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December 2007

CBA LITIGATION COUNCIL
DECEMBER 1, 2007 MEETING MINUTES


LOCATION:  CBA Offices, Denver, CO 

COUNCIL MEMBERS PRESENT:

In Person: 

Chair, Peter Black
Vice-Chair, Alden Hill
Doran Matzke
Rich Caschette
Mickey Smith
Larry Schoenwald

Via Phone: Peter Goldstein
   
CBA Personnel: Chuck Turner; Greg Martin; Michael Valdez; Brock Woods CLE (via phone)

OTHERS PRESENT:  John Gleason, Regulation Counsel

1. CALL TO ORDER:  9:10 AM  and APPROVAL OF MINUTES:  The October 6, 2007 Meeting Minutes were approved by unanimous vote after motion.

2. REPORT FROM JOHN GLEASON, REGULATION COUNSEL. The ethics vignettes, the best that John has seen, are being productively used by the Office of Attorney Regulation Counsel (OARC), the Professionalism School and CLE’s around the State.  Colorado is the only state that requires participation in a Professionalism School for new admittees and those who seek to practice on motion.
John discussed several OARC cases, including the Biddle/Steinman matter, complaints alleging disruptive conduct in the course of litigation, including a case involving disobedience to court orders regarding opening statements, closing argument and the presentation of evidence.  In another case, a plaintiff’s personal injury attorney failed to disclose the death of the plaintiff during negotiations with an insurance company, a stayed suspension was recommended, but OARC is appealing to seek clearer guidelines prohibiting this conduct in Colorado, consistent with most other states.
Even though OARC deals with numerous complaints annually alleging attorney misconduct, historically, Colorado has been reluctant to discipline lawyers for disruptive behavior, contrary to other states, such as Ohio.  Approximately 10 judges have reported specific misconduct by individual lawyers.  Only about 20% of the complaints against lawyers are filed by opposing counsel who typically allege inappropriate behavior rather than incompetency.  Female counsel constitute 30-40% of the bar and complaints against them reflect that percentage.
About 150 complaints per year are filed against DA’s, which have included more serious charges in the last few years.  Following the public censure of Carol Chambers, there have been more complaints filed against DA’s and more crime victims have alleged mistreatment by prosecutors. 
Mandatory training of new judges has been ramped up. 
A diversion program for attorneys has been in place since 1998-99.  Colorado was the first state to track lawyers in such a program, having dealt with over 300, typically monitoring them from 1-4 years.  Diversion monitoring is a probationary status especially utilized in DUI cases and with other misconduct.  Aggravated DUI’s may require alcohol evaluation specialists, which cost the OARC about $40,000 per year.  Colorado is the first state to take such an aggressive stance in monitoring lawyers with alcohol problems. 
There is a need for practice monitors, financial monitors and financial auditors.  Approximately 200 attorneys are presently being monitored in alcohol programs with sophisticated equipment such as intoxilyzers with video cameras, ankle bracelets capable of detecting metabolism changes and telephone connected intoxilyzers.  Lawyers must make payments for the benefit of such services. 
About 25 lawyers are being evaluated by practice monitors, requiring monthly reports.   If a practice audit is done, a detailed audit checklist is used, taking 2-3 days to complete.  Lawyers must repay the cost of such audits and for the practice monitors, who receive a reduced fee.
John believes that confidentiality rules are applicable to both lawyers and judges are outdated and in need of revision.   Justice Bender chairs a committee considering changes in the confidentiality rules for lawyer complaints and discipline. Confidentiality applies to lawyers who have been grieved until a formal complaint is filed, but the entire judicial discipline process is confidential.  John thinks that the system needs to be more open and accountable to the public for both lawyers and judges.
He addressed whether abandonment of clients should trigger an immediate suspension and result in immediate notice to the public.  He advocates expanding the “immediate suspension rule” to include abandonment of clients coupled with prompt notice to the public to prevent the perpetuation of harm.  He parenthetically noted that we are the only licensed professionals who regulate ourselves.
Presently, immediate suspension results from 1) felonies, 2) inappropriate use of funds, and  3) “serious and immediate harm to the judicial system.”  He suggests “abandonment of clients” as a fourth ground.
There is a need for pro bono representation of attorneys before OARC, as well as the need for more practice monitors, practice auditors and mentors.  We agreed to include his request for pro bono assistance of attorneys before the OARC in our newsletter, along with the need for additional practice monitors and auditors.
How to retire gracefully was the subject of a recent, well attended CBA program which addressed retirement and closing a practice.  There were written materials, checklists and forms from this program which are available on the attorney regulation website and on the CBA website.

3.  FINANCIAL REPORT.   Greg Martin reported that our financial status is good and unchanged.

4.  COMMITTEE AND SUB-COMMITTEE REPORTS

A.  Supreme Court Rules Committee.  Peter Goldstein advised that the committee does not meet until January.

B.  Board of Governors.  Jon Sands briefly discussed his written summary of the Board of Governors meeting on November 1, 2007.  As reported by Jon and Michael Valdez, there may be a pilot “business court” program in Denver as early as 2008, but probably by 2009.  Secretary of State Coffman wants Colorado to be more business-friendly and, apparently, believes that it is advantageous to have recorded precedent on business issues through trials and appeals.  While ADR proceedings can be expeditious, these ad hoc decisions do not establish recorded guidelines/precedent. 

C.  CBA Task Force on Judicial Performance.  See 6B below. 

D.  Professionalism Committee.  Greg Martin reported that the Professionalism vignettes will be trademarked to protect this work product which belongs to the CBA.

E.  Securities Sub-Section.  Rich Caschette will report at the next meeting on an event that was to be held in Denver in December.

F.  Appellate Practice Committee.  There has been no new representative from that committee who has applied to be a member of Litigation Council.

G.  Section Newsletter.  No report

H.  CLE Update.  Brock Wood reported on December programs, which have adequate registration.  The Litigation Boot Camp, scheduled to begin in the spring of 2008, consists of 9 morning programs which will each run from 9AM to 11:30 AM.  No ethics credits are included.  Several attorneys were suggested for the closing argument portion of the program.  Greg will distribute a Boot Camp brochure to the council members.

5.  LEGISLATIVE AND JUDICIAL TERM LIMITS INITIATIVE UPDATE.  Andrews Constitutional Amendment:  Michael Valdez reported that this will most likely be on the ballot for November, 2008.  The Executive Council of the CBA is meeting to address how to respond, and they are still on record as being opposed to term limits.  The proposed amendment includes all judges this time, not just appellate judges, and it is does not apply retroactively.  It is unclear what the cost of an opposition effort would be or whether it would even be feasible.  Greg pointed out that the costs of such opposition campaigns increase during a presidential election year.
 
6.  OLD BUSINESS. 

A.  Selection of New Council Members. It is anticipated that this will be decided by the next meeting.
 
B.  Follow up re Judicial Performance-Judicial Performance Evaluation Workshop. Michael Valdez reported that legislation revising certain aspects of the judicial performance evaluations is in the final drafting process and he will report on this at the January meeting. 

C.  Peremptory Practice Issues-C.R.C.P. 47(h) Revision Draft Suggestions. Peter Goldstein submitted his proposed changes regarding peremptory challenges, see C.R.C.P. 47(h), attached hereto.  It is requested that we get back to Greg Martin with any further comments or proposed modifications to this proposed rule change by the next meeting on 1/5/08.

D.  E-filing Issues. The council members are encouraged to provide input to Greg Martin on their satisfaction or dissatisfaction with e-filing/Lexis Nexis, so that these issues can be addressed by Gerald Marroney, the State Court Administrator.  It is anticipated that he will be one of our speakers in February, March or April.
Alden Hill hypothetically questioned the impact of an erroneously rejected e-filing by Lexis Nexis, resulting in the failure to meet a statute of limitation deadline.  Alden thought that we should review the Lexis Nexis contracts with the State before our meeting with Mr. Marroney.

E.  Dead Man’s Statute.  No report and no position yet.

F.  Litig. Sec. Tech. Support Temp-CBA Website Updates. Greg Martin reported that this is still being considered to update Litigation Council information on the website.

G.  Speakers for Coming Meetings. Jerry Marroney will probably be scheduled for February, March or April, to address our input on local rule conflicts and our comments on e-filing/Lexis Nexis, including a review of contracts between the State and Lexis Nexis, as requested by Alden Hill.  Arrangements for Judge Nottingham to speak have not yet been finalized.

7.  NEW BUSINESS.

A.  E-filing/Local Rules. Peter Black addressed several examples of local rules which are more restrictive and can create different deadlines than the State rules.  Many jurisdictions have mandatory filing orders.  For example, Moffat County requires that any responses to motions be linked with previous motions through a directive by the Chief Judge.  Some of these local rules are not readily accessible to all lawyers and they can conflict with Rule 121.  Summit, Fremont and Mesa Counties were identified as having specific local rules which should probably be discussed with Mr. Marroney as well.

B.  Creation of Electronic “Suggestion Box” for Members. Greg Martin plans to establish a suggestion box for CBA members on the CBA website for inquiries, suggestions and comments for the Litigation Council. 

8.  ADJOURNED at 11:35 a.m.  Next meeting to be January 5, 2008 at CBA offices  at 9:00 AM


Prepared by:

/s/ Lawrence J. Schoenwald

__________________________
Lawrence J. Schoenwald for Lorraine
Parker, Secretary

Approved: __________________________
                 (date)