/For-Members/Confie e B B a a c c i i s s s s e e J J dential-Assistance- Jessica Bednarz, Chicago Bar Foundation n o i t a d n u o F r a B o g a c i h C , z r a n d e B a c i s s e J for-Attorneys#9423369-colorado-lawyers-helping- lawyers-clhl. 13 . See CRCP 254, which establishes COLAP’s purpose and details the program’s strict confi dentiality. 14. The Colorado Supreme Court has initiated a well- 0 0 0 0 : : 1 1 - - 0 0 0 0 : : 2 2 1 1 1 1 2 2 0 0 2 2 , , 0 0 2 2 l l i i r r beingp p pilotA A program to explore many of these issues A p r i l 2 0 , 2 0 2 1 1 2 : 0 0 - 1 : 0 0 0 0 : 1 - 0 0 : 2 1 1 2 0 2 , 0 2 l i r p A and potentially provide further guidance to legal r r a a n n i i b b e e W W e e v v i i L L a a i i V V employers. See http://coloradolawyerwellbeing.org. V i a L i v e W e b i n a r r a n i b e W e v i L a i V e e l l b b a a l l i i a a v v A A t t i i d d e e r r C C E E L L C C e e e e r r F F F r e e C L E C r e d i t A v a i l a b l e e l b a l i a v A t i d e r C E L C e e r F 20 | COLORADO LAWYER | APRILs s t t 2021n n e e v v e e / / g g r r o o . . g g n n i i r r o o t t n n e e m m o o d d a a r r o o l l o o c c @ @ p p v v s s r r r s v p @ c o l o r a d o m e n t o r i n g . o r g / e v e n t s s t n e v e / g r o . g n i r o t n e m o d a r o l o c @ p v s r DEPARTMENT | WELLNESS

is article discusses the mediator’s role in ensuring process fairness. It focuses on how mediators may help shift attorneys from negotiating competitively to collaborating to improve mediation outcomes.

nsuring process fairness is central to [1] A lawyer is required to be truthful the mediator’s role,1 but mediators when dealing with others on a client’s are often challenged with ensuring behalf, but generally has no affirmative fairness in the presence of gladia- duty to inform an opposing party of relevant Etorial lawyers trained to defend and protect facts. . . . their clients’ best interests. Mediators who are [2] is Rule refers to statements of fact. not su ciently prepared to counterbalance Whether a particular statement should be lawyers’ adversarial behavior in mediation regarded as one of fact can depend on the inevitably place the fairness of the mediation circumstances. Under generally accepted From process at risk. conventions in negotiation, certain types This article reviews generally accepted of statements ordinarily are not taken as negotiation tactics that lawyers employ and the statements of material fact. Estimates of mediator’s ethical duties in addressing them. price or value placed on the subject of a It o ers recommendations for mediators and transaction and a party’s intentions as to the larger profession to promote fairness in an acceptable settlement of a claim are Gladiators to mediation proceedings. ordinarily in this category, and so is the existence of an undisclosed principal except Generally Accepted Negotiation where nondisclosure of the principal would Conventions constitute fraud. . . . Lawyers are portrayed primarily as advocates Based on Rule 4.1, lawyers may ethically in popular culture and as described and pre- avoid disclosing relevant facts unknown to the scribed in the Model Rules of Professional other party and make immaterial false state- Counselors Conduct (Model Rules).2 ey may be viewed as ments under the premise that such statements gladiators ghting the good ght and defending fall under the auspices of generally accepted The Mediator's Role their clients’ rights, a role underpinned by the negotiation conventions.6 us, lawyers may advocate’s duty to keep client information bend the truth or omit information to gain a in Encouraging Attorneys confidential, even if confidentiality may be tactical advantage in mediated negotiations. detrimental to others.3 is function serves well A prime example of a generally accepted to Problem-Solve the adversary system, which “is best designed to negotiation convention is the use of pu ery. produce truth and justice by providing for the In rst-year contracts courses, law students BY WESLEY PARKS presentation of two opposing arguments—the are taught that pu ery is an exaggeration, often evidentiary presentations of ‘facts,’ and the vague, used to boost the appeal of an o er.7 highly contested and partisan claims of right, “Legally, the most significant characteristic truth, and desert.”4 While this focus on an of ‘puffery’ is that it is a defense to a charge adversarial model works in litigation, it may of misleading purchasers of goods, invest- lead to challenges in mediation, given that the ments, or services . . . .”8 Black’s Law Dictionary “candor to the tribunal” truthfulness standard defines “puffing” as “[t]he expression of an applicable in proceedings before the court does exaggerated opinion—as opposed to a factual not apply in mediation.5 misrepresentation—with the intent to sell a Model Rule 4.1 allows for a certain level good or service.”9 e line between a pu and of dishonesty in negotiations, so long as the a factual misrepresentation is measured from statement does not concern a material fact. the perspective of the ordinary consumer of e rule’s comments provide: the goods and services. In other words, would

ordinary consumers of goods and services take of reciprocity norms.16 Mediation, however, Model Standard VI: Quality of Process not surpass the outcome achieved by others.27 the protections of confidential mediation including requiring candor when necessary. the statement seriously?10 often includes unrepresented parties who As stated above, ensuring process fairness is E ect of perceptions of fairness. As part communications could easily allow a lawyer For example, the mediator may require candor Mediators must be on high alert for less- have little knowledge or experience with a mediator’s central role. Whether a process of ensuring a fair process, mediators must to use unethical negotiation tricks that would where there are power imbalances, such as than-honest negotiation tactics directed at the process, especially when mediation is is fair involves the participant’s subjective understand the participants’ perceptions of otherwise remain undiscoverable.32 How, then, a pro se party negotiating against a skilled other parties and at mediators themselves, who incorporated into case management by court experience as much as the objective outcomes fairness. This requires knowledge of power attorney advocate, or when the nondisclosure are owed a standard of truthfulness lower than order. If a participant does not understand of the mediation, referred to, respectively, as dynamics and social inequities that may be of a material fact would make an otherwise fair the candor owed to a judge or arbitrator. e generally accepted negotiation conventions, is procedural fairness and substantive fairness. at play. A participant’s place within a social process unobtainable.33 Whether the mediator point at which tactics such as pu ery become stretching the truth to get a favorable outcome Participants evaluate their mediation expe- hierarchy has been shown to a ect perceptions should emphasize the higher standard of unacceptable depends on the context of the during mediation ethical? What standard riences and mediation outcomes based on of procedural fairness, and these perceptions, candor should be driven by the mediator’s negotiation, and the culture and experience of truthfulness should mediators require to the rules, standards, and guiding norms of in turn, affect the judgment of substantive “ duty to provide a fair process. of the negotiation participants.11 ensure a fair process? the mediation process to determine whether fairness. For example, procedural fairness is e term “candor” in the mediation con- Mediation participants are often court-or- Mediators must grapple with these types justice has been served through their mediated more important and in uential for those who Mediators should text is used to connote a degree of full and dered to attend mediation as part of the of questions and be comfortable exploring agreements.21 are vulnerable and have a perceived lower social assess both procedural forthright disclosure that extends beyond the litigation process, so they frequently do not whether a negotiation tactic is fair, given the Procedural fairness. Procedural fairness status. Such participants attend to procedural mere obligation to tell the “literal truth,” and understand that facts discussed in mediation context, culture, and experience of the partici- refers to a participant’s perception of whether cues as a coping mechanism to help them deal and substantive it encompasses an ethical duty to ensure that may not be the same as those presented at pants. e fairness question is informed by the the processes employed to arrive at outcomes with uncertainty regarding outcome fairness; the other parties to a mediation are suitably trial. e context for exaggeration or the use mediator’s ethical duties related to a lawyer’s are fair. Participants assess procedural fairness for these people, strong procedural fairness fairness throughout appraised of the facts and interests at play.34 As of non-material untruthful statements, such use of negotiation strategies during mediation. according to whether (1) there was an opportu- reduces the in uence of outcome favorability the mediation process, discussed above, attorneys representing clients as opening with an extreme anchor point, is nity to tell a story, (2) the participant felt heard, on their perceptions of substantive fairness and in mediation are not obliged to act with candor central to determining whether the statement The Duty to Assess Appropriateness (3) the participant was treated fairly, and (4) whether justice has been served.28 being mindful of how toward the mediator or other participants. may be perceived as unethical. For instance, Few lawyers are trained in mediation as part of the participant was treated with dignity and Mediators should assess both procedural and Unrepresented parties pose heightened duties most consumers are aware that a used car sales- their legal education, so as part of the mediator’s respect.22 “[P]arties’ assessments of process substantive fairness throughout the mediation power and social status for mediators, given their lack of knowledge man may use pu ery to persuade a prospective ethical duty to ensure a fair process, mediators fairness are considered important measures process, being mindful of how power and may a ect perceptions about court and mediation processes, lack of buyer to purchase a car. But pro se litigants will at times have to coach lawyers on the of the quality of dispute resolution procedures social status may a ect perceptions of fairness. knowledge of substantive law and procedure, participating in court-ordered mediation founding principles of mediation practice.17 and are related to parties’ compliance with Ensuring a fair process enhances participants’ of fairness. Ensuring a and lack of negotiation skills.35 us, in advance may not understand that pu ery is allowed in ese principles are enshrined in the Model agreements as well as their views of the legal abilities to make rational and informed deci- of the mediation, the mediator should inquire court-ordered mediated negotiations. Standards of Conduct for Mediators (Model system and its legitimacy.”23 Thus, ensuring sions, particularly for vulnerable populations.29 fair process enhances about potential negotiating tactics that may Culture also affects whether a generally Standards) and include, but are not limited to, procedural fairness promotes longer lasting Promoting honesty and candor. e quality participants’ abilities be employed and emphasize a collaborative, accepted negotiation tactic is perceived as an fairness of process, party self-determination, settlements that are less likely to lead to disputes of process fairness increases through transpar- problem-solving approach. When deciding unethical trick. Cultural di erences may a ect con dentiality, and competence.18 e Model over mediated settlement agreements.24 In other ency. us, the Model Standards provide that a to make rational and which negotiation tactics to allow, a mediator how authority, autonomy, gender, risk, and Standards provide the authority, and arguably words, procedural fairness is a major factor “mediator should promote honesty and candor should carefully consider the context, culture, long-term gain is perceived and acted upon require, mediators to coach attorneys in their participants use to weigh whether substantive between and among all participants.”30 As part informed decisions, and experience of the mediation participants during mediation.12 For example, some countries roles as mediation advocates, as opposed to outcomes are fair. of ensuring process fairness, mediators must and the degree to which the parties are aware require the “candor to the tribunal” standard litigation advocates. In this regard, media- Substantive fairness. Substantive fairness identify conduct that may jeopardize process particularly for of the facts and interests at play. However, even of truthfulness during mediations.13 Lawyers in tors should be mindful that the Model Rules refers to whether the participant perceives fairness and take actions to intervene, “includ- vulnerable populations. if the participants understand that generally these countries are “prohibited from providing for lawyers—drafted as ethical guidance for that he or she has received a fair distribution ing, if necessary, [by] postponing, withdrawing accepted negotiation conventions may be at mediators with inaccurate information about gladiators battling for clients in litigation—do or equitable value of the bargaining surplus from or terminating the mediation.”31 play, the mediator should still assess whether any matter.”14 us, cultural perspectives on not provide adequate guidance for lawyers or available benefits. Whether the outcome e mediator’s duty to promote honesty those conventions will impede a fair process. mediation may result in the misperception of advocating for clients in mediation.19 However, is deemed substantively fair usually depends and candor may be at odds with the strategies otherwise conventional norms. Research has the Model Rules are not the only source of on principles of equality, need, equity, and of competitive lawyers representing clients in Model Standard I: Self-Determination also shown that experience in uences whether guidance for ethical behavior for attorneys. e generosity.25 Equality espouses the idea that mediated negotiations. ere is an inherent In addition to ensuring a fair process, mediators a mere pu is taken as true. Young adults, for Model Rules “presuppose a larger legal context everyone should receive the same or comparable con ict between Model Standard VI.A., which ” have the duty to provide a process that promotes instance, have been found to misinterpret shaping the lawyer’s role” and “do not, however, bene ts. Need, also referred to as the “compen- extols the mediator to promote honesty and party self-determination and informed consent pu ery in advertising as factual “55 to 80 percent exhaust the moral and ethical considerations satory” or “redistributive” principle, assumes candor, and Model Rule 4.1, which allows should a mediator resolve the dissonance of mediated outcomes. Process fairness and of the time.”15 that should inform a lawyer. . . .”20 In addition that the needier should receive more of the lawyers to use generally accepted negotiation between the standards of truthfulness in the self-determination are interrelated because Generally accepted, customary conventions to coaching lawyers on the benefits of legal bene ts. e equity principle ties distribution conventions. Lawyers may strategically time Model Rules guiding lawyers and the Model individuals tend to perceive a process as fair used by lawyers during negotiations under problem-solving, mediators play a signi cant to contribution; it is the notion that resources disclosures, make non-material misrepre- Standards guiding mediators? when they participate in decision-making, are the guise of mere pu ery include exaggerated role in informing lawyers of the moral and ethical should be distributed pro rata based on relative sentations, and intentionally not disclose e answer is that the mediator must ex- not coerced into making a decision, and have proposals, the distortion of reservation points, considerations of using negotiating tactics and contributions.26 e generosity principle holds relevant facts during negotiations. Without ercise her or his gatekeeping authority before knowledge of the relevant information necessary threats, false demands, and the exploitation tricks in mediation. that the outcome achieved by one party should the mediator gatekeeping procedural fairness, and during mediation to ensure a fair process, to make a decision.36 “Self-determination is the

act of coming to a voluntary, uncoerced decision Model Standard V: Con dentiality open discussions that will lead to the settlement negotiating tactics to ensure a fair process For Law Schools A New Standard? in which each party makes free and informed In addition to promoting party self-determi- of their disputes.”43 Pursuant to the Model Stan- and party self-determination. If the mediator Lawyer training should start well before a With mediation increasingly incorporated into the choices as to process and outcome.”37 Self-de- nation and fairness of process, mediators must dards, a mediator must ensure that participants cannot competently address such matters, the pre-mediation caucus. Law schools should litigation process, either voluntarily or by court termination allows parties to problem-solve also ensure the con dentiality of the process. understand the scope of con dentiality and its Model Standards require mediators to take mandate mediation or mediation advocacy mandate, the time seems right to reconsider the and resolve disputes on their own terms, based Con dentiality is a foundational principle of me- limits.44 e Colorado Dispute Resolution Act, appropriate steps to address the situation, courses because lawyers often must represent standard of truthfulness in mediation. Is fairness on their own values and interests. Dispute CRS §§ 13-22-307 et seq., allows disclosure of “including, but not limited to, withdrawing or clients in mediation as part of representing better served by maintaining the Model Rule 4.1 resolution in mediation should occur “only con dential mediation communications only requesting appropriate assistance.”51 clients in court proceedings. Such courses standard of truthfulness, or should the candor to if the people involved in the dispute choose for speci c, narrowly de ned exceptions. CRS should cover skills outside the traditional law the tribunal standard be adopted for mediation? resolution on their own and without anyone § 13-22-307(2) lists exceptions for disclosure Recommendations for Promoting school curriculum. For example, mediators Given the central role that mediation now plays forcing their hands.”38 “ where all parties consent in writing and for Fairness possess the skill of con ict diagnosis and have in the justice system, it is di cult to nd any Too often mediations are not conducted with With mediation communications that (1) reveal the intent to e following recommendations are o ered knowledge of “strategic, structural, cultural, basis in principle for distinguishing between the party self-determination at the core. Lawyers commit crimes or threaten child safety, (2) to promote fairness in the mediation process. psychological, and cognitive barriers to reso- duties owed by lawyers engaged in mediation and speak on behalf of their clients. Participants increasingly are required to be disclosed by statute, or (3) Some are directed at individual mediators, lution,” in addition to being skilled in applying those involved in adjudicative forms of dispute do not see each other because lawyers request are relevant to prove the mediator’s willful or and some are aimed at the profession at large. appropriate interventions to overcome these resolution.59 Perhaps “it is time (especially in caucuses, so the mediation is conducted via incorporated into the wanton misconduct.45 barriers.55 Law school education typically this era of ‘alternative facts’) to revisit lawyers’ shuttle diplomacy. To address this situation, litigation process, Mediators should be particularly concerned For Mediators does not teach lawyers these skills but focuses duties to be more truthful in negotiations (Rule evaluative mediators with legal expertise can when con dentiality is used in mediation to Mediators may be able to mitigate the neg- instead on one-sided representation of clients 4.1) generally, as in court (Rule 3.3).”60 reality check participants based on predicted either voluntarily or exploit participants or to gain a tactical ad- ative effects of puffery and similar tactics by and zealous advocacy. Lawyers are also not court outcomes.39 But adversarial mediation vantage at trial.46 If the mediator is not diligent caucusing with participants before mediation typically trained to develop empathy for the Conclusion advocacy practices and overly evaluative modes by court mandate, the in assessing fairness and self-determination, to develop trust and assess participants’ opposing position’s side of the dispute.56 Law When facing the wrath of the gladiator, a com- of mediation reduce party self-determination, time seems right to mediation could be used as a discovery tool knowledge of problem-solving negotiations schools might take a lesson from mediation petent mediator must take care to assess how resulting in a process that is more like arbitration, or an opportunity for a fishing expedition. and ability to empathize with their coun- training, which has been shown to have a generally accepted negotiation conventions without the due process protections.40 reconsider the standard Mediators should act as gatekeepers of un- terparts.52 Coaching sometimes takes time. “de-biasing” e ect on lawyers by training them may in uence the fairness of the process and Self-determination is best viewed in de- ethical negotiating tactics, as con dentiality “[C]ourts encouraging or ordering parties’ to view a dispute from all sides and develop party self-determination. Mediators should grees, on a spectrum from conceptual (also of truthfulness in protections make proving unscrupulous lawyer use of mediation should institutionalize empathy. Further, lawyers with mediation begin this assessment at the intake phase; known as “formal”) to actual (also known as mediation. Is fairness behaviors extremely di cult, if not impossible.47 sufficient time for pre-mediation caucuses training have been found to make fewer errors carefully assess power imbalances and the “substantive”).41 Self-determination requires Leonard Riskin once observed that lawyers as well as systems that provide for feedback in advising clients on when they should settle.57 e ect of social inequality during the mediation (1) competency in decision-making, (2) lack better served by typically act in accordance with “the lawyer’s and quality assurance.”53 Mediators should Empathy training may be exactly what lawyers process; and intervene as necessary, “including of coercion or voluntary decision-making, standard philosophical map” rather than the watch for competitive cues during the initial need in this current era of social-political postponing, withdrawing from or terminating and (3) informational knowledge. A mediation maintaining the Model “mediator’s philosophical map.”48 erefore, intake and discuss the differences between fragmentation. the mediation.”61 participant may make decisions with self-de- Rule 4.1 standard of mediators must remind lawyers which map litigation and mediation and the benefits of a termination, clarity of mind, and voluntarily, will be used to guide participants through the problem-solving approach before mediation. For the Profession Wesley Parks is an attorney at Cohen & Cohen, P.C. in Denver, where he yet still lack a true understanding of all relevant mediation process. A simple telephone call before mediation to Process fairness necessitates that the mediation truthfulness, or should practices consumer bankruptcy and information needed to make a fully informed discuss the parties’ view of the dispute and profession be diverse. A mediation roster that family law. He is also a mediator at decision. Decisions based on inadequate infor- the candor to the Model Standard IV: Competence their goals for mediation may reveal abundant re ects the population it serves will result in Parks Mediation in Denver and serves as a contract mediator for the Colorado O ce mation have been termed “autonomous,” are of Mediators may hesitate to address generally information regarding negotiation strategies. more marginalized voices being heard and tribunal standard be of Dispute Resolution and the Colorado low quality, and are closer to the conceptual side accepted negotiating maneuvers for fear that With this information, the mediator could more people who are willing to tell their stories Department of Education, and as a volunteer of the self-determination spectrum. Decisions adopted for mediation? they may face the gladiator’s wrath. However, suggest interventions to promote a fair process during mediation. From the perspective of the mediator for Court Mediation Services in Denver made with all three components, including full competent mediation practice requires an and self-determination. procedural justice literature, County. He mediates in the areas of family law, civil litigation, and special education. Parks also awareness of all relevant information, fall on the assessment of how such tactics in uence the For instance, if a represented party intends increasing the diversity of the pool of serves as an adjunct professor teaching Mediation side of the actual self-determination spectrum fairness of the process and party self-determi- to use a competitive negotiation style and a pro mediators should enhance marginalized and Negotiation and Alternative Dispute and are of a higher quality.42 nation. Mediators must conduct the mediation se party is unfamiliar with generally accepted parties’ willingness to perceive that they Resolution at the University of Denver Sturm College of Law. He is the current vice chair of Generally accepted negotiation conventions ” with “the necessary competence to satisfy the negotiation conventions, the mediator might will be, and were, heard and understood, the CBA’s Alternative Dispute Resolution chip away at the quality of self-determination, reasonable expectations of the parties.”49 Compe- suggest that the pro se party consult with an therefore increasing marginalized parties’ Section—[email protected]. This article especially in the presence of power imbalances. diation. It encourages parties to problem-solve tent mediators must have required training and attorney to prepare a strategy for the mediation. willingness to exercise voice and increasing is based on an article published in the 14th Annual CBA-CLE ADR Conference Handbook (Nov. Mediators should promote honesty and candor without fear that their communications will experience, including competence in “cultural “[T]he use of pre-mediation and early caucusing the likelihood of actual understanding and 2020). The author thanks the Hon. Patrick Butler 50 in mediations because transparent information later be used as evidence against them in understandings and other qualities.” us, to [may] enhance parties’ trust in the mediator and trustworthy consideration—which may and C.J. Larkin for their contributions. exchanges result in increased self-determina- court. “ e assumption is that when parties’ meet competency standards, a mediator must the process, a rm that each party is a valued then reduce the likelihood of unjusti ably tion, which in turn in uences perceptions of communications are protected from public understand power imbalances and cultural member of the group engaged in mediation, and disparate outcomes.58 Coordinating Editor: Marshall Snider, [email protected] procedural and substantive fairness. disclosure, they are more willing to engage in differences and be able to counterbalance help parties prepare for their participation.”54

26 | COLORADO LAWYER | APRIL 2021 APRIL 2021 | COLORADO LAWYER | 27 NOTES plate the many di erent roles of a lawyer, including mination and the lawyers’ presence in mediation, the lawyer as problem-solver. both as mediators and advocates, has resulted in 1. Model Standard IV. The Model Standards were mediation no longer being mediation, but more of a adopted by the American Arbitration Association 20. Model Rules, Preamble cmts. 15–16. new type of arbitration. (Sept. 8, 2005), American Bar Association (Aug. 21. Hyman and Love, “If Portia Were a Mediator: An 9, 2005), and Association for Confl ict Resolution Inquiry into Justice in Mediation,” 9 Clinical L. Rev. 41. Welsh, supra note 22 at 730 n.36. The termi- (Aug. 22, 2005). 157, 161–162 (2002). Mediation justice is referred nology of “conceptual” to “actual” is used here to di erentiate from procedural versus substantive 2. Menkel-Meadow, “The Evolving Complexity of to as “justice-from-below,” as opposed to justice process. Dispute Resolution Ethics,” 30 Geo. J. Legal Ethics delivered from the bench or “justice-from-above.” 389 (2017). 22. Welsh, “Do You Believe in Magic?: Self-Deter- 42. Shapira, supra note 36 at 125–27. 3. Id. at 396. See also Model Rule 1.6(b)(1)–(3) (a mination and Procedural Justice Meet Inequality 43. Nolan-Haley, supra note 40 at 82. lawyer may only reveal confi dential information in Court-Connected Mediation,” 70 S.M.U. L. Rev. 44. Model Standard V.C. (“A mediator shall promote to prevent reasonably certain death or substantial 721, 733–34 (2017) (“[P]eople tend to perceive a understanding among the parties of the extent to bodily harm, to prevent the client from committing process as fair or just if it includes the following el- which the parties will maintain confi dentiality of a crime or fraud, or to prevent, mitigate, or rectify ements: (1) ‘voice’ or the opportunity for people to information they obtain in a mediation.”). substantial fi nancial injury to another). express what is important to them; (2) ‘trustworthy 45. CRS § 13-22-307(2) provides: consideration’ or a demonstration that encourages 4. Menkel-Meadow, supra note 2 at 397. people to believe that their voice was heard by the Any party or the mediator or mediation orga- 5. Model Rule 3.3. A higher standard of truthfulness decision-maker or authority fi gure; (3) a neutral nization in a mediation service proceeding or a applies when a lawyer is in front of a tribunal. forum that applies the same objective standards to dispute resolution proceeding shall not voluntarily Burg Simpson congratulates shareholder “‘Tribunal’ denotes a court, an arbitrator in a all and treats the parties in an even-handed manner; disclose or through discovery or compulsory binding arbitration proceeding or a legislative body, and (4) treatment that is dignifi ed.”). process be required to disclose any information administrative agency or other body acting in an concerning any mediation communication or any Angela McGraw for being inducted as the new 23. Wissler, “Representation in Mediation: What We adjudicative capacity.” Model Rule 1.0(m). communication provided in confi dence to the Know from Empirical Research,” 37 Fordham Urb. 6. See Ausherman v. Bank of America Corp., 212 mediator or a mediation organization, unless and Secretary for the Colorado chapter of the L.J. 419, 437 (2010). to the extent that: (a) All parties to the dispute F.Supp.2d 435, 449 (2002) (“A fact is material to 24. For a study of litigation about mediation, resolution proceeding and the mediator consent a negotiation if it reasonably may be viewed as see Coben and Thompson, “Disputing Irony: A in writing; or (b) The mediation communication American Board of Trial Advocates (ABOTA). important to a fair understanding of what is being Systematic Look at Litigation about Mediation,” 11 reveals the intent to commit a felony, infl ict bodily given up and, in return, gained by the settlement.”). Harv. Negot. L. Rev. 43, 56–59 (2006). harm, or threaten the safety of a child under 7. Ho man, “The Best Pu ery Article Ever,” 91 Iowa 25. Albin, “The Role of Fairness in Negotiation," 9 the age of eighteen years; or (c) The mediation L. Rev. 1395, 1397 (2006). Ms. McGraw currently focuses her practice on medical Negot. J. 223, 238–39 (1993). communication is required by statute to be 8. Id. at 1400 (emphasis added). 26. Id. made public; or (d) Disclosure of the mediation malpractice, and has been a member of ABOTA since 2014. 9. Black’s Law Dictionary at 1061 (9th ed. 2010). communication is necessary and relevant to an 27. Welsh, “Perceptions of Fairness in Negotiation,” action alleging willful or wanton misconduct of 10. Ho man, supra note 7 at 1403. 87 Marq. L. Rev. 753, 754 (2004). the mediator or mediation organization. 11. Abramson, “Fashioning an E ective Negotiation 28. Welsh, supra note 22 at 740–741. Welsh cites 46. Id. Style: Choosing Between Good Practices, Tactics, examples of studies from employment and labor and Tricks,” 23 Harvard L. Rev. 319, 328 (2018). disputes involving employees, supervisors, women, 47. Nolan-Haley, supra note 40 at 82. 12. Lee, “Culture and Its Importance in Mediation,” 16 and minority populations. 48. Riskin, “Mediation and Lawyers,” 43 Ohio St. L.J. Pepp. Disp. Resol. L.J. 317 (2016). The author identi- 29. Id. 29, 43–48 (1982). Cf. Nolan-Haley, supra note 40 at 83. fi es “four cultural dimensions . . . (1) power distance; 30. Model Standard VI.A.4. (emphasis added). The (2) individualism/collectivism; (3) masculinity/ “should” language is of note here, as the mediator 49. Model Standard IV.A. femininity; and (4) and uncertainty avoidance.” Id. is under no obligation to promote honesty and 50. Model Standard IV.A.1. at 321–22. candor at all times and in all situations. 51. Model Standard IV.B. 13. Wolski, “On Mediation, Legal Representatives, 31. Model Standards VI.A.9. “A mediator shall 52. Welsh, supra note 22 at 761. and Advocates,” 38 U. New South Wales L.J. 5, conduct a mediation . . . in a manner that promotes 53. Id. at 756. 24–25 (2015). Canada and Australia require a diligence, timeliness, safety, presence of the appro- 54. Id. at 755. standard of truthfulness similar to Model Rule 3.3. priate participants, party participation, procedural 14. Wolski, “The Truth about Honesty and Candour fairness, party competency and mutual respect 55. Frenkel and Stark, “Improving Lawyers’ in Mediation: What the Tribunal Left Unsaid in among all participants.” Judgment: Is Mediation Training De-Biasing?,” 21 Harv. Negot. L. Rev. 1 (2015). The authors suggest Mullins’ Case,” 36 Melb. U. L. Rev. 706 (2012). 32. See infra note 45. that mediation training should teach mediators 15. Gaeth and Heath, “The Cognitive Processing of 33. See Keesing, “Should Lawyers Owe a Duty of Misleading Advertising in Young and Old Adults: about the roots of confl ict, how to assess disputant Candor in Mediation?,” 11 Am. J. Mediation 11, 18–19 interests, and include education on cognitive and Assessment and Training,” 14 J. Consumer Res. 43, (2018). The author discusses Spaulding v. Zimmer- 43–44 (1987) (internal citations omitted). motivational biases and how these biases impact man, 116 N.W.2d 704 (1962), as an example where decision-making. This “training . . . is beyond what 16. See Abramson, supra note 11 at 326. lawyers intentionally failed to disclose a plainti ’s most law students or lawyers receive.” Id. at 18. ARIZONA | COLORADO | FLORIDA | NEVADA | NEW MEXICO | OHIO | WYOMING aortic aneurysm and obtained a larger settlement 17. Stamatelos, “Lawyers of the Future: Is Legal 56. Model Rule 1.3 cmt. 1. (“A lawyer should pursue a as a result. Education Doing Its Part?” 66 Drake L. Rev. 101, matter on behalf of a client despite opposition, ob- 107 (Jan. 2017). Law schools historically o er few 34. Id. at 12. struction or personal inconvenience to the lawyer, courses in negotiation and mediation, and when 35 . See Wissler, supra note 23 at 420. and take whatever lawful and ethical measures are they do, they are not typically required. 36. See Shapira, “A Critical Assessment of the required to vindicate a client’s cause or endeavor. 18. See supra note 1. In examining the quality of Model Standards of Conduct for Mediators (2005): A lawyer must also act with commitment and 303.792.5595 | 1.888.895.2080 the mediation process, this article focuses on Call for Reform,” 100 Marq. L. Rev. 81, 125–27 (2016). dedication to the interests of the client and with Model Standards I, II, IV, V, and VI because these zeal in advocacy upon the client’s behalf.”). 37. Model Standard I. Self-Determination. standards are the most likely to be triggered when 57. Frenkel and Stark, supra note 55 at 3–4. www.BURGSIMPSON.com a mediator is facing generally accepted negotiation 38. Welsh, supra note 22 at 726. 58. Welsh, supra note 22 at 751. conventions. Other ethical standards may also be 39. Id. at 727. 59. Keesing, supra note 33 at 21. implicated. 40. Nolan-Haley, “Mediation: The New Arbitration,” 19. Menkel-Meadow, supra note 2 at 391. The author 17 Harv. Negot. L. Rev. 61, 96 (2012). The author 60. Menkel-Meadow, supra note 2 at 414. argues for more context-based rules that contem- argues that the de-emphasis in party self-deter- 61. Model Standard VI.C. 40 INVERNESS DRIVE EAST, ENGLEWOOD, CO 80112

93392-Ad.CoLawyer.ABOTA.9x10.875 BurgSimpson.indd 1 2/15/21 12:01 PM NOTES plate the many di erent roles of a lawyer, including mination and the lawyers’ presence in mediation, the lawyer as problem-solver. both as mediators and advocates, has resulted in 1. Model Standard IV. The Model Standards were mediation no longer being mediation, but more of a adopted by the American Arbitration Association 20. Model Rules, Preamble cmts. 15–16. new type of arbitration. (Sept. 8, 2005), American Bar Association (Aug. 21. Hyman and Love, “If Portia Were a Mediator: An 9, 2005), and Association for Confl ict Resolution Inquiry into Justice in Mediation,” 9 Clinical L. Rev. 41. Welsh, supra note 22 at 730 n.36. The termi- (Aug. 22, 2005). 157, 161–162 (2002). Mediation justice is referred nology of “conceptual” to “actual” is used here to di erentiate from procedural versus substantive 2. Menkel-Meadow, “The Evolving Complexity of to as “justice-from-below,” as opposed to justice process. Dispute Resolution Ethics,” 30 Geo. J. Legal Ethics delivered from the bench or “justice-from-above.” 389 (2017). 22. Welsh, “Do You Believe in Magic?: Self-Deter- 42. Shapira, supra note 36 at 125–27. 3. Id. at 396. See also Model Rule 1.6(b)(1)–(3) (a mination and Procedural Justice Meet Inequality 43. Nolan-Haley, supra note 40 at 82. lawyer may only reveal confi dential information in Court-Connected Mediation,” 70 S.M.U. L. Rev. 44. Model Standard V.C. (“A mediator shall promote to prevent reasonably certain death or substantial 721, 733–34 (2017) (“[P]eople tend to perceive a understanding among the parties of the extent to bodily harm, to prevent the client from committing process as fair or just if it includes the following el- which the parties will maintain confi dentiality of a crime or fraud, or to prevent, mitigate, or rectify ements: (1) ‘voice’ or the opportunity for people to information they obtain in a mediation.”). substantial fi nancial injury to another). express what is important to them; (2) ‘trustworthy 45. CRS § 13-22-307(2) provides: consideration’ or a demonstration that encourages 4. Menkel-Meadow, supra note 2 at 397. people to believe that their voice was heard by the Any party or the mediator or mediation orga- 5. Model Rule 3.3. A higher standard of truthfulness decision-maker or authority fi gure; (3) a neutral nization in a mediation service proceeding or a applies when a lawyer is in front of a tribunal. forum that applies the same objective standards to dispute resolution proceeding shall not voluntarily Burg Simpson congratulates shareholder “‘Tribunal’ denotes a court, an arbitrator in a all and treats the parties in an even-handed manner; disclose or through discovery or compulsory binding arbitration proceeding or a legislative body, and (4) treatment that is dignifi ed.”). process be required to disclose any information administrative agency or other body acting in an concerning any mediation communication or any Angela McGraw for being inducted as the new 23. Wissler, “Representation in Mediation: What We adjudicative capacity.” Model Rule 1.0(m). communication provided in confi dence to the Know from Empirical Research,” 37 Fordham Urb. 6. See Ausherman v. Bank of America Corp., 212 mediator or a mediation organization, unless and Secretary for the Colorado chapter of the L.J. 419, 437 (2010). to the extent that: (a) All parties to the dispute F.Supp.2d 435, 449 (2002) (“A fact is material to 24. For a study of litigation about mediation, resolution proceeding and the mediator consent a negotiation if it reasonably may be viewed as see Coben and Thompson, “Disputing Irony: A in writing; or (b) The mediation communication American Board of Trial Advocates (ABOTA). important to a fair understanding of what is being Systematic Look at Litigation about Mediation,” 11 reveals the intent to commit a felony, infl ict bodily given up and, in return, gained by the settlement.”). Harv. Negot. L. Rev. 43, 56–59 (2006). harm, or threaten the safety of a child under 7. Ho man, “The Best Pu ery Article Ever,” 91 Iowa 25. Albin, “The Role of Fairness in Negotiation," 9 the age of eighteen years; or (c) The mediation L. Rev. 1395, 1397 (2006). Ms. McGraw currently focuses her practice on medical Negot. J. 223, 238–39 (1993). communication is required by statute to be 8. Id. at 1400 (emphasis added). 26. Id. made public; or (d) Disclosure of the mediation malpractice, and has been a member of ABOTA since 2014. 9. Black’s Law Dictionary at 1061 (9th ed. 2010). communication is necessary and relevant to an 27. Welsh, “Perceptions of Fairness in Negotiation,” action alleging willful or wanton misconduct of 10. Ho man, supra note 7 at 1403. 87 Marq. L. Rev. 753, 754 (2004). the mediator or mediation organization. 11. Abramson, “Fashioning an E ective Negotiation 28. Welsh, supra note 22 at 740–741. Welsh cites 46. Id. Style: Choosing Between Good Practices, Tactics, examples of studies from employment and labor and Tricks,” 23 Harvard L. Rev. 319, 328 (2018). disputes involving employees, supervisors, women, 47. Nolan-Haley, supra note 40 at 82. 12. Lee, “Culture and Its Importance in Mediation,” 16 and minority populations. 48. Riskin, “Mediation and Lawyers,” 43 Ohio St. L.J. Pepp. Disp. Resol. L.J. 317 (2016). The author identi- 29. Id. 29, 43–48 (1982). Cf. Nolan-Haley, supra note 40 at 83. fi es “four cultural dimensions . . . (1) power distance; 30. Model Standard VI.A.4. (emphasis added). The (2) individualism/collectivism; (3) masculinity/ “should” language is of note here, as the mediator 49. Model Standard IV.A. femininity; and (4) and uncertainty avoidance.” Id. is under no obligation to promote honesty and 50. Model Standard IV.A.1. at 321–22. candor at all times and in all situations. 51. Model Standard IV.B. 13. Wolski, “On Mediation, Legal Representatives, 31. Model Standards VI.A.9. “A mediator shall 52. Welsh, supra note 22 at 761. and Advocates,” 38 U. New South Wales L.J. 5, conduct a mediation . . . in a manner that promotes 53. Id. at 756. 24–25 (2015). Canada and Australia require a diligence, timeliness, safety, presence of the appro- 54. Id. at 755. standard of truthfulness similar to Model Rule 3.3. priate participants, party participation, procedural 14. Wolski, “The Truth about Honesty and Candour fairness, party competency and mutual respect 55. Frenkel and Stark, “Improving Lawyers’ in Mediation: What the Tribunal Left Unsaid in among all participants.” Judgment: Is Mediation Training De-Biasing?,” 21 Harv. Negot. L. Rev. 1 (2015). The authors suggest Mullins’ Case,” 36 Melb. U. L. Rev. 706 (2012). 32. See infra note 45. that mediation training should teach mediators 15. Gaeth and Heath, “The Cognitive Processing of 33. See Keesing, “Should Lawyers Owe a Duty of Misleading Advertising in Young and Old Adults: about the roots of confl ict, how to assess disputant Candor in Mediation?,” 11 Am. J. Mediation 11, 18–19 interests, and include education on cognitive and Assessment and Training,” 14 J. Consumer Res. 43, (2018). The author discusses Spaulding v. Zimmer- 43–44 (1987) (internal citations omitted). motivational biases and how these biases impact man, 116 N.W.2d 704 (1962), as an example where decision-making. This “training . . . is beyond what 16. See Abramson, supra note 11 at 326. lawyers intentionally failed to disclose a plainti ’s most law students or lawyers receive.” Id. at 18. ARIZONA | COLORADO | FLORIDA | NEVADA | NEW MEXICO | OHIO | WYOMING aortic aneurysm and obtained a larger settlement 17. Stamatelos, “Lawyers of the Future: Is Legal 56. Model Rule 1.3 cmt. 1. (“A lawyer should pursue a as a result. Education Doing Its Part?” 66 Drake L. Rev. 101, matter on behalf of a client despite opposition, ob- 107 (Jan. 2017). Law schools historically o er few 34. Id. at 12. struction or personal inconvenience to the lawyer, courses in negotiation and mediation, and when 35 . See Wissler, supra note 23 at 420. and take whatever lawful and ethical measures are they do, they are not typically required. 36. See Shapira, “A Critical Assessment of the required to vindicate a client’s cause or endeavor. 18. See supra note 1. In examining the quality of Model Standards of Conduct for Mediators (2005): A lawyer must also act with commitment and 303.792.5595 | 1.888.895.2080 the mediation process, this article focuses on Call for Reform,” 100 Marq. L. Rev. 81, 125–27 (2016). dedication to the interests of the client and with Model Standards I, II, IV, V, and VI because these zeal in advocacy upon the client’s behalf.”). 37. Model Standard I. Self-Determination. standards are the most likely to be triggered when 57. Frenkel and Stark, supra note 55 at 3–4. www.BURGSIMPSON.com a mediator is facing generally accepted negotiation 38. Welsh, supra note 22 at 726. 58. Welsh, supra note 22 at 751. conventions. Other ethical standards may also be 39. Id. at 727. 59. Keesing, supra note 33 at 21. implicated. 40. Nolan-Haley, “Mediation: The New Arbitration,” 19. Menkel-Meadow, supra note 2 at 391. The author 17 Harv. Negot. L. Rev. 61, 96 (2012). The author 60. Menkel-Meadow, supra note 2 at 414. argues for more context-based rules that contem- argues that the de-emphasis in party self-deter- 61. Model Standard VI.C. 40 INVERNESS DRIVE EAST, ENGLEWOOD, CO 80112

93392-Ad.CoLawyer.ABOTA.9x10.875 BurgSimpson.indd 1 2/15/21 12:01 PM FEATURE | THE CIVIL LITIGATOR

is article discusses the evolution and scope of the work product doctrine and how it di ers from the attorney-client privilege.

he attorney work product doctrine The issue in Hickman concerned the is a relatively recent development in defense’s refusal to answer an interrogatory American jurisprudence. While the directed to the tug owners requesting them to attorney-client privilege traces its “[s]tate whether any statements of the members Troots to English common law, the work product of the crew of the ‘J.M. Taylor’ and ‘Philadelphia’ doctrine was developed in the mid-20th century or of any other vessel were taken in connection when courts recognized the need to protect an with the towing of the car oat and the sinking attorney’s mental thoughts and impressions of the Tug ‘John M. Taylor.’”3 e US District and thus preserve the attorney’s trial strategy in Court for the Eastern District of Pennsylvania anticipated or pending litigation. Together with held that the requested information was not the attorney-client privilege, the work product privileged, but the US Court of Appeals for the doctrine allows counsel and their clients to ird Circuit reversed, leading to the Supreme communicate e ectively and shield case strategy Court granting certiorari.4 from discovery. In a unanimous decision, Justice Murphy is article discusses how the work product wrote that “[p]roper preparation of a client’s case doctrine evolved and what information it covers. demands that [a lawyer] assemble information, It also distinguishes work product protections sift what he [or she] considers to be the relevant from the attorney-client privilege. from the irrelevant facts, prepare his [or her] legal theories and plan [a] strategy without undue History of the Work Product Doctrine and needless interference.”5 Much of the opinion e work product doctrine was rst established centered on the ird Circuit’s interpretation of in 1947 in the US Supreme Court’s landmark Rule 26 of the newly conceived Federal Rules case Hickman v. Taylor.1 In Hickman, the Court of Civil Procedure. e Court observed that The Attorney aimed to balance the “competing interests” “[n]ot even the most liberal of discovery theories of the privacy of a lawyer’s work and public can justify unwarranted inquiries into the les policy encouraging reasonable and necessary and the mental impressions of an attorney.”6 inquiries.2 Hickman concerned the defense The opinion further noted that interpreting of the owners of a sunken tugboat following the rules to allow for such materials to be open the drowning of ve of its nine crew members to opposing counsel on mere demand would Work Product while they were operating the tugboat to assist develop “[i]ne ciency, unfairness, and sharp a car oat across the Delaware River. A month practices” in the giving of legal advice and in after the accident, a public hearing was held the preparation of cases.7 Further, before the US Steamboat Inspectors, at which [w]hen Rule 26 and the other discovery the four survivors were examined. ree weeks rules were adopted, this Court and the Doctrine later, the survivors were privately interviewed members of the bar in general certainly by a lawyer retained in anticipation of litigation did not believe or contemplate that all the Its History and Application against the tugboat owners. While four of the les and mental processes of lawyers were ve deceased crew members’ estates settled thereby opened to the free scrutiny of their BY FRANZ HARDY AND GREG S. HEARING before litigation, the fth claimant brought a adversaries. And we refuse to interpret the lawsuit eight months after the interviews were rules at this time so as to reach so harsh and conducted. unwarranted a result.8

is article discusses the evolution and scope of the work product doctrine and how it di ers from the attorney-client privilege.

The Court explained that work product recognized the advantage presented to opposing of an insurance company adjuster. e Court aside from a bare request for production of would not shield underlying facts from discov- parties to be able to obtain work product from ruled that the trial court abused its discretion documents, refusal to compel production was ery. Instead, the discovery of underlying facts previous litigation with government entities or by denying a motion to compel discovery re- appropriate.28 In National Farmers Union v. contained within work product could only be insurance providers that deal with hundreds or questing the notes and investigative reports of an District Court, the Colorado Supreme Court had in certain limited circumstances, and the thousands of similar cases.13 Justice Brennan insurance adjuster regarding his interviews with recognized its holding in Hawkins in ruling “ party seeking such discovery must carry the sought to avoid “some inhibition” in creating several individuals and any statements taken that a memorandum prepared by attorneys burden to demonstrate production: and retaining work product that could later be from these persons.21 Justice Quinn distinguished was not protected because they performed a The Court observed that ‘[n]ot even the Where relevant and non-privileged facts used by an opponent wholly unrelated to the between materials prepared in anticipation factual investigation that mirrored the work a most liberal of discovery theories can justify remain hidden in an attorney’s file, and original litigation that the documents were of litigation and documents prepared in the claims adjuster would normally perform.29 e where production of those facts is essential prepared for; concluding this line of thought, “ordinary course of business.”22 He explained Court held that a party “may not avail itself of unwarranted inquiries into the ﬁ les and the to the preparation of one’s case, discov- he noted that this “demoralization” is precisely that the work of claims adjusters is “part of the the protection a orded by the work product ery may properly be had. Such written what Hickman warned against.14 normal business activity of the company and doctrine simply because it hired attorneys to mental impressions of an attorney.’ statements and documents might, under As a result of Hickman, Grollier, and their that reports and witness’ statements compiled perform the factual investigation into whether certain circumstances, be admissible in progeny, the work product doctrine is now by or on behalf of the insurer in the course the claim should be paid.”30 evidence, or give clues as to the existence well-established. While the particulars of what of such investigations are ordinary business Kay Laboratories v. District Court examined or location of relevant facts. Or they might is protected by the work product doctrine records as distinguished from trial preparation whether the work product doctrine applies to a ” be useful for purposes of impeachment can vary by jurisdiction, the basic framework materials.”23 e Court held that those denying hospital incident report.31 In Kay, a nurse lled out or corroboration. And production might announced by Hickman and later codi ed in the production have the burden of demonstrating an incident report form that was routinely provided be justified where the witnesses are no Federal Rules of Civil Procedure has remained that the document was by the hospital’s insurer. e Colorado Supreme longer available or can be reached only mostly intact. [p]repared or obtained in order to defend Court held that even though a report was created The “Substantial Need” Exception the fact that the attorney notes represented with di culty. Were production of written the speci c claim which already had arisen in response to an injury caused by negligence, Under CRCP 26, information prepared in the only investigative report of what occurred statements and documents to be precluded The Work Product Doctrine and, when the documents were prepared or there was no way for the hospital to anticipate anticipation of litigation is discoverable “only before, during, and after the childbirth as a under such circumstances, the liberal ideals in Colorado obtained in order to defend the speci c claim speci c litigation merely from the fact that the upon showing that the party seeking discov- critical factor.42 of the deposition-discovery portions of the e Colorado Supreme Court codi ed the work which already had arisen and, when the injury occurred.32 A claim against it had yet to be ery has substantial need of the materials.”37 Addressing the undue hardship prong of the Federal Rules of Civil Procedure would be product doctrine at CRCP 26(b)(3), e ective documents were prepared or obtained, there initiated, and the hospital conceded that it had no Cardenas v. Jerath provides guidance on what test, the Court elaborated that it is “particularly stripped of much of their meaning. But the April 1, 1970.15 is rule allows discovery for was a substantial probability of imminent notice of the claim when the incident report was “substantial need” a party seeking materials di cult for a party to obtain the substantial general policy against invading the privacy information “prepared in anticipation of litiga- litigation over the claim or a lawsuit had completed, so the work product doctrine did not must demonstrate to obtain work product that equivalent of statements taken from witnesses of an attorney’s course of preparation is so tion or for trial by or for another party or by or already been led.24 protect the incident report from disclosure.33 e would normally be protected.38 e Colorado at about the time of the incident” because of the well recognized and so essential to an orderly for that other party’s representative.”16 e rule Similar to Hawkins, the Colorado Supreme Kay Court determined that the incident report was Supreme Court in Cardenas recognized that present sense nature of the impressions held working of our system of legal procedure that quali es this access by requiring a showing of Court in Compton v. Safeway, Inc. held that “prepared in accordance with hospital routine.”34 “a party is unable without undue hardship within the statements.43 e Court addition- a burden rests on the one who would invade “substantial need” of the materials requested statements recorded by a claims adjuster a The Kay holding illustrates the importance of to obtain the substantial equivalent of the ally observed that the production of witness that privacy to establish adequate reasons and that the substantial equivalent of the desired month before litigation became imminent were preparing documents in anticipation of speci c materials by other means when the request- statements taken by attorneys can often be to justify production through a subpoena materials is unable to be obtained without not protected because the withholding party litigation for them to qualify for protection under ed materials are not available by any other justified by a mere lapse of time.44 Had the or court order.9 “undue hardship.”17 To obtain information from must meet its burden “of showing a substantial the work product doctrine. source.”39 Demonstrating substantial hardship requesting party been able to obtain this type From this opinion, the work product doctrine materials otherwise protected as work product, probability of imminent litigation.”25 To obtain a proper understanding of what requires the moving party to show that “the of information in any other manner, the Court was o cially recognized. It was codi ed into the information sought must “(1) be relevant Relatively few Colorado cases have discussed “in anticipation of litigation” means, a return facts contained in the requested documents would have denied the request for production, the Federal Rules of Civil Procedure 23 years to the subject matter involved in the pending the work product doctrine. Despite this, general to Hawkins is necessary. e Hawkins Court are essential elements of the requesting party’s but given the showing of substantial need and later with the 1970 amendments.10 action [and] (2) not be privileged;” further, “an guidelines have been established as to what contemplated the challenges of establishing a prima facie case.”40 undue hardship in obtaining the equivalent of In F.T.C. v. Grollier, decided 36 years after attorney’s work product is not discoverable attorney work product is protected. In A v. bright-line rule to mark the decision between e plainti in Cardenas sought production the attorney’s notes, production was appropriate Hickman, the work product doctrine was held except upon a showing of substantial need and District Court, the Colorado Supreme Court ordinary business activity and conduct taking of notes containing present sense impres- in this setting. to extend even after the litigation was over.11 inability to obtain the information elsewhere.”18 followed the precedent set by the US Court place in anticipation of litigation. It held that “a sions prepared by an attorney for a hospital e standard for discovery of work product Justice White, in the majority opinion, was Nevertheless, the rule precludes the discovery of Appeals for the Eighth Circuit extending showing by the insurance company that reports immediately following a childbirth involving for the requesting party is high. e Court’s hold- the first to address the “temporal scope” of of “mental impressions, conclusions, opinions work product protection to in-house attorneys and statements were compiled by or under the neurological injuries. As the notes sought ing in Cardenas demonstrates that documents the work product immunity and held that or legal theories of an attorney or other repre- working for corporations.26 In Quintana v. direction of the insured’s legal counsel for use in were unique and the substantial equivalent protected by work product are discoverable while the federal rule is silent on the issue, the sentative of a party concerning the litigation.”19 Lujan, the Colorado Court of Appeals focused speci c litigation about to be led or for use in could not be obtained due to the signi cant only when they are necessary to prove the literal language protecting against discovery irty- ve years after Hickman, the Colorado on the requirement of a showing of “substan- an upcoming trial would be conclusive evidence lapse of time, the Court held that the notes plainti ’s case and the plainti is unable to for any litigation as long as the documents Supreme Court addressed the work product tial need and inability to obtain the material that these documents are trial preparation were discoverable, but it ordered the trial court obtain the requested information by any other were prepared for some pending litigation doctrine in Hawkins v. District Court.20 Hawkins contained . . . by other means.”27 In that case, materials.”35 us, for materials to be protected, to redact the attorney’s mental impressions, means.45 And even with this high burden met, leans toward protection for future litigation did not address the work product doctrine as given that opposing counsel did not perform there must be a “substantial probability of conclusions, opinions, and legal theories.41 the Court directed the trial court to shield as well.12 Justice Brennan, in his concurrence, applied to an attorney, but rather to the records any other activity to acquire the information imminent litigation over the claim.”36 In support of its order, the Court pointed to “mental impressions, conclusions, opinions,

or legal theories” from discovery to uphold this substantially similar changes to the Federal conclusions, opinions, and legal theories and documents were prepared in anticipation of aspect of work product protection.46 Rules of Civil Procedure protecting expert thus ensure that counsel’s trial strategy will litigation. 26. A v. Dist. Court, 550 P.2d 315, 328 (Colo. 61 In reaching its decision in Cardenas, the reports and communications. not be compromised in the discovery process. 1976). Court relied on its decision in Watson v. Regional In addition to the attorney-client privilege, 27. Quintana v. Lujan, 540 P.2d 351, 354 (Colo. Transportation District 20 years earlier.47 ere, Comparing the Work Product Doctrine the work product doctrine will persist for the App. 1975). 28. Id. RTD’s counsel created a videotape in an attempt with the Attorney-Client Privilege foreseeable future to protect the integrity of 29. Nat’l Farmers Union Prop. and Cas. Co. v. to recreate the details of an accident to determine “ The attorney-client privilege and the work legal representation. Dist. Court, 718 P.2d 1044, 1048 (Colo. 1986). whether the accident could have occurred as Relatively few Colorado cases have product doctrine are sometimes confused. 30. Id. the plainti described it. In determining the e attorney-client privilege is similar to, yet Franz Hardy and Greg S. 31. Kay Labs., Inc. v. Dist. Court, 653 P.2d 721 Hearing are partners in the (Colo. 1982). discoverability of the video, the Court turned distinct from, the work product doctrine, and the discussed the work product doctrine. Denver office of Gordon 32. Id. at 722–23. to the two-prong Hawkins test, holding that the di erences are important. e attorney-client Rees Scully Mansukhani, 33. Id. plainti demonstrated a substantial need for Despite this, general guidelines have been privilege aims to protect con dential commu- LLP—[email protected]; 34. Id. at 722. [email protected]. They thank University of the videotape because it was a critical part of nications between the attorney and the client 35. Hawkins v. Dist. Court, 538 P.2d at 1379. Colorado law student Nicholas Klein for his established as to what attorney work 62 36. Id. arguing her case and she was unable to obtain for the purpose of maximizing full disclosure. research assistance and contributions to this the tape’s substantial equivalent because she e privilege belongs to the client, can only be article. 37. CRCP 26(b)(3). product is protected. 38. Cardenas v. Jerath, 180 P.3d 415 (Colo. could not feasibly recreate it.48 waived by the client, and protects the client Coordinating Editor: Timothy Reynolds, 2008). from “unauthorized revelations” concerning [email protected] 39. Id. at 422. The Crime-Fraud Exception the client’s communications with their attor- 40. Id. The work product doctrine does not apply ney.63 Litigation need not be anticipated for the 41. Id. 42. Id. to documents that may establish wrongful ” privilege to apply. NOTES 43. Id. conduct, which are carved out by the crime-fraud In contrast, the work product doctrine is 1. Hickman v. Taylor, 329 U.S. 495 (1947). 44. Id. at 423. 2. Id. at 497. exception. Interestingly, the earliest Colorado “not so much a privilege as it is an exemption 45. Id. 3. Id. at 498. decision to address the crime-fraud exception to for material prepared by or for the attorney of a 46. Id. 4. Id. at 499–500. the work product doctrine came before Hawkins party in anticipation of litigation.”64 e purpose 47. Watson v. Reg’l Transp. Dist., 762 P.2d 133 5. Id. at 511. explicitly established the doctrine itself. In A of the alleged fraud.53 e Colorado Supreme e crime-fraud exception has remained of the work product doctrine is to protect the (Colo. 1988). 6. Id. at 510. 48. Id. at 142. v. District Court, the Colorado Supreme Court Court held that applying the attorney work largely unchallenged since its establishment and attorney’s privacy during preparation for trial;65 7. Id. at 511. 49. A, 550 P.2d at 326–29. considered whether documents prepared by product doctrine to protect the perpetration allows for discovery of attorney work product it is a quali ed exemption that must “yield in 8. Id. at 514. 50. Id. at 328. counsel for speci c civil litigation were protected of wrongful conduct would be a perversion without redaction for mental thought processes, the face of necessity.”66 Work product receives 9. Id. at 511–12. 51. Id. from discovery under the work product doctrine of the privilege’s “legitimate purpose and legal theories, conclusions, or opinions. conditional protection, allowing the court to 10. Fed. R. Civ. P. 26(b)(3). 52. Caldwell v. Dist. Court, 644 P.2d 26 (Colo. in grand jury proceedings.49 e Court noted that scope” and ordered production of the doc- order disclosure if good cause is shown. e 11. F.T.C. v. Grolier Inc., 462 U.S. 19 (1983). 1982). 12. Id. at 25. 53. Id. at 34. the nature of civil and grand jury proceedings uments.54 e Court also made absolute the circumstances regarding the disclosure of Work Product Protection 13. Id. at 29–30. 54. Id. was vastly di erent, and the alignment of parties rule proposed in A v. District Court that a for Expert Witnesses attorney-client communications are generally 14. Id. 55. Id. at 33. in such proceedings was not similar.50 Based on court, “in its discretion and without prior e 2015 amendments to the Colorado Rules of more limited. Notably, to invoke its protections, 15. CRCP 26(b)(3). While the work product 56. Law O ces of Bernard D. Morley, P.C. v. this, the Court held that “the civil litigation in establishment of a foundation in fact that the Civil Procedure clari ed the scope of discovery the work product doctrine must be asserted doctrine also applies in criminal proceedings MacFarlane, 647 P.2d 1215 (Colo. 1982). and to the production of public records under 67 57. Id. at 1222. which the work-product was gathered is not so crime or fraud exception applies, may order regarding expert witness-related communica- separately from the attorney-client privilege. the Colorado Open Records Act, this article 58. Id. closely related to the grand jury investigation as the production of relevant documents for an tions and draft reports.59 Previously, the rules focuses solely on the work product privilege as applied to civil litigation. 59. CRCP 26(b)(4). to require the application of the work-product in camera inspection to determine whether did not provide express protections for draft Conclusion 16. Id. 60. Id. 51 55 exemption.” that exception is applicable.” reports of and communications with experts. e application of the work product doctrine 17. Id. 61. See Fed. R. Civ. P. 26(b)(4). The next Colorado case to address the In Law O ces of Bernard D. Morley, P. C. v. CRCP 26(b)(4)(D) now expressly protects drafts and any potential disclosure of work product 18. Hess et al., 1B Methods of Practice (Colorado 62. Hyatt, 23 Colorado Evidence Treatise (Col- orado Practice Series) § 501:4 Work product crime-fraud exception was Caldwell v. District Macfarlane, the Colorado Supreme Court further of any report and “communications between the remain factually intensive questions that vary Practice Series) § 31:4 Scope, work product, and privilege (Thomson West 7th ed. 2020). distinguished (Thomson West 2020). Court.52 There, the petitioners accused the re ned the crime-fraud exception.56 ere, the party’s attorney and any witness disclosed under from one situation to the next. In applying 19. Id. 63. Id. defendants, including the underlying attorney, Court ruled that the trial court did not abuse Rule 26(a)(2)(B), regardless of the form of the the doctrine, courts must assess, according to 20. Hawkins v. Dist. Court, 638 P.2d 1372 (Colo. 64. Id. of fraudulently concealing information and its discretion by releasing documents claimed communications, except to the extent that the relevant case law, whether litigation is truly 1982). 65. Id. misrepresenting facts in an earlier personal to fall under work product protection without communications” relate to compensation, facts, imminent, whether a substantial need for the 21. Id. at 1374–75. 66. Id. 67. See Fox v. Alﬁ ni, 2018 CO 94 at ¶¶ 34–38. injury action. e petitioners requested any an adversary hearing.57 The Court held that or data provided by the attorney and considered work product exists, the presence of an undue 22. Id. at 1377. 23. Id. of the defendants’ “memoranda, documents, documents seized pursuant to a search warrant by the expert, or identify assumptions that the hardship in otherwise obtaining the information 24. Id. at 1378. 60 notes or any other writing or item which in were not entitled to be subject to an adversary party’s attorney provided. e amendments sought, and the purpose and scope of the 25. Compton v. Safeway, Inc., 169 P.3d 135, 138 any way discusses or concerns any of the hearing, nor the work product doctrine, because provided clari cation and signi cant additional production of facts contained within the work (Colo. 2007). See also Lazar v. Riggs, 79 P.3d 105 (Colo. 2003), which examined the ordinary defendants’ opinions, ideas, or comments” the warrant was issued speci cally to obtain protection to attorneys in their consultation with product. Generally, the work product doctrine nature of insurance claims and relied on concerning a witness who was at the center evidence of criminal activity.58 expert witnesses. is amendment followed will shield an attorney’s mental impressions, standards from Hawkins to determine whether

is article highlights signi cant recent real estate cases a ecting Colorado practitioners.

his article highlights signi cant real during the Great Recession. On December 31, common interest community and were not estate cases decided in 2019 and 2020. 2009, the Developer Entities recorded their encumbered by the CCR; (2) lacked the power The major themes and landmark most recent supplemental declaration, thereby to reform the CCR to add BRF as a signer of the rulings for this time period fall into starting the ve-year clock on the development same; and (3) erred by ordering conveyance of Tfour categories: (1) homeowners’ association deadline. When the Developer Entities were the subdivision roads to the HOA by FDI. (HOA) rights and easements, (2) the standard ready to resume construction, the time limit is case is noteworthy because the Court of care in construction matters and CRCP 55, to develop the Property had expired. After of Appeals held in pertinent part that the trial (3) what constitutes a “lien” and what makes a development began again in January 2016, court accurately determined the CCR encom- lien or document “spurious,” and (4) taxation/ the HOA blocked the developers from entering passed the entire property when the community land use analysis. the Property. e Developer Entities sued the was established, and this resolved the HOA’s HOA, seeking, among other things, a declara- title concerns. us, it was unnecessary for HOA Rights and Easements tory judgment that FDI and Homes owned the the trial court, in equity, to reform the CCR. e Court of Appeals published several note- undeveloped portion of the property. e HOA However, “because the trial court’s erroneous worthy opinions examining HOA and easement and the unit owners, who were HOA members, exercise of its equitable powers did not a ect issues. led counterclaims for a declaratory judgment any party’s substantial rights . . . this error was determining ownership of the undeveloped harmless . . .”3 Construing Declarations portion of the Property and reformation of e Court a rmed the judgment and re- FD Interests, LLC v. Fairways at Bu alo Run1 was the CCR and other documents governing the manded the case to address the HOA’s request an appeal from the Adams County District Court common interest community. for attorney fees and costs. of a dispute centered around the interpretation e trial court found that the “parties d[id] e Colorado Supreme Court has granted and reformation of a residential development’s not dispute the fact that the [CCR] was intended certiorari on whether the Court of Appeals: common interest community declaration. to govern the common interest community now 1. erred by concluding that a common inter- In 2005, a developer purchased 12.5 acres known as The Fairways at Buffalo Run” and est community’s declaration encumbered of real property adjacent to the Bu alo Run concluded that the Property was subject to the the entire undeveloped property at the time Golf Course in Commerce City (the Property) CCR.2 But after identifying inconsistencies in of ling, even though the record owner of through FD Interests, LLC (FDI) and Fairways the Property’s chain of title, the court reformed the undeveloped property was not the party Land, LLC for a residential development of the CCR by adding BRF to the CCR’s signature who signed or recorded the declaration; patio homes. The developer carried out the line, because despite its sole ownership of the 2. properly determined that a non-owner’s project through several entities: FDI; Fairways Property at the time, it had not executed the signature on the declaration was legally In “Case” Builders, Inc. (Builders); Bu alo Run Fairways, CCR. e court reasoned that this reformation su cient to encumber the Property, where LLC (BRF); and Fairways Homes, LLC (Homes) would cure the title defects. all of the Developer Entities controlled by (collectively, the Developer Entities). In January e Court of Appeals framed two issues for the same individual were acting in concert 2006, Builders recorded the “Amended and resolution: (1) whether the CCR encompassed and intended to subject the entire Property Restated Declaration of Covenants, Conditions the entire Property from the outset or excluded to the declaration; and and Restrictions for Fairways at Bu alo Run the undeveloped portions of the Property from 3. erred in concluding that the district court’s You Missed It Homeowners Association, Inc.” (the CCR), the community until they were specifically equitable reformation of the declaration was which created the HOA for the common interest annexed into the development through recor- unnecessary and erroneous.4 Recent Real Estate Case Law Highlights community, “ e Fairways at Bu alo Run.” As dation of supplemental plats and declarations, required by CRS § 38-33.3-205(1)(h), the CCR and (2) whether errors in the chain of title for Easement Requirements set a deadline for development activity, which the Property and the units built on it warranted Turning from association covenants to asso- BY LINDSAY J. MILLER, NATHAN G. OSBORN, AND PAUL SACHS provided that development rights would expire if reformation of the CCR. ciation easements, Kroesen v. Shenandoah there was a gap of more than ve years between On appeal, the Developer Entities argued Homeowners Ass’n5 examined what it takes to construction projects. that the trial court (1) incorrectly interpreted meet the requirements of both common law Development of the Property began after the CCR because the undeveloped portions and the Colorado Common Interest Ownership the CCR was recorded, but construction stalled of the property were never annexed into the Act (CCIOA)6 to create an easement.

is article highlights signi cant recent real estate cases a ecting Colorado practitioners.

41st Annual In Kroesen, a developer divided a property their purchase contract, and (4) damages for the easement satis ed the CCIOA requirements. into two subdivisions, Shenandoah (created slander of title from the HOA statement that us, the district court did not err by granting Estate Planning in 1989) and Highlands (created in 1994), by there was no easement. summary judgment on the declaratory judgment recording declarations for each. e developer e district court granted summary judgment claim. also recorded plats that depicted two roads, for the Kroesens on their declaratory judgment e Kroesens appealed the district court’s Retreat Blue Ridge Road and Colonial Road, portions claim. After a bench trial, the court awarded the denial of their request for lost pro ts. Because VIRTUAL of which follow the boundary between the two Kroesens damages on the intentional interfer- the expert’s testimony was unclear as to the subdivisions. e plats also created an alleged ence with contract claim to compensate them comparative value of Tract AB and the other easement (Subject Easement) that purportedly for their inability to sell the property pending lot, and the evidence showed that Tract AB June 11-12, 2021 allowed owners in the Highlands to access their litigation, but it did not award them lost pro ts. retained market value and would eventually sell Kickoff social events on June 10 properties over the roads. e amendments to e court resolved the slander of title claim at or above the contract price speci ed in the the Shenandoah plat that took place before 1994 against the Kroesens because they had not terminated contract, the subject property had Co-Sponsored by the CBA Trust & Estate Section referred to the Subject Easement in general terms proved the element of malice. e permanent not become unmerchantable, so the Court held such as an “access road easement.”7 None of the injunction was dismissed. that the Kroesens were not entitled to recover Join us on our dynamic virtual platform where our faculty pre-1994 plats describe “adjacent subdivisions” On appeal, defendants argued that under lost pro t damages. of experienced attorneys, professionals and judicial officers with speci city.8 common law principles, the plats amending e judgment was a rmed. will speak about latest updates, key legislation, and best e developer established a homeowners’ the declaration for Shenandoah Subdivision practices so you can best serve your estate planning clients. association for each subdivision. e developer did not contain su cient speci city to create Community Interest Property later led another plat that created new tracts an easement over the roads bene ting Tract Woodbridge Condo Ass’n, Inc. v. Lo Viento Blanco, Featuring within Highlands, including Tracts A and B. A AB. The amendments to the declaration for LLC11 continued the easements theme, exam- • 10 breakout sessions, advanced and foundational topics • Keynote Speaker Natalie B. Choate, Esq., and Author: subsequent owner of Tracts A and B recorded Shenandoah Subdivision describe the nature ining them within the context of community Planning for Retirement Benefits: SECURE! And Other a plat consolidating them into Tract AB. Tract of the easement with reasonable certainty. e interest property. Recent Developments AB is adjacent to Shenandoah and abuts Blue plats also provide reasonable certainty as to This case involved a 0.452-acre piece of • Keynote Speaker Nita Mosby Tyler, Ph.D., The Equity Ridge Road. the identity of the servient estate, Shenandoah property in Snowmass Village (Disputed Prop- Project: Navigating the Complexities of DE&I in the Before Tracts A and B were consolidated, the Subdivision, where the roads are located. e erty). In the 1970s, L.R. Foy Construction Co., Workplace Shenandoah HOA board of directors approved Court of Appeals determined that although the Inc. (Foy) built several condominium buildings • Networking in our Virtual Lounge an easement over Blue Ridge Road to bene t description in the plats amending the declaration on a larger parcel that included the Disputed rd Tract A, but no recorded document reflects for the Shenandoah Subdivision of “‘adjacent Property, though none of the buildings are 3 Annual the board’s approval of the Subject Easement. subdivisions, and future subdivisions’ is a thin situated on the Disputed Property. e HOA members did not ratify the board’s description of a dominant estate,”9 the language In 1975, Foy conveyed the larger parcel, not Solo-Small Firm approval of the easement or otherwise authorize is su cient given the circumstances surrounding including the disputed parcel, to Woodbridge an easement to bene t Tract AB. the easement’s creation, the purpose for which Condominium Ass’n, Inc. (Woodbridge). From e Kroesens purchased Tract AB from the the easement was created, and the record notice 1975 through 2012, Woodbridge used the Dis- Conference former owner in 1999 and signed a contract to in Shenandoah Subdivision’s chain of title puted Property in a variety of ways. As the VIRTUAL sell it in 2015. Before the closing, however, the describing the easement, which places good faith Court of Appeals noted, “[a]ll this would seem, president of the Shenandoah HOA board of purchasers of tracts in Shenandoah Subdivision considered in a vacuum, to make out a case for directors told the Kroesens’ real estate agent on notice of the easement. erefore, under the adverse possession of the disputed parcel.”12 June 17-18, 2021 that the owners of Tract AB had no right to common law test for creating an easement, Tract But a letter from “Woodbridge to Foy in 1992 Kickoff social events on June 16 use either road to access the property. The AB bene ts from an easement over the roads. o ering to buy the disputed parcel doomed purchasers refused to close on the property e Court also considered whether the de- that idea.”13 Foy did not respond to the o er. No Co-Sponsored by the CBA Solo Small Firm Section after learning of the easement issue. veloper complied with the CCIOA requirements record owner of the disputed parcel used it for e Kroesens brought claims against the for creating an easement. e developer reserved any purpose from 1975 until 2011. Three tracks of transformative programming with inspiring Shenandoah HOA and its board of directors' for itself a development right to “establish a Lo Viento Blanco, LLC (Lo Viento) then keynote addresses, and social events. Tailored to attorneys president (collectively, defendants) for (1) a non-exclusive easement and right of way [over] purchased the Disputed Parcel at auction in who juggle the demands of serving their clients, rainmaking declaratory judgment that the owners of Tract all or any portion of the [original property]”10 2010 and presented plans to Woodbridge to build and running a firm, with sessions dedicated to litigation, AB have an easement over the roads, (2) a per- in the declaration for Shenandoah Subdivision on it. Woodbridge then led this case claiming networking, technology, administration, and leadership. manent injunction enjoining the Shenandoah and later exercised that right in plats amending adverse possession to prevent the construction. HOA from interfering with their access to Tract the declaration. e CCIOA did not require the Alternatively, Woodbridge claimed to have a AB over the roads, (3) an award of their expenses developer to expressly reference the easement prescriptive easement over the disputed parcel. and lost pro ts for intentional interference with in each plat, so the developer’s descriptions of Lo Viento counterclaimed to reform the deed it cba-cle.org • (303) 860-0608 • [email protected] The nonprofit educational arm of the Colorado Bar Association and the Denver Bar Association

38 | COLORADO LAWYER | APRIL 2021 FEATURE | REAL ESTATE LAW

had received in 2010 and to quiet title. At that Appeals made a few (perhaps surprising) rst completed the work, the Ferraros discovered time, the trial court found that Woodbridge impression determinations in the world of asbestos. ey hired a mitigation company to METRO “had acquired title by possession,” prompting construction, which also have application to remove the asbestos and sued Frias, alleging that Lo Viento to appeal in 2016.14 A Court of Ap- general litigation. First, it considered whether it negligently failed to test for asbestos before peals division reversed. On remand, the trial a court may sua sponte reconsider liability to beginning construction. Frias did not respond VOLUNTEER court found that Woodbridge was entitled to a to the Complaint and the clerk entered a default. prescriptive easement over most of the disputed e trial court then sua sponte held a hearing parcel, and it issued another order identifying on damages. Because the default issue was LAWYERS the bounds, uses, and nature of the easement. novel, the trial court relied on federal authority Lo Viento appealed the orders issued on interpreting Fed. R. Civ. P. 55, which is similar to remand. It challenged the nding that Wood- CRCP 55, and determined that it had authority MAKE A bridge was entitled to a prescriptive easement, to “examine the su ciency of a legal claim after relying on the prior division’s conclusion that a default is entered.”19 e trial court further Woodbridge’s o er to buy the disputed parcel “ determined that although the Department of DIFFERENCE defeated Woodbridge’s claim for adverse posses- Public Health and Environment’s amended sion because the letter rebutted the presumption In Ferraro v. Frias regulations created an inspection duty with Help low-income elderly clients of adversity raised by Woodbridge’s possession. respect to single-family residences, there was throughout the Denver-Metro The Court found that Woodbridge proved Drywall, LLC, the no guidance on “who owes that duty.”20 In area complete advance planning adverse use by consistently treating the Disputed Court of Appeals applying common law negligence principles, documents like a living will or Property as if it belonged to Woodbridge and did the trial court found that the duty rests with powers of attorney. No elder law/ so “without express or implied authorization.”15 made a few (perhaps the homeowner, not the contractor, and it probate experience necessary, and no e Court further found that the prior appeal and denied the motion for default judgment and additional time commitment beyond the previous treatment of the 1992 letter were surprising) dismissed the case. the 2-3 hour clinic. irrelevant because the prior appellate division ﬁ rst impression On appeal, the Ferraros argued that the “addressed only the requirement of adversity clerk’s entry of default established liability Pro bono attorneys in the adverse possession context.”16 e Court determinations in the as a matter of law and precluded the court can make a difference. also rejected an argument that correspondence from further considering the issue. e Court granted Woodbridge permissive use to landscape world of construction, of Appeals noted that “a default judgment the Disputed Parcel, because the letter’s lan- comprises two steps: ‘entry of default’ by the guage was conditional and Woodbridge never which also have clerk and ‘entry of judgment’ by the court.”21 agreed to its terms. Woodbridge established application to general e entry of default accepts the complaint’s its entitlement to a for prescriptive easement. allegations and establishes the defendant’s Alternatively, Lo Viento challenged the scope litigation. liability but does not establish damages, so entry of the easement. However, the Court determined of a default is nothing more than “an interlocu- that the trial court properly applied the legal tory order that, alone, determines no rights or principles governing the determination of remedies,”22 and until damages are determined permissible use under a prescriptive easement ” and judgment is entered, the judgment is not and did not err in its determinations as to the nal. As a matter of rst impression, the Court four types of permissible uses. determined that authority exists under CRCP Volunteer with MVL’s Lastly, the Court rejected Lo Viento’s ar- 55(c) to set aside entry of a default and dismiss gument that Colorado law doesn’t recognize a case for a complaint’s legal insufficiency, POWER of ATTORNEY CLINICS exclusive easements, relying on real property because such a nding is consistent with the treatises cases from California. determine the viability of a claim after entry rule’s “good cause” requirement.23 e judgment was a rmed. A Petition for of a clerk’s default under CRCP 55 but before The Ferraros also argued that the trial Writ of Certiorari was partially granted in this entry of default judgment. Second, it decided court erroneously found that homeowners of case on September 8, 2020.17 the extent of a homeowner’s and/or contractor’s single-family dwellings have a duty to inspect duty to inspect a property for asbestos. for asbestos and contractors do not. e Court Standard of Care in Construction e Ferraros entered into an oral contract found no common law tort duty that would and CRCP 55 with Frias Drywall, LLC (Frias) to remove a otherwise protect the homeowners in this In Ferraro v. Frias Drywall, LLC,18 the Court of popcorn ceiling from their home. After Frias circumstance because Colorado asbestos control denbar.org/mvl I 303-830-8210

40 | COLORADO LAWYER | APRIL 2021 Photo by Cristian Newman on Unsplash FEATURE | REAL ESTATE LAW

statutes operate to protect the “general public Franklin appealed, arguing that a valid Evans arose out of a dissolution of mar- in husband’s real property,” though “Colorado the lease. e parties settled and the case was from friable asbestos in public areas.”24 Further, judgment lien is not a prerequisite to obtain riage. Four years after the decree was entered, law does not limit the documents that can be dismissed. In August 2017, the Reeds sought to the asbestos regulations the Ferraros relied on a writ of execution. In examining the relevant wife petitioned for modi cation alleging that recorded to enforce a judicially created lien to purchase the property. As part of this anticipated excluded single-family residences. rules and statutes that govern execution of a husband had failed to disclose his interest in ‘certi ed copies of an enforcement order,’” 35 sale, tenant and landlord amended tenant’s lease e judgment was a rmed. judgment, the Court found that “none [of them] certain business assets. Ruling without the nor must a lien under § 201(4)(c) speci cally to waive and terminate the ROFR. In February contemplates or requires a judgment lien to parties’ consent, a district court magistrate take the form of a judgment lien. 2018, another tenant, Peak Holdings Group, LLC What is a “Lien” and What Makes obtain a writ of execution and certi cate of levy granted wife’s petition and ordered husband Husband alternatively argued that the (Peak), then entered into a di erent purchase it “Spurious”? or execute on the judgment.”28 In reciting CRS to pay to wife half of the value of the assets in Abstract constituted a “spurious document” agreement with landlord for tenant’s proper- e Court of Appeals issued several interesting § 13-52-102, the Court noted that if a creditor monthly installments of $50,000, with interest because it did not accurately re ect the terms ty. Peak assigned its rights to Dorenka, LLC. decisions regarding liens. What constitutes a seeks to record a certi ed copy of the transcript to accrue at the statutory rate until the entirety of the Order and was therefore misleading Landlord asserted that tenant’s ROFR waiver “lien” and what exactly makes it “spurious” of judgment, it becomes a judgment lien on of wife’s portion ($1,168,639.00) was paid in under CRS § 38-35-201(3). e Court rejected “ applied to the pending Dorenka purchase, which were discussed in the following cases. all of the debtor’s nonexempt real property full. Significantly, the Order provided that these arguments, nding that the Abstract very tenant disputed. Tenant’s counsel recorded a lis owned or later acquired in that county. Such “[husband’s] payments toward this obligation closely matched the wording of the Order and Practitioners should pendens against the property that referenced Judgment Liens a judgment lien expires after six years, per the must commence not later than 45 days from was not misleading. Further, the Court found the dismissed action. A few days later, tenant Franklin Credit Management Corp. v. Galvan25 statute. However, the expiration of the lien “does the date of this order, and [this order] shall that the Abstract must be “patently invalid” to also note that Evans is commenced new litigation against landlord involved Franklin Credit Management Corp.’s not extinguish the debt.”29 Because a judgment create a lien against all [husband’s] rights, title be considered a “spurious document” under relevant to both real and recorded a second lis pendens referencing (Franklin) e orts to execute on a judgment and is valid for 20 years, a creditor may execute on and interest in [the subject assets] and any other CRS § 38-35-201,36 and because wife advanced that action. e new action sought damages whether a valid judgment lien is a condition to such judgment through other means. e Court assets in his name.”32 Husband timely sought a rational argument that the Abstract re ects estate and general and a declaratory judgment that tenant was obtaining a writ of execution on real property. further noted that “a lien itself is not a method review of the order. an enforceable order, it is not patently invalid entitled to exercise the ROFR. Landlord, Peak, e undisputed facts revealed that Franklin to execute on a judgment; rather, it secures Less than one week after husband led his and is thus not a spurious document. litigation, because and Dorenka (collectively, petitioners) sued obtained a default judgment against Galvan in the judgment creditor’s right to collect on its petition for review, wife’s counsel created and e order was a rmed. the practical e ect of tenant to remove both lis pendens as “spurious 2007 for $43,037 and then recorded a transcript of judgment from the equity in a judgment debtor’s recorded a summary of the Order titled “Abstract documents.”38 judgment in Adams County. However, Franklin real property.”30 e district court thus erred in of Court Order” (Abstract) with the clerk and Lis Pendens Evans is that recording e trial court determined that even if the did not execute on the judgment and it expired setting aside the writ of execution. recorder. Husband was not aware of the Abstract Shortly after Evans was decided, the Court of claims asserted in tenant’s second action were in 2013. Franklin also argued that the trial court erred until months later, when he discovered that it Appeals had occasion to evaluate the “spuri- an accurate document meritorious, this “would not a ect title to or In 2016, Franklin re-recorded the transcript in setting aside the writ of execution because appeared in the real property records in Douglas ousness” of a lis pendens in Better Baked, LLC based on a court order the right of possession of the Property.”39 It of judgment but did not revive the judgment an execution lien is di erent than a judgment County as an encumbrance against real property v. GJG Prop. LLC.37 is case has some curious concluded that the lis pendens were “goundless, under CRS § 13-52-102(1). In 2018, Franklin lien, and Franklin had a valid execution lien. he owned. Husband thereafter petitioned the factual twists but provides practitioners with is no di erent than and as such, are spurious and invalid,” released obtained a writ of execution and delivered it to e Court agreed with the rst contention and trial court to invalidate the Abstract under CRS the nuts-and-bolts analysis of how CRS §§ both, and assessed fees against tenant.40 the Adams County Sheri . e Sheri recorded did not consider the second because the district § 38-35-204 and CRCP 105.1 as a “spurious 38-35-201 to -204 apply to a lis pendens. e recording the order On appeal, tenant argued that the trial court a certi cate of levy and served Galvan. Galvan court had not yet addressed the issue. lien” or “spurious document.”33 e trial court bottom line for practitioners is that if a lis itself and is even more erred in declaring both lis pendens spurious. moved to set aside the writ of execution, arguing e order setting aside the writ of execution denied the petition, nding that the Abstract pendens is led in connection with a present Tenant maintained that even if the first lis that because the judgment lien expired in and awarding Galvan attorney fees and costs did not meet either de nition. lawsuit in which the relief sought a ects the appropriate if recording pendens was invalid due to the earlier dismissal, 2013 and had not been revived, Franklin’s writ was reversed and the case was remanded. On appeal, husband argued that the magis- title to real property, the lis pendens is not the second lis pendens was not. e Court of of execution was “improper.”26 In response, trate’s Order was not an “order” when the Abstract “spurious,” regardless of the likelihood of the document is Appeals agreed with tenant’s argument that Franklin asserted that although the lien had Is It Spurious? was recorded; rather, it was a “recommendation” success on the merits. rather than reaching the merits of landlord’s expired, the judgment itself was still valid, and While there was no doubt about what a “lien” was only, until such time as the district court reviewed Better Baked, LLC (tenant) leased com- required to perfect a waiver defense, the trial court should have it had the right to execute on the judgment. in Franklin Credit Management Corp., the issue of it. e Court of Appeals examined CRS § 38- mercial space in a warehouse owned by GJG lien otherwise entered asked “only whether, based on the allegations e trial court found that the judgment lien how to characterize a unique recordation against 35-201(4)(c), which states that a lien cannot be Property, LLC (landlord). e lease gave tenant in the complaint concerning the ROFR,” the had expired and was not revived, and it set husband’s real property was front and center spurious if it is “imposed by order, judgment, or a right of rst refusal (ROFR) for the ve-year by the order. tenant advanced a rational argument based on aside the writ of execution. Interestingly, the in Evans v. Evans.31 For those who thought the decree of a state court.”34 It also pointed to CRS lease term. Under the ROFR, if landlord received the evidence or the law that the second action trial court did not consider whether a judgment spurious lien and document statute was pretty § 13-5-201(3), which empowers magistrates to an o er to sell the property or received and could a ect title to real property.41 lien was required and whether Franklin could straightforward, read on. Practitioners should modify permanent orders in dissolution cases wanted to accept an offer to purchase the e Court noted that CRS § 38-35-110(1) execute on its judgment via writ of execution also note that Evans is relevant to both real estate without the parties’ consent, and such orders are property, landlord was required to send tenant ” authorizes the recording of a lis pendens in an and certificate of levy; the Court of Appeals and general litigation, because the practical enforceable. Accordingly, the Court concluded a copy of the contract and notice of its intent action where the relief sought “a ects title to noted that “[i]n fairness to the district court, effect of Evans is that recording an accurate that the Abstract was not a spurious lien. to make or accept an o er. Tenant would then real property,” and the Colorado Supreme Court these arguments were not clearly presented,” document based on a court order is no di erent Further, no separate transcript of judgment have the right to purchase the property on the interprets this phrase broadly. e recording even though Galvan did not dispute that these than recording the order itself and is even more was required to create a lien against husband’s same terms and conditions. is proper if the claimant shows that the claim issues were preserved.27 Galvan was awarded his appropriate if recording the document is required property. However, wife still needed to record In 2016, tenant brought an action for declar- relates to a right of possession, use, or enjoyment attorney fees and costs under CRS § 13-17-102. to perfect a lien otherwise entered by the order. documentation of her lien to “perfect her interest atory relief regarding certain charges under of real property. e Court of Appeals found

that an ROFR is more than a mere contract right improvements are located and that is used in and may a ect title to real property within the conjunction with the residential improvements meaning of the statute. located thereon.”48 For undeveloped property The Court then examined the spurious to qualify as residential land, “it must be (1) liens and documents statute, noting that it contiguous with residential land; (2) used as a “protects property owners from frivolous claims unit with residential land; and (3) under common used to cloud title as a means of protest or ownership with residential land.”49 harassment.”42 A lis pendens can be a “spurious document” under CRS § 38-35-201(3), but it Contiguous Parcels is not groundless just because the underlying In Mook, the parties had an agreement that the claim may fail.43 Here, although the first lis residential parcel and the subject parcel did pendens was groundless (due to the dismissal not physically touch because the HOA owned of the earlier action), the second lis pendens an approximately 17-foot-wide strip of land required “more careful examination.”44 While “ that completely separated the two properties. this examination required the district court to An aerial photograph of the parcels at issue is conduct a show cause hearing, the trial court The bottom line for included in the opinion. should have stopped short of reaching the merits practitioners is that if e Supreme Court held that this clear lack of statutory language in following Assessors’ Kelly petitioned the BCC to reclassify the the four parcels under common ownership, but of the claims. e Court stated that the trial contiguity defeated the Mooks’ claim to reclassify Reference Library (ARL) guidelines, and the subject parcel as residential land. e BCC denied it was unclear whether they were contiguous or court “should have focused only on whether a lis pendens is ﬁ led the subject parcel as residential, a rming the statute does not require “active” property uses the petition for lack of “common ownership.”55 e used as a unit. e opinion includes an aerial the second lis pendens was led in connection Board of Assessment Appeals (BAA) and Court to satisfy the “used as a unit” element.53 It also BAA upheld the BCC, nding the two trusts were photograph of the parcels at issue. with a present lawsuit in which the relief sought in connection with of Appeals decisions that the plain and ordinary concluded that each parcel does not have separate and distinct legal entities. e Court of Ziegler testi ed that he used the property as a ‘a ect[s] the title to real property.’”45 Because the a present lawsuit meaning of contiguous is “touching along to contain a residential improvement. The Appeals reversed, relying on a broader reading of recreational mountain ranch for only about four to second lis pendens was led in connection with boundaries often for considerable distances.”50 case was remanded with directions, but the the word “ownership” and holding that county six weeks a year. e BCC denied Ziegler’s petition, such a lawsuit, it was not groundless or spurious. in which the relief e judgment was a rmed.51 Supreme Court granted the BCC’s petition for records establish a presumption of ownership, but and the BAA upheld the determination, nding that The order was affirmed as to the first lis certiorari review. that presumption may be rebutted by evidence the uses of the subject parcels were not essential pendens and reversed as to the second. sought a ects the Used as a Unit e Supreme Court noted the con icting of a person or entity’s right to possess, use, and to the residential improvements, and the parcels title to real property, In Hogan, the Hogans owned three parcels conclusions on the “used as a unit” issue in a control the contiguous parcels.56 did not meet the “used as a unit” requirement. Taxation/Land Use Analysis of land that formed an “L” shape. One parcel number of opinions issued by various Court of The Supreme Court held that property e Supreme Court applied Mook to analyze Continuing its consideration of related concepts, the lis pendens is not contained their house (residential parcel). A Appeals divisions.54 e Supreme Court then ownership is determined according to record the contiguity requirement. e Court rst held in February 2020 the Colorado Supreme Court, second directly touched the residential parcel agreed with the Court of Appeals’ rejection of title, and assessors are to rely on county records that because parcels 2 and 3 did not touch the on certiorari review, decided three tax abatement ‘spurious,’ regardless and part of their deck extended onto it. e the legal standards used by the assessor and when deciding whether properties are held residential parcel, they could only be classi ed cases46 involving the de nition of “residential of the likelihood of Hogans successfully petitioned to have this the BAA and tried to provide some guidance for under “common ownership.”57 Because it was as residential if they touched another parcel land” under CRS § 39-1-102(14.4)(a) and what parcel’s classification changed from vacant assessors going forward. In short, the Court held undisputed that a di erent trust owned each containing a residential improvement that is quali es as such for tax purposes. success on the merits. to residential (reclassi ed parcel). e third that to satisfy the “used as a unit” requirement parcel, the parcels weren’t held under common “an integral part of the residential use.”59 In an In these three consolidated cases out of Sum- parcel was the subject of this case. It touched a landowner must use multiple parcels of ownership, and the subject parcel did not qualify amusing “quick example, complete with highly mit County, Mook v. Board of County Commis- the reclassi ed parcel, contained an unpaved land together as a collective unit of residential as residential land. sophisticated clipart,” reproduced at the top of this sioners, Kelly v. Board of County Commissioners, driveway, but was otherwise undeveloped. It was property. e judgment was reversed. page, the Court demonstrated how a multi-parcel and Hogan v. Board of County Commissioners, classi ed as vacant land. e opinion includes e case was remanded to the BAA to make assemblage with an undeveloped parcel would the Court “unravel[ed] the mysteries of what ” an aerial photograph of the Hogan properties. a determination under that standard. Application to Ziegler satisfy the contiguity requirement.60 constitutes ‘residential land’” under CRS § 39-1- e Hogans testi ed that they used the sub- In Ziegler v. Park County Board of County Com- e right parcel remains undeveloped but 102(14.4)(a).47 e Court then applied its analysis ject parcel “to walk their dog, gather rewood, Common Ownership missioners, the Supreme Court considered the physically touches the middle parcel, which to a fourth case. is analysis matters because park vehicles and a trailer, and secure scenic In Kelly, Karen L. Kelly served as the trustee for “contiguous parcels of land” and “used as a contains a residential improvement that is an residential land is taxed at a much lower rate views with a privacy bu er.”52 e county assessor two separate trusts that each owned a parcel unit” requirements of the “residential land” integral part of the residential use in the left than vacant land, and many Colorado property concluded these uses did not constitute using of land. A house was on the residential parcel de nition in CRS § 39-1-102(14.4)(a).58 parcel. However, the BAA didn’t make ndings owners assert that their combined residential/ the subject parcel as a unit with the residential and the other parcel was undeveloped and Ziegler owned four parcels of land in Park on whether the parcels at issue in Ziegler satisfy vacant parcels qualify as residential land in and reclassi ed parcels, and the Board of County classi ed as vacant land. Title to the residential County. One parcel was classi ed as residential this contiguity test. seeking corresponding tax abatements. Commissioners (BCC) and BAA upheld the parcel was held in a quali ed personal residence land. e other three were classi ed as vacant e Court then analyzed the “used as a unit” The statute defines “residential land” as vacant land classi cation. trust, while title to the subject parcel was held land and taxed at the higher rate. Ziegler peti- requirement under Hogan and found that the “a parcel or contiguous parcels of land under The Court of Appeals reversed the BAA, in a revocable family trust. Kelly was the settlor, tioned to reclassify the three parcels as residen- BAA and assessor made the same error discussed common ownership upon which residential holding that the assessor went beyond the trustee, and bene ciary of both trusts. tial land. It was undisputed that Ziegler owned in Hogan by interpreting the “used as a unit”

prong to require that the landowner’s use be NOTES 37. Better Baked, LLC v. GJG Prop., LLC, 465 P.3d 84 (Colo. 2020). “essential” to the enjoyment of the residential 1. FD Interests, LLC v. Fairways at Bu alo Run 38. Id. at 87. parcel. e prong’s only requirement is that Homeowners Ass’n, 2019 COA 148, writ of cert. granted in part, 2020 Colo. LEXIS 519 (June 1, 39. Id. the residential and subject parcels be used 2020). 40. Id. as a collective unit of property for residential 2. Id. at ¶¶ 2 and 3. 41. Id. at 87–88. purposes. 3. Id. 42. Id. at 88. 4. Bu alo Run Fairways, Ltd. Liab. Co. v. The order was reversed and the case was 43. Id. at 89. Fairways at Bu alo Run Homeowners Ass’n, 44. Id. at 90. remanded for the BAA to determine whether the No. 19SC865, 2020 Colo. LEXIS 519 at *1 (June parcels were contiguous and whether Ziegler’s use 1, 2020). 45. Id. at 91. COLORADO BAR FOUNDATION GIVES $127,750 TO 32 COLORADO NONPROFITS 46. Mook v. Bd. of Cty. Comm’rs, 2018SC434; of the subject parcels satis ed the used as a unit 5. Kroesen v. Shenandoah Homeowners Ass’n, Inc., 461 P.3d 672 (Colo.App. 2020). Kelly v. Bd. of Cty. Comm’rs, 2018SC499; Hogan v. Bd. of Cty. Comm’rs, 2018SC544. All three requirement under the appropriate standards. 6. CRS §§ 38-33.3-101 et seq. cases are consolidated at 457 P.3d 568 (Colo. The Colorado Bar Foundation advances justice by supporting legal services and law-related education with 7. Kroesen, 461 P.3d at 675. 2020). Other Cases of Note 8. Id. 47. Id. at 571. a focus on three primary areas: (1) expanding the delivery of legal services, (2) promoting law-related Additional real estate cases worth reviewing were 9. Id. at 678. 48. Id. education, and (3) improving the administration of justice. mentioned at the 2020 Real Estate Symposium 10. Id. at 680. 49. Id. (emphasis in original). involving condemnation/eminent domain;61 11. Woodbridge Condominium Ass’n, Inc. v. Lo 50. Id. at 572. See also 574–78 for further In the last 8 years, CBF has awarded more than $925,000 in grants. In 2020 alone, the CBF awarded 32 Viento Blanco, LLC, 2020 COA 34. in-depth discussion. real estate contracts, rights of first refusal, 12. Id. at ¶ 7. 51. Practitioners are encouraged to read Lannie grants totaling $127,750 to organizations providing services in 30 Colorado counties (including awards to 62 and property distribution; foreclosure and 13. Id. v. Bd. of Cty. Comm’rs, 471 P.3d 1207 (Colo.App. 16 organizations providing statewide services). Every year, the CBF awards a major grant to the Colorado debtor/creditor matters;63 mining;64 sales and 14. Id. at ¶¶ 1 and 12. 2020), which answered a question left open in Lawyer Trust Account Foundation and smaller grants (averaging about $3,000) to other nonprofits. While Mook: whether the phrase “common owner- 65 66 15. Id. at ¶ 30. use tax; treasurer’s deeds/quiet title matters; ship” requires identical ownership or merely the average amount of the grants may seem small, they are significant to the organizations that receive and zoning.67 Practitioners can obtain the 38th 16. Id. at ¶ 27. overlapping ownership. The Court of Appeals 17. Lo Viento Blanco, LLC v. Woodbridge them. Annual Real Estate Symposium materials concluded that identical ownership is required. Condo Assoc., Inc., 2020 Colo. LEXIS 777. 52. Mook, 457 P.3d at 573. through the CBA-CLE Dashboard, by selecting The Supreme Court granted certiorari only as 53. Id. One of the 2020 grant recipients is The CBA Mock Trial Program (pictured below). The Mock Trial program “Real Estate” as the Practice Area and searching to “whether, under Colorado law, an adverse occupier’s acknowledgement or recognition of 54. Id. at 578. is an important program that helps create a pipeline of young people interested in the law. It has helped for “Symposium.” the owner’s title during the occupant’s claimed 55. Id. at 574. many students choose their career path. The program consists of nine regional tournaments and the state prescriptive period interrupts the prescriptive 56. Id. at 574–75. use and defeats the presumption that any use tournament. The winner of the state tournament goes on to participate in the national tournament. was adverse.” 57. Id. at 583. See also 582–84 for more detailed discussion. 18. Ferraro v. Frias Drywall, LLC, 451 P.3d 1255 (Colo.App. 2019). 58. Ziegler v. Park Cty. Bd. of Cty. Comm’rs, In a typical year, the program 2020 CO 13, ¶ 1. 19. Id. at 1258. has approximately 100 59. Id. at ¶ 23. 20. Id. teams, of which 24 will go on Lindsay J. Miller is a senior associate at Folkestad 60. Id. at ¶ 22. Fazekas Barrick & Patoile, P.C. in Castle Rock. 21. Id. at 1259. 61. Nesbitt v. Scott, 457 P.3d 134 (Colo.App. to the state tournament. She specializes in real estate litigation, with an 22. Id., quoting Singh v. Mortensun, 30 P.3d 853, 2019); Forest View Co. v. Town of Monument, Each of these tournaments emphasis on landlord/tenant law—miller@ 855 (Colo.App. 2001). 464 P.3d 774 (Colo. 2020). colorado.com. Nathan G. Osborn is a shareholder has many moving parts and 23. Id. 62. Filatov v. Turnage, 451 P.3d 1263 (Colo.App. with Montgomery Little & Soran, PC. His practice 24. Id. at 1261. 2019); In re Marriage of Blaine and He, 2019 involves large numbers of focuses on real estate litigation, real estate 25. Franklin Credit Mgmt. Corp. v. Galvan, 457 COA 164; In re Marriage of Wright, 459 P.3d 757 volunteers, students, coaches transactions, and commercial litigation. Osborn P.3d 749 (Colo.App. 2019). (Colo.App. 2020). also serves as an expert witness and a mediator and parents. 26. Id. at 750. 63. Igou v. Bank of America, N.A., 459 P.3d 776 in cases involving real estate issues—nosborn@ 27. Id. at 751 n.3. (Colo.App. 2020); Sedgwick Props. Dev. Corp. montgomerylittle.com. Paul Sachs of Paul Sachs, v. Hinds, 456 P.3d 64 (Colo.App. 2019). The CBF grant has been invaluable in allowing the program to help the regional 28. Id. at 751. P.C. in Steamboat Springs is a general practitioner 64. Info. Network for Responsible Mining v. tournaments pay for food for their many volunteers, security at the courthouse 29. Id. (quoting Mortg. Invs. Corp. v. Battle focusing on real estate, business, trust and estate, Colo. Mined Land Reclamation Bd., 451 P.3d Mountain Corp., 70 P.3d 1176, 1186 (Colo. or any other unforeseen costs associated with hosting a tournament. and water law. He has been the municipal judge 1245 (Colo.App. 2019). 2003)). for the City of Steamboat Springs for 27 years— 65. Am. Multi-Cinema, Inc. v. City of Aurora, 471 30. Id. at 752. [email protected], (970) 879-8600. P.3d 1139 (Colo.App. 2020); IBM Corp. v. City of This article is based on the authors’ presentation 31. Evans v. Evans, 469 P.3d 498 (Colo.App. Golden, 461 P.3d 659 (Colo.App. 2020); Rare at the CBA-CLE Real Estate Symposium held 2019). Air Ltd. v. Prop. Tax Adm’r, 459 P.3d 547 (Colo. on September 2, 2020. 32. Id. at 501 (emphasis in original). App. 2019). CBF grants are made possible by the generous support by Colorado Bar Fellows and other donors. Please 33. Id. 66. Actarus, LLC v. Johnson, 451 P.3d 1270 consider joining us by making a donation or contact us to learn more about becoming a Bar Fellow. For Coordinating Editor: Christopher D. Bryan, 34. Id. at 502. (Colo.App. 2019); Moeller v. Ferrari Energy, LLC, 471 P.3d 1258 (Colo.App. 2020). cbryan@garﬁ eldhecht.com 35. Id. at 505. See CRS § 38-35-109(1); Nile more information, go to www.coloradobarfoundation.org or contact Bar Fellows President Sarah Adelson Valley Fed. Sav. & Loan Ass’n v. Sec. Title 67. Hajek v. Bd. of Cty. Commr’s for Boulder ([email protected]), CBF Board of Trustees Chair Loren Brown ([email protected]) or Guarantee Corp of Balt., 813 P.2d 849 (Colo. Cty., 461 P.3d 665 (Colo.App. 2020). App. 1991). Elizabeth Akalin ([email protected]). 36. Id. at 506.

46 | COLORADO LAWYER | APRIL 2021 FEATURE | REAL ESTATE LAW

46 | COLORADO LAWYER | APRIL 2021 FEATURE | WORKERS’ COMPENSATION LAW

Untangling the Statutory Lien Scheme in Colorado Workers’ Compensation Cases

BY JOSEPH W. GREN AND EMILY M. MILLER

is article discusses liens that practitioners commonly encounter in Colorado workers’ compensation cases and suggests best practices for their recovery.

onsider the following fact pattern. A third parties, such as medical providers, the food delivery courier, who is a military negligent dog owner, community homeowners’ veteran over the age of 65, severely associations, property landowners, and the fractures his ankle while running VA. Such third parties have express (statutory) Caway from a vicious dog that broke loose at a or implied liens based on an employer’s or multi-residential apartment complex. He les insurance carrier’s admission of liability for for workers’ compensation benefits with the workers’ compensation bene ts. Depending delivery company, but because it is unclear on the lien and bene t at issue, recovery in the The Game whether the courier is an independent contractor Colorado workers’ compensation system—itself or an employee, the employer and its insurance governed by the Colorado O ce of Adminis- carrier deny the claim. trative Courts (OAC) Rules of Procedure2 and e Department of Veterans A airs (VA) Colorado Division of Workers’ Compensation pays for part of the courier’s medical treatment, (Division) Rules of Procedure3—may be subject but primary health insurance begins to make to federal or state law. Given the lack of appellate medical payments for other aspects of the treat- court guidance on the application of these ment. Meanwhile, the courier receives short- liens, practitioners must understand the lien term and then long-term disability insurance landscape to attain the best outcome for their of Liens payments. Eventually, the courier is separated clients. Failure to do so may injure a client’s from his job, and he applies for unemployment rights and wallet. insurance. After several months of litigation, is article discusses the most common liens the courier’s employer admits liability for that practitioners encounter in the Colorado the injury and starts paying bene ts. Shortly workers’ compensation system and o ers best thereafter, the courier begins receiving Social practices for their recovery. Security Disability Insurance (SSDI) bene ts and is Medicare eligible. ough the employer Threshold Considerations admitted liability for the injury under its workers’ Practitioners must be on the lookout for possible compensation insurance plan, Medicare begins lienholders in every workers’ compensation making payments for prescription medications. case long before agreeing to a full and final Under this very complex but common scenario, settlement.4 e rising cost of healthcare makes how are reimbursement payments to each this work all the more important. Lienholders, entity handled? like most creditors, will aggressively pursue In the scenario above, the payment of bene- recovery, sometimes through means that violate ts under the Colorado Workers’ Compensation the law. Defending against these actions may Act (the Act)1 may trigger the interests of multiple potentially cost attorneys and their clients

Untangling the Statutory Lien Scheme in Colorado Workers’ Compensation Cases

BY JOSEPH W. GREN AND EMILY M. MILLER

is article discusses liens that practitioners commonly encounter in Colorado workers’ compensation cases and suggests best practices for their recovery.

substantial amounts of time and money. And the the amount within a reasonable time period.14 ings pursuant to section 13-54.5-101(2)(b), Unfortunately, injured workers don’t always When the injured worker pursues third-party failure to identify and resolve outstanding liens e employer and insurance carrier can then C.R.S., and subject to administrative lien remember or disclose child support obligations, litigation, the employer’s and/or insurance could jeopardize the nality of the agreement garnish or assert a lien against the injured and attachment pursuant to section 26-13- so these obligations may not come to light until carrier’s lien is for all workers’ compensation or cause settlement funds to be reallocated, worker’s future wages.15 122, C.R.S., for purposes of enforcement of settlement discussions begin or even after bene ts due and payable by them as a result even after an administrative law judge (ALJ) court-ordered child support and subject to settlement. When disclosed during settlement of the tort.43 e lien may be reduced by the approves a settlement. How “Reverse O set” Works garnishment as earnings pursuant to sections discussions, the existence of a child support “ injured worker’s third-party litigation attorney When analyzing the existence of liens in Generally speaking, the Act does not allow 13-54-104(1)(b)(IV) and 13-54.5-101(2) lien can complicate matters because half of During the pendency fees and costs if the employer and/or insurance workers’ compensation cases, practitioners unlimited double recovery.16 It allows for o sets (d), C.R.S., for purposes of enforcement the potential settlement proceeds are payable carrier do not participate in the lawsuit within face a number of threshold issues. Namely, to reconcile the injured worker’s receipt of of a judgment for a debt for fraudulently directly for past due child support.33 erefore, of the workers’ 90 days after receiving notice of the litigation’s they must distinguish between a lien and an workers’ compensation benefits and other obtained public assistance, fraudulently the insurance carrier should set forth a plan for commencement.44 When and if the injured overpayment, evaluate the impact of Colorado’s bene ts outside the Act.17 In most states, the obtained overpayments of public assistance, allocating the workers’ compensation bene ts compensation claim, worker recovers monies from the third-party status as a “reverse o set state,” and factor in the non-workers’ compensation bene t takes the or excess public assistance paid for which to comply with child support obligations.34 e practitioners should tortfeasor, the employer and/or insurance allowance for liens against permanent partial o set.18 In Colorado and seven other states, the recipient was ineligible. adjuster should demonstrate that the employer carrier may recover up to, but no more than, the disability (PPD) bene ts. workers’ compensation bene ts take the o - Practically speaking, this law allows for a and/or insurance carrier are in compliance request disclosure of amount of the workers’ compensation bene ts set unless the applicable law expressly states greater chance of lien recovery. Depending with the statute by attaching the Notice of for which they are liable.45 Liens versus Overpayments otherwise.19 us, for example, if the injured on the nature of the injury and the injured Administrative Lien and Attachment to any an injured worker’s At the outset of the workplace injury, prac- e Act contains numerous provisions relating worker is entitled to temporary total disability worker’s employment, the majority of his or admission of liability. Where time lost from non-workers’ titioners should be aware of and protect the to both liens5 and o sets for overpayments,6 so (TTD) bene ts and SSDI, the employer and/ her indemnity bene ts may be in the form of employment does not exceed three days,35 the employer’s and/or insurance carrier’s subro- it’s essential to know the di erence between or insurance carrier pay a reduced amount PPD bene ts. adjuster should notify CSS so it can inactivate compensation benefi ts gation rights. Depending on the circumstances, a lien and an overpayment. A “lien” is the of TTD bene ts to o set the injured worker’s the lien.36 the employer and/or insurance carrier may right of a third party who is otherwise not receipt of SSDI. The Lien Landscape Practitioners must also note when the injured via interrogatories want to pursue their own cause of action in a participant in the workers’ compensation e practical e ect of reverse o set is that Liens for child support obligations, subrogation, worker is subject to a child support order of or informal subrogation or intervene46 in the injured worker’s proceedings.7 An “overpayment” is money a the employer and/or insurance carrier reap short- and long-term disability payments, and another state. e Uniform Interstate Family lawsuit. Practitioners should also monitor the claimant receives that exceeds the amount the bene ts of the injured worker’s receipt of payments made by non-governmental health- Support Act clari es that, as a matter of full faith correspondence. progression of these causes of action because that should have been paid, that the claimant both workers’ compensation and non-workers’ care providers, Medicare, Medicaid, and the VA and credit, the state in which enforcement is they may not align with the life of the workers’ was not entitled to receive, or that resulted compensation bene ts. During the pendency of arise pursuant to statutory or regulatory law. sought should defer to the order of the issuing Indemnity exposure compensation claim. District court litigation from the payment of duplicate bene ts.8 e the workers’ compensation claim, practitioners state.37 For instance, where an order for child analyses should take by practice and design progresses at a slower employer or insurance carrier may assert an should request disclosure of an injured work- Child Support Liens support originates from Oregon, courts in pace than a workers’ compensation claim.47 o set for overpayments against future bene ts er’s non-workers’ compensation bene ts via e most common liens in Colorado workers’ Colorado can be required to enforce that order. into account the us, the employer and/or insurance carrier to which the injured worker may be entitled.9 interrogatories or informal correspondence. compensation claims are for child support. e insurance carrier should comply with the should prioritize and appropriately value their Sometimes an overpayment can transform Indemnity exposure analyses should take into Under Colorado law, child support liens may withholding requirement for the state in which existence of o sets subrogation rights when agreeing to settle the into a lien; for example, an overpayment of account the existence of o sets and the time attach to payments of temporary disability the lien originated. underlying workers’ compensation claim. temporary disability bene ts can be recovered period for receipt of government entitlement bene ts,23 permanent disability bene ts,24 and and the time period for ird-party litigation also presents a rare by the withholding of permanent disability benefits, including SSDI, federal retirement settlement funds.25 ese liens arise when a child Subrogation Liens receipt of government alignment of interests among the injured worker benefits.10 In this instance, the employer or bene ts, and/or unemployment bene ts. support agency les a Notice of Administrative Sometimes a workplace injury results from a and the employer and/or insurance carrier. insurance carrier is e ectively asserting a lien Lien and Attachment.26 e statute requires third party’s negligence or misconduct. When entitlement benefi ts, This incentivizes some level of cooperation against permanent disability bene ts and may Liens against PPD Bene ts the agency to notify, in writing, the injured this occurs the injured worker may (1) pursue between otherwise adverse parties regarding withhold payment of entitlement bene ts rather Workers’ compensation bene ts were immune worker and the insurance carrier.27 Colorado a cause of action against the third party in including SSDI, federal both the workers’ compensation claim and the than seek reimbursement.11 However, in certain from attachments to satisfy judgments20 until the child support liens continue for an inde nite district court and (2) le a claim for workers’ retirement benefi ts, third-party lawsuit. circumstances an employer or insurance carrier General Assembly passed CRS § 8-42-124(6), number of 12-year periods.28 compensation with the Division.38 e pursuit cannot recover overpaid bene ts.12 which allowed for garnishment of indemnity Child support payments are remitted to the of one cause of action does not prohibit the and/or unemployment Short- and Long-Term Disability Liens CRS § 8-42-113.5(1)(c) entitles an employer bene ts, except those for PPD.21 A subsequent Family Support Registry,29 and the payor should simultaneous or later pursuit of the other.39 An injured worker’s short-term disability or insurance carrier to request an order of amendment, effective May 31, 2001, allows show any and all lien numbers on supporting e employer and/or insurance carrier also benefi ts. benefits are often subject to offsets for the repayment from an ALJ. If the employer or liens to attach to PPD bene ts as well.22 CRS § documentation submitted with the payments.30 have their own statutory causes of action in workers’ compensation bene ts paid by the insurance carrier made an overpayment that 8-42-124(6) provides: e Colorado Child Support Services Program subrogation against the alleged tortfeasor.40 employer,48 but the offset cannot cause the the injured worker cannot repay immediately, [B]ene ts for permanent total disability and (CSS) monitors lien payments and distributes eir recovery acts as a statutory assignment of workers’ compensation bene ts to fall below the ALJ, in his or her discretion, may determine permanent partial disability shall be subject the funds among the applicable liens.31 If the a right to recover amounts paid to or on behalf zero.49 For example, when an injured worker is the amount of the overpayment and issue an to wage assignment or income assignment parties do not pay the lien or cooperate with of the injured worker against the third-party ” unable to work and is subsequently terminated order of repayment,13 considering the injured as wages pursuant to section 14-14-102(9), CSS, CSS may intervene in the underlining alleged tortfeasor.41 For practical purposes, this because of a work-related accident or injury, worker’s nancial situation and ability to repay C.R.S., and subject to garnishment as earn- workers’ compensation matter.32 assignment acts like a lien.42 the injured worker is entitled to unemployment

50 | COLORADO LAWYER | APRIL 2021 APRIL 2021 | COLORADO LAWYER | 51 FEATURE | WORKERS’ COMPENSATION LAW bene ts after receiving workers’ compensation Some public and private employers provide and pension benefits that they pay to their Practitioner’s Guide 50 74 Practitioner’s Guide benefits. The employer can offset workers’ short- and long-term disability, retirement, and employees. Employers may claim an o set compensation bene ts paid when the injured pension bene ts to their employees. Short- and for all workers’ compensation benefits paid worker concurrently receives unemployment long-term disability bene ts are subject to o set with the exception of PTD bene ts pursuant bene ts and TTD bene ts,51 and an o set is by the employer.70 e o set is proportionate to to a collective bargaining agreement.75 to Colorado available for permanent total disability (PTD) Practitioners should have a working knowl- benefits paid by the employer.52 An offset is edge of the benefits the employer provides. not allowed when unemployment benefits Depending on the employer and the bene t at have already been reduced by the amount of issue, the employer or insurance carrier may or Construction Law 53 Construction Law temporary bene ts received or if the injured may not want to take the o set. For example, worker simultaneously receives PPD bene ts “ an employers’ workers’ compensation carrier rd 54 3 edition now available and unemployment bene ts. Third-party litigation and short-term disability carrier may have an 3 edition now available e Family and Medical Leave Act (FMLA) agreement on whom is entitled to the o set, is another example of a short-term disability also presents a and the workers’ compensation carrier may bene t.55 It allows for 12 weeks of leave in any need to reimburse the short-term carrier for 12-month period.56 Recovery under the FMLA rare alignment of short-term disability bene ts. Further, as stated and the Act are often two distinct causes of action interests among the above, practitioners must be on the lookout for An essential resource for attorneys, and, consequently, the injured worker may the injured worker’s receipt of Social Security and real estate and construction receive bene ts under both.57 An injured worker injured worker and disability bene ts. and real estate and construction quali es for FMLA and workers’ compensation professionals benefits by proving an inability to perform the employer and/or Non-Governmental Healthcare professionals the job functions because of a serious health insurance carrier. This Provider Liens condition.58 However, if an injured worker Non-governmental healthcare providers may rd declines an o er of modi ed duty and chooses incentivizes some level also assert liens for charges in accordance with New in 3rd Edition to use FMLA rights, the employee may forfeit the Act’s medical bene ts fee schedule,76 which the wage replacement temporary disability of cooperation between all providers must comply with.77 Further, the • New sections on emerging risks workers’ compensation bene ts, or an o set Act forbids an injured worker from bearing • Discussion of changing US Water rules is available against those bene ts for receipt otherwise adverse responsibility for payment or reimbursement • Discussion of changing US Water rules of short term disability payments.59 parties regarding to a healthcare provider for services rendered • Condo conversions An injured worker may qualify for additional in connection with a workplace injury.78 An ALJ long-term benefits outside the Act.60 Those both the workers’ may impose a penalty on a creditor for willful • Revisions to Colorado’s procurement rules additional bene ts o set workers’ compensation violation of this prohibition.79 bene ts paid by the employer.61 As stated above, compensation claim Recently, the Industrial Claim Appeals O ce the o set cannot reduce workers’ compensation and the third-party (ICAO) presided over a case on this issue.80 benefits below zero.62 Injured workers may In In re Claim of Keating, an injured worker receive Social Security bene ts, which can o set lawsuit. was treated at the hospital for a compensable their workers’ compensation bene ts by up to workplace injury, the employer failed to pay for 50%.63 is o set applies to temporary disability the medical treatment, and the hospital began and PTD benefits,64 and to retroactive SSDI billing the injured worker. Following common bene ts even when the workers’ compensation practice, the injured worker’s counsel noti ed claim has been closed and later reopened.65 ” the hospital via letter that it was illegal to try to Additionally, an employer that did not pay collect personally from an injured worker for the original Social Security taxes may claim the percentage of the premiums the employer treatment rendered in a workers’ compensation the offset.66 Conversely, for Social Security paid71 and applies to all workers’ compensation claim.81 Nevertheless, the hospital continued its retirement bene ts, an o set is only allowed benefits, with two limits: the workers’ com- collection e orts against the injured worker.82 for PTD bene ts,67 even if the injured worker pensation bene ts cannot be reduced below e ICAO panel a rmed the ALJ’s imposition received Social Security retirement bene ts zero,72 and the employer-provided disability of penalties against the hospital for its attempts at the time of injury,68 and an offset is only bene ts cannot be contractually forfeited to to collect personally from the injured worker.83 permitted if the PTD bene ts were paid after allow for payment of workers’ compensation Healthcare providers that are cognizant of the injured worker turned 45 years of age.69 bene ts.73 Employers may also o set retirement this proscription look for other ways to recover.

52 | COLORADO LAWYER | APRIL 2021 cba-cle.org • (303) 860-0608 • [email protected] The nonprofit educational arm of the Colorado Bar Association and the Denver Bar Association FEATURE | WORKERS’ COMPENSATION LAW bene ts after receiving workers’ compensation Some public and private employers provide and pension benefits that they pay to their Practitioner’s Guide 50 74 Practitioner’s Guide benefits. The employer can offset workers’ short- and long-term disability, retirement, and employees. Employers may claim an o set compensation bene ts paid when the injured pension bene ts to their employees. Short- and for all workers’ compensation benefits paid worker concurrently receives unemployment long-term disability bene ts are subject to o set with the exception of PTD bene ts pursuant bene ts and TTD bene ts,51 and an o set is by the employer.70 e o set is proportionate to to a collective bargaining agreement.75 to Colorado available for permanent total disability (PTD) Practitioners should have a working knowl- benefits paid by the employer.52 An offset is edge of the benefits the employer provides. not allowed when unemployment benefits Depending on the employer and the bene t at have already been reduced by the amount of issue, the employer or insurance carrier may or Construction Law 53 Construction Law temporary bene ts received or if the injured may not want to take the o set. For example, worker simultaneously receives PPD bene ts “ an employers’ workers’ compensation carrier rd 54 3 edition now available and unemployment bene ts. Third-party litigation and short-term disability carrier may have an 3 edition now available e Family and Medical Leave Act (FMLA) agreement on whom is entitled to the o set, is another example of a short-term disability also presents a and the workers’ compensation carrier may bene t.55 It allows for 12 weeks of leave in any need to reimburse the short-term carrier for 12-month period.56 Recovery under the FMLA rare alignment of short-term disability bene ts. Further, as stated and the Act are often two distinct causes of action interests among the above, practitioners must be on the lookout for An essential resource for attorneys, and, consequently, the injured worker may the injured worker’s receipt of Social Security and real estate and construction receive bene ts under both.57 An injured worker injured worker and disability bene ts. and real estate and construction quali es for FMLA and workers’ compensation professionals benefits by proving an inability to perform the employer and/or Non-Governmental Healthcare professionals the job functions because of a serious health insurance carrier. This Provider Liens condition.58 However, if an injured worker Non-governmental healthcare providers may rd declines an o er of modi ed duty and chooses incentivizes some level also assert liens for charges in accordance with New in 3rd Edition to use FMLA rights, the employee may forfeit the Act’s medical bene ts fee schedule,76 which the wage replacement temporary disability of cooperation between all providers must comply with.77 Further, the • New sections on emerging risks workers’ compensation bene ts, or an o set Act forbids an injured worker from bearing • Discussion of changing US Water rules is available against those bene ts for receipt otherwise adverse responsibility for payment or reimbursement • Discussion of changing US Water rules of short term disability payments.59 parties regarding to a healthcare provider for services rendered • Condo conversions An injured worker may qualify for additional in connection with a workplace injury.78 An ALJ long-term benefits outside the Act.60 Those both the workers’ may impose a penalty on a creditor for willful • Revisions to Colorado’s procurement rules additional bene ts o set workers’ compensation violation of this prohibition.79 bene ts paid by the employer.61 As stated above, compensation claim Recently, the Industrial Claim Appeals O ce the o set cannot reduce workers’ compensation and the third-party (ICAO) presided over a case on this issue.80 benefits below zero.62 Injured workers may In In re Claim of Keating, an injured worker receive Social Security bene ts, which can o set lawsuit. was treated at the hospital for a compensable their workers’ compensation bene ts by up to workplace injury, the employer failed to pay for 50%.63 is o set applies to temporary disability the medical treatment, and the hospital began and PTD benefits,64 and to retroactive SSDI billing the injured worker. Following common bene ts even when the workers’ compensation practice, the injured worker’s counsel noti ed claim has been closed and later reopened.65 ” the hospital via letter that it was illegal to try to Additionally, an employer that did not pay collect personally from an injured worker for the original Social Security taxes may claim the percentage of the premiums the employer treatment rendered in a workers’ compensation the offset.66 Conversely, for Social Security paid71 and applies to all workers’ compensation claim.81 Nevertheless, the hospital continued its retirement bene ts, an o set is only allowed benefits, with two limits: the workers’ com- collection e orts against the injured worker.82 for PTD bene ts,67 even if the injured worker pensation bene ts cannot be reduced below e ICAO panel a rmed the ALJ’s imposition received Social Security retirement bene ts zero,72 and the employer-provided disability of penalties against the hospital for its attempts at the time of injury,68 and an offset is only bene ts cannot be contractually forfeited to to collect personally from the injured worker.83 permitted if the PTD bene ts were paid after allow for payment of workers’ compensation Healthcare providers that are cognizant of the injured worker turned 45 years of age.69 bene ts.73 Employers may also o set retirement this proscription look for other ways to recover.

For example, CRS § 38-27-101 allows a hospital carrier to pay the billed amount according to process, including the right to appeal a denial of Practitioners should verify an injured the interplay between ERISA and personal in- the best course of action is for all parties to “duly licensed by the department of public health the workers’ compensation fee schedule or, bene ts from an alternative source of payment.92 worker’s veteran’s status either through inter- jury lawsuits.112 e Court held that the written work with the plan administrator before a full and environment” to assert a lien to recover the depending on the complexity of the bills in Health First Colorado enjoys an automatic lien rogatories or informal correspondence early on terms of the ERISA plan have precedence over and nal settlement. e settlement agreement value of services furnished consequent to the question, negotiate directly with Medicare for when medical services are furnished to an in the representation. If the injured worker is a equitable defenses such as the “make whole” submitted to the Division should incorporate all “negligence or other wrongful acts of another” a compromised settlement.90 injured worker in connection with a workers’ veteran and received services through the VA, doctrine,113 which states that a plainti must be agreed-upon terms regarding ERISA, including that are “not covered by the provisions of the compensation claim.93 Typically, these liens the practitioner should request from the VA a lien fully compensated (or “made whole”) before medical services reimbursement. ese actions Workers’ Compensation Act of Colorado.”84 arise when the employer and/or insurance statement with an itemized breakdown of the the insurer has a right to reimbursement.114 will help prevent settlement agreements from Practitioners must determine whether carrier denies the claim and the injured worker services billed. As with Medicare and Medicaid, Under McCutchen, the plan’s plain terms being overturned on grounds of material mis- any non-governmental hospital or healthcare does not pay for the medical services rendered. there may be discrepancies in the amount owed govern,115 but workers’ compensation recovery takes of mutual fact. provider liens on medical services have been Practitioners should determine whether because of competing fee schedules. is signi cantly di erent from third-party tort rendered to the injured worker. is can be done the injured worker is enrolled in Health First recovery and “make whole” considerations Conclusion by visiting the Colorado Secretary of State’s Colorado to appropriately plan for the pos- ERISA Considerations discussed in McCutchen.116 Moreover, there is While the Act is its own self-contained statutory “ 117 website and reviewing the Uniform Commercial sibility of a lien. Again, the first step to take e Employee Retirement Income Security Act currently no case law resolving whether the scheme, a workers’ compensation claim Code lings of any medical providers that have Further, the Act forbids toward resolution of the lien is to request a lien (ERISA) authorizes civil recovery of monies make whole doctrine would prevent an ERISA implicates a multiplicity of potential third-party treated the injured worker.85 Practitioners should statement with an itemized breakdown of the paid by an ERISA-covered plan.103 It is an open plan from receiving full reimbursement from private and public lienholders. To successfully also take perfected liens into account during an injured worker from services billed. question whether workers’ compensation med- the injured worker and workers’ compensation protect workers’ compensation recoveries, settlement negotiations; the failure to do so bearing responsibility ical and indemnity payments and settlement insurance carrier. practitioners must exercise due diligence in may jeopardize the settlement agreement’s VA Liens amounts qualify as reimbursable monies under ese ambiguities require careful settlement investigating the existence of all potential validity from the start. In extreme cases, while a for payment or Where a third party would otherwise bear re- ERISA. Although ERISA may not oblige the negotiations and agreements. In a subrogation lienholders and evaluating their impact on the workers’ compensation settlement is pending, sponsibility for the costs of a veteran’s non-ser- injured worker to reimburse ERISA monies, it action that an ERISA payor brings directly against injured worker’s compensation. a hospital or other healthcare provider could reimbursement to a vice-connected disability, 38 USC § 1729(a)(1) may a ect the insurance carrier’s obligations. the workers’ compensation insurance carrier, initiate a separate action to hold the parties’ healthcare provider assigns to the United States a right to recover For example, the insurance carrier may have to responsible for outstanding liens. all reasonable charges from the third party.94 As reimburse ERISA monies after admitting liability Joseph W. Gren is a member at Lee & Brown, LLC, and practices in the areas entities that would otherwise bear medical costs for the provision of past medical services,104 but of insurance subrogation, workers’ compensation, and general liability—jgren@ for services rendered leeandbrown.com. Emily M. Miller is an associate at Nathan, Dumm & Mayer, Medicare Liens for industrial injuries sustained by a veteran, it is unclear whether the reimbursement must P.C. She practices insurance defense, including workers’ compensation, Title 42 USC § 1395y(b) shifts the costs of an in connection with a workers’ compensation carriers and their insureds be paid according to the ERISA plan rate105 or complex subrogation recovery, employment law, governmental immunity, injured worker’s treatment to the insurance constitute third parties for purposes of § 1729(a) the rate set by the Colorado fee schedule.106 construction defect, and premises liability—[email protected]. The authors thank Michael Salazar, associate at Lee & Brown, for his assistance with this article. carrier or self-insured employer in the Colorado workplace injury. An (1).95 e e ect of this statute is the reallocation Colorado law makes payment in excess of the workers’ compensation system. Medicare will of economic costs to the workers’ compensation Act’s fee schedule unlawful.107 is provision, ALJ may impose a Coordinating Editor: Kristin Caruso, [email protected] not pay for services that have been, or may system and away from the federal government. read in conjunction with ERISA’s saving clause reasonably be expected to be, paid for by a penalty on a creditor Because workers’ compensation is not considered a rming the validity of state insurance law, workers’ compensation carrier or self-insured a healthcare program within the meaning of the implies that payment would be at the Colorado NOTES employer.86 But Medicare may make conditional for willful violation of federal subrogation law, § 1729 limits the right of fee schedule rate,108 but there are no Colorado 1. CRS title 8, art. 40 to 47. benefi ts). payments,87 in its discretion, where there is recovery to “reasonable charges.”96 Reasonable cases on point. this prohibition. 2. 1 Colo. Code Regs. 104-3, https://oac. 6. E.g., CRS § 8-42-103(1)(c) (providing an 97 reason to believe the insurance carrier has not charges are determined by the VA Secretary. ERISA also a ects the settlement of workers’ colorado.gov/sites/oac/fi les/1%20CCR%20 o set for injured workers who receive Social paid.88 Such a payment by Medicare is condi- e VA has enumerated procedures to ac- compensation subrogation rights. If an ERISA 104-3%20%281%29.pdf. Security benefi ts). tioned upon reimbursement by the insurance count for VA liens during out-of-court resolution plan is self-funded,109 the employer may waive 3. Workers’ Compensation Rules of 7. See Black’s Law Dictionary (11th ed. 2019) Procedure, https://cdle.colorado.gov/workers- (“A legal right or interest that a creditor has in 89 98 carrier. of Colorado claims for workers’ compensation. subrogation against its own workers’ com- compensation-rules-of-procedure. See also another’s property, lasting usu. until a debt or Practitioners should determine whether the In cases where settlement proceeds are insu - pensation insurance carrier or self-funded 7 Colo. Code Regs. § 1101-3; Nova v. Indus. duty that it secures is satisfi ed.”). Claim Appeals O ce, 754 P.2d 800, 802 (Colo. ” 110 8. CRS § 8-40-201(15.5). See In re Claim of injured worker is a Medicare recipient. is can cient to satisfy the VA’s subrogation interests, a workers’ compensation insurance pool. As a App. 1988) (“The Colorado Rules of Civil Grandesta , W.C. No. 4-717-644, Order at 6, be done through formal discovery and informal veteran may request that the VA compromise, or practical consideration, it is to the employer’s Procedure do not apply in any special statutory 2013 WL 6646422 at *5 (ICAO Dec. 12, 2013). 99 proceeding insofar as they are inconsistent correspondence during settlement negotiations. waive, those interests. A veteran accomplishes advantage to shift costs to the workers’ compen- 9. CRS § 8-42-103. or in confl ict with the procedure and practice If the injured worker receives Medicare, the Medicaid/Health First Colorado Liens this by submitting appropriate documentation sation policy—even when there are disputed provided by the applicable statute.”). 10. CRS § 8-42-113.5(1)(a). attorney should obtain a lien statement with Health First Colorado, Colorado’s Medicaid to the Revenue Law Group.100 Note that it is issues of causation—because of the workers’ 4. While it is outside the scope of this article, 11. Id. an itemized breakdown of services billed. An program, is responsible for asserting Medicaid debatable whether the VA is entitled to obtain compensation fee schedule cost containment practitioners should also be aware of liens 12. E.g., City and Cty. of Denver v. Indus. Claim that may not be asserted against workers’ Appeals O ce, 58 P.3d 1162 (Colo.App. 2002). itemization clari es whether the billed service liens against injured workers for Colorado reimbursement for unauthorized medical protections.111 compensation benefi ts, such as IRS tax liens, 13. See CRS § 8-43-207(1)(q); Simpson v. Indus. 91 was for the workplace injury and whether the workers’ compensation medical bene ts. An treatment or treatment not found reasonable, e parties must also determine the con- 26 USC § 6334(a)(7), and attorney fees liens. Claim Appeals O ce, 219 P.3d 354, 360 (Colo. billed amount corresponds to the workers’ com- individual enrolled in Health First Colorado necessary, or related to the workplace injury.101 ventional subrogation limits in the plan’s See CRS § 8-42-124(1); Freemyer v. Indus. Claim App. 2009), as modifi ed on denial of reh’g Appeals O ce, 32 P.3d 564 (Colo.App. 2001). (June 25, 2009), rev’d in part, vacated in part pensation fee schedule amount. Practitioners must assign his or her rights to payment for Before it makes a payment, the VA facility must terms. In U.S. Airways v. McCutchen, the US 5. E.g., CRS § 8-42-124(6) (allowing certain sub nom. Benchmark/Elite, Inc. v. Simpson, 232 can then direct the employer and/or insurance treatment to the State during the application review each bill for “injury-relatedness.”102 Supreme Court addressed the related issue of liens to be placed on workers’ compensation P.3d 777 (Colo. 2010).

14. See Simpson, 219 P.3d at 356–60. (Thomson West 2d ed. 2018). recovery through intervention or subrogation, 15. CRS § 8-42-124(6). 55. 29 USC §§ 2601 et seq. or by commencing its own action under specifi ed circumstances. 38 USC § 1729(b). See 16. In re Carlos Castro, W.C. No. 4-739-748, 56. 29 C.F.R. § 825.702(b). also 42 USC § 2651. 2008 WL 5461433 (ICAO Dec. 31, 2008). 57. Cairns and Brewer, “Workers’ 17. CRS § 8-41-203. Compensation, the ADA and the FMLA: The Ten 95. United States v. Bender Welding & Mach. Co., 558 F.2d 761 (5th Cir. 1977) (contextualizing 18. Social Security Program Operations Manual Questions Most Commonly Asked by Colorado Your online solution the policy considerations driving the Systems (POMS) DI § 52105.001, https://secure. Employers,” 24 Colo. Law. 2293, 2294 (Oct. designation of workers’ compensation carriers ssa.gov/poms.nsf/lnx/0452105001. 1995). and their insureds as third parties for purposes 58. 29 C.F.R. § 825.112(a)(4). 19. Id. of 38 USC § 1729(a)(1)). 59. Cairns and Brewer, supra note 57 at 2300. 20. CRS § 8-42-124(6) (1990). 96. 38 USC § 1729(a)(1). for forms, documents, 60. CRS § 8-42-103. 21. CRS § 8-42-124(6). 97. 38 USC § 1729(c)(2)(A). 61. Id. 22. CRS § 8-42-124(6) (2001). 98. https://www.va.gov/OGC/Collections.asp. 62. Id. 23. CRS § 8-42-124(2)(a); CRS § 13-54.5-104(2) 99. Id. (b)(I). 63. CRS § 8-42-103(1)(c)(I). 100. Id. 24. CRS § 8-42-124(6). 64. Id. and checklists 101. 38 C.F.R. § 14.603. 25. CRS § 8-43-204(4). 65. Phillips and Phillips, supra note 54 at § 8.2 102. https://www.va.gov/OGC/Collections.asp. 26. CRS § 26-13-122(1). Social Security Disability Benefi ts (citing Cody Accessible at any time, on any device from your CLE Dashboard v. Indus. Claim Appeals O ce, 940 P.2d 1042 103. 29 USC § 1132(a)(3). 27. CRS § 26-13-122(3). (Colo.App. 1996). 104. 29 USC § 1022. 28. 8 Colo. Code Regs. § 1505-7:8.2. 66. Sampson v. Weld County School Dist., 786 105. Serebo v. Mid. Atl. Med. Servs. Inc., 547 29. CRS § 26-13-114. P.2d 488, 490–91 (Colo.App. 1989). U.S. 356 (2006). 30. This can be as simple as writing the lien 67. CRS § 8-42-103(1)(c)(II) and (II.5). numbers on a check. 106. 7 Colo. Code Regs. 1101-3-18-1 to -11. 68. Zebra v. Dillon Cos., Inc., 292 P.3d 1051, 1054 107. CRS § 8-42-101(3)(a)(I). See also 7 Colo. 31. For guidance in calculating child-support (Colo.App. 2012). Not your average fill-and-go forms, each one payments, see https://childsupport.state.co.us/ Code Regs. 1101-3-18-1 to -11 (providing fee 69. CRS § 8-42-103(1)(c)(B)(IV). siteuser/do/vfs/Frag?fi le=/cm:faqCalcPay.jsp. schedule for injuries). is crafted, reviewed, and continually updated 70. CRS § 8-42-103(1)(d)(I). 108. Compare id. with 29 USC § 1144(b)(2) 32. In re David Rodgers, W.C. No. 4-501-441, by a group of Colorado lawyers and legal 2004 WL 387782 (ICAO Feb. 25, 2004) . 71. CRS § 8-42-103(1)(d)(I)(A). (A) (“nothing . . . shall be construed to exempt or relieve any person from any law of any 33. Gren and Zerylnick, “Settlement Procedure 72. CRS § 8-42-103(1)(d)(I). professionals. Streamline your workflow with State which regulates insurance, banking, or in Workers’ Compensation Claims,” 46 Colo. 73. CRS § 8-42-103(1)(d)(I)(B). securities.”). a single source for your document needs. Law. 40, 41 (July 2017). 74. CRS § 8-42-103(1)(c)(II). 34. Id. at 41. 109. FMC Corp. v. Holliday, 498 U.S. 52, 61 75. CRS § 8-42-103(1)(c)(II)(B). (1990). See also Bollwerk, “ERISA Health Plan 35. See CRS § 8-42-103(1)(a) (“If the period of 76. CRS § 8-42-101. Reimbursement in Workers’ Compensation disability does not last longer than three days 77. CRS § 8-42-101(3) Cases,” https://labor.mo.gov/sites/labor/fi les/ Six Different Libraries from the day the employee leaves work as a Understanding-and-Resolving-ERISA-Handout. result of the injury, no disability indemnity shall 78. CRS § 8-42-101(4). pdf. be recoverable. . . .”). 79. CRS §§ 8-43-304, -305. 110. See FMC Corp., 498 U.S. 52 (self-funded 36. CRS § 8-42-124(6). 80. In re Keating, W.C. No. 5-065-586-002, ERISA plans are exempt from state regulation • Civil Procedure 37. 28 USC § 1738B. 2020 WL 1286167 at *1 (ICAO Mar. 13, 2020). insofar as that regulation relates to the plans); • Domestic Relations 38. CRS § 8-41-203(1)(a). 81. Id. 138 A.L.R. Fed. 611 (citing 29 USCA 1001 et 39. Id. 82. Id. at 2. seq.; Baxter v. I.S.T.A. Ins. Trust, 749 N.E. • Leases & Rentals 40. CRS § 8-41-203(1)(b). 83. Id. at 8. 2d 47 (Ind.Ct.App. 2001)) (ERISA does not require subrogation provisions in plans, and a • Mechanics’ Liens 41. Id. 84. CRS § 38-27-101(1). subrogation right exists only if a plan creates 85. Colo. Secretary of State, Uniform • Probate/Trust & Estate 42. CRS § 8-41-203(1)(d). one). Commercial Code, https://www.sos.state.co.us/ 43. CRS § 8-41-203(1)(b). pubs/UCC/uccHome.html?menuheaders=9. 111. 7 Colo. Code Regs. 1101-3-18-1 to -11. • Real Estate 44. CRS § 8-41-203(1)(e)(II). 86. 42 C.F.R. § 411.40(b)(1)(i). For more 112. U.S. Airways, Inc. v. McCutchen, 569 U.S. 88 45. CRS § 8-41-203(1)(b). information, visit https://www.cms.gov/ (2013). 46. The employer and/or insurance carrier’s Medicare/Coordination-of-Benefi ts-and- 113. Id. at 106. This subscription-based service combines payment of workers’ compensation benefi ts is a Recovery/Attorney-Services/Conditional- 114. Id. strong argument for intervention as a matter of Payment-Information/Conditional-Payment- convenience and accuracy, while saving you right under CRCP 24(a). Information.html. 115. Id. at 88. 47. CRS § 8-40-102(1). 87. 42 USC § 1395y(b)(2)(B)(i); 42 C.F.R. § 116. Id.; CRS § 10-1-135; and CRS § 8-40-201(19) time and effort. (b), which exempts subrogation and lien rights 48. CRS § 8-42-103. 411.52(a)(1). Subscriptions available for single or multiple libraries. granted to workers’ compensation carriers 88. 42 C.F.R. § 411.52(a)(1). 49. Id. or self-insured employers pursuant to CRS § Visit COFillableForms.org • Regular updates 89. 42 C.F.R.§ 411.22. 50. CRS § 8-73-112. 8-41-203. • One convenient accessible location 51. Pace Membership Warehouse, Div. of K-Mart 90. Resolution of liens held by federal entities 117. See CRS § 8-40-102(1). Corp. v. Axelson, 938 P.2d 504, 509 (Colo. introduces preemption concerns, which are • Downloadable 1997). outside the scope of the negotiation. • Easy to update and complete 52. CRS § 8-42-103(f). 91. See https://www.colorado.gov/hcpf; CRS § 25.5-4-301(5)(a). 53. Id. 92. CRS § 25.5-4-205(4). 54. Phillips and Phillips, 17 Workers’ Compensation Practice & Procedure (Colo. 93. CRS § 25.5-4-301(5)(a). Practice Series) § 8.9 Unemployment Benefi ts 94. The United States can exercise its right of www.cle.cobar.org • Call (303) 860-0608 • Toll-free (888) 860-2531 56 | COLORADO LAWYER | APRIL 2021 The nonprofit educational arm of the Colorado Bar Association and the Denver Bar Association FEATURE | WORKERS’ COMPENSATION LAW

14. See Simpson, 219 P.3d at 356–60. (Thomson West 2d ed. 2018). recovery through intervention or subrogation, 15. CRS § 8-42-124(6). 55. 29 USC §§ 2601 et seq. or by commencing its own action under specifi ed circumstances. 38 USC § 1729(b). See 16. In re Carlos Castro, W.C. No. 4-739-748, 56. 29 C.F.R. § 825.702(b). also 42 USC § 2651. 2008 WL 5461433 (ICAO Dec. 31, 2008). 57. Cairns and Brewer, “Workers’ 17. CRS § 8-41-203. Compensation, the ADA and the FMLA: The Ten 95. United States v. Bender Welding & Mach. Co., 558 F.2d 761 (5th Cir. 1977) (contextualizing 18. Social Security Program Operations Manual Questions Most Commonly Asked by Colorado Your online solution the policy considerations driving the Systems (POMS) DI § 52105.001, https://secure. Employers,” 24 Colo. Law. 2293, 2294 (Oct. designation of workers’ compensation carriers ssa.gov/poms.nsf/lnx/0452105001. 1995). and their insureds as third parties for purposes 58. 29 C.F.R. § 825.112(a)(4). 19. Id. of 38 USC § 1729(a)(1)). 59. Cairns and Brewer, supra note 57 at 2300. 20. CRS § 8-42-124(6) (1990). 96. 38 USC § 1729(a)(1). for forms, documents, 60. CRS § 8-42-103. 21. CRS § 8-42-124(6). 97. 38 USC § 1729(c)(2)(A). 61. Id. 22. CRS § 8-42-124(6) (2001). 98. https://www.va.gov/OGC/Collections.asp. 62. Id. 23. CRS § 8-42-124(2)(a); CRS § 13-54.5-104(2) 99. Id. (b)(I). 63. CRS § 8-42-103(1)(c)(I). 100. Id. 24. CRS § 8-42-124(6). 64. Id. and checklists 101. 38 C.F.R. § 14.603. 25. CRS § 8-43-204(4). 65. Phillips and Phillips, supra note 54 at § 8.2 102. https://www.va.gov/OGC/Collections.asp. 26. CRS § 26-13-122(1). Social Security Disability Benefi ts (citing Cody Accessible at any time, on any device from your CLE Dashboard v. Indus. Claim Appeals O ce, 940 P.2d 1042 103. 29 USC § 1132(a)(3). 27. CRS § 26-13-122(3). (Colo.App. 1996). 104. 29 USC § 1022. 28. 8 Colo. Code Regs. § 1505-7:8.2. 66. Sampson v. Weld County School Dist., 786 105. Serebo v. Mid. Atl. Med. Servs. Inc., 547 29. CRS § 26-13-114. P.2d 488, 490–91 (Colo.App. 1989). U.S. 356 (2006). 30. This can be as simple as writing the lien 67. CRS § 8-42-103(1)(c)(II) and (II.5). numbers on a check. 106. 7 Colo. Code Regs. 1101-3-18-1 to -11. 68. Zebra v. Dillon Cos., Inc., 292 P.3d 1051, 1054 107. CRS § 8-42-101(3)(a)(I). See also 7 Colo. 31. For guidance in calculating child-support (Colo.App. 2012). Not your average fill-and-go forms, each one payments, see https://childsupport.state.co.us/ Code Regs. 1101-3-18-1 to -11 (providing fee 69. CRS § 8-42-103(1)(c)(B)(IV). siteuser/do/vfs/Frag?fi le=/cm:faqCalcPay.jsp. schedule for injuries). is crafted, reviewed, and continually updated 70. CRS § 8-42-103(1)(d)(I). 108. Compare id. with 29 USC § 1144(b)(2) 32. In re David Rodgers, W.C. No. 4-501-441, by a group of Colorado lawyers and legal 2004 WL 387782 (ICAO Feb. 25, 2004). 71. CRS § 8-42-103(1)(d)(I)(A). (A) (“nothing . . . shall be construed to exempt or relieve any person from any law of any 33. Gren and Zerylnick, “Settlement Procedure 72. CRS § 8-42-103(1)(d)(I). professionals. Streamline your workflow with State which regulates insurance, banking, or in Workers’ Compensation Claims,” 46 Colo. 73. CRS § 8-42-103(1)(d)(I)(B). securities.”). a single source for your document needs. Law. 40, 41 (July 2017). 74. CRS § 8-42-103(1)(c)(II). 34. Id. at 41. 109. FMC Corp. v. Holliday, 498 U.S. 52, 61 75. CRS § 8-42-103(1)(c)(II)(B). (1990). See also Bollwerk, “ERISA Health Plan 35. See CRS § 8-42-103(1)(a) (“If the period of 76. CRS § 8-42-101. Reimbursement in Workers’ Compensation disability does not last longer than three days 77. CRS § 8-42-101(3) Cases,” https://labor.mo.gov/sites/labor/fi les/ Six Different Libraries from the day the employee leaves work as a Understanding-and-Resolving-ERISA-Handout. result of the injury, no disability indemnity shall 78. CRS § 8-42-101(4). pdf. be recoverable. . . .”). 79. CRS §§ 8-43-304, -305. 110. See FMC Corp., 498 U.S. 52 (self-funded 36. CRS § 8-42-124(6). 80. In re Keating, W.C. No. 5-065-586-002, ERISA plans are exempt from state regulation • Civil Procedure 37. 28 USC § 1738B. 2020 WL 1286167 at *1 (ICAO Mar. 13, 2020). insofar as that regulation relates to the plans); • Domestic Relations 38. CRS § 8-41-203(1)(a). 81. Id. 138 A.L.R. Fed. 611 (citing 29 USCA 1001 et 39. Id. 82. Id. at 2. seq.; Baxter v. I.S.T.A. Ins. Trust, 749 N.E. • Leases & Rentals 40. CRS § 8-41-203(1)(b). 83. Id. at 8. 2d 47 (Ind.Ct.App. 2001)) (ERISA does not require subrogation provisions in plans, and a • Mechanics’ Liens 41. Id. 84. CRS § 38-27-101(1). subrogation right exists only if a plan creates 85. Colo. Secretary of State, Uniform • Probate/Trust & Estate 42. CRS § 8-41-203(1)(d). one). Commercial Code, https://www.sos.state.co.us/ 43. CRS § 8-41-203(1)(b). pubs/UCC/uccHome.html?menuheaders=9. 111. 7 Colo. Code Regs. 1101-3-18-1 to -11. • Real Estate 44. CRS § 8-41-203(1)(e)(II). 86. 42 C.F.R. § 411.40(b)(1)(i). For more 112. U.S. Airways, Inc. v. McCutchen, 569 U.S. 88 45. CRS § 8-41-203(1)(b). information, visit https://www.cms.gov/ (2013). 46. The employer and/or insurance carrier’s Medicare/Coordination-of-Benefi ts-and- 113. Id. at 106. This subscription-based service combines payment of workers’ compensation benefi ts is a Recovery/Attorney-Services/Conditional- 114. Id. strong argument for intervention as a matter of Payment-Information/Conditional-Payment- convenience and accuracy, while saving you right under CRCP 24(a). Information.html. 115. Id. at 88. 47. CRS § 8-40-102(1). 87. 42 USC § 1395y(b)(2)(B)(i); 42 C.F.R. § 116. Id.; CRS § 10-1-135; and CRS § 8-40-201(19) time and effort. (b), which exempts subrogation and lien rights 48. CRS § 8-42-103. 411.52(a)(1). Subscriptions available for single or multiple libraries. granted to workers’ compensation carriers 88. 42 C.F.R. § 411.52(a)(1). 49. Id. or self-insured employers pursuant to CRS § Visit COFillableForms.org • Regular updates 89. 42 C.F.R.§ 411.22. 50. CRS § 8-73-112. 8-41-203. • One convenient accessible location 51. Pace Membership Warehouse, Div. of K-Mart 90. Resolution of liens held by federal entities 117. See CRS § 8-40-102(1). Corp. v. Axelson, 938 P.2d 504, 509 (Colo. introduces preemption concerns, which are • Downloadable 1997). outside the scope of the negotiation. • Easy to update and complete 52. CRS § 8-42-103(f). 91. See https://www.colorado.gov/hcpf; CRS § 25.5-4-301(5)(a). 53. Id. 92. CRS § 25.5-4-205(4). 54. Phillips and Phillips, 17 Workers’ Compensation Practice & Procedure (Colo. 93. CRS § 25.5-4-301(5)(a). Practice Series) § 8.9 Unemployment Benefi ts 94. The United States can exercise its right of www.cle.cobar.org • Call (303) 860-0608 • Toll-free (888) 860-2531 56 | COLORADO LAWYER | APRIL 2021 The nonprofit educational arm of the Colorado Bar Association and the Denver Bar Association TITLEAROUND | THESUB TITLEBAR | BAR NEWS

News from the CBA, Local Bars, and More

BY JESSICA ESPINOZA-MURILLO 1 2 3

Bar News is a monthly compilation of news from the CBA, including sections and committees, administration, and local and specialty bar associations. DBA Passing of the Gavel Goes Indie It also includes notices of activities—past, present, and future—from local and national law-related organizations and groups. Outgoing DBA President Kevin McReynolds and incoming DBA President Tyrone Glover created 1 Outgoing President Kevin McReynolds. a fun Western-themed short lm to celebrate this year’s presidential passing of the gavel. ese 2 Current President Tyrone Glover. two superstars have been sharing the duties of DBA president since summer 2020. 3 Gavels at high noon.

Doug Becker Receives James E. Bye Award Jennifer Banda Elected UVLA Welcomes New Executive Director e CBA Tax Section was honored Fellow of American College Corenna Howard has been selected as the new executive director of Uncompahgre of Tax Counsel to present the 2020 James E. Bye Volunteer Legal Aid, which provides a range of free civil legal services to seniors and Lifetime Achievement Award e Board of Regents of the Amer- low-income residents of Montrose, Delta, Ouray, and San Miguel counties. Previously, to Doug Becker, of Becker, P.C., ican College of Tax Counsel has Howard served as CEO for Pavilion Family Medicine in Montrose. She also spent during the Tax Section’s Annual added 13 new Fellows, including many years in private practice, specializing in estate planning, elder law, probate Ethics Update. The award is Colorado tax attorney Jennifer administration, and taxation. named in honor of the late James E. Bye, a Benda. A former certi ed public longtime Denver tax lawyer, and is awarded accountant, Benda is a share- annually to a Colorado tax lawyer who has holder at the Denver o ce of Hall Estill. She Are you a lawyer asking yourself 1 2 made signi cant contributions to the practice received her master’s degree from Texas A&M of tax law. University and her JD from George Washington “How can I help my community?” 1 e funds raised helped over 6,000 families receive a week’s worth of groceries. Becker has practiced tax law in Colorado University Law School. Are you a legal services provider wondering 2 e Campaign supports food delivery for homebound neighbors who are unable to visit since 1989 and for many years has taught as an The American College of Tax Counsel is Metro Caring to receive food. adjunct professor for the University of Denver a professional association of tax lawyers in “Where can I find volunteer lawyers?” Sturm College of Law and in the graduate tax private practice, those who teach tax law in Roll Out the Barrels Giving Campaign Breaks Records program. He is sought after for structuring law schools, and those who work in federal and Each year the DBA YLD organizes the Roll Out the Barrels Giving real estate and corporate transactions, ad- state revenue agencies. e College provides Succession to Service answers those Campaign in support of Metro Caring, a local anti-hunger organization. vising closely held businesses, and any other recommendations to Congress and the IRS on questions by connecting lawyers who e campaign is centered around the collection of primarily canned matters that require a sharp mind and a warm improving federal tax laws and administration want to volunteer their time with the food donations through barrels that are delivered to each participating personality. and by filing “friend of the court” briefs in organizations that need them — at no organization. As with everything else in 2020, the Campaign dealt with a selected tax cases. cost to either the lawyers or the non- new set of challenges, including a switch to being a monetary campaign. profits. But the level of support from the legal community exceeded all expectations and made this the most successful Campaign ever, raising $40,371 in support of Metro Caring! Boulder County Hosts e winning rms, by rm size, were: Virtual Mock Trials Stemming from the Access to Jus- ■ 1–10 employees: Alderman Bernstein anks to all who volunteered for the Boulder tice Commission, the goal of the ■ 11–21 employees: Zaner Harden Law CONTRIBUTE County High School Mock Trial Competition! Succession to Service platform is to Bar News is always looking for ■ 22–60 employees: Gordon & Rees Scully Mansukhani is virtual competition presented some chal- establish a structured, statewide pro pictures and descriptions of legal ■ 101–150 employees: Faegre Drinker Biddle & Reath events happening throughout lenges, but everyone involved—from the judges bono program for Colorado’s experi- ■ 150+ employees: Denver District Attorney’s O ce Colorado. Snapshots taken with to the students—performed enthusiastically and enced lawyers and judges to partner The platform will launch in early 2020. Other participating rms and organizations included Block & Chapleau; Fortis Law Partners; a phone camera work great! To professionally. Congratulations to the teams with nonprofit legal services organi- For more information now and to learn Harris, Karstaedt, Jamison & Powers, P.C.; Husch Blackwell; Lass Moses Ramp & Cooper; Littler contribute pictures, simply email from Monarch High School in Louisville and them to Jessica Espinoza-Murillo at zations. The Succession to Service how you can get involved, Denver; Lumen, Polsinelli P.C.; and Shook Hardy & Bacon. Many thanks to everyone who Niwot High School, which advanced to compete [email protected], and be sure platform will serve as Colorado’s new visit successiontoservice.org participated and assisted in supporting Metro Caring. in the state mock trial competition. to select the largest ﬁ le size when pro bono pipeline! and join our mailing list! To participate in next year’s campaign, which runs from mid-November through the end of prompted. December, contact Elizabeth Akalin at [email protected].

News from the CBA, Local Bars, and More

BY JESSICA ESPINOZA-MURILLO 1 2 3

they did not undermine the public’s con dence. because each had a unique set of needs. At the Judges throughout the state recognized that they same time, consistency was important; widely might undercut their credibility if their response varying approaches to addressing the con icting to the crisis was inconsistent. concerns for the public’s health and the public judicial system could weaken the legitimacy of Immediate Response the courts. For example, serious access to justice Within days of the March 16 order, Boulder questions might have been raised if the districts County’s judicial officers broke into teams took widely varying approaches to jury trials. to triage the situation. ere was a domestic relations team, a civil team, a criminal team, Maintaining Operations and a county court team. ese teams worked One of the first problems Boulder County together to determine how to address both the encountered was determining how to keep old and continuing ow of new business until everyone informed. e public, their counsel, and the courthouse could be reopened. law enforcement had received notices to appear, Task forces including the justice system’s summonses, and scheduling orders for months stakeholders were quickly convened. In the prior to the pandemic, and most of them had to criminal case context, the stakeholders included be vacated. As a result, virtually everyone had the o ces of the District Attorney, Public De- to be noti ed that their appearances would be fender, Police Department, and Sheri , which rescheduled to an unknown date in the future. worked to determine how to conduct jury trials In the weeks immediately following the March and what to do with criminal cases. These closure of normal operations, only a skeleton sta ensuing period operate on an emergency basis.”1 stakeholders met continuously and, even though worked in the courthouse. e small cadre of It suspended all jury calls for non-criminal their ethical and legal obligations were owed to administrators and supervisors worked tirelessly matters through April 3, 2020. It ordered that di erent sides, they worked together with a high to process the incoming lings and outgoing certain classes of other matters such as proceed- degree of collegiality to nd a balance between orders. Remaining in the courthouse alongside COVID and the Courts ings related to protective orders could not be the needs for public safety and public health. the skeleton sta were Chief Judge Bakke; Judge A Look at Boulder County’s Response to the Pandemic suspended. And for all the remaining matters Many commented on how thankful they were Mulvahill, who acted as the rst assistant to the that were neither designated essential nor to be working in a county with such a high level chief judge; and a rotating team of one district BY LAURENCE “TRIP” W. DEMUTH III prohibited, the order stated, “the Chief Judges of of professionalism and mutual respect and a civil judge, one district criminal judge, one county the various districts will retain the discretion to willingness to work together to resolve problems. court judge, and a “duty judge.” determine whether those operations or matters Because of this, they found a way to balance e duty judge (a ectionately referred to are necessary to prevent a substantial risk of many of the competing concerns within one as the courthouse bouncer) was tasked with imminent nancial hardship or imminent risk week of the March 16 order. Solutions included: enforcing the rules at the courthouse entrance to the health, safety or welfare of any individ- ■ revised arrest policies, and deciding whose needs quali ed them to ur courthouses are normally full of o cers, community correction o cials, and ual or community at large.”2 Justice Coats also ■ revised holding policies, enter. e duty judge sat every day by the phone people and bustling with activity. law enforcement. expressed his expectation that the chief judges ■ adjustments to bond procedures, in a small, windowless o ce near the front of the Every day, hundreds if not thou- So, what happened at our courthouses when “will make every e ort to facilitate work from ■ new protocols for releasing people from jail courthouse waiting to instruct members of the sands of people le through them to COVID-19 started raging across the country? In remote locations and to minimize or eliminate and using personal recognizance bonds, and public who approached. ose who were turned Orespond to criminal charges, obtain restraining Boulder County, stakeholders immediately got in-person proceedings and contact.”3 ■ new policies on treating some arrest away were told what they needed to do to address orders, and resolve civil disputes. e public to work devising ways to respond quickly and is order presented numerous challenges warrants as a summons to appear. their obligations and cases. At times, the duty fills the hallways, courtrooms, jury rooms, creatively to the many challenges presented by to the courts. Very little was known at that time Chief Judge Bakke also established an open judge had nothing to do. Other times, the duty and courthouse lunchrooms. This includes the shape-shifting virus. about the virus or how to control its spread. e line of communications with other chief judges judge encountered a constant ow of people people involved with both ongoing cases and public was still being told—at that time—that throughout the state. By the end of the first and would spend all day answering questions the continual daily ow of new business. Most Initial Order Regarding COVID-19 wearing masks would not provide protection. week, Chief Judge Bakke was working with without the assistance of the usual structure are not there voluntarily. Even prospective On March 16, 2020, Chief Justice Coats of the And yet, the courts had to continue certain Chief Justice Coats and the chief judges from or courthouse staff. It was not uncommon jurors are compelled to appear. ere are also Colorado Supreme Court issued an order to all proceedings. ey would have to devise a way every district in Colorado. ey all grappled with for the public to ask the duty judge for advice a host of people needed to handle the People’s Colorado state courts identifying what would to conduct them safely, and they would need to balancing the essential functions of the courts about unpaid bills or even housing situations business. ey include judges, clerks, court- and would not be suspended. e order stated, determine whether the need for certain other against finding a way to manage the public and roommates. As time passed and the public house administrators, court judicial assistants, “the courts of this state can no longer continue proceedings outweighed the risk they created. health situation. ey learned quickly that no learned that the courthouse was closed, the prosecutors, defense attorneys, probation normal operations and must for the immediate e courts were also concerned with ensuring one approach would work for all the districts demands on the duty judge lessened.

Minimizing In-Person Activities orders by directing that “no person shall be But that did not resolve all the cases, and were made that su cient grounds existed to NOTES When not assigned to one of the slots in the required to report for jury service in a state a fair number of in-person hearings contin- toll the speedy trial period. Between the initial 1. Order Regarding COVID-19 and Operation of Colorado State Courts (Mar. 16, 2020), https://www. courthouse rotation, the judicial o cers worked court before June 1, 2020.”6 On May 5, the ued to be held in the county court’s physical March 16 order and March 3, 2021, only 13 courts.state.co.us/userfi les/fi le/Court_Probation/17th_Judicial_District/COVID-19%20Order%20 16Mar2020.pdf. remotely, doing their best to manage pleadings Chief Justice amended his prior orders again building. Most occurred in criminal cases and jury trials were held in county court, and four 2. Id. at 2. with written orders and researching newly and instructed that “certain judicial functions only when the hearings complied with public were held in district court. A good number 3. Id. arising legal issues, like how a pandemic a ects must be considered essential” and ordered that health orders. e decision to hold in-person of criminal cases were postponed, resulting 4. Administrative Order 20-102 (Mar. 20, 2020), https://www.courts.state.co.us/userfi les/fi le/ a criminal defendant’s speedy trial rights and the essential functions “may not be altogether hearings involved a balancing of e ciencies in a backlog that will need to be addressed Court_Probation/20th_Judicial_District/AdminOrders/3-20-20%20Admin%20Order%2020- 102%20PDF(1).pdf. whether the courts could require people to suspended, even where they cannot be provided and the interests of justice against public health post-pandemic. 5. Chief Justice letter to all Colorado attorneys (Apr. 27, 2020), https://www.courts.state.co.us/ appear remotely over objection. But they could remotely.”7 e essential functions included concerns and restrictions. And, whenever userfi les/fi le/Media/COVID/Message%20to%20Attorneys%20FINAL%20.pdf. not stop providing essential services. So, the things like protection orders and hearings, anyone indicated that they didn’t feel safe and Looking Ahead 6. Order Regarding COVID-19 and Operation of Colorado State Courts (Apr. 16, 2020), https:// www.courts.state.co.us/userfi les/fi le/Court_Probation/17th_Judicial_District/Chief%20Justice%20 judges and stakeholders quickly designed a bail hearings, probation revocation hearings, there was no countervailing reason to hold As we get further into 2021 with COVID still Order%20Regarding%20Court%20Operations%2C%202020-04-16.pdf. plan that was consistent with both the March plea hearings for incarcerated individuals, an in-person hearing, the county court judge with us, more matters may be placed on pause. 7. Updated Order Regarding COVID-19 and Operation of Colorado State Courts (May 5, 2020), 16 order and other jurisdictions. Chief Judge juvenile detention hearings, dependency and found the parties’ wishes to be a compelling Criminal trials will continue to be delayed https://www.courts.state.co.us/userfi les/fi le/Court_Probation/17th_Judicial_District/Chief%20 Justice%20Order%20Regarding%20Court%20Operations%2C%202020-05-05.pdf. Bakke issued a series of administrative orders neglect shelter hearings, and emergency mental reason to hold a virtual hearing. for a while. In part because of the backlog of 8. Id. to implement the plan. For example, on March health proceedings. e prohibition against Starting in June, most matters at both criminal cases, civil jury trials have been paused 9. Updated Order Regarding COVID-19 and Operation of Colorado State Courts (June 15, 2020), 20, she ordered the Longmont Courthouse summoning jurors was also extended to July the district and county courts began to be until July 19, 2021.10 And, as this uid situation https://www.courts.state.co.us/userfi les/fi le/Court_Probation/17th_Judicial_District/Adams/ Chief%20Justice%20Order%20Regarding%20Court%20Operations%2C%202020-06-15.pdf. closed and directed all its business to the 6, 2020.8 is deadline was extended again to addressed virtually. e county court, in part changes, the Boulder Chief Judge continues to 10. 20th Judicial District, Plan for Resuming Jury Trials Safely During COVID-19 Health Emergency Boulder Justice Center. Chief Judge Bakke also August 3, 2020.9 because of its larger numbers, frequency of work hard to keep Boulder County’s response (rev. Sept. 9, 2020), https://www.courts.state.co.us/userfi les/fi le/Court_Probation/20th_Judicial_ postponed all district court jury trials from unrepresented parties, and generally shorter consistent with the other jurisdictions in District/Jury%20Trial%20Resumption%20Plan%209-9-20.pdf. March 18 through May 15 and established who Unique Challenges hearing durations, continued to see a signi cant Colorado. could and could not enter the Justice Center.4 A host of issues caused or aggravated by the number of in-person appearances. In contrast, Despite these ever-changing conditions, the Additional statewide changes included pandemic created additional demands on most district court hearings were virtual. stakeholders have all been working together modifying court rules to safely reduce jail the courthouse. For example, there was an Uniform protocols and procedures for virtual remarkably well. In some circumstances, they populations, installing technology for virtual increased demand for protection orders and proceedings were developed and posted on have been required to pivot and redesign the audiovisual courtrooms, and waiving certain resolution of custody con icts arising from the courthouse webpage. courthouse operations within less than 24 colleen covell, j.d. probation standards to limit in-person contact. parenting disputes related to the health and Of course, the use of a virtual courtroom hours. Nevertheless, they continue to rally and tenacious. positive. knowledgeable. e Supreme Court also allowed law school safety of children. comes with its own challenges. People must work together to keep things moving. ey have graduates to practice law before taking the bar e demands on the designated county be able to access the virtual courtroom and, overcome many signi cant, unexpected, and examination and created a new remote solution court judge also did not slacken. Primarily even when they have access, connectivity issues everchanging challenges. And their collective to welcome new members of the profession because misdemeanors account for the largest can become a problem. Sharing exhibits can e orts are a testament to our judicial o cers, who passed the bar examination in February.5 portion of criminal cases, Boulder’s county also be a problem. e exhibits are supposed public servants, bar, and the very nature of the While short sta ed and working under the courts traditionally have the largest num- to be shared with everyone before the hearing community in which we practice. initial plans, the courts also needed to develop ber of people coming and going from their and, when that doesn’t happen, the court must We don’t know when things will return to balance the procedural interests against the plans for the longer term as hopes for a quick courtrooms. e county court also handles normal. But it’s clear that the women and men Meet Colleen, your local return to normal business faded. In the early small claims cases, name changes, civil trials, interests of justice. en there are the problems of the Boulder County Judicial System will days of the pandemic, the Boulder County judges replevins, and contempt of court actions. Many associated with displaying the exhibits during meet any future challenges with dedication, real estate broker who thinks prepared and scrapped numerous plans because of the functions performed by the county court the hearing. Even when it works, the process creativity, and elan. like you - because she’s an things were changing so quickly. A concern qualify as essential. erefore, the county court is cumbersome and slows the hearing. attorney, too. became whether, and how, the public could judge who was charged with handling all the Speedy trial rights presented another Trip DeMuth is a partner in the Boulder o ce of Faegre Biddle & Reath LLP, access the courts remotely. e judges and sta county court matters continued to have a large unique challenge. Unless there is good cause for where he focuses his practice on struggled with determining what technology press of business. a delay or the defendant agrees to an extension, construction litigation, commercial was needed to facilitate remote appearances Fortunately, the county court has an ex- everyone charged with a crime is entitled to a litigation, and white-collar crime. Previously, he was a prosecutor in the Boulder and, simultaneously, they were designing plans traordinary team of prosecutors and public trial within six months of their arraignment. [email protected] County District Attorney’s o ce. DeMuth is a for conducting business without knowing what defenders who worked together to reschedule e health concerns created by the pandemic long-standing member of the Boulder County 720.940.0046 access people had. As time passed, however, countless criminal cases. Hundreds of matters collided head-on with these constitutional and Bar Association’s Professionalism Committee— they found the problem was not as bad as were deferred between March and June. e statutory rights. Most defendants in Boulder [email protected]. they feared because technology was far more number of eviction proceedings was also waived their speedy trial rights and agreed available among the public than believed. reduced by the Centers for Disease Control to delay their cases. ose who did not got a *This material is based upon information that we consider reliable, but because it has been supplied by third parties, we cannot represent that it is accurate or complete. On April 16, Justice Coats issued a new and Prevention moratorium and orders from priority setting or, if it was determined that a ©MileHiModern All Rights Reserved | MileHiModern® is a licensed trademark | An Equal Opportunity Company | Equal Housing Opportunity statewide order. In it, he amended the previous Colorado’s Governor. trial could not be conducted safely, ndings

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e content of Lawyers’ Announcements is subject to approval and must meet criteria for this type of advertising. Lawyers’ Announcements are distinguishable from “display advertising.” Email [email protected] for information about display advertising in Colorado Lawyer.

General Submission of Content e Lawyers’ Announcements section is ■ Advertisers are responsible for the reserved to announce the following: editorial and graphic content of their LAWYERS’ ■ New members to a law rm or legal announcements. ANNOUNCEMENTS department ■ Digital les are preferred. DEADLINES ■ Name change of a law rm ■ Color les are now accepted. ■ Formation, merger, or new a liation of ■ Colorado Lawyer sta will no longer Truhlar and Truhlar, L.L.P. ISSUE DEADLINE law practice(s) and law-related associ- provide layout/design services. Employment, Civil Litigation, and Domestic Relations Attorneys ations ■ Submit les as press-quality PDFs January December 1 ■ Relocation of a law practice saved at 300 dpi resolution. February January 4 ■ Change in job status ■ Ads must be designed to the correct ■ Retirement of attorneys ad size. Ads sent in an incorrect size March February 1 Is pleased to announce its inclusion in Best Lawyers and Super Lawyers ■ Notices of professional appointment, are subject to refusal or misprinting. April March 1 honors, or awards May April 1 Payment Christine E. Breen Kaitlin I. Spittell Sizes and Cost ■ By check: payable to Colorado Bar June May 3 Super Lawyers Rising Star Super Lawyers Rising Star Quarter page vertical Association, mailed to Colorado July June 1 Best Lawyers Ones to Watch State Personnel Board ■ 3.75" wide x 4.25" tall Lawyer, Attn: CBA Accounting Dept., August/ ■ $250 CBA members; $350 nonmembers 1290 Broadway, Ste. 1700, Denver, July 1 Women's Lobby of Colorado Rulemaking Committee September CO 80203. Board Member Past Vice President of PELA Half page horizontal ■ By credit card: contact Jessica October September 1 ■ 7.75" wide x 4.25" tall Espinoza-Murillo at advertising@cobar. November October 1 ■ $400 CBA members; $525 nonmembers org. Robert J. Truhlar Doris B. Truhlar December November 1 Recognized in Best Lawyers Past President CWBA & ACBA Full page Questions? for 31 years straight Recipient CWBA Mary ■ 7.75" wide x 8.875" tall Contact Jessica Espinoza-Murillo at Announcements received past ■ $750 CBA members; $900 nonmembers [email protected]. Super Lawyers Lathrop Award deadline will be accommodated Spike as space permits. Payment must Past President of Colorado CO Attorney Regulation be received by deadline to secure placement. Bar Association Committee for 9 years 7340 E. Caley Ave., Centennial, CO 80111 www.TruhlarandTruhlar.com (303) 794-2404

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Judicial Arbiter Group is elated that retired Judge Gary M. Jackson has joined the distinguished arbiters at JAG

Judicial Arbiter Group is elated that retired Judge Gary M. Jackson has joined the distinguished arbiters at JAG

Focused on your future. Colorado’s Most Aggressive Innovative Advise. Strategize. Protect. Family Law Firm.

Minor & Brown, PC is pleased to announce that Sherap Tharchen is now a shareholder and director of the firm. Sherap’s practice focuses on Mergers & Acquisitions, Business Planning, Corporate Transactions, Intellectual Property, and Real Estate. Tia M. Zavaras Emily Warren Carolyn C. Witkus Erin A. Penrod Jon Eric Stuebner

Emily Warren, Tia M. Zavaras and Carolyn C. Witkus are proud to announce WZW Family Law. SHERAP THARCHEN We simplify complexity, optimize outcomes, and implement strategies [email protected] for lifelong success. Learn more at WZWFamilyLaw.com. 303-376-6024

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Focused on your future. Colorado’s Most Aggressive Innovative Advise. Strategize. Protect. Family Law Firm.

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is pleased to announce that Habib Nasrullah has joined the ﬁrm as a partner in the Trial Department.

His practice will continue to have an emphasis on commercial litigation, white-collar crime and criminal investigations, mass torts, and products liability.

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is pleased to announce that Habib Nasrullah has joined the ﬁrm as a partner in the Trial Department.

His practice will continue to have an emphasis on commercial litigation, white-collar crime and criminal investigations, mass torts, and products liability.

1550 17th Street, Suite 500 | Denver, CO 80202 dgslaw.com | 303.892.9400

Polidori, Franklin, Sharon L. Hansen March 31, 1950–February 2021 Monahan & Beattie, L.L.C. e Honorable Sharon L. Hansen passed away In Memoriam in February 2021. Judge Hansen was a longtime Polidori, Franklin, Monahan & Beattie, district court judge for Colorado’s 22nd Judicial District Court (Dolores and Montezuma coun- LLC is pleased to announce that ties), where she served as chief judge until her Natalie C. Simpson retirement from the bench in 2010. She was a has become a Partner of the graduate of Colorado State University and the University of Denver College of Law (JD ’77). firm. Marc A. Chorney Scott Merritt, Ph.D., and Hao Tran, D.D.S.; and October 30, 1951–June 14, 2020 three grandchildren, Alex Merritt, Elliott Tran, Ms. Simpson will continue to James A. Jablonski Marc A. Chorney passed and Avery Tran. November 12, 1942–December 23, 2020 focus her practice on all away on June 14, 2020, at James A. Jablonski passed away on December aspects of Family Law. age 68, from the effects of Michael Lance Glaser Sr. 23, 2020, following a short illness, with his wife longstanding Parkinson’s June 9, 1939–August 27, 2020 of 33 years, Kristen, and their daughters, Katie Disease. He was born in Michael Lance Glaser Sr. of Denver passed away and Lauren, at his side. Boston, Massachusetts, to peacefully on August 27, 2020, with family by Jim was born on November 12, 1942, in Esther and omas A. Chorney. He received his side. Sheboygan, Wisconsin. He graduated from his bachelor’s degree from the University Mike was born in Washington, D.C., on the University of Wisconsin and its law school, of Colorado, his law degree from Gonzaga June 9, 1939, to the late eodore and Margaret where he ranked near the top of his class and University, and an LL.M in taxation from the (Bielaski) Glaser. He graduated from Woodrow was honored as a member of its law review. 550 S. Wadsworth Boulevard | Suite 300 | Lakewood, Colorado 80226 | (303) 936-3300 | University of Denver. Wilson High School in Washington, D.C., where After clerking for a federal judge and practicing www.pfmlaw.com Marc was a senior partner of Chorney & he played varsity football and basketball. Mike for a short time in San Francisco, Jim joined Millard, LLP. Before retirement, he was of received his BA in economics from George the faculty of the Washington University of St. counsel to Wade Ash Woods Hill & Farley, Washington University in 1961. He married his Louis School of Law, where for four years he P.C. He was a Fellow of the American College wife, the late Catherine (Cathie) Mary (Connor) taught torts, contracts, and constitutional law. of Trust & Estate Counsel (ACTEC); his many on June 16, 1962, his soulmate for 53 years. In But being an expert skier, he couldn’t resist the contributions to the organization included 1965 he graduated with honors from George lure of Colorado’s mountains, and in 1976 he serving as chair of the Communications Com- Washington University School of Law. Mike moved to Colorado to join Gorsuch Kirgis in Would You Like mittee and editor of the ACTEC Journal. He was entered private practice in Washington, D.C., in Denver. After the rm disbanded in 2005, Jim also active in the American Bar Association’s 1966, initially concentrating in communications set upon a new career in patent and trademark Real Property, Probate, and Trust Section and law. He and his family moved to Colorado in law, and he became a nationally regarded expert served as acquisitions editor for the section’s 1983, where he continued to practice law until in that eld as well as a highly sought expert A SEAT ON Real Property and Probate Law Journal. his passing. Mike was a member of the Bars of the witness in patent litigation malpractice cases. Marc had a reputation, both nationally and District of Columbia, Maryland, and Colorado. He was quiet and modest about his work, but locally, for his knowledge and expertise about He was a recipient of the Albert Nelson Marquis he would regale his closest friends with stories OUR BOARD? the characterization of bene cial trust interests Lifetime Achievement Award. about some of the crazy and bizarre cases he in connection with dissolution of marriage Mike enjoyed spending time with his family took on from time to time (and won). Help shape the future of the CBA’s official publication by serving on theColorado proceedings. He was highly sought after as and traveling both domestically and abroad. Jim was not by any means all about work. Lawyer advisory board. To be eligible, you just need to be a CBA member who an expert witness, conducted numerous legal He is preceded in death by his brother In 1980 he met Kristen Johnson and he was enjoys reading and talking about Colorado Lawyer. If this sounds like you, please educational programs in the area, and wrote the Robert A. Glaser. He is survived by his loving smitten. Kristen left for New York to get her email your résumé to Susie Klein, managing editor, at [email protected]. The book on the subject, Trusts in Divorce Property children, Michael L. Glaser, Jr., Casey L. Glaser master’s degree at Columbia and stayed there application deadline is April 15. Board members meet quarterly, either in person Divisions, published by CLE in Colorado, Inc. (Marty Trevino), Shannon M. iesenhusen afterward, but Jim didn’t forget the woman Marc was a “lawyer’s lawyer” whose counsel (Craig), Timothy E. Glaser (Cyndi), and Regan who would be the love of his life. One day, out or virtually, and serve a three-year term. was sought by colleagues both near and far. M. Glaser-Hovasse (Charlie); his beautiful of the blue, he called her and invited her to go He is survived by his wife of 45 years, Linda grandchildren, Ryan and Shain Glaser and skiing—in Italy! She declined that invitation, Chorney; daughters, Anna Merritt, Ph.D., and Savannah and Cole Thiesenhusen; and his but Jim didn’t give up, and they were married Elizabeth Chorney, M.D.; two sons-in-law, brother Stephen A. Glaser (Kathy). on May 23, 1987. Along came daughters Katie

and Lauren, who meant the world to Jim, as did anyone who wanted to talk politics, law, or When Victor retired in 2019, the rm was life. Vic always endeavored to learn about the legal representation. He loved those he served Perth Amboy, New Jersey. Hers was a large his daughter Jennifer from a previous marriage, how to x one’s putting (short backstroke). To still representing clients that he had represented people he worked with and to nd at least one in his legal profession, and that legacy will live and loving extended Irish-Catholic family. her daughter (Jim’s grandchild) Laura Harris, no one’s surprise, he was wearing a golf shirt for over 60 years, including the University of point of connection that nearly always led to on. Vernon’s greatest service came through his She graduated from Woodbridge High School, and his brother John, who predeceased him. when he passed away in the Denver Hospice. Denver, which Victor started representing conversation, rapport, and lasting bonds of service to the Lord. He served in many callings College Misericordia, and the University of ey, in turn, loved him for his love of family As one of his friends put it, he’s now in a place in the 1950s and the firm itself had repre- friendship. For those of us who were fortunate within the Church of Jesus Christ of Latter-day Denver College of Law (JD ’88). and his ability to listen without bias and to where every drive is in the fairway, every putt sented for many years before that. In 2011, to have Vic in our lives, we are blessed to have Saints. Doris worked for the Ocean County Health provide guidance on life situations, realistically drops, the beer is free, and he doesn’t have to DU presented Victor a Distinguished Service learned something about the traditional practice Vernon was extremely active and had a great Department in New Jersey before moving to and without emotion, but with fairness and post his scores. Award in recognition of his long service to the of law, integrity, kindness, and authenticity from love of the outdoors. He always saw beauty Colorado in 1984 to pursue her law degree. understanding. Jim and Kristen were looking forward to university as its outside legal counsel. Despite a beautiful and gentle man.” everywhere! He absolutely loved y- shing, She happily remained in Colorado, where she In recent years Jim and Kristen enjoyed buying another home in Marfa, Texas, where his having graduated from CU, a portrait of riding his bike around Cherry Creek Reservoir practiced juvenile, government, and family law visiting Katie and her now husband Ricky Katie and Ricky are building a vineyard. Other Victor is prominently displayed at DU’s Sturm Vernon Kirk Sessions (13 miles per day), playing golf, and caddying in the Denver metropolitan area. (Patrick Taylor), who were attending Tulane than a hip that needed some touching up, he was College of Law. A short pro le of, and moving June 12, 1929–December 17, 2020 for his grandkids. Vernon took extra time and Doris loved the ocean (think Hawaii and University, and they became a cionados of in the peak of good health when on December tribute to, Victor lmed by DU as part of the Vernon Kirk Sessions, 91, care to teach his grandsons how to y sh so yes, New Jersey) and the Colorado mountain New Orleans’ famous Jazz fest and Trombone 3 he unexpectedly su ered a massive stroke. 2011 award ceremony may be viewed at https:// of Centennial passed away he would always have a shing companion. outdoor life. She particularly loved the peace of Shorty during those years. Meanwhile, they Fighter though he was, this was one ght he mediaspace.du.edu/media/2011+Founders+- peacefully on December Vernon also owned a small Piper Tri-Pacer y shing in a river, a passion that she developed equally enjoyed visiting Lauren, who first couldn’t win. We will miss his laugh, his brilliant Day%2C+Victor+Quinn/0_c97n0xb7 or https:// 17, 2020. He was born on airplane and loved to y. at her family home on the beautiful South attended and then became an adjunct professor mind, his goo ness, and his love of life. His was www.youtube.com/watch?v=CmpfoXVmcmY. June 12, 1929, in Byron, Wy- Vernon is survived by his wife of almost Branch of the Raritan River in Middle Valley, at Montana State University in Bozeman. Jim a life well lived. Victor also represented the Ili School of oming, a town settled by his 70 years, Evelyn Sessions; children Steven New Jersey. She was devoted to her many and Kristen were great travel partners and eology for many years, and served on its board great-grandparents. Vernon was the fourth of ve (Deborah) Sessions of Centennial, Colorado, rescued puppies—Cody, Bambi, Abbey, and especially loved visiting national parks and Victor C. Quinn of trustees for several years. In 1977, he was children born to Kirk and Pearl Lynn Sessions. and Melissa Jepperson of West Jordan, Utah; L. Her favorite city was Paris, France, which renting a beach house on Lake Michigan in November 2, 1931–February 13, 2021 elected a member of ACTEC, an invitation-only Vernon was a star athlete in high school, six grandchildren; and 13 great-grandchildren. she always mentioned as the most beautiful. the summer, where Jim would spend time Victor Quinn died peacefully organization of trust and estate practitioners. playing any sport he could but especially bas- ere was never a birthday, anksgiving, or with his Wisconsin buddies. Shortly before the at home on February 13, He was also a member of the National Associ- ketball and football. He loved music and had Roger Edward Stevens Christmas that Doris neglected to ensure were pandemic, the couple spent a wonderful two 2021, with Lynne, his wife ation of College and University Attorneys and the starring role in “Sunbonnet Sue” during his November 7, 1929–February 7, 2021 celebrated with family traditions and memories weeks in London and Paris visiting friends, of 68 years, at his side and the National Association of Public Pension senior year. He attended Powell Junior College Longtime Boulder attor- of those beloved who had passed. and they were looking forward to traveling to surrounded by family. Attorneys. From 1970 to 1971, he was chair of in Powell, Wyoming, before joining the US ney Roger E. Stevens passed Doris will be remembered as an extremely many new spots in their retirement. Kristen Born in Wetmore, Colo- the CBA Section of Corporation, Banking, and Navy in August 1948. He received an honorable away on February 7, 2021, at kind, loving, hardworking, and generous woman, owned a condo in Frisco, Colorado, and Jim rado, Victor lived in several Colorado towns Business Law. discharge in August 1952 after serving on three age 91. Stevens earned his law always compassionately devoted to the needs of and Kristen eventually purchased a second and in Deadwood, South Dakota, for a period Victor was as even-tempered a lawyer as one di erent ships and ghting in the Korean War. degree from the University of others, whether it be volunteering, advocating home there—perfect for him to be close to when he was young. The family eventually might nd, with a laid-back sense of humor. Vernon married the love of his life, Evelyn Colorado at Boulder (JD ’57) for the less fortunate, or helping to raise her his beloved ski hills, her to enjoy bridge with wound up in Idaho Springs and he graduated He no doubt honed that sense through his Jane Hyde, on May 6, 1951, on the Naval Destroy- and immediately went into private practice. In nieces and nephews. her Frisco friends, and the family to enjoy the from Idaho Springs High School. He received involvement with e Law Club in his earlier er Base in San Diego, California. With Evelyn by 1980, he opened up a general practice law rm Doris was predeceased by her parents and outdoors in winter and summer. both his undergraduate degree and his JD from years of practice. He was chair of the Law Club’s his side, he attended college and law school at with Andy Littman in a small house just up younger sister, Agnus. She leaves behind her But skiing was not his only getaway. In recent the University of Colorado at Boulder. membership committee from 1965 to 1966, its the University of Wyoming. Both Vernon and Boulder Canyon. e rm quickly established a sister Karin (Colorado) and brothers Kevin years Jim had become a wicked pickleballer. Still, Upon graduating from law school in 1955, secretary from 1968 to 1969, and president of Evelyn had a strong love of learning, which reputation in the Boulder community, ultimately (Philippines), Geo rey (Colorado), and Ray- his truest love, outside his family, was golf. His Victor became an associate with the firm the Law Club of Denver from 1970 to 1971 (a showed in how they raised their children. becoming Stevens, Littman, Biddison, arp mond (Vermont), as well as two nieces, ve buddies at Pinehurst Country Club would tell then known as Henry & Adams. He became long time to immerse oneself in frivolity while Vernon and Evelyn were blessed to be the & Weinberg, LLC, with a second o ce in Vail. nephews, 10 grandnieces, two grandnephews, you that he nally got his short game together a partner in 1961 and remained with the rm trying to earn a living practicing law!). He also parents of two daughters and one son. Sandra Stevens was predeceased by his wife Jane and many cousins. this year, and he will forever be a darned good until 2019. For many years, the name of the loved playing and watching sports, particularly Jayne Sessions was born four weeks before Ormsby Stevens, whom he married on February 14. Jim could be a bit absentminded on the rm was Cockrell, Quinn & Creighton (it is tennis. Victor often attended matches at Cherry Vernon was discharged from the Navy, and 7, 1977. He is survived by his ve children, Car- links, occasionally hitting the wrong ball, driving now known as Ho man Nies Dave & Meyer Creek High School near his home, and not too Steven Scott Sessions was born during Vernon’s oline, Paul, Josh, Wendy, and Sydney, as well as The In Memoriam section honors the his cart where it shouldn’t be, and getting so LLP). In the Henry & Adams days, many of many years ago, he went to Australia to watch time in law school. On July 29, 1962, tragedy many lovely grandchildren, great-grandchildren, lives and careers of recently deceased wrapped up in a conversation that his mates the downtown law rms, including Henry & the Australian Open and later to California to struck the family when they lost Sandra in an step-children, and step-grandchildren. CBA members. The CBA relies on cor- would have to say, “Jim, it’s your turn!” But Adams, o ced in the Equitable Building, and watch the Indian Wells Masters Tournament. accident. On May 10, 1966, Melissa Rea Sessions respondence from members for this his friends loved him, loved playing with him, at least some of the lawyers in that building ate Victor will be sorely missed by all who joined the family. Doris A. Waters information. To help us recognize as and especially loved taking a couple of bucks their lunches in the Holland & Hart conference knew him, especially those for whom he was a Vernon’s legacy includes love of the Lord, June 25, 1954–February 9, 2021 many members as possible, please send notices to Susie Klein at sklein@ o him in the 19th hole. ere, in the Bogie’s room. at practice reportedly ended when mentor and a model. As one of them remarked serving others, and joyfully living his life with Doris Waters, age 66, passed away on February cobar.org. This is a complimentary ser- grill, Jim could be seen with a copy of the Wall someone at Holland & Hart became irritated recently, “Vic was an impeccable person in every “no regrets.” As a trial attorney for 60 years, he 9, 2021, after a valiant 10-year battle with breast vice, and high-resolution photos are Street Journal, a plate of huevos rancheros, at the number of orange peels being left in the imaginable way. A stellar attorney, family man, was at home in the courtroom. Vernon was cancer. Doris was born to Raymond Francis welcomed. and an IPA, engrossed in conversation with conference room waste baskets after lunch. friend, storyteller, and both a lover and liver of always available to help those who needed and Doris Carroll Waters on June 25, 1954, in

Determining if Diversion is ■ practice mentor 251.33(d). If Regulation Counsel has reason to ■ a lawyer’s responsibility for another Appropriate ■ nancial audit believe the attorney has breached the diversion lawyer’s violation of the rules of professional Disciplinary Case Summaries for Regulation Counsel reviews the following factors ■ online Colorado lawyer’s self-assessment agreement, Regulation Counsel must follow conduct where the lawyer orders or, with to determine whether diversion is appropriate: program the steps provided in CRCP 251.13 before an knowledge of the speci c conduct, rati es Matters Resulting in Diversion and 1. the likelihood that the attorney will harm ■ restitution agreement can be revoked. the conduct involved, implicating Colo. the public during the period of participation; ■ payment of costs RPC 5.1; Private Admonition 2. whether Regulation Counsel can ■ mental health evaluation and treatment Types of Misconduct ■ committing a criminal act, implicating adequately supervise the conditions of ■ attend continuing legal education (CLE) e types of misconduct resulting in diversion Colo. RPC 8.4(b); and diversion; and courses during November 1, 2020 through January 31, ■ conduct prejudicial to the administration iversion is an alternative to discipline O ce of Attorney Regulation Counsel (OARC). 3. the likelihood of the attorney bene ting ■ any other conditions that would be 2021, generally involved the following: of justice, implicating Colo. RPC 8.4(d). (see CRCP 251.13). Pursuant to the ereafter, ARC or the PDJ must approve the by participation in the program. determined appropriate for the type of ■ lack of competence, implicating Colo. Some cases resulted from personal prob- rule and depending on the stage of agreement. Regulation Counsel will consider diversion misconduct. RPC 1.1; lems the attorney was experiencing at the the proceeding, Attorney Regulation From November 1, 2020 through January 31, only if the presumptive range of discipline in Note: e terms of a diversion agreement ■ neglect of a matter and/or failure to time of the misconduct. In those situations, DCounsel (Regulation Counsel), the Attorney 2021, at the intake stage, Regulation Counsel the particular matter is likely to result in a may not be detailed in this summary if the communicate, implicating Colo. RPC 1.3 the diversion agreements may include a Regulation Committee (ARC), the Presiding entered into four diversion agreements involving public censure or less. However, if the attorney terms are generally included within diversion and 1.4; requirement for a mental health evaluation Disciplinary Judge (PDJ), the hearing board, or four separate requests for investigation. ARC has been publicly disciplined in the last three agreements. ■ declining or terminating representation, and, if necessary, counseling to address the Supreme Court may o er diversion as an approved four diversion agreements involving years, the matter generally will not be diverted After the attorney successfully completes implicating Colo. RPC 1.16; the underlying problems of depression, alternative to discipline. For example, Regulation ve separate requests for investigation during under the rule, and other factors may preclude the requirements of the diversion agreement, ■ failure to comply with a court order or alcoholism, or other mental health issues Counsel can o er a diversion agreement when this time frame. ere were no diversion agree- Regulation Counsel from agreeing to diversion Regulation Counsel will close its le and the the rules of a tribunal, implicating Colo. that may be affecting the attorney’s ability the complaint is at the central intake level in the ments submitted to the PDJ for approval. (see CRCP 251.13(b)). matter will be expunged pursuant to CRCP RPC 3.4(c); to practice law.

Purpose of the Diversion Agreement

The purpose of a diversion agreement is to educate and rehabilitate the attorney so that

Strategic Appellate Advocacy he or she does not engage in such misconduct in the future. Further, the diversion agreement Colorado lawyer assistanCe Program may address some of the systemic problems

An appellate practice requires an attorney may be having. For example, if The Colorado Lawyer Assistance Program (COLAP) is an independent and strategic planning and an an attorney engaged in minor misconduct understanding of what will sway (neglect), and the reason for such conduct confidential program exclusively for judges, lawyers, and law students. appellate judges reviewing was poor office management, one of the Established by Colorado Supreme Court Rule 254, COLAP provides assistance with decisions of lower courts. conditions of diversion may be a law office practice management, work/life integration, stress/anger management, anxiety, management audit and/or practice monitor. depression, substance abuse, and any career challenge that interferes with the The time period for a diversion agreement Led by Gregg Rich, Coombe ability to be a productive member of the legal community. COLAP provides referrals for a wide variety Curry Rich & Jarvis offers generally is no less than one year and no greater than three years. of personal and professional issues, assistance with interventions, voluntary monitoring programs, outstanding practice and supportive relationships with peer volunteers, and educational programs (including ethics CLEs). industry knowledge with Conditions of the Diversion courtroom experience to provide Agreement clients with effective and e type of misconduct dictates the conditions specialized appellate advocacy. of the diversion agreement. Although each We would love to share our success stories, diversion agreement is factually unique and Contact us for advice and insight di erent from other agreements, many times but they are completely confidential. the requirements are similar. Generally, the on pursuing or defending your attorney is required to attend ethics school and/ appeal. or trust account school conducted by OARC For more information or for confidential assistance, please contact COLAP at 303-986-3345. attorneys. An attorney may also be required Visit our website at www.coloradolap.org. Gregg S. Rich | 303.572.4213 |www.ccrjlaw.com to ful ll any of the following conditions: ■ law o ce audit ■ practice monitor

Purpose of the Diversion Agreement

The purpose of a diversion agreement is to educate and rehabilitate the attorney so that

Strategic Appellate Advocacy he or she does not engage in such misconduct in the future. Further, the diversion agreement Colorado lawyer assistanCe Program may address some of the systemic problems

Diversion Agreements order against his wife. Respondent maintained to con icts of interest, complete the Colorado k In one client matter, respondent split evaluation by a mental health professional, Diversion Agreement: One-year diversion Below are summaries of some of the diver- no notes, no client le, no fee agreement, and lawyer’s self-assessment program, and pay the fee with another lawyer without obtaining who concluded that respondent does not agreement requiring respondent to attend sion agreements that Regulation Counsel no other documents that would allow him to costs. the client’s informed consent in writing. have a substance abuse disorder requiring ethics school; participate in the Colorado determined appropriate for speci c types of ascertain the scope of the work respondent Respondent also failed to respond to the monitoring or intervention. Respondent has Lawyers Helping Lawyers Program; attend an misconduct from November 1, 2020 through performed for the client. In 2019, the client’s Neglect of a Matter and/or Failure to client’s request for an accounting for about complied with the terms and conditions of OARC-approved anger management course; January 31, 2021. e sample gives a general wife engaged respondent to represent her Communicate six months (and after the client complained the criminal sentence and timely reported send an OARC-approved letter of apology; description of the misconduct, the Colorado in both a criminal case involving an alleged k Respondent engaged in conduct that to OARC). the conviction to OARC. meet with an approved psychologist, comply Rule(s) of Professional Conduct implicated, violation of the client’s civil protective order disregarded court orders, including related to In another client matter, respondent failed Rules Implicated: Colo. RPC 8.4(b). with the psychologist’s recommendations, and the corresponding conditions of the and a related civil permanent protection order the court’s case management order, discovery, to send the client invoices until about 10 Diversion Agreement: One-year diversion and certify that the meeting occurred; and diversion agreement. case led against her by the client. After the motions, and mediation. Respondent’s con- months after the representation ended. agreement requiring respondent to remain pay costs. client sought to disqualify respondent from duct contributed to a delay in the proceedings. Rules Implicated: Colo. RPC 1.4(a)(3), in compliance with the terms of the criminal Lack of Competence further representation of his wife in the civil Rules Implicated: Colo. RPC 1.3, 3.4(c), 1.15A(b), and 1.5(d). sentence, attend ethics school, and pay costs. k A client consulted with respondent in case, respondent withdrew from the criminal and 8.4(d). Diversion Agreement: One-year diversion 2018 regarding his desire to divorce his wife matter but continued to represent the client’s Diversion Agreement: One-year diversion agreement requiring respondent to attend k Respondent made threatening com- and secure custody of his minor children, as wife in the civil case. agreement requiring respondent to com- ethics school and pay costs. ments to one or more employees at a gov- well as an ongoing criminal investigation of Rules Implicated: Colo. RPC 1.1, 1.5(b), plete the Colorado lawyer’s self-assessment ernment agency call center in response to Summaries of diversion agreements and his wife. Respondent provided the client with 1.9, and 1.16A. program with peer review, complete four Criminal Act respondent or respondent’s family receiving private admonitions are published on legal advice about these matters, and the client Diversion Agreement: One-year diversion CLE hours (to include one ethics credit) at k Respondent pleaded guilty to oper- notifications of violations from the municipal- a quarterly basis. They are supplied by recalls that respondent also gave him legal agreement requiring respondent to attend a litigation-related program approved by ating a vehicle while under the influence of ity that respondent believed were erroneous. the Colorado Supreme Court O ce of advice about how to obtain a civil protection ethics school, complete CLE credits related OARC, and pay costs. alcohol with a blood alcohol level of 0.16 Rules Implicated: Colo. RPC 8.4(b), (d), Attorney Regulation Counsel. at the time of arrest. This was respondent’s and (h). k Respondent owns a criminal defense first alcohol-related offense. Respondent CBA ETHICS HOTLINE law firm. A client terminated respondent’s received a deferred sentence that included representation, and respondent mishandled 12 months of unsupervised probation, 48 CBA ETHICS HOTLINE the transition by failing to timely provide a hours of useful community service, Level II full accounting to the client as requested education, 52 hours of therapy, monitored and failing to return the client’s personal sobriety for six months, fines, and court A Service for Attorneys property for more than eight months after costs. Respondent timely reported the con- A Service for Attorneys terminating the representation. Respon- viction and has complied with the terms The CBA Ethics Hotline is a free resource for attorneys dent also failed to adequately supervise and conditions of the criminal sentence. At associates and staff to ensure that they OARC’s request, respondent underwent an Thewho CBA need Ethics immediate Hotline assistance is a free resource with an ethical for attorneys dilem- adequately communicated with clients and independent evaluation by a mental health The CBA has partnered with Affinity Consulting Group whoma or need question. immediate Inquiries assistance are handled with an byethical individual dilem- noted those communications, that earned professional, who concluded that respondent to bring you a year-round portal offering: fees were removed from the trust account in does not have a substance abuse disorder mamembers or question. of the CBA Inquiries Ethics are Committee. handled Attorneysby individual can a timely fashion, and that consistent policies requiring monitoring or intervention other Monthly webinars | Technology tutorials and resources Checklists, tech reviews and recommendations membersexpect to brieflyof the CBAdiscuss Ethics an ethicalCommittee. issue Attorneyswith a hotline can regarding application of fees were in place. than the terms and conditions dispensed in A fee dispute also arose regarding whether the criminal case. Ability to ask questions via cba community | Plus a whole lot more expectvolunteer to briefly and are discuss asked an to ethicaldo their issue own with research a hotline be- a benchmark in the flat fee agreement had Rules Implicated: Colo. RPC 8.4(b). been achieved, resulting in a condition Diversion Agreement: One-year diversion volunteerfore calling and the are hotline. asked to do their own research be- requiring fee arbitration. agreement requiring respondent to remain Visit cobar.org/mgmthq fore calling the hotline. Rules Implicated: Colo. RPC 1.4(a)(4), in compliance with the terms of the criminal To contact a hotline volunteer, 1.16(d), and 5.1(a). sentence, attend ethics school, have no further Diversion Agreement: One-year diversion violations, and pay costs. pleaseTo call contact the CBA a hotlineoffices volunteer,at 303-860-1115. agreement requiring respondent to attend please call the CBA offices at 303-860-1115. trust account school with respondent’s office k Respondent pleaded guilty to operating manager, attend ethics school, complete the a vehicle while ability impaired by alcohol and Colorado lawyer’s self-assessment program, reckless endangerment. This was respondent’s participate in fee arbitration through the CBA first alcohol-related criminal offense. Respon- (and comply with any arbitration award), dent refused breath and chemical testing at the and pay costs. time of the arrest but underwent a subsequent

reporting o cer that Halepaska did not hurt discipline in case number 19PDJ062. The e matter never went to arbitration, and the 30 days to be served and the remainder to be her. In April 2016, Halepaska pleaded guilty to suspension took e ect on September 1, 2019. client e ectively dropped the matter. Much later, stayed upon the successful completion of a the class 3 misdemeanor of harassment—shove/ In August 2016, a client hired Odle to rep- however, the opposing party moved to reopen two-year period of probation, with conditions. Disciplinary strike/kick—act of domestic violence, and he resent her in an ongoing civil contract dispute. the case. Because Odle was still his client’s e suspension was e ective March 2, 2021. received a deferred judgment with two years Odle’s fee agreement called for a $2,500 retainer counsel of record, he received the motion, but Pelloux contracted with the O ce of Respon- Case Summaries of supervised probation. Halepaska did not earned at $200 an hour. e fee agreement also he took no action. e court eventually ruled dent Parents’ Counsel (ORPC), an independent self-report the conviction because he was promised periodic statements, but Odle issued on the motion. Odle’s client was not aware of governmental agency of the Colorado Judicial wrongfully advised that he was not required his client only two invoices. Odle’s trust account the motion or the order until she learned about Branch, to represent parents in three Colorado No. 21PDJ004. People v. Conley. 1/27/2021. On October 22, 2020, the Supreme Court to do so. statements do not correspond to the invoices. For them through the disciplinary process. In May counties. Payment claims were submitted to Conditional Admission of Misconduct—Attorney of California entered an order suspending In a separate matter several years later, instance, Odle’s trust account had a $0 balance 2018, Odle moved to withdraw. He sent his ORPC through an online portal. Pelloux was Suspended. Edgar-Dickman from the practice of law for Halepaska relapsed for several months while in in September 1, 2016, but his invoice dated a client a copy of his withdrawal motion but did obligated by a chief justice directive to make e Presiding Disciplinary Judge approved one year, fully staying that suspension pending recovery from alcohol use disorder. At that time, few days later showed that he should have been not confer with her before he led it. her time records available to ORPC within 72 the parties’ conditional admission of miscon- compliance with a one-year period of probation, during one evening in August 2018, Halepaska holding $1,327 of his client’s retainer in trust. rough this conduct, Odle violated Colo. hours of a request. duct and suspended Jason R. Conley (attorney with conditions. The order was based on a exchanged a series of inappropriate texts with After unsuccessful settlement negotiations, the RPC 1.3 (a lawyer shall act with reasonable Between 2016 and 2018, Pelloux employed registration number 36743) for two years. e stipulation between the California State Bar and his 15-year-old niece. Halepaska says that parties agreed to engage in binding arbitration. diligence and promptness when representing a at various times between one and three associ- suspension took effect January 27, 2021. To Edgar-Dickman. e sanction was premised he was “black out” drunk when he sent his The client fired Odle for the purposes of the client); Colo. RPC 1.4(b) (a lawyer shall explain ates. e associates felt pressure from Pelloux be reinstated, Conley must prove by clear on Edgar-Dickman’s misconduct in (1) failing niece a text saying “that’s hot” in response to arbitration but agreed that he should stay on a matter so as to permit the client to make to increase billing, unnecessarily work on and convincing evidence that he has been to notify the State Bar of California that she a sel e she sent him. He then questioned her to transform the future arbitration award to a informed decisions regarding the representa- certain matters, and bill amounts that were rehabilitated, has complied with disciplinary employed a lawyer who had resigned with about her sex life, made other inappropriate judgment, essentially “unbundling” his services. tion); Colo. RPC 1.15A(a) (a lawyer shall hold greater than what was appropriate in ORPC orders and rules, and is t to practice law. disciplinary charges, (2) allowing that lawyer to inquiries, and asked, “Will you show me your Odle did not clearly communicate to his client client property separate from the lawyer’s own matters. Pelloux did not supervise her sta or In January 2021, Conley pleaded guilty to receive and handle client funds, and (3) ling a body?” e inappropriate text messages were whether he would charge her beyond what he property); and Colo. RPC 1.16(d) (a lawyer shall provide them proper guidance to ensure that introduction of contraband in the rst degree, a brief on appeal for an immigration client without limited to that one evening. ey came to light had already invoiced. He intended not to charge protect a client’s interests upon termination of the billing practices were consistent with her class 4 felony. On three occasions in 2020, Conley complying with the relevant legal authority. in October 2018, when his niece was asked about her anything beyond the $2,500 retainer, whereas the representation). ethical obligations. smuggled synthetic marijuana wax into the Mesa Through this conduct, Edgar-Dickman them while she was in the hospital recovering she believed he would not charge her anything in e case le is public per CRCP 251.31. When working with ORPC’s billing system, County Jail and provided it to his incarcerated engaged in conduct constituting grounds for from a suicide attempt. Halepaska pleaded guilty addition to what he had already invoiced. Odle Pelloux did not download all the information client. Conley did so because another inmate reciprocal discipline under CRCP 251.21, which to invasion of privacy for sexual grati cation, states that he told his client in phone calls that she No. 20PDJ008. People v. Pelloux. 2/9/2021. she had entered into the system. She did not had threatened to harm his client unless his calls for imposition of the same discipline as a class 1 extraordinary risk misdemeanor. had exhausted the $2,500 retainer. He maintains Conditional Admission of Misconduct—Attorney maintain copies of the documentation of time client could procure the marijuana wax. On a that imposed in California. He was sentenced to 10 days of non-jail time that he worked at his hourly rate of $200 to earn Suspended. that had been loaded in the ORPC billing system. fourth occasion, Conley gave his client a baggie e case le is public per CRCP 251.31. on a work crew and ve years of supervised the money remaining on the retainer, although e Presiding Disciplinary Judge approved After ORPC terminated Pelloux’s contract in that he thought contained marijuana wax but probation, including sobriety monitoring. He he kept poor records and did not track his time the parties’ conditional admission of misconduct March 2018, she lost access to ORPC’s billing actually contained methamphetamine. No. 20PDJ071. People v. Halepaska. 2/17/2021. has completed a psychosexual evaluation, or issue additional invoices. His client, however, and suspended Carolyn Vance Pelloux (attorney software and records. ORPC audited Pelloux’s Through this conduct, Conley violated Conditional Admission of Misconduct—Attorney which indicated that he is at very low risk of disputes knowing that the retainer was exhausted. registration number 29448) for one year, with billing information and requested her billing Colo. RPC 8.4(b) (a lawyer shall not commit Suspended. recidivism for sexually related o enses. a criminal act that reflects adversely on the e Presiding Disciplinary Judge approved rough this conduct, Halepaska violated lawyer’s honesty, trustworthiness, or tness the parties’ amended conditional admission of Colo. RPC 8.4(b) (it is professional misconduct as a lawyer in other respects). misconduct and suspended John D. Halepaska for a lawyer to commit a criminal act that re ects e case le is public per CRCP 251.31. (attorney registration number 28653) for one adversely on the lawyer’s honesty, trustworthi- year and one day, with nine months to be ness, or tness as a lawyer in other respects). No. 21PDJ003. People v. Edgar-Dickman. served and the remainder to be stayed upon e case le is public per CRCP 251.31. 1/22/2021. Conditional Admission of Miscon- the successful completion of a three-year period duct—Attorney Suspended. of probation, with conditions. e suspension No. 21PDJ007. People v. Odle. 2/16/2021. e Presiding Disciplinary Judge approved took e ect on February 17, 2021. Conditional Admission of Misconduct—Attorney the parties’ conditional admission of mis- In December 2015, Halepaska and his wife Suspended. conduct in this reciprocal discipline matter had an argument. His wife poked him in the chest e Presiding Disciplinary Judge approved and suspended Lisa Michelle Edgar-Dickman with her cell phone. He grabbed the phone and the parties’ amended conditional admission (attorney registration number 33095) for one tossed it over his shoulder, breaking it against of misconduct and suspended Robert Phillip year, all to be stayed upon her compliance the wall. Halepaska’s wife called the police. Odle (attorney registration number 18091) with the terms of probation in her California She allegedly reported a number of physical for six months, all stayed upon the successful disciplinary matter. e probation took e ect contacts, but she had no bruises or signs of completion of a three-year period of probation, January 22, 2021. injury, and she now asserts that she told the with conditions, to run concurrent to Odle’s

records in accordance with the chief justice the rm comply with the Rules of Professional to substitute a defendant who had died with the directive. Pelloux knowingly failed to provide all Conduct); and Colo. RPC 5.1 (b) (a lawyer defendant’s Florida estate. Opposing counsel her records to ORPC, and she did not maintain with direct supervisory authority over another and the personal representative of the estate all nancial records as required under Colo. lawyer shall make reasonable e orts to ensure consented to the substitution. Steichen led RPC 1.15D. ORPC disputed certain time entries that the other lawyer conforms to the Rules of the motion as unopposed, and he included a that Pelloux provided and requested that she Professional Conduct). proposed order directing the personal repre- return her active les. Pelloux admits that some e case le is public per CRCP 251.31. sentative of the estate to acknowledge that the time entries contained improper or inaccurate substitution satis ed Florida law for asserting a descriptions, and she recognizes that some No. 20PDJ058. People v. Steichen. 1/22/2021. claim against the estate. But the directive was billing mistakes resulted in overcharges to Conditional Admission of Misconduct—Attorney never discussed during conferral, and Steichen ORPC. Pelloux has agreed to return $20,000 to Suspended. did not circulate the motion and proposed order ORPC in settlement of the overbilling dispute. e Presiding Disciplinary Judge approved to opposing counsel before he led them. e Through this conduct, Pelloux violated the parties’ conditional admission of misconduct presiding court granted the motion, believing ’ Colo. RPC 1.5(a) (a lawyer shall not charge an and suspended Randall Robert Steichen (attor- it was unopposed. In a series of emails that unreasonable fee); Colo. RPC 1.15D (a lawyer ney registration number 12535) for six months, followed the court’s order, opposing counsel IT S shall maintain certain financial records for with 90 days to be served and the remainder to and the personal representative told Steichen seven years); Colo. RPC 3.4(c) (a lawyer shall be stayed upon the successful completion of a that they had not agreed to the directive in not knowingly disobey an obligation under the one-year period of probation, with conditions. the proposed order. Opposing counsel asked rules of a tribunal); Colo. RPC 5.1(a) (a partner e suspension took e ect February 26, 2021. Steichen to draft and submit to the court a shall ensure her rm implements measures Steichen brought a civil action on his client’s new order without the contested language. OUR giving reasonable assurance that all lawyers in behalf. During the litigation, he led a motion Steichen agreed but did not draft or submit a new proposed order, nor did he otherwise act WE CAN HELP. to correct the court record. Later, opposing DUI? counsel filed a motion to dismiss all claims against the defendant estate. In his response TURN to the motion, Steichen quoted the contested language in the order to substitute parties. He First responders and essential workers are on the front lines every day. NOW IT IS did not mention to the court or include the OUR TURN! The COVID-19 pandemic is unlike any challenge we have ever faced. email tra c demonstrating the personal rep- Coloradans need legal help to navigate these difficult times, but many are unable resentative’s or opposing counsel’s opposition to the proposed order. to afford it. Colorado attorneys can help. Through this conduct, Steichen violated Colo. RPC 3.3(a)(1) (a lawyer shall not knowingly The CBA, in partnership with the Colorado Attorney Mentoring Program, is Jay Tiftickjian make a false statement of material fact or law to connecting attorneys with Colorado’s well-established pro bono organizations a tribunal) and Colo. RPC 8.4(c) (a lawyer shall through CAMP’s Succession to Service portal. Attorneys can now use one website not engage in conduct involving dishonesty, to find their ideal pro bono opportunity. fraud, deceit, or misrepresentation). e case le is public per CRCP 251.31. Take Your Turn: Visit Succession to Service to find pro bono opportunities in the areas of greatest need. If you wish to help but are not familiar with areas of need, These summaries of disciplinary case mentoring, training and other resources are available. opinions and conditional admissions of JAY TIFTICKJIAN PEOPLE'S CHOICE BEST DUI LAWYER misconduct are prepared by the O ce of the Presiding Disciplinary Judge and are provided as a service by the CBA; the CBA cannot guarantee their successiontoservice.org accuracy or completeness. Full opinions are available on the Office of the 303-DUI-5280 | DUI5280.COM Presiding Disciplinary Judge website at www.coloradosupremecourt.com/PDJ/ Denver (303) 991-5896 PDJ_Decisions.asp.

82 | COLORADO LAWYER | APRIL 2021 FROM THE COURTS | OFFICE OF THE PRESIDING DISCIPLINARY JUDGE

82 | COLORADO LAWYER | APRIL 2021 FROM THE COURTS | US COURT OF APPEALS FOR THE TENTH CIRCUIT

Plainti argued on appeal that the econom- § 241. A jury convicted them on all counts. influence or retaliate against government The convictions and sentences were ic loss rule does not bar her claims, contending At sentencing, the district court applied the conduct. Therefore, the district court properly affirmed. that defendants had duties outside of the terrorism enhancement over defendants’ applied the terrorism enhancement. Summaries of contract with U.S. Bank. Under the economic objection and then varied downward from Defendant Wright raised arguments that No. 19-3240. Brooks v. Mentor Worldwide, loss rule, a plaintiff alleging an economic the range of life imprisonment. (1) the government engaged in prosecutorial LLC. 1/26/2021. D.Kan. Judge Carson. Federal Selected Opinions loss from a breach of contract lacks a cause Defendants argued on appeal that the misconduct, (2) the district court abused its Preemption—Medical Device Amendments to of action for a tort unless the defendant has method of petit jury selection violated the Jury discretion in determining the admissibility of Federal Food, Drugs, and Cosmetics Act—Plau- an underlying duty independent of the con- Act, contending that the trial court erred in not recordings as coconspirator statements, (3) the sibility Standard—Fed. R. Civ. P. 15 Amendment tractual duties. Here, plainti failed to show drawing jurors from the division where most district court erroneously denied his motion of Pleadings. the existence of duties outside of the contract. of the conduct took place. Here, defendants’ for judgment of acquittal on false statements Plaintiffs received MemoryGel breast No 20-1027. Mayotte v. U.S. Bank National to modify the loan, and U.S. Bank foreclosed. Further, plainti ’s argument that she had a Jury Act motions were procedurally defective charges, and (4) cumulative error demands implants. Soon thereafter they felt negative Ass’n. 1/22/2021. D.Colo. Judge Bacharach. Plaintiff brought several tort claims against special relationship with defendants to take because they were not filed within seven reversal. First, there was no evidence that the effects and suffered health problems. The Economic Loss Rule—Lender-Borrower Rela- U.S. Bank and Wells Fargo (collectively, the claims outside the ambit of the economic days of notice of the jury selection plan and government engaged in prosecutorial mis- implants were eventually removed, and tionship—Forfeited Claims. defendants), a statutory claim under the loss rule failed because Colorado law does were not supported by a sworn statement of conduct. Second, coconspirators statements this process revealed that the implants had Plaintiff sought modification of her mort- Colorado Consumer Protection Act (CCPA), not recognize a special relationship between facts. Further, even if defendants’ challenge were properly admitted under Fed. R. Evid. leaked. While some symptoms went away gage with U.S. Bank National Ass’n (U.S. and a claim for declaratory judgment. The lenders and borrowers. erefore, the district was not procedurally barred, it failed on the 801(d)(2)(E). Third, the jury’s verdict on the or diminished, other symptoms remained. Bank). She alleged that Wells Fargo Bank, district court granted defendants’ motion for court properly applied the economic loss rule. merits because the jury selection plan did false statements charges was supported by the Plainti s brought claims for failure to warn N.A. (Wells Fargo), the loan’s servicer, had summary judgment on all claims, relying on Plaintiff also argued that the economic loss not prevent the random selection of jurors. record, so the district court properly denied and manufacturing defects, sounding in ordi- agreed to modify her loan if she withheld both the economic loss rule and plaintiff’s rule didn’t apply to her CCPA or declaratory Defendants also argued that the district the motion for acquittal. Fourth, Wright failed nary negligence, negligence per se, and strict three payments. Plaintiff withheld three failure to present evidence of compensatory judgment claims, but she failed to make this court erred in not instructing the jury on an to establish the existence of multiple errors, liability. Plainti s alleged that defendant failed payments, but Wells Fargo denied agreeing damages. argument in district court or to urge plain entrapment defense. To raise a valid entrap- so reversal is not warranted. to properly conduct a range of post-market error review, so the Tenth Circuit did not ment defense, a defendant must show an consider it. evidentiary basis on which the jury could find Plainti further contended that even if the (1) government inducement of the crime, and Nominations now being accepted economic loss rule bars recovery for economic (2) a lack of predisposition on the defendant’s harm, she could still recover for non-economic part to engage in the criminal conduct. Here, for the Trust and Estate Section’s harm such as emotional distress. However, there was extensive evidence of defendants’ plaintiff failed to present any evidence of eagerness to enter into the conspiracy, and R. Sterling Ambler Award non-economic harm in response to defendants’ viewing this in the light most favorable to motion for summary judgment. defendants, the evidence presented at trial The summary judgment was affirmed. did not create a triable issue as to inducement. Accordingly, the district court did not err in Deadline April 30 Nos. 19-3030, 3034, & 3035. United States not offering an entrapment instruction. v. Stein. 1/25/2021. D.Kan. Judge Kelly. Defendants further contended that the is a joint activity of the Colorado Conspiracy to Use Weapons of Mass Destruc- district court erred in applying the terrorism Our Courts The Ambler Award is given to an individual who has made tion—Conspiracy to Violate Civil Rights—Jury enhancement at sentencing. They argued Judicial Institute and the Colorado Bar Association that substantial contributions to the law in Colorado, the education Selection Challenge—Entrapment Instruc- that because the enhancement significantly of others, and the CBA Trust and Estate Section. It is named tion—Terrorism Enhancement. increased their guidelines range, it should provides nonpartisan information programs to adult in honor of R. Sterling Ambler, an exceptional attorney who Defendants schemed to bomb a mosque have been subject to the clear and convincing and an apartment complex where a large standard of proof. Here, the enhancement audiences around the state to further public knowledge and practiced law in Colorado for over 50 years and who gave freely of his time number of Somali immigrants resided. They increased the guidelines’ range from 15 to 20 and expertise to individual lawyers, to the CBA and to the legal profession manufactured their own explosives and met years to life imprisonment, and defendants understanding of the state and federal courts in Colorado. until his death in 2004 at the age of 72. with an FBI undercover employee posing as received sentences ranging from 25 to 30 an arms dealer. Defendants were charged years. Such enhancement did not increase the Please email Katie Roberts at [email protected] for the application. with conspiring to use a weapon of mass sentence by such an extraordinary amount destruction against people and property to justify a higher standard of proof. Further, in violation of 18 USC § 2332a(a)(2) and the district court did not err in applying the Trust and Estate For more information or to schedule a presentation, visit Section knowingly and willfully conspiring to vio- enhancement under any standard of proof CBA late the civil rights of the residents of the because there was ample evidence demon- ourcourtscolorado.org. apartment complex in violation of 18 USC strating that the offenses were calculated to

approval studies as required by the US Food and No. 19-2161. United States v. Torres. was the vehicle that was illegally parked, so action because plaintiff was not the legal imprisonment to be followed by one year of v. Robinson, 62 F.3d 1282 (10th Cir. 1995), Drug Administration (FDA). e district court 2/8/2021. D.N.M. Judge Matheson. Fourth the tra c stop was permissible. Further, the administrator of England’s estate when she supervised release. which held that a prison sentence following granted defendant’s motion to dismiss based Amendment—Reasonable Suspicion—Probable o cers did not unreasonably extend the tra c filed her initial complaint. However, under As a threshold matter on appeal, because the revocation of supervised release, when on federal preemption and determined that, in Cause—Harmless Error. stop by questioning the passenger about her Oklahoma law, a decedent’s next of kin may defendant’s 10-month prison term expired in combined with the prison term for the crime of any event, plainti s failed to su ciently plead While police officers were surveilling a identity based on the smell of burnt marijuana, bring a wrongful death action even if that November 2019, the Tenth Circuit assessed conviction, may exceed the statutory maximum their claims. e court also determined that suspected drug tra cking site, an SUV ap- the passenger’s lack of identi cation, and her person has not yet been appointed a personal whether it had jurisdiction. Both defendant prison sentence for the crime of conviction. Missouri law rather than Kansas law applied proached the site and parked against tra c. evasive answers. And o cers had reasonable representative. and the government argued that even though Further, no intervening authority disturbs to the claims and denied plainti s’ request for A female passenger exited and returned about suspicion to believe defendant was armed and Defendants also argued that plainti failed the prison term was complete, defendant had Robinson’s holding as controlling precedent. leave to amend their complaint. a minute later, and the SUV was driven away. dangerous because they knew he had been to state a claim for the underlying deliberate not yet served the entirety of the one-year term e sentence was a rmed. On appeal, plainti s argued that the district An o cer stopped the vehicle and recognized convicted of murder, was recently shot by gang indi erence claims. Here, plainti plausibly of supervised release, so a favorable appellate court erred in granting the motion to dismiss the driver as a convicted murderer and the members, and had just driven a passenger to alleged that the JHCC sta was deliberately decision could potentially reduce the term for failure to state a claim. e parties did not recent victim of a gang-related shooting. As the an apartment where she tried to buy heroin. indi erent to England’s serious medical needs of supervised release. us, the appeal was These summaries of selected Tenth dispute that the Medical Device Amendments o cer approached the SUV, he smelled burnt erefore, the pat-down search did not violate when he presented with severe symptoms but not moot. Circuit opinions are written by licensed (MDA) to the Federal Food, Drug, and Cosmetics marijuana and observed the female passenger. the Fourth Amendment. Having reasonable was prescribed woefully inadequate treatment; On the merits, defendant argued that the attorney Robert Gunning (Boulder). Act (FDCA) applies to the breast implants. Under O cers obtained defendant’s identi cation, suspicion, the police lawfully conducted the they failed to follow ODOC procedures by district court imposed an illegal sentence fol- They are provided as a service by the CBA and are not the o cial language the MDA, to be approved, the FDA must nd but the passenger denied having identifying pat-down search, which led to discovery of not contacting emergency services; and they lowing the revocation of his supervised release of the court. The CBA cannot guarantee reasonable assurance of the device’s safety and information and provided a fake name. She the handgun. erefore, the perspective error coerced England to sign a waiver despite his because the 10-month imprisonment term, the accuracy or completeness of e ectiveness, weighing any probable bene t later provided officers her real name and was harmless, and the district court did not err physical symptoms. when aggregated with his prior 115-month the summaries. The full opinions are to health against any probable risk of injury or admitted that she had outstanding warrants, in denying defendant’s motion to suppress. Defendants further contended that plaintiff prison term, exceeds the 120-month statutory available on the CBA website and on the illness. e FDCA preempts any state tort claim had concealed marijuana in her bra, and e denial of the motion to suppress was failed to state a claim for supervisory liability maximum for his crime of conviction. However, Tenth Circuit Court of Appeals website. that exists solely by virtue of an FDCA violation, had tried to buy heroin after exiting the SUV. a rmed. for failing to implement/promulgate sufficient this argument is precluded by United States and Congress intended the MDA to be enforced Defendant then consented to a search of the policies to prevent the constitutional violation. exclusively by the federal government. us, a vehicle, and when defendant exited, o cers No. 20-6029. Smith v. Allbaugh. 2/10/2021. While prison staff may have failed to follow state tort claim may be predicated on conduct found a handgun during a pat-down search. W.D.Okla. Judge Kelly. 42 USC § 1983—Quali- procedures, plaintiff did not adequately allege that violates the FDCA but may not be brought Defendant was charged with being a felon in ed Immunity—Deliberate Indi erence—Plau- that defendants failed to enact or enforce the solely because that conduct violates the FDCA; possession of a handgun. He moved to suppress sibility Standard—Standing. policies, nor did she sufficiently plead that the conduct must also violate a parallel state evidence of the handgun and a magistrate judge England was a 21-year-old prisoner at the defendants improperly hired, supervised, law requirement. recommended denial of the motion. Defendant Joseph Harp Correctional Center (JHCC), an and retained certain medical staff employees. Here, the negligence per se and failure to objected to the recommendation, and the district Oklahoma Department of Corrections (ODOC) Plaintiff therefore failed to assert sufficient warn claims based on ordinary negligence court judge overruled most of the objections, facility. Over the course of a week, he submitted facts to support a causal link between de- and strict liability did not meet this narrow stating that he was viewing the facts in the light five sick calls, reporting severe abdominal fendants’ actions and the constitutional standard. Therefore, federal law preempted most favorable to the government. pain, breathing di culty, and elevated pulse violation. Accordingly, the district court erred these claims. Further, negligence per se pre- Defendant argued on appeal that the district rate. He had lost 12 pounds in less than two in denying the motion to dismiss on qualified mised on an MDA violation lacks viability court committed reversible error when making weeks. He was seen by the prison’s nurse and immunity grounds. under either Kansas or Missouri law. As to factual findings by improperly shifting the physician assistant (PA) but was not examined e denial of quali ed immunity for de- the ordinary negligence and strict liability burden of proof to him. Here, the district judge by the doctor. e nurse and PA prescribed fendants was reversed. claims for manufacturing defect, plaintiffs observed that the government had the ultimate laxatives, ibuprofen, brous foods, and Pepto failed to allege facts reflecting negligence in burden to show compliance with the Fourth Bismol. England died from a ruptured appendix No. 19-3217. United States v. Salazar. the manufacturing of the implants or that the Amendment, so he did not erroneously shift with acute peritonitis about a week after the 2/16/2021. D.Kan. Judge Moritz. Supervised implants were defective and thus did not state the burden to defendant. But the district court rst sick call. Release—Statutory Maximum Combined a plausible claim. Accordingly, the district erred in viewing the evidence in the light most Plainti led suit as next friend of England, Sentence—Mootness. court properly granted the motion to dismiss. favorable to the government. Because the factual her son, asserting 42 USC § 1983 claims against Defendant pleaded guilty to being a felon Plaintiffs also argued that the district court determinations on disputed factual matters various ODOC employees in addition to state in possession of a rearm and completed a erred in denying their request to amend the stemmed from the wrong perspective, the judge’s law claims. Allbaugh, then ODOC director, and 115-month prison term on that o ense. He complaint. Plaintiffs’ request consisted of one ndings on those matters were disregarded. prison warden Bear (collectively, defendants) then began a three-year period of supervised sentence at the end of their response to the However, if the pat-down search was led motions to dismiss on grounds of quali ed release. Soon thereafter, the district court motion to dismiss and was not a cognizable permissible under the undisputed facts, the immunity and challenged plainti ’s standing. revoked defendant’s term of supervised release motion. Therefore, the district court did not perspective error was harmless. Here, o cers e district court denied the motions. for violating its terms by committing battery abuse its discretion in denying the request. had probable cause that a parking violation On appeal, defendants argued that the and associating with a felon. The district The dismissal was affirmed. occurred and had no doubt that the SUV district court lacked jurisdiction over this court sentenced defendant to 10 months’

remembers nothing after that until she woke necessity and defense against multiple assail- continue probation and sentenced defendant 2021 COA 14. No. 18CA1879. People v. Marston. up with no pants on with defendant attempting ants. Although the stock jury instruction on to six years in the Department of Corrections Criminal Law—Driving While Ability Impaired— to have sex with her. Defendant claims he had self-defense was not su cient in this case, the pursuant to the plea agreement. Prior Convictions—Elements—Jury—Involuntary Summaries of consensual sex with C.A. and when she told supplemental instruction cured any de ciency On appeal, defendant contended that the Statements—Shreck Hearing—Horizontal Gaze him she didn’t want to have sex again, he left. by adequately informing the jury that it must sentencing court erred by nding that it lacked Nystagmus Test—Expert Witness. Defendant was charged with two counts of consider the reasonableness of defendant’s the discretion to impose a sentence other J.P. observed defendant’s truck straddling Published Opinions sexual assault. e trial court denied defense beliefs and actions under the totality of the than the suspended sentence, upon nding a lanes and speeding up and slowing down errati- counsel’s challenge for cause as to Juror S, circumstances. Accordingly, the trial court probation violation. A sentencing court, after cally. J.P. called 911 to report his observations and and a jury found defendant guilty of sexual did not err by declining to give the proposed accepting a plea agreement and imposing followed the truck to a 7-Eleven. After defendant assault—victim incapable of appraising conduct. self-defense instructions. a suspended prison sentence conditioned went into the store, J.P approached a sheri ’s On appeal, defendant contended that the Defendant also argued that the trial court on the successful completion of probation, deputy who had just pulled into the parking February 4, 2021 or emotional harm. Absent uncertainty about trial court erroneously denied his challenge for should not have given an instruction on the has discretion to continue probation, revoke lot. J.P. told the deputy what he had seen, and the statute’s scope, CRS § 18-3-203(1)(h) is cause to Juror S. Juror S had disclosed on her initial aggressor or provocation exceptions to probation, or impose any sentence that it might the deputy approached defendant. e deputy 2021 COA 10. No. 18CA0481. People v. not likely to invite arbitrary or discriminatory questionnaire that she was molested by a family defendant’s self-defense. In the alternative, originally have imposed. Further, in those noticed that defendant’s eyes were red and Plemmons. Criminal Law—Constitutional enforcement and is thus not unconstitutionally member when she was young and her father had defendant argued that the court should have circumstances, a sentencing court’s decision watery, he smelled of alcohol, and his speech was Law—Due Process—Vagueness—Second Degree vague on its face. not believed her allegation. After lengthy voir instructed the jury that they must unanimously not to impose a suspended sentence does not “thick-tongued.” Defendant made inconsistent Assault—Exclusionary Rule. Defendant also contended that the evidence dire by defense counsel, the prosecution, and agree on which exception, if either, was ap- breach the parties’ plea agreement. Accordingly, statements about whether he had driven to the Two deputies went to defendant’s home to was insu cient to prove beyond a reasonable the judge, Juror S was still unsure of her ability plicable. Here, there was su cient evidence the sentencing court erred. store or his girlfriend had driven him there and conduct a welfare check. When the deputies doubt that she intended to harm the deputies by to be a fair and impartial juror. e trial court that defendant may have initiated the physical e sentence was vacated and the case was told the o cer that he had consumed several entered the house, defendant, who was visibly spitting in their faces while still inside the house. found that Juror S could hold the prosecution con ict by using or threatening the imminent use remanded for resentencing on the probation mixed drinks the night before. Another deputy drunk, berated them and spat in both of their However, defendant admittedly intentionally to its burden of proof and concluded that she of unlawful physical force, so the initial aggressor violation. arrived and administered roadside eld sobriety faces. Defendant also spat on one deputy again spat at both deputies multiple times during the should not be removed unless she would credit instruction was warranted. Further, defendant’s while being transported in the patrol car to a encounter and conceded that she yelled at them the victim no matter what the rest of the evidence statement “If you want to [expletive] with me, try medical center. Defendant was charged with and used demeaning language. Accordingly, established. However, a prospective juror does it” could have been interpreted as a warning or two counts of second degree assault under su cient evidence supported the convictions not need to unequivocally state her partiality invitation provoking an attack. erefore, there CRS § 18-3-203(1)(h) for the spitting incidents under CRS § 18-3-203(1)(h). for one side to be deemed un t to serve on a was su cient evidence to instruct the jury on the Professionalism inside the house and one count of second degree Defendant also argued that all of her con- jury. Accordingly, the court erred in denying provocation exception. Finally, the exceptions assault under CRS § 18-3-203(1)(f.5) for spitting victions should be reversed because the trial the challenge for cause. are not mutually exclusive, and jury unanimity in the patrol car. Before trial, defendant led a court erroneously instructed the jury on the e conviction was reversed and the case is not required with respect to alternate means Matters motion to suppress the statements and evidence de nition of “harm.” However, the instruction was remanded for a new trial. of satisfying an element of an o ense. us, the Enjoy some good, bad and ugly attorney behavior the police acquired when they entered her was not erroneous in any respect. trial court did not err. and earn 1 ethics credit in the process! home without a warrant. e trial court denied Lastly, defendant argued that the court erred 2021 COA 12. No. 17CA1396. People v. e judgment of conviction was a rmed. the motion without an evidentiary hearing. by not holding an evidentiary hearing on her Roberts-Bicking. Criminal Law—Jury In- The Professionalism Defendant was found guilty of all counts. motion to suppress. Whether or not the deputies structions—Self-Defense—A rmative Defense 2021 COA 13. No. 18CA1360. People v. Propst. Coordinating Council On appeal, defendant contended that entered the house lawfully, it was uncontested Exception—Apparent Necessity—Defense Against Criminal Law—Sentencing—Probation—Plea offers entertaining and engaging her two convictions under CRS § 18-3-203(1) that defendant committed a new criminal act Multiple Assailants—Initial Aggressor—Provo- Agreement—Revocation—Resentencing. vignettes that illustrate negative (h) should be reversed because the statute is after o cers were inside. erefore, a fact-in- cation—Unanimity. e State charged defendant with one count and positive attorney behavior. unconstitutionally vague, both facially and as tensive hearing was unnecessary. e trial court Defendant had an altercation with the of second degree assault and six counts of You can preview the vignettes at applied to her. Under § 18-3-203(1)(h), a person correctly decided that the criminal act was victim and the victim’s brother. Defendant shot child abuse. The prosecutor and defendant cobar.org/professionalismvideos. commits second degree assault by spitting on su ciently attenuated from any unlawful entry the victim six times with a pistol and injured negotiated a plea agreement allowing de- a peace o cer with “intent to infect, injure, to render the exclusionary rule inapplicable. him, and he hit the victim’s brother over the fendant to plead guilty to the assault charge The Council’s speaker panel is also or harm.” Colorado law clearly proscribes e judgment was a rmed. head with the pistol. The issue at trial was in exchange for dismissal of the remaining available to discuss professionalism intentionally spitting in a police o cer’s face whether defendant acted in self-defense. e charges. e parties also agreed to a suspended matters with attorneys at local and with malign intent, so defendant’s as-applied February 11, 2021 jury acquitted defendant of attempted first prison sentence conditioned on defendant’s specialty bar associations, sections, challenge failed. Further, while the term “harm” degree murder but convicted him of attempted successful completion of probation. e court committees, law firms and other is ambiguous and could be broadly construed, 2021 COA 11. No. 16CA2200. People v. Blass- second degree murder and rst degree assault accepted the agreement. Defendant thereafter attorney gatherings. the trial court su ciently narrowed the statute, ingame. Criminal Law—Jury Trial—Challenge and menacing. missed her probation intake appointment, and consistent with legislative intent, to apply for Cause. On appeal, defendant contended that the the probation department led a complaint Contact Katie Null at [email protected] to a person who exposes an o cer to bodily Defendant and C.A. attended the same party. trial court reversibly erred in rejecting pro- recommending revocation of probation. e or 303-860-1115 to schedule a program. uids with the intent to cause psychological C.A. alleges that she took shots of alcohol and posed self-defense instructions on apparent court believed it did not have discretion to

tests, including the horizontal gaze nystagmus been suppressed because they were involuntary. defendant independent of the HGN test results. ably refused to defend the insured or to settle On appeal, husband argued that the district expenses and debts or other required statutory (HGN) test. Defendant failed the roadside tests Defendant asserted that his statements were erefore, the court did not abuse its discretion the claim within policy limits. And whether an court lacked authority to award retroactive factors. and was arrested. Defendant was originally coerced because more than one deputy was in denying defendant’s request for a Shreck insurer has acted unreasonably is a question temporary maintenance. However, the legis- e award of retroactive temporary mainte- charged with driving under the in uence (DUI) present, the two deputies stood close to him, hearing or admitting the evidence at trial. of fact. Here, whether State Farm appeared to lature’s 2014 reenactment of the maintenance nance was reversed and the case was remanded and driving under restraint. He went to trial on the encounter lasted 20 to 30 minutes, he wasn’t e judgment was reversed and the case have acted unreasonably in denying Goddard’s statute gave broad authority to the district for additional ndings. the DUI charge and a jury convicted him of the given a Miranda advisement, and he wasn’t was remanded for proceedings consistent with policy-limits settlement o er and, consequently, court to award temporary maintenance in its lesser included driving while ability impaired free to leave. However, based on the totality of this opinion. whether Griggs breached the insurance contract discretion, including retroactively. Further, the 2021 COA 17. No. 19CA2234. Tug Hill Marcellus (DWAI) o ense. e court then determined that the circumstances, these facts don’t constitute by entering into the assignment agreement record supports the court’s determination that LLC v. BKV Chelsea LLC. Colorado Revised defendant had at least three prior alcohol-related coercion. erefore, defendant’s will wasn’t 2021 COA 15. No. 19CA1108. State Farm were questions of fact to be determined by the wife could not meet her reasonable needs as Uniform Arbitration Act—Consolidation of driving convictions and sentenced him for overborne by coercive police conduct and his Mutual Automobile Insurance Co. v. Goddard. jury. Further, the relevant facts were vigorously established during the marriage and an award Arbitration Proceedings—Appeals. felony DWAI. statements were voluntary. Insurance Bad Faith—Directed Verdict—Breach disputed at trial, and a jury found in State Farm’s of retroactive temporary maintenance was Tug Hill Marcellus LLC, Radler 2000 LP, On appeal, defendant contended that the Defendant also argued that the district court of Contract—Collusion—Irrelevant or Prejudicial favor. erefore, the district court did not err in appropriate. and Chief Exploration & Development LLC district court erred by nding that he had at least erred by refusing to hold a Shreck hearing on the Evidence. denying the directed verdict motion. Husband also argued that the district court (collectively, Sellers) entered into substantially three prior alcohol-related driving convictions science, reliability, and margin of error of the State Farm Mutual Automobile Insurance Goddard further contended that it was error did not make sufficient findings under CRS similar agreements with BKV Chelsea LLC (BKV) by a preponderance of the evidence rather HGN test and the deputy’s expertise on those Co. (State Farm) insured Griggs under an auto to deny her motion for a directed verdict on State § 14-10-114(3) or (4) to support its award of for the sale of interests in oil, gas, and mineral than submitting the issue to the jury for it to issues. Evidence of HGN test results is admissible insurance policy (the policy). Griggs injured Farm’s collusion a rmative defense because $12,000 per month. While the district court leases and related assets. The agreements decide beyond a reasonable doubt. Defendant’s as evidence of impairment if o ered through Goddard and two others in a four-vehicle ac- the evidence was insu cient to allow the jury made certain required statutory findings, it included identical arbitration provisions. BKV prior convictions are elements of the crime, so a quali ed expert witness. Here, the deputy cident. Goddard and the other injured persons to consider it. Even if this was error, any such made insu cient ndings on wife’s reasonable alleged that Sellers breached their agreements reversal is required. was su ciently quali ed to testify about the each made a claim under the policy. State Farm error was harmless, because the jury found that nancial needs and whether $12,000 per month and served each Seller with a separate demand Defendant also contended that his state- administration and interpretation of the test, made an o er to settle Goddard’s claim, but Goddard had not proved her counterclaim for would meet those needs, and it did not make for arbitration. Sellers proposed that the arbi- ments to the deputy at the scene should have and there was overwhelming evidence against Goddard did not respond. State Farm settled bad faith breach of insurance contract and thus ndings related to husband’s payment of shared tration proceedings be consolidated, but BKV with the other injured persons. did not reach the merits of the collusion defense. In the meantime, Goddard sued Griggs. State Lastly, Goddard argued that the district Farm did not learn of the lawsuit until after its court erred by admitting her attorney fees agree- settlement o er. State Farm hired an attorney ment because it was irrelevant and prejudicial. to defend Griggs against Goddard’s claims. However, the fee agreement was relevant to the PEER Griggs and Goddard entered into an agreement causation element of Goddard’s counterclaim P whereby Griggs admitted liability, agreed to have for bad faith breach of insurance contract and to PROFESSIONALISM Goddard’s damages determined in arbitration, State Farm’s collusion a rmative defense, and P and assigned any claims he might have against it was not unfairly prejudicial. Accordingly, the A ASSISTANCE webinars State Farm to Goddard (the agreement). An court did not abuse its discretion in admitting it. arbitrator entered an award against Griggs Further, there was no evidence in the record that for $837,193.36. After arbitration, State Farm other similar rm agreements were admitted, Free to CBA Members from Noon to 1 p.m. sued Griggs seeking a declaration that Griggs and to the extent Goddard contended that the Are you troubled by rude and breached his insurance contract by entering into district court erred by admitting one witness’s unprofessional attorneys? Outlook To Go the agreement with Goddard. Goddard brought testimony about assignment agreements from a bad faith counterclaim against State Farm. A another case, she did not preserve the issue. April 6 jury returned a verdict in favor of State Farm. e judgment was a rmed. Presented by Jeff Schoenberger Call Peer Professional Assistance for On appeal, Goddard argued that the district FREE one-on-one intervention. Hardhat Time: court erred by denying her motion for directed 2021 COA 16. No. 19CA2136. In re the Marriage verdict on State Farm’s breach of contract claim of Herold and Callison. Family Law—Retroac- PPA has been sponsored by the “Mining” Large Data Sets in Excel because the claim raised exclusively legal tive Temporary Spousal Maintenance. Denver Bar Association since 1994. April 20 questions and it failed on the facts. Whether there Husband and wife were common law Presented by Danielle DavisRoe has been a breach of contract is a question of fact married for over 30 years. Wife petitioned for Call 303-860-1115, ext. 1, for more information. to be determined by a jury, absent undisputed divorce, and the district court issued temporary evidence that compels a jury to nd one way orders awarding temporary maintenance to All inquiries are confidential. or the other. Before an insured is justi ed in wife of $12,000 per month retroactive to the stipulating to a judgment and assigning its claims commencement of the parties’ dissolution Visit cobar.org/lpm against its insurer to a third-party claimant, it proceeding. is resulted in husband owing must rst appear that the insurer has unreason- $144,000 in arrearages.

90 | COLORADO LAWYER | APRIL 2021 APRIL 2021 | COLORADO LAWYER | 91 FROM THE COURTS | COLORADO COURT OF APPEALS refused. Sellers petitioned the district court to record demonstrates that T.M. could properly defendant indicated that he was not suicidal, and of a peace o cer was a rmed. e conviction brought to the court’s attention, defense counsel defendant’s evasive and obstreperous conduct consolidate the three arbitration proceedings. answer questions about various facets of her the deputies tried to place him under arrest on for resisting arrest was vacated and the case never requested a remedy, and the trial court during the traffic stop that occurred shortly The district court entered an order denying life and that she did so in age-appropriate the outstanding warrant. Defendant ran from the was remanded for correction of the mittimus. wasn’t presented with any speci c objection after the burglary, and at a time when the fruits Sellers’ petition on grounds that the agreements’ language. Accordingly, the trial court didn’t deputies and then physically fought with them to rule on. erefore, defense counsel did not of that burglary were in the vehicle’s trunk, arbitration provisions did not indicate that BKV abuse its discretion by nding T.M. competent until they restrained and took him into custody. 2021 COA 20. No. 19CA1916. Fogel v. Emmett. preserve the issue for appeal. Further, counsel’s was probative of defendant’s consciousness had consented in advance to consolidate the to testify at trial. A jury convicted defendant of second degree Subpoena—Tender of Mileage Fee—Civil Pro- failure to request relief for the known defect of a of guilt. erefore, the court didn’t abuse its separate arbitration proceedings. Defendant also argued that the trial court assault on a peace o cer, resisting arrest, and cedure. sleeping juror constituted a waiver of the right discretion in admitting the o cer’s testimony Sellers appealed, and BKV moved to dismiss violated his confrontation rights when it allowed obstructing a peace o cer. Plainti ’s attorney issued a subpoena re- to a jury of 12, so the Court of Appeals did not about defendant’s conduct during the tra c for lack of jurisdiction. Under CRS § 13-22- T.M. to have a court facility dog at her feet while On appeal, defendant contended that the quiring Fogel to appear in court to testify, and consider the merits of his argument. stop. Finding no evidentiary error, the Court 228(1), a party may only appeal two types of she testi ed during trial. However, defendant’s trial court erred by declining to instruct the jury a process server claimed that he served the Defendant also contended that the trial rejected defendant’s further contention that arbitration-related court orders entered before right to confrontation doesn’t include a right to on self-defense as to his second degree assault subpoena on Fogel at his home. After Fogel court made two evidentiary errors warranting there was cumulative error. an arbitrator enters an award—an order denying impose discomfort on an accusing witness, and on a peace o cer charge. Because defendant failed to appear in court on the date and time reversal by (1) admitting three photos of him Defendant further argued that the trial court a motion to compel arbitration, and an order the trial court’s ndings that all confrontation denied committing second degree assault, he specified, the trial court issued a contempt taken while he was in custody, and (2) allowing erred by aggravating his sentence because only granting a motion to stay arbitration. An order requirements were met is supported by the was not entitled to receive an a rmative defense citation and scheduled a contempt hearing. an officer to testify regarding his behavior a jury may properly nd facts that aggravate denying a motion to consolidate separate arbi- record. Accordingly, the trial court didn’t abuse instruction as to that charge. At the hearing, Fogel’s counsel argued, in part, during the traffic stop that precipitated his a sentence. However, a court may aggravate tration proceedings is not appealable because its discretion by allowing T.M. to testify with the Defendant also contended that the trial court that there was no evidence the process server arrest. First, because defendant’s identity was a sentence based on a judge-found fact that it is not one of the listed pre-award orders. court facility dog at her feet. erred by denying his motion for a mistrial based tendered a check for the required mileage fee, so a contested issue at trial and his appearance a defendant has a prior conviction or was on Further, contrary to Sellers’ argument, the Defendant further argued that the trial court on alleged prosecutorial misconduct. Here, the subpoena was not properly served. e trial had changed substantially since his arrest, the probation at the time of the crime. Here, the district court’s order is not an appealable nal erred by admitting portions of a therapist’s the prosecutor asked Deputy Martinez: “Was court found Fogel in contempt and sentenced court’s admission of three photos of defendant court found that defendant was on felony judgment. Accordingly, the Court of Appeals expert testimony that he contends improperly there any indication to you that there was illegal him to 30 days in the county jail. taken while he was in custody with the jail probation when he committed the crime in this lacked jurisdiction to hear the appeal. bolstered T.M.’s testimony. Here, the prosecutor’s narcotics—” at which point defense counsel On appeal, Fogel argued that the trial court clothing cropped out of the photos was not an case. erefore, there was no error. e appeal was dismissed. use of a hypothetical was too closely tailored to objected, the judge sustained the objection, and erred by ruling that a subpoena can be validly abuse of discretion. Second, the evidence of e conviction and sentence were a rmed. the facts of the case and was thus improper, but the court instructed the jury to disregard the served when the witness is not provided the February 18, 2021 the therapist’s answer conformed to the rules question. Although the question was improper, required mileage fee. CRCP 45(b)(3) states guiding expert testimony. The prosecutor’s the possible prejudice to defendant was not that a witness being served with a subpoena 2021 COA 18. No. 16CA2170. People v. Collins. questions regarding a child’s sophistication to lie substantial enough to warrant a mistrial. may be tendered the required mileage fee Financial Assistance for Colorado Lawyers Criminal Law—Sexual Assault on a Child—Tes- about having been sexually assaulted were also Defendant also argued that the trial court “within a reasonable time after the service of timony—Court Facility Dog—Confrontation improper, but the error was harmless because violated his right to a unanimous verdict as to the subpoena, but in any event prior to the Clause—Expert Testimony. the testimony didn’t substantially in uence the the charges of resisting arrest and obstruction. appearance date.” Here, the record is unclear Defendant sexually abused T.M. when she verdict or a ect the fairness of the proceedings. The unit of prosecution for resisting arrest as to whether plainti tendered the mileage fee was between the ages of 3 and 5. A jury found e Court of Appeals agreed with defendant’s and obstruction of a peace o cer is de ned to Fogel within a reasonable time after service WATERMAN defendant guilty of sexual assault on a child and argument that the mittimus must be amended in terms of discrete volitional acts, not by the of the subpoena. sexual assault on a child by one in a position to re ect the crime of conviction. number of officers involved. Therefore, the e order was reversed and the case was Fund of trust. e judgment and sentence were a rmed jury was not required to unanimously agree remanded for a finding of whether plaintiff On appeal, defendant contended that the and the case was remanded for correction of that defendant had resisted arrest from or tendered the required mileage fee in accordance Provides financial assistance for “aged, infirm, court abused its discretion by allowing T.M. the mittimus. obstructed a particular peace o cer, only that with CRCP 45(b)(3). or otherwise incapacitated lawyers who have to testify. He argued that (1) the trial court he had resisted arrest from or obstructed any erroneously considered previously recorded 2021 COA 19. No. 18CA0598. People v. Snider. o cer. Accordingly, there was no violation of February 25, 2021 practiced in Colorado for a minimum of ten years.” forensic interviews of T.M. while assessing Criminal Law—Second Degree Assault on a defendant’s rights. Lastly, defendant argued that the trial court her competence, and (2) the court’s factual Peace O cer—Resisting Arrest—Obstruction— 2021 COA 21. No. 16CA0441. People v. Denver Bar Association Waterman Fund ndings regarding T.M.’s competence aren’t Jury Instructions—Self-Defense—A rmative violated his double jeopardy rights because Forgette. Criminal Law—Jury—Waiver—Ev- supported by the record. e court conducted Defense—Evidence—Prosecutorial Miscon- resisting arrest is a lesser included o ense of idence—Identity. 1290 Broadway, Ste. 1700 | Denver, CO 80203 | 303-824-5319 a competency hearing for T.M., who was then duct—Mistrial—Unanimous Verdict—Unit of second degree assault on a peace o cer, and A jury convicted defendant of second degree 6 years old. When a challenge to competence Prosecution—Double Jeopardy—Lesser Included the trial court erred by failing to merge these burglary of a dwelling. e trial court sentenced is based on a witness’s youth or immaturity, a O e n s e . convictions. e Court of Appeals examined the him to 12 years in the custody of the Department demonstration of competence earlier is rele- Two deputies were dispatched to defendant’s o enses and concluded that resisting arrest is a of Corrections. vant. Here, the recordings of interviews of T.M. home for a well-being check in response to a report lesser included o ense of second degree assault On appeal, defendant argued that his convic- from 2013 and 2014 bear directly on whether that defendant was threatening to harm himself on a peace o cer. Accordingly, the trial court tion must be reversed because one of the jurors T.M. could describe events in age-appropriate and others. On the way to the scene, the deputies plainly erred by failing to merge the convictions. fell asleep during the presentation of evidence, language. erefore, the trial court didn’t err by learned that defendant had an active arrest warrant. The judgment of conviction for second depriving him of his statutory right to a 12-person denbar.org/members/waterman-fund considering the forensic interviews. Further, the When the deputies arrived at defendant’s home, degree assault on a peace o cer and obstruction jury. Although the issue of the sleeping juror was

92 | COLORADO LAWYER | APRIL 2021 APRIL 2021 | COLORADO LAWYER | 93 FROM THE COURTS | COLORADO COURT OF APPEALS refused. Sellers petitioned the district court to record demonstrates that T.M. could properly defendant indicated that he was not suicidal, and of a peace o cer was a rmed. e conviction brought to the court’s attention, defense counsel defendant’s evasive and obstreperous conduct consolidate the three arbitration proceedings. answer questions about various facets of her the deputies tried to place him under arrest on for resisting arrest was vacated and the case never requested a remedy, and the trial court during the traffic stop that occurred shortly The district court entered an order denying life and that she did so in age-appropriate the outstanding warrant. Defendant ran from the was remanded for correction of the mittimus. wasn’t presented with any speci c objection after the burglary, and at a time when the fruits Sellers’ petition on grounds that the agreements’ language. Accordingly, the trial court didn’t deputies and then physically fought with them to rule on. erefore, defense counsel did not of that burglary were in the vehicle’s trunk, arbitration provisions did not indicate that BKV abuse its discretion by nding T.M. competent until they restrained and took him into custody. 2021 COA 20. No. 19CA1916. Fogel v. Emmett. preserve the issue for appeal. Further, counsel’s was probative of defendant’s consciousness had consented in advance to consolidate the to testify at trial. A jury convicted defendant of second degree Subpoena—Tender of Mileage Fee—Civil Pro- failure to request relief for the known defect of a of guilt. erefore, the court didn’t abuse its separate arbitration proceedings. Defendant also argued that the trial court assault on a peace o cer, resisting arrest, and cedure. sleeping juror constituted a waiver of the right discretion in admitting the o cer’s testimony Sellers appealed, and BKV moved to dismiss violated his confrontation rights when it allowed obstructing a peace o cer. Plainti ’s attorney issued a subpoena re- to a jury of 12, so the Court of Appeals did not about defendant’s conduct during the tra c for lack of jurisdiction. Under CRS § 13-22- T.M. to have a court facility dog at her feet while On appeal, defendant contended that the quiring Fogel to appear in court to testify, and consider the merits of his argument. stop. Finding no evidentiary error, the Court 228(1), a party may only appeal two types of she testi ed during trial. However, defendant’s trial court erred by declining to instruct the jury a process server claimed that he served the Defendant also contended that the trial rejected defendant’s further contention that arbitration-related court orders entered before right to confrontation doesn’t include a right to on self-defense as to his second degree assault subpoena on Fogel at his home. After Fogel court made two evidentiary errors warranting there was cumulative error. an arbitrator enters an award—an order denying impose discomfort on an accusing witness, and on a peace o cer charge. Because defendant failed to appear in court on the date and time reversal by (1) admitting three photos of him Defendant further argued that the trial court a motion to compel arbitration, and an order the trial court’s ndings that all confrontation denied committing second degree assault, he specified, the trial court issued a contempt taken while he was in custody, and (2) allowing erred by aggravating his sentence because only granting a motion to stay arbitration. An order requirements were met is supported by the was not entitled to receive an a rmative defense citation and scheduled a contempt hearing. an officer to testify regarding his behavior a jury may properly nd facts that aggravate denying a motion to consolidate separate arbi- record. Accordingly, the trial court didn’t abuse instruction as to that charge. At the hearing, Fogel’s counsel argued, in part, during the traffic stop that precipitated his a sentence. However, a court may aggravate tration proceedings is not appealable because its discretion by allowing T.M. to testify with the Defendant also contended that the trial court that there was no evidence the process server arrest. First, because defendant’s identity was a sentence based on a judge-found fact that it is not one of the listed pre-award orders. court facility dog at her feet. erred by denying his motion for a mistrial based tendered a check for the required mileage fee, so a contested issue at trial and his appearance a defendant has a prior conviction or was on Further, contrary to Sellers’ argument, the Defendant further argued that the trial court on alleged prosecutorial misconduct. Here, the subpoena was not properly served. e trial had changed substantially since his arrest, the probation at the time of the crime. Here, the district court’s order is not an appealable nal erred by admitting portions of a therapist’s the prosecutor asked Deputy Martinez: “Was court found Fogel in contempt and sentenced court’s admission of three photos of defendant court found that defendant was on felony judgment. Accordingly, the Court of Appeals expert testimony that he contends improperly there any indication to you that there was illegal him to 30 days in the county jail. taken while he was in custody with the jail probation when he committed the crime in this lacked jurisdiction to hear the appeal. bolstered T.M.’s testimony. Here, the prosecutor’s narcotics—” at which point defense counsel On appeal, Fogel argued that the trial court clothing cropped out of the photos was not an case. erefore, there was no error. e appeal was dismissed. use of a hypothetical was too closely tailored to objected, the judge sustained the objection, and erred by ruling that a subpoena can be validly abuse of discretion. Second, the evidence of e conviction and sentence were a rmed. the facts of the case and was thus improper, but the court instructed the jury to disregard the served when the witness is not provided the February 18, 2021 the therapist’s answer conformed to the rules question. Although the question was improper, required mileage fee. CRCP 45(b)(3) states guiding expert testimony. The prosecutor’s the possible prejudice to defendant was not that a witness being served with a subpoena 2021 COA 18. No. 16CA2170. People v. Collins. questions regarding a child’s sophistication to lie substantial enough to warrant a mistrial. may be tendered the required mileage fee Financial Assistance for Colorado Lawyers Criminal Law—Sexual Assault on a Child—Tes- about having been sexually assaulted were also Defendant also argued that the trial court “within a reasonable time after the service of timony—Court Facility Dog—Confrontation improper, but the error was harmless because violated his right to a unanimous verdict as to the subpoena, but in any event prior to the Clause—Expert Testimony. the testimony didn’t substantially in uence the the charges of resisting arrest and obstruction. appearance date.” Here, the record is unclear Defendant sexually abused T.M. when she verdict or a ect the fairness of the proceedings. The unit of prosecution for resisting arrest as to whether plainti tendered the mileage fee was between the ages of 3 and 5. A jury found e Court of Appeals agreed with defendant’s and obstruction of a peace o cer is de ned to Fogel within a reasonable time after service WATERMAN defendant guilty of sexual assault on a child and argument that the mittimus must be amended in terms of discrete volitional acts, not by the of the subpoena. sexual assault on a child by one in a position to re ect the crime of conviction. number of officers involved. Therefore, the e order was reversed and the case was Fund of trust. e judgment and sentence were a rmed jury was not required to unanimously agree remanded for a finding of whether plaintiff On appeal, defendant contended that the and the case was remanded for correction of that defendant had resisted arrest from or tendered the required mileage fee in accordance Provides financial assistance for “aged, infirm, court abused its discretion by allowing T.M. the mittimus. obstructed a particular peace o cer, only that with CRCP 45(b)(3). or otherwise incapacitated lawyers who have to testify. He argued that (1) the trial court he had resisted arrest from or obstructed any erroneously considered previously recorded 2021 COA 19. No. 18CA0598. People v. Snider. o cer. Accordingly, there was no violation of February 25, 2021 practiced in Colorado for a minimum of ten years.” forensic interviews of T.M. while assessing Criminal Law—Second Degree Assault on a defendant’s rights. Lastly, defendant argued that the trial court her competence, and (2) the court’s factual Peace O cer—Resisting Arrest—Obstruction— 2021 COA 21. No. 16CA0441. People v. Denver Bar Association Waterman Fund ndings regarding T.M.’s competence aren’t Jury Instructions—Self-Defense—A rmative violated his double jeopardy rights because Forgette. Criminal Law—Jury—Waiver—Ev- supported by the record. e court conducted Defense—Evidence—Prosecutorial Miscon- resisting arrest is a lesser included o ense of idence—Identity. 1290 Broadway, Ste. 1700 | Denver, CO 80203 | 303-824-5319 a competency hearing for T.M., who was then duct—Mistrial—Unanimous Verdict—Unit of second degree assault on a peace o cer, and A jury convicted defendant of second degree 6 years old. When a challenge to competence Prosecution—Double Jeopardy—Lesser Included the trial court erred by failing to merge these burglary of a dwelling. e trial court sentenced is based on a witness’s youth or immaturity, a O e n s e . convictions. e Court of Appeals examined the him to 12 years in the custody of the Department demonstration of competence earlier is rele- Two deputies were dispatched to defendant’s o enses and concluded that resisting arrest is a of Corrections. vant. Here, the recordings of interviews of T.M. home for a well-being check in response to a report lesser included o ense of second degree assault On appeal, defendant argued that his convic- from 2013 and 2014 bear directly on whether that defendant was threatening to harm himself on a peace o cer. Accordingly, the trial court tion must be reversed because one of the jurors T.M. could describe events in age-appropriate and others. On the way to the scene, the deputies plainly erred by failing to merge the convictions. fell asleep during the presentation of evidence, language. erefore, the trial court didn’t err by learned that defendant had an active arrest warrant. The judgment of conviction for second depriving him of his statutory right to a 12-person denbar.org/members/waterman-fund considering the forensic interviews. Further, the When the deputies arrived at defendant’s home, degree assault on a peace o cer and obstruction jury. Although the issue of the sleeping juror was

2021 COA 22. No. 17CA0255. People in the responsibility are subject to modi cation under Based on that evidence, the prosecution in front of him and applied his brakes. Ten determine the amount of the judgment, and became nal, and the county had 35 days from Interest of M.R.M. Dependency and Neglect— appropriate circumstances. charged defendant with possession of a con- seconds later, Campa-Borrego crashed into the the court vacated the default. e court later that date to seek enforcement. Accordingly, the Final Appealable Order—Allocation of Parental Lastly, mother argued that the APR order trolled substance with intent to distribute, three back of Deines’s pickup truck, causing Deines denied the county’s summary judgment motion district court lacked jurisdiction and properly Responsibilities. wasn’t nal because when it was entered there counts of possession of a weapon by a previous catastrophic injuries. and dismissed the case because the county dismissed the county’s complaint. e juvenile court entered an order allocating was an outstanding paternity summons for a o ender, and possession of an illegal weapon. Deines sued, alleging that defendants’ negli- failed to seek enforcement within the period e judgment was a rmed. parental responsibilities for the three children putative father and M.M.’s deferred adjudication Defendant moved to suppress the evidence gence, which resulted in the oil spill, was a cause prescribed by CRS § 24-4-106(4). subject to this case between father, M.M., and hadn’t been addressed. As discussed above, discovered during the inventory search. e of his injuries. Defendants moved for summary e county argued on appeal that the district mother (the APR order). Approximately two the entry of the APR order ended the depen- district court denied the motion, and the jury judgment on grounds that Campa-Borrego’s court had subject matter jurisdiction because weeks after the court entered the APR order, it dency and neglect proceeding and transferred convicted him as charged. negligence was an unforeseeable intervening CRS § 24-4-106 does not limit its ability to pursue entered an order terminating its jurisdiction jurisdiction over the allocation of parental On appeal, defendant argued that the district cause that broke the chain of causation arising a judgment. Here, the county chose to enforce These summaries of published Court of and closing the case. Mother appealed from the responsibilities to the district court. Because court erroneously denied his motion to suppress. from the original negligent conduct. e district its nal agency judgment by invoking § 24-4-106 Appeals opinions are written by licensed latter order more than 21 days after the APR was the APR was the case-ending order, there was e threshold inquiry when determining the court granted summary judgment and dismissed of the Administrative Procedure Act (APA). attorneys Teresa Wilkins (Englewood) and Paul Sachs (Steamboat Springs). entered, and the Court of Appeals dismissed the no need to enter an additional order to dismiss reasonableness of an inventory search is whether the case. Having elected that remedy, the county also They are provided as a service by the appeal as untimely. e Supreme Court granted the case. In addition, there is no authority for the the vehicle impoundment was proper. O cers On appeal, Deines argued that the district had to comply with the APA’s 35-day time limit CBA and are not the o cial language mother’s petition for writ of certiorari, vacated proposition that the existence of an outstanding may reasonably remove vehicles that are haz- court erred in entering summary judgment to bring an action for judicial review of agency of the Court; the CBA cannot guarantee the rst judgment on appeal, and remanded summons is sufficient to prevent the court ardous or disabled, parked illegally, blocking because whether Campa-Borrego’s negligence action. Failure to seek enforcement within this their accuracy or completeness. The full the case for reconsideration. from closing the case in which the summons access to private property, or obstructing tra c constituted an independent intervening cause time period deprives a court of jurisdiction to opinions, the lists of opinions not selected for o cial publication, the petitions for Mother argued that the APR order wasn’t was issued. Here, the juvenile court entered on public roads. Here, defendant’s vehicle is a fact question for the jury. It is generally review the matter. Here, the agency’s February rehearing, and the modiﬁ ed opinions are was legally parked on a residential street, and final and appealable because the juvenile an APR order and ordered that it be certi ed the juror’s job to determine the foreseeability 26, 2008 notice triggered a 90-day period for available on the CBA website and on the court lacked jurisdiction to consider several into an existing custody proceeding in the defendant provided proof of ownership and of an intervening act based on the facts and challenging the overpayment notice. Thus, Colorado Judicial Branch website. issues. However, the question before the Court district court as to the older two children and testi ed that he asked the o cer to allow him circumstances of the case. But if every rational May 26, 2008 was the date the agency action of Appeals was whether the order appealed certi ed into a new domestic relations case as to call his wife to retrieve the vehicle, thereby juror would have to nd that the intervening from was nal and appealable, not whether the to the youngest child. e APR order entered assuming the risk of vandalism and theft if act was fully independent and unforeseeable, juvenile court had jurisdiction to enter an APR was nal and appealable, but mother did not his wife did not do so. Therefore, because the question is decided as a matter of law. Here, order. And an APR order is nal and appealable appeal from that order. The juvenile court’s neither the safekeeping rationale nor any other the question for proximate cause purposes is under C.A.R. 3.4(a) and applicable case law. order terminating its jurisdiction, which mother community caretaking function applied, the whether defendants should have reasonably Mother further argued that the APR order appealed from, was super uous. prosecution failed to meet its burden to prove foreseen that if they caused an oil spill on a wasn’t a final appealable order because it Because mother’s notice of appeal was led that the seizure of defendant’s vehicle fell within highway at night, an accident relatively close didn’t fully resolve the rights and liabilities more than 21 days after the entry of the APR the community caretaking exception to the in time and place to the spill might result. of the parties as to paternity, support, and order, her appeal was untimely, and the Court Fourth Amendment’s warrant requirement. Reasonable people could di er as to whether parental responsibilities with respect to child lacked jurisdiction to hear the appeal. Accordingly, the seizure was unreasonable, and the intervening act was foreseeable. erefore, M.A.M. However, there was no need for a e appeal was dismissed with prejudice. the fruits of the subsequent inventory search the proximate cause question cannot be decided paternity proceeding to determine which of should have been suppressed. as a matter of law, and the district court erred. two presumptive fathers should be recognized 2021 COA 23. No. 17CA2132. People v. omas. e judgment was reversed and the case was e judgment was reversed and the case was as M.A.M.’s legal father, and the APR order Constitutional Law—Fourth Amendment— remanded for further proceedings consistent remanded with directions to reinstate the claim. addressed mother’s rights to visitation, parenting Searches and Seizures—Motor Vehicle—Warrant- with this opinion. time, and other matters relevant to the APR less Search—Fruit of the Poisonous Tree—Commu- 2021 COA 25. No. 20CA0170. Arapahoe County between her and M.M. Further, mother did not nity Caretaking Exception—Impounding Vehicle. 2021 COA 24. No. 19CA2021. Deines v. Atlas Department of Human Services v. Velarde. attempt to initiate a paternity proceeding herself, An officer stopped defendant’s vehicle Energy Services, LLC. Negligence—Proximate Administrative Procedure Act—Medicaid Over- which she could have done if she believed that for a traffic violation. Defendant pulled the Cause—Summary Judgment—Intervening Cause. payment—Jurisdiction. resolving M.A.M.’s paternity was necessary to car over to the right-side curb of a residential Fernandez-Tapia was driving a truck owned e Arapahoe County Department of Human protect her legal rights. street. e o cer discovered that defendant by Atlas Energy Services, LLC (Atlas) or Con- Services (county) issued an administrative Mother also contended that the APR wasn’t had an outstanding warrant and arrested him. solidated Divisions, Inc. (CDI) (collectively, notice (notice) to defendants on February final because it was subject to revision. But Defendant asked if he could call his wife to defendants) on I-76 near the town of Hudson. 26, 2008 alleging that they received Medicaid once the juvenile court entered the APR and pick up the vehicle from the parking space. Hudson o cials received a report of a hazardous overpayments between September 2002 and directed that it be certi ed to the district court, Instead, the officer requested a tow of the material spill on the highway and closed both July 2004. The county sued defendants on jurisdiction to modify was transferred to the vehicle. To prepare the vehicle for towing, the lanes. Cars backed up on the highway. Fifteen December 17, 2018, seeking to enforce the district court, and there was nothing further o cer conducted an inventory search during minutes after the closure, Deines approached notice. Defendants failed to answer, and the for the juvenile court to do. And all orders which he found a handgun, methamphetamine, the scene and started to slow down. As he crested clerk entered a default under CRCP 55(a). concerning parenting time and decision-making a knife, and a blackjack. a slight incline, he saw a line of cars stopped Defendants later appeared at the hearing to

Because the Court of Appeals correctly the Court did not resolve that dispute, assuming her interest in a home through an interspousal the panel majority substituted its judgment for approved the trial court’s ruling under challenge, without deciding that plainti cannot prevail transfer deed (ITD) automatically overcomes the the trial court’s factual ndings. Summaries of the Supreme Court a rmed. However, the Court even if plainti ’s de nition is correct. presumption of marital property in the Uniform e Court held that the Court of Appeals’ did so on other grounds because its reasoning The Court concluded that the WCA’s ex- Dissolution of Marriage Act (UDMA), provided adoption of an “adequacy” standard is at odds di ered in part from that of the Court of Appeals. clusivity provisions bar an injured coworker there is proof that the conveying spouse intended with the Court’s prior rulings regarding the best Published Opinions from recovering UM/UIM benefits from a to exclude the property from the marital estate. interests of the child standard in termination February 8, 2021 co-employee vehicle owner’s insurer for dam- e Supreme Court concluded that it does not. cases—a standard that does not run afoul of ages stemming from a work-related accident in Under the UDMA, “marital property” is parents’ due process rights. e Court further 2021 CO 10. Nos. 20SA262 & 20SA283. In which another co-employee negligently drove subject to equitable division in a dissolution held that (1) consideration of less drastic alter- re People v. Subjack; In re People v. Lynch. the owner’s vehicle and the injured party was an proceeding. e UDMA creates a presumption natives is implicit in the statutory criteria for February 1, 2021 2021 CO 9. No. 19SC573. People v. Ross. CRS Preliminary Hearings—Statutory Interpretation. authorized passenger. Accordingly, the Court of marital property with respect to all property termination; (2) due process does not require § 18-7-402(1)(a) and (b)—For the Purpose of The Supreme Court reviewed whether a a rmed the judgment of the division below, acquired by either spouse during the marriage. such ndings be made explicit, though it is the 2021 CO 7. No. 19SC548. People v. Garcia. Prostitution of or by a Child—CRS § 18-7-407. criminal defendant who is unable to post bond albeit on somewhat di erent grounds. But this presumption is overcome by a showing better practice for trial courts to do so; and (3) Confrontation Clause—Sixth Amendment— e Supreme Court determined that it need on a class 4 felony charge is “in custody” and that the property was acquired by a method the Court of Appeals failed to apply the correct Testimonial Hearsay. not resolve the parties’ dispute as to whether therefore entitled to a preliminary hearing on 2021 CO 12. No. 19SC854. In re Marriage of listed in one of four statutory exceptions. e legal standard, instead substituting its judgment In this opinion, the Supreme Court reviewed “with intent” or “knowingly” is the applicable that charge under CRS § 16-5-301(1)(b)(II) and Zander. Uniform Dissolution of Marriage Act— Court of Appeals correctly acknowledged that for that of the trial court. Accordingly, the Court the district court’s nding that a return of service culpable mental state for the crime of soliciting Crim. P. 7(h)(1), even if that defendant is also Colorado Marital Agreement Act—Exceptions the ITD executed in this case did not fall within of Appeals’ judgment was reversed. document was inadmissible testimonial hearsay for child prostitution under CRS § 18-7-402(1) in custody for separate, unrelated offenses. to Presumption of Marital Property—“Valid the statutory exception that allows couples to under the Sixth Amendment’s Confrontation (a) and (b) (subsections (a) and (b)). Instead, e Court overruled People v. Taylor, 104 P.3d Agreement” Exception—Partial Performance exclude property from the marital estate through February 22, 2021 Clause. Applying the “primary purpose” test the Court concluded that the requisite culpable 269 (Colo.App. 2004), and People v. Pena, 250 Doctrine. a valid agreement. Yet, without the bene t of provided by the Supreme Court for determining mental state—whether with intent or knowing- P.3d 592 (Colo.App. 2009), and held that such All property acquired by either spouse during ndings in the record as to whether any of the 2021 CO 15. No. 20SA338. People v. ompson. whether a statement is testimonial for Confron- ly—applies to all the elements (and every part a defendant is “in custody for the o ense for a marriage is generally considered marital other exceptions applied, and without itself Criminal Law—Searches and Seizures—Evidence. tation Clause purposes, the Court concluded of each element) in subsections (a) and (b), which the preliminary hearing is requested” property subject to equitable division during a exploring those exceptions, the Court of Appeals In this interlocutory appeal under CRS § 16- that a court must examine the statement’s including that the purpose of the defendant’s for purposes of CRS § 16-5-301(1)(b)(II) and dissolution of marriage proceeding. But there concluded that the ITD was an e ective means 12-102(2) and C.A.R. 4.1, the People challenged primary purpose when it is made, not its primary conduct was the prostitution of or by a child. Crim. P. 7(h)(1) and is therefore entitled to a are four statutory exceptions to this rule, one of conveying, as separate property, a spouse’s the trial court’s order suppressing on Fourth purpose when it is introduced at trial. And, at Thus, simply proving that the defendant’s preliminary hearing on the current charges. e of which is property excluded from the marital interest in a home acquired during the marriage, Amendment grounds evidence seized from the time of its making, the primary purpose of purpose was prostitution in general, not child Court therefore made the rule to show cause estate by a “valid agreement” of the parties. given that there was evidence of the conveying defendant’s cell phone. e People contended the return of service document in this case was prostitution speci cally, cannot su ce—even if in each case absolute. The parties in this case entered into an oral spouse’s intent to exclude the property from that the independent source doctrine applies administrative, not prosecutorial. erefore, the there is eventually prostitution of or by a child. agreement in 2007 to exclude their retirement the marital estate. and therefore suppression was unwarranted. district court’s judgment was reversed. Contrary to the People’s contention, neither February 16, 2021 accounts and inheritances from the marital e Court held that a party may overcome the The Supreme Court concluded that the the victim’s age nor the defendant’s knowledge of, estate. e Supreme Court held that the parties’ marital property presumption in the UDMA only People did not present su cient evidence to 2021 CO 8. No. 20SA321. In re Raven v. Polis. or belief concerning, the victim’s age is an element 2021 CO 11. No. 19SC530. Ryser v. Shelter oral agreement was not a valid agreement through the four statutory exceptions. Because establish the applicability of the independent Civil Procedure—Parties—Executive O cials— of soliciting for child prostitution pursuant to Mutual Insurance Co. Insurance—Workers’ because, at the time, Colorado statutory law the Court of Appeals improperly created a new source doctrine. Accordingly, the Court a rmed Proper Defendants. subsections (a) and (b). e pertinent element is Compensation—Uninsured and Underinsured— required that all agreements between spouses exception to the presumption, its judgment was the trial court’s suppression order. e Supreme Court exercised its original that “the purpose” of the defendant’s solicitation, Exclusivity of Remedy—Co-Employee Immunity. be in writing and signed by both parties. e reversed and the case was remanded for further jurisdiction to consider whether Governor meeting arrangement, or o er to arrange a meeting In this case, the Supreme Court examined Court further held that the parties’ conduct after proceedings consistent with this opinion. Polis was a proper named defendant in a was “prostitution of a child or by a child.” And no the interplay between the uninsured/under- entering into the oral agreement could not be class action challenging the treatment of part of that element is subject to strict liability. insured motorist (UM/UIM) statute, CRS § treated as partial performance that satis ed the 2021 CO 14. No. 20SC187. People in the Interest transgender women in the custody of the Finally, like the trial court and the Court of 10-4-609, and the Workers’ Compensation Act writing and signature requirements. of A.M. Least Restrictive Means—Needs, Interest, Colorado Department of Corrections. The Appeals, the Supreme Court held that, while CRS of Colorado (WCA), CRS §§ 8-41-102 and -104. The Court of Appeals’ judgment was af- and Welfare of Child. Court held that its decision in Developmental § 18-7-407 precludes a defendant from raising Speci cally, the Court addressed whether an rmed and the case was remanded for further In this case, the Supreme Court reviewed Pathways v. Ritter, 178 P.3d 524 (Colo. 2008), a defense based on either a lack of knowledge injured passenger riding in a vehicle negligently proceedings consistent with this opinion. a decision of a divided panel of the Court of did not alter the longstanding rule that a suit of the child’s age or a reasonable belief that the driven by one coworker and owned by another Appeals holding that a trial court must deny seeking to enjoin or mandate an executive child was an adult, it does not relieve the People coworker, when all three were acting within the 2021 CO 13. No. 19SC967. In re Marriage a motion to terminate parental rights that has These summaries of Colorado Supreme agency’s enforcement of a statute may include of their burden of proof under subsections (a) course and scope of their employment, may of Blaine. Uniform Dissolution of Marriage been proven by clear and convincing evidence Court published opinions are provided the governor, in his or her o cial capacity, as and (b). erefore, CRS § 18-7-407 does not recover UM/UIM bene ts under the vehicle Act—Presumption of Marital Property—Statutory if a less drastic alternative to termination exists, by the Court; the CBA cannot guarantee their accuracy or completeness. Both the a named defendant. Accordingly, the Court permit the People to avoid their obligation to owner’s insurance policy. Exceptions to Presumption of Marital Property— even though it is not in the child’s best interests. summaries and full opinions are available concluded that the trial court correctly declined prove that, in soliciting another or arranging (or Although the parties disputed the meaning Valid Agreement—Interspousal Transfer Deed. e Court also reviewed whether a trial court on the CBA website and on the Colorado to dismiss Governor Polis from the action. e o ering to arrange) a meeting, the defendant’s of the phrases “legally entitled to recover” and The issue in this dissolution of marriage must make express findings regarding less Judicial Branch website. rule to show cause was discharged. purpose was child prostitution. “legally entitled to collect” under CRS § 10-4-609, case is whether a spouse’s conveyance of his or drastic alternatives to termination and whether

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Orlando Vacations ■ Contact Casey MacDonald at (913) 652- software that can help you reduce the kind of practical, real-world training ■ Save up to 35% on your Orlando vacation! 5713 to discuss your malpractice insurance documentation errors. Easy to use, it needs to grow and thrive. Use code Ruby Receptionists Options Credit Union Orlando Employee Discounts o ers needs. wicked smart. Save 10% by visiting www. COBARMEMBER for a 100% discount. ■ Save 6% on this virtual receptionist ■ Options Credit Union was founded in 1979 exclusive pricing on hotels and vacation theformtool.com/links/cba. Visit www.cobar.org/lpm. service. Call (866) 611-7829 or visit www. by the Denver Bar Association. Visit www. homes in or near Disney World and callruby.com. optionscreditunion.com. Universal Studios Orlando, along with

100 | COLORADO LAWYER | APRIL 2021 APRIL 2021 | COLORADO LAWYER | 101 WRITING FOR ENVIRONMENTAL LAW NATURAL RESOURCES AND ENERGY LAW COORDINATING EDITORS FOR Melanie J. Granberg Jack Luellen DEPARTMENT ARTICLES (303) 572-0050, [email protected] (720) 866-7520, [email protected] MORE WAYS TO CONTRIBUTE Charlotte Powers ACCESS TO JUSTICE EVIDENCE [email protected] Kathleen M. Schoen Lawrence Zavadil (303) 824-5305, [email protected] “As I See It” Opinion Articles (303) 244-1980, [email protected] PROFESSIONAL CONDUCT AND LEGAL ETHICS Colorado Lawyer accepts opinion Stephen G. Masciocchi DIVERSITY AND INCLUSION articles whereby members can FAMILY LAW (303) 295-8000, [email protected] Catherine Chan express their ideas on the law, the legal profession, and the Articles submitted for publication in Colorado Lawyer are reviewed and approved by Halleh T. Omidi Joseph G. Michaels (303) 586-5555, [email protected] administration of justice. Please coordinating editors before being scheduled for publication. Coordinating editors are attorneys (303) 691-9600, [email protected] (720) 508-6460, [email protected] Ruchi Kapoor note that the publication is and legal professionals who volunteer their time and expertise to solicit, review, and schedule Courtney J. Leathers Allen [email protected] articles for publication. mindful of its role in promoting (303) 893-3111, REAL ESTATE LAW Kathryn A. Starnella civility and professionalism If you’re interested in writing an article for Colorado Lawyer or would like to submit a manuscript, [email protected] Christopher D. Bryan (303) 830-1212, [email protected] and reserves the right to reject please contact the appropriate coordinating editor to discuss your topic. If you’d like to write an (970) 925-1936, cbryan@gar eldhecht.com any article; submissions that article in an area not listed on these pages, please contact Jodi Jennings at [email protected] GOVERNMENT COUNSEL JUDGES’ CORNER (substantive law articles) or Susie Klein at [email protected] (all other areas). Writing guidelines include personal attacks, contain are available at cl.cobar.org. Mary Elizabeth Geiger TAX LAW Hon. Stephanie Dunn language that may be deemed (970) 947-1936, megeiger@gar eldhecht.com Steven Weiser (720) 655-5235, defamatory, or are inconsistent (303) 333-9810, [email protected] [email protected] with the objectives of the CBA HEALTH LAW will not be considered. COORDINATING EDITORS FOR Curt Todd (Bankruptcy Law) Casey Frank TORT AND INSURANCE LAW LAW PRACTICE MANAGEMENT Contact John Hiski Ridge, john. SUBSTANTIVE LAW ARTICLES (303) 955-1184, (303) 202-1001, [email protected] Jennifer Seidman Je Weeden [email protected] or (206) [email protected] Gregory James Smith (303) 779-0077, [email protected] (970) 819-1763, [email protected] 919-6708, to submit an opinion ALTERNATIVE DISPUTE RESOLUTION (303) 443-8010, [email protected] article or discuss your topic. Marshall A. Snider CANNABIS LAW TRUST AND ESTATE LAW LEGAL RESEARCH CORNER Full guidelines are available at cl.cobar.org. [email protected] Graham Gerritsen IMMIGRATION LAW David W. Kirch Robert Linz (303) 993-5271, [email protected] David Harston (303) 671-7726, [email protected] (303) 492-2504, [email protected] ANIMAL LAW Hugh Ilenda (303) 736-6650, Emily Bowman General Interest Articles Kate A. Burke (303) 324-8597, [email protected] [email protected] (303) 671-7726, [email protected] MENTORING MATTERS Colorado Lawyer publishes (303) 441-3190, [email protected] David Kolko J. Ryann Peyton general interest articles in the THE CIVIL LITIGATOR (303) 371-1822, [email protected] WATER LAW (303) 928-7750, [email protected] “SideBar” column. This is a place to: ANTITRUST AND CONSUMER PROTECTION LAW Timothy Reynolds Kevin Kinnear ■ share your unique Todd Seelman (303) 417-8510, INTELLECTUAL PROPERTY LAW (303) 443-6800, [email protected] MODERN LEGAL WRITING experiences as a lawyer (720) 292-2002, [email protected] K Kalan John Campbell ■ discuss a helpful skill [email protected] (720) 480-1500 or (571) 272-8516, WORKERS’ COMPENSATION LAW (303) 871-6461, [email protected] ■ talk about a law-related topic CONSTRUCTION LAW [email protected] Kristin A. Caruso that is important to you APPELLATE LAW Leslie A. Tuft William F. Vobach (303) 297-7290, TECHNOLOGY IN THE LAW PRACTICE ■ o er practical advice to Marcy G. Glenn [email protected] (303) 656-1766, [email protected] [email protected] Joel M. Jacobson fellow attorneys (303) 295-8320, (303) 800-9120, [email protected] ■ share your law-related [email protected] CONTRACT LAW JUVENILE LAW YOUNG LAWYERS DIVISION “war stories.” Judge Christina Finzel Gomez Mark Cohen Jennifer A. Collins Amanda T. Huston WELLNESS SideBar articles should take a (720) 625-5200, (303) 638-3410, [email protected] (720) 944-6456, (970) 225-6700, [email protected] Sarah Myers lighter look at the law or talk [email protected] [email protected] (303) 986-3345, [email protected] about your perspective; articles on particularly divisive topics will Stephen G. Masciocchi CRIMINAL LAW Sheri Danz not be considered. (303) 295-8000, Judge Adam Espinosa (303) 860-1517, ext. 102, WHOOPS—LEGAL MALPRACTICE PREVENTION [email protected] [email protected] [email protected] Christopher B. Little Send SideBar articles or topics to (303) 773-8100, [email protected] Susie Klein at [email protected] BUSINESS LAW ELDER LAW LABOR AND EMPLOYMENT LAW for consideration. David P. Steigerwald Rosemary Zapor John M. Husband (719) 634-5700, [email protected] (303) 866-0990, [email protected] (303) 295-8228, [email protected]

102 | COLORADO LAWYER | APRIL 2021 APRIL 2021 | COLORADO LAWYER | 103 WRITING FOR ENVIRONMENTAL LAW NATURAL RESOURCES AND ENERGY LAW COORDINATING EDITORS FOR Melanie J. Granberg Jack Luellen DEPARTMENT ARTICLES (303) 572-0050, [email protected] (720) 866-7520, [email protected] MORE WAYS TO CONTRIBUTE Charlotte Powers ACCESS TO JUSTICE EVIDENCE [email protected] Kathleen M. Schoen Lawrence Zavadil (303) 824-5305, [email protected] “As I See It” Opinion Articles (303) 244-1980, [email protected] PROFESSIONAL CONDUCT AND LEGAL ETHICS Colorado Lawyer accepts opinion Stephen G. Masciocchi DIVERSITY AND INCLUSION articles whereby members can FAMILY LAW (303) 295-8000, [email protected] Catherine Chan express their ideas on the law, the legal profession, and the Articles submitted for publication in Colorado Lawyer are reviewed and approved by Halleh T. Omidi Joseph G. Michaels (303) 586-5555, [email protected] administration of justice. Please coordinating editors before being scheduled for publication. Coordinating editors are attorneys (303) 691-9600, [email protected] (720) 508-6460, [email protected] Ruchi Kapoor note that the publication is and legal professionals who volunteer their time and expertise to solicit, review, and schedule Courtney J. Leathers Allen [email protected] articles for publication. mindful of its role in promoting (303) 893-3111, REAL ESTATE LAW Kathryn A. Starnella civility and professionalism If you’re interested in writing an article for Colorado Lawyer or would like to submit a manuscript, [email protected] Christopher D. Bryan (303) 830-1212, [email protected] and reserves the right to reject please contact the appropriate coordinating editor to discuss your topic. If you’d like to write an (970) 925-1936, cbryan@gar eldhecht.com any article; submissions that article in an area not listed on these pages, please contact Jodi Jennings at [email protected] GOVERNMENT COUNSEL JUDGES’ CORNER (substantive law articles) or Susie Klein at [email protected] (all other areas). Writing guidelines include personal attacks, contain are available at cl.cobar.org. Mary Elizabeth Geiger TAX LAW Hon. Stephanie Dunn language that may be deemed (970) 947-1936, megeiger@gar eldhecht.com Steven Weiser (720) 655-5235, defamatory, or are inconsistent (303) 333-9810, [email protected] [email protected] with the objectives of the CBA HEALTH LAW will not be considered. COORDINATING EDITORS FOR Curt Todd (Bankruptcy Law) Casey Frank TORT AND INSURANCE LAW LAW PRACTICE MANAGEMENT Contact John Hiski Ridge, john. SUBSTANTIVE LAW ARTICLES (303) 955-1184, (303) 202-1001, [email protected] Jennifer Seidman Je Weeden [email protected] or (206) [email protected] Gregory James Smith (303) 779-0077, [email protected] (970) 819-1763, [email protected] 919-6708, to submit an opinion ALTERNATIVE DISPUTE RESOLUTION (303) 443-8010, [email protected] article or discuss your topic. Marshall A. Snider CANNABIS LAW TRUST AND ESTATE LAW LEGAL RESEARCH CORNER Full guidelines are available at cl.cobar.org. [email protected] Graham Gerritsen IMMIGRATION LAW David W. Kirch Robert Linz (303) 993-5271, [email protected] David Harston (303) 671-7726, [email protected] (303) 492-2504, [email protected] ANIMAL LAW Hugh Ilenda (303) 736-6650, Emily Bowman General Interest Articles Kate A. Burke (303) 324-8597, [email protected] [email protected] (303) 671-7726, [email protected] MENTORING MATTERS Colorado Lawyer publishes (303) 441-3190, [email protected] David Kolko J. Ryann Peyton general interest articles in the THE CIVIL LITIGATOR (303) 371-1822, [email protected] WATER LAW (303) 928-7750, [email protected] “SideBar” column. This is a place to: ANTITRUST AND CONSUMER PROTECTION LAW Timothy Reynolds Kevin Kinnear ■ share your unique Todd Seelman (303) 417-8510, INTELLECTUAL PROPERTY LAW (303) 443-6800, [email protected] MODERN LEGAL WRITING experiences as a lawyer (720) 292-2002, [email protected] K Kalan John Campbell ■ discuss a helpful skill [email protected] (720) 480-1500 or (571) 272-8516, WORKERS’ COMPENSATION LAW (303) 871-6461, [email protected] ■ talk about a law-related topic CONSTRUCTION LAW [email protected] Kristin A. Caruso that is important to you APPELLATE LAW Leslie A. Tuft William F. Vobach (303) 297-7290, TECHNOLOGY IN THE LAW PRACTICE ■ o er practical advice to Marcy G. Glenn [email protected] (303) 656-1766, [email protected] [email protected] Joel M. Jacobson fellow attorneys (303) 295-8320, (303) 800-9120, [email protected] ■ share your law-related [email protected] CONTRACT LAW JUVENILE LAW YOUNG LAWYERS DIVISION “war stories.” Judge Christina Finzel Gomez Mark Cohen Jennifer A. Collins Amanda T. Huston WELLNESS SideBar articles should take a (720) 625-5200, (303) 638-3410, [email protected] (720) 944-6456, (970) 225-6700, [email protected] Sarah Myers lighter look at the law or talk [email protected] [email protected] (303) 986-3345, [email protected] about your perspective; articles on particularly divisive topics will Stephen G. Masciocchi CRIMINAL LAW Sheri Danz not be considered. (303) 295-8000, Judge Adam Espinosa (303) 860-1517, ext. 102, WHOOPS—LEGAL MALPRACTICE PREVENTION [email protected] [email protected] [email protected] Christopher B. Little Send SideBar articles or topics to (303) 773-8100, [email protected] Susie Klein at [email protected] BUSINESS LAW ELDER LAW LABOR AND EMPLOYMENT LAW for consideration. David P. Steigerwald Rosemary Zapor John M. Husband (719) 634-5700, [email protected] (303) 866-0990, [email protected] (303) 295-8228, [email protected]

102 | COLORADO LAWYER | APRIL 2021 APRIL 2021 | COLORADO LAWYER | 103 UNDER OATH | MEMBER SPOTLIGHT ATTENTION CBA MEMBERS Elie Zwiebel Elie Zwiebel helps students obtain educational resources, defends Exploring options for a PRIVATE OFFICE students against discriminatory actions in school systems, and supports holistic juvenile defense. for your practice? Look no further... ONE MONTH FREE PROFILE Why did you become a lawyer? If you weren’t a lawyer, you’d be? When I was a teacher, I saw how the regular injustices A teacher. Hometown: of school discipline, law enforcement referral, Littleton and economic inequity devastated the lives of my What are you favorite Denver Join us at any of our 15 locations. students and their families. I went to law school to restaurants? Law School: One membership provides you with access to all 15 locations! University of Denver Sturm become a more robust ally and advocate. Breakfast King for breakfast, El Five for brunch, Vinh College of Law Xuong for lunch, Safta for dinner, Sweet Action for What is one of the most positive dessert, and Our Mutual Friend for drinks. Lives in: experiences you’ve had as a lawyer? Aurora - Southlands Downtown Denver Lileton Denver On October 6, 2016, I received a call from a colleague What’s the most random job you’ve ever 6105 S. Main St., Suite 200 1624 Market St., Suite 202 4 W. Dry Creek Cir., Suite 100 who worked with me when we were both students in had? Works at: Boulder Fort Collins Park Meadows Lone Tree Colorado Juvenile Defender the DU Civil Rights Clinic. We had worked together Geriatric cheetah and baby baboon caretaker. 4845 Pearl Circle, Suite 101 2580 E. Harmony Rd., Suite 201 9233 Park Meadows Drive Center and Elie Zwiebel Law to petition President Obama to grant clemency to two individuals serving life sentences for low-level, What’s your favorite board game? Broomﬁeld Golden Longmont Practice Areas: nonviolent drug o enses—they had both spent Either “Bob Ross: e Art of Chill” or “Wingspan.” 11001 W. 120th Ave., Suite 400 14143 Denver W Pkwy, Suite 100 1079 S. Hover St., Suite 200 Intersection of education over 10 years in federal prison under draconian, law and juvenile defense regressive, and antiquated mandatory sentencing What’s your favorite thing to cook? Cherry Creek Denver DTC Greenwood Village Louisville laws. The two of us spoke with the US pardon CBA Member Since: Shakshuka. 501 S. Cherry St., 11th Floor 7350 E. Progress Pl., Suite 100 357 S. McCaslin Blvd., Suite 200 2013 attorney moments later: Both of our clients would receive clemency—one would be home within six What’s the greatest challenge you face in Colorado Springs Belmar Lakewood Northglenn months, the other within three years. I broke down your practice? 7222 Commerce Ctr Dr., Suite 220 355 S. Teller St., Suite 200 11990 Grant St., Suite 550 in tears of joy. I have the privilege of regularly seeing Access to justice. I do all I can to make my services and sharing in joy with one of these former clients, as a ordable as possible and to provide as much who now lives in the Denver area. He is thriving at pro bono representation as possible. Still, the work, in his community, and as a father. demand for free or cheap legal advocacy to ght the school-to-prison pipeline far exceeds the Outside of the law, what are your hobbies? supply. I regularly struggle with the angst, anguish, I enjoy gardening (bonsais, vegetables, and native and anxiety of having to advise clients about the and pollinator-attracting owers), vermicomposting, limits on their claims and the market forces that cooking, training the best dog ever, hiking in national do not necessarily have anything to do with the parks with my partner, and getting together with strength of a claim or the law, and of having to friends for trivia. decline representation because I am at capacity. My greatest challenge is that of my clients: ere are What organizations are you involved in? not enough resources available to help the people Would you like to be The Colorado Juvenile Defender Center, LYRIC who need the most support, and the avenues for featured in Under Oath? (Learn Your Rights in the Community), Colorado them to vindicate their rights are too narrow if not Email Jessica Espinoza-Murillo at [email protected] for a Attorneys Against Police Violence, the Colorado completely foreclosed. questionnaire. Criminal Defense Institute, AUL Denver, and the 877-475-6300 | OﬃceEvolution.com/CBA National Lawyers Guild.

104 | COLORADO LAWYER | APRIL 2021 UNDER OATH | MEMBER SPOTLIGHT ATTENTION CBA MEMBERS Elie Zwiebel Elie Zwiebel helps students obtain educational resources, defends Exploring options for a PRIVATE OFFICE students against discriminatory actions in school systems, and supports holistic juvenile defense. for your practice? Look no further... ONE MONTH FREE PROFILE Why did you become a lawyer? If you weren’t a lawyer, you’d be? When I was a teacher, I saw how the regular injustices A teacher. Hometown: of school discipline, law enforcement referral, Littleton and economic inequity devastated the lives of my What are you favorite Denver Join us at any of our 15 locations. students and their families. I went to law school to restaurants? Law School: One membership provides you with access to all 15 locations! University of Denver Sturm become a more robust ally and advocate. Breakfast King for breakfast, El Five for brunch, Vinh College of Law Xuong for lunch, Safta for dinner, Sweet Action for What is one of the most positive dessert, and Our Mutual Friend for drinks. Lives in: experiences you’ve had as a lawyer? Aurora - Southlands Downtown Denver Lileton Denver On October 6, 2016, I received a call from a colleague What’s the most random job you’ve ever 6105 S. Main St., Suite 200 1624 Market St., Suite 202 4 W. Dry Creek Cir., Suite 100 who worked with me when we were both students in had? Works at: Boulder Fort Collins Park Meadows Lone Tree Colorado Juvenile Defender the DU Civil Rights Clinic. We had worked together Geriatric cheetah and baby baboon caretaker. 4845 Pearl Circle, Suite 101 2580 E. Harmony Rd., Suite 201 9233 Park Meadows Drive Center and Elie Zwiebel Law to petition President Obama to grant clemency to two individuals serving life sentences for low-level, What’s your favorite board game? Broomﬁeld Golden Longmont Practice Areas: nonviolent drug o enses—they had both spent Either “Bob Ross: e Art of Chill” or “Wingspan.” 11001 W. 120th Ave., Suite 400 14143 Denver W Pkwy, Suite 100 1079 S. Hover St., Suite 200 Intersection of education over 10 years in federal prison under draconian, law and juvenile defense regressive, and antiquated mandatory sentencing What’s your favorite thing to cook? Cherry Creek Denver DTC Greenwood Village Louisville laws. The two of us spoke with the US pardon CBA Member Since: Shakshuka. 501 S. Cherry St., 11th Floor 7350 E. Progress Pl., Suite 100 357 S. McCaslin Blvd., Suite 200 2013 attorney moments later: Both of our clients would receive clemency—one would be home within six What’s the greatest challenge you face in Colorado Springs Belmar Lakewood Northglenn months, the other within three years. I broke down your practice? 7222 Commerce Ctr Dr., Suite 220 355 S. Teller St., Suite 200 11990 Grant St., Suite 550 in tears of joy. I have the privilege of regularly seeing Access to justice. I do all I can to make my services and sharing in joy with one of these former clients, as a ordable as possible and to provide as much who now lives in the Denver area. He is thriving at pro bono representation as possible. Still, the work, in his community, and as a father. demand for free or cheap legal advocacy to ght the school-to-prison pipeline far exceeds the Outside of the law, what are your hobbies? supply. I regularly struggle with the angst, anguish, I enjoy gardening (bonsais, vegetables, and native and anxiety of having to advise clients about the and pollinator-attracting owers), vermicomposting, limits on their claims and the market forces that cooking, training the best dog ever, hiking in national do not necessarily have anything to do with the parks with my partner, and getting together with strength of a claim or the law, and of having to friends for trivia. decline representation because I am at capacity. My greatest challenge is that of my clients: ere are What organizations are you involved in? not enough resources available to help the people Would you like to be The Colorado Juvenile Defender Center, LYRIC who need the most support, and the avenues for featured in Under Oath? (Learn Your Rights in the Community), Colorado them to vindicate their rights are too narrow if not Email Jessica Espinoza-Murillo at [email protected] for a Attorneys Against Police Violence, the Colorado completely foreclosed. questionnaire. Criminal Defense Institute, AUL Denver, and the 877-475-6300 | OﬃceEvolution.com/CBA National Lawyers Guild.

104 | COLORADO LAWYER | APRIL 2021