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December 2011

CBA Litigation Council December 3, 2011 Meeting Minutes
LOCATION: CBA Offices, Denver

 

COUNCIL MEMBERS PRESENT:

In Person:   
Vice Chair: Alden Hill James Gaspich Andy Toft Larry Schoenwald

Via Telephone:
Peter Black, Chair Kim Schutt,  Peter Goldstein,  Lila Bateman,  Sandra Wick Mulvany,  Jon Sands,  Kathy Riley

CBA Personnel:
Greg Martin,  Michael Valdez, Dawn McKnight

CALL TO ORDER: 9:05 AM

  1. APPROVAL OF MINUTES: Motion to approve the minutes of the November 5,2011 meeting by Andy Toft; seconded. Motion passed.
  2. FINANCIAL REPORT AND BUDGET: Greg Martin gave a report of the Litigation Section' financial status and proposed budget. The Section usually has two big grants each year -Mock Trials and Food Bank of the Rockies. The grant to the Food Bank was forgotten last year. Discussion regarding the Section budget took place. Mock trials support regional tournaments and related expenses for the program. The Food Bank distribution is statewide; the money is divided up between eight different food banks in the state.

 

MOTION: Alden Hill: Motion to approve of the proposed budget, with $7,500 to the Food Bank and $12,000 to Mock Trials. Seconded by Kim Schutt. Motion passed; budget adopted as amended.

4. COMMITIEE AND SUB-COMMITIEE REPORTS:

A. Supreme Court Civil Rules Committee: (Peter Goldstein)

There were a couple of emergency issues the court asked the committee to work on. Rule 47 will probably get postponed to January meeting (there was no meeting in Nov and Dec.). Greg Martin brought forward an issue from a member in regards to suggested changes to C.R.C.P. 5(b)(2)(D) to address delivery via e­filing and that designation of an email address in the pleadings effects consent in writing for such delivery. Discussion took place; consensus was this issue should go to the Rules Committee. Peter will take a look at the suggested language and the Council will discuss further at the next Council Section Meeting.

B. Board of Governors.(Sands/Toft) A Board of Governors meeting was held on October 29th up in Vail. It was a good meeting; covered a variety of topics. A new Title Standard was passed by the Board of Governors regarding unequal joint tenancies; 7.1.5. Heard discussion going on that the standard may need some more work on it. There was quite a discussion about collaborative law proposals and whether it would only apply to family law area or have a broader application to other areas, and what part should be statute and what should be by rule. Want to make sure the legislative body not exceed bounds of what it can do in telling lawyers what they must do.

The CBA is filing an amicus brief requested by the Prof Liability Committee and the Ethics Committee in a case about the fidUCiary duty a lawyer may have to a non-client. Filed a brief stating that lawyer does not have a fiduciary duty to the non-client. In the break-out sessions members discussed what we do or can do to help younger lawyers, help them along so they are more capable of practicing in court as well as out of court. Some issues in regards to concerns for funding to the court were discussed as well.

C. Securities Sub-Section. They have one CLE program. Greg will go back to the group to see if anyone is interested in attending the Council meeting.

D. Appellate Practice Sub-Section. (Donnelly/Gaspich). Continuing to work on the pro bono appeals; very active. Have approved some funding for that project. Spent $1,500 so far on half-priced transcripts when needed. The Sub-Section has an Appellate Practice Update CLE on Dec. 16th • Decisions seem to be coming more quickly -one to two weeks after argument.

E. Class Action Sub-Section. Not much to report. Working on getting a CLE on class action cases from the U.S. Supreme Court. Will see in the next month or so.

F. Consumer Law Sub-Section. No report.

G. Section Newsletter. Will work on getting a newsletter out in January.

H. CLE Update. Pilot Project trainings have been taking place; well-attended program this last week here at the Bar CLE classroom. Some concerns raised that many practitioners may not be informed of the changes. Judicial trainings have been held at DU Law School and at the Bar CLE classroom. The leaders of the Pilot Project training mentioned that a program may be held in a few months to talk about any issues that have come up during the initial implementation of the project. There are several CLE programs in the works for the Section. A Free program for Section members on e-discovery processes will be held in February.

I. Legislative Update. (Michael Valdez) Collaborative law is moving toward a 2012 introduction; discussion still underway as to how much might be rule and how much will be statutory. We will have a follow-up conversation with the Uniform Law Commission as to

the progress.

GUEST SPEAKER: William Campbell, Executive Director ofthe Colorado Commission on Judicial Discipline.

Mr. Campbell grew up in Grand Junction and formerly practiced law in Golden with his brother. He attended CU Law and wanted to stay in the area. Their office was across the street from the Hall of Justice, near the School of Mines. He did all the walk-in matters from the court across the street and he did quite a bit of court-appointed work. He was also the City prosecutor once a week. While a young lawyer, he got to know three or four really good Jefferson county judges -like Roscoe Pile, George Priest, Judge Christen Stoner, and Judge Wilson. He stated it was a great way to start his lawyer career. He really enjoyed these judges; most of them didn't have to go through the merit process. Mr. Campbell shared some anecdotal stories about his early career and the judges.

Next, Mr. Campbell went through his material his presents for the "New Judge Orientation" that is held every December. This is a good forum to introduce to lawyers to his Office and the Commission's role. The Commission published its 2010 Annual Report in the June issue of The Colorado Lawyer. (The Report provides much the information presented here, but in more detail.)

The Commission's jurisdiction is limited to evaluating -and, if necessary, taking disciplinary action regarding -allegations of judicial misconduct by Judges of the: County Court, District Court (including Juvenile and Probate), Court of Appeals, and Justices of the Supreme Court. The Commission does not have jurisdiction over municipal judges, AUs, magistrates, or Denver County Court Judges. The County Court judges in Denver wear two hats. They have their own commission that responds to judicial conduct, but then also they are governed by Attorney Regulation. Magistrates are excluded as well. Mr. Campbell stated that perhaps if magistrates were around when the Commission was set up, they might have been included. But chief judge is really the supervisor of magistrates and Attorney regulation is their ethics organization. Most likely this is just a historical quirk. Municipal judges might have been included too if had been around historically.

The Commission has ten members, four are citizens. Current Commission members include: District Judge Roxanne Bailin (Chair; Boulder); District Judge Doug Vannoy (Fort Morgan); County Judge Martha Minot (Durango); County Judge Leroy Kirby (Brighton); Federico Alvarez, lawyer (Denver); Richard Campbell, lawyer (Denver); Albus Brooks, citizen (Denver); David Dill, citizen (Pueblo); Kathleen Kelley, citizen (Meeker); and, David Kenney, citizen (Denver). The objectives of the Commission include: to promote professionalism through the New Judge Orientation and District Meetings, respond to public and judges regarding judicial ethics, and disciplinary measures when necessary.

Mr. Campbell has visited 14 districts in the last year and a half. His office receives quite a few calls from the public about judges and sometimes receives calls from judges. The Commission can take some disciplinary measure, if needed in the situation. The grounds for judicial discipline are contained within Rule 5 that is based on Article VI of Colorado's Constitution. Grounds include violations of the Code of Judicial Conduct. Following a long process, The Revised Code of Judicial Conduct was effective July 1, 2010. The New Code is more in line with the Model Code of other states. Mr. Campbell encourages you to read it -there are fact situations explained and how the ethics rules play out. Nine Canons of the former Code has been revised into Four Canons with Rules, Comments, and Annotations under each Canon.

Here are a few of the rules that come up frequently; each Cannon has Rules underneath that go with the Canon. Canon 1 sets the tone.

Canon 2 -this is one we hear most frequently about. It contains provisions about impartiality, bias, external influences, etc. Rule 2.5 gets the most complaints. The Rule focuses on being competent, diligent and getting the job done. Because of budget constraints, staffing, and pro se litigants, the office is getting more complaints about getting the work out. Rural counties are understaffed. Some judges have 5 0 r 6 counties to look at with limited resources to get work done. Judges are working lots of hours. If the issue was just laziness, the rule would apply. Often the issues are due to courts being understaffed.

Rule 2.6 held up approval of the code for some time. The Rule encourages judges to assist pro se judges without overdoing it. Sixty to eighty percent are pro se -one or both parties. Traffic cases -often pro se. We

lawyers are much in demand, but affordability is a problem. This issue ties into work of a judge too. For example, if parties are pro se, the judge cannot delegate writing a motion to a party for the judge to sign. We never really had an ethics rule on recusal before. The new Rule 2.11 deals with recusal. Mr. Campbell encourages us to read this rule.

Canon 3 -deals with the judges' conduct off the bench. Judges are permitted to testify at legislative hearings if the judge is an expert. Judges are not permitted to be involved with an organization that is discriminatory. The Chief Judge would like judges and lawyers to get more involved with community organizations where possible.

Canon 4 addresses that judges have to stay out of politics.

Anyone can file a complaint with the Commission. Complainants are litigants, inmates, family, friends, lawyers, other judges, court staff, SCAO, or the media. Complaints usually involve divorce (parenting, contempt, or favoring a certain lawyer); family feuds (probate, guardians, and conservators); evictions and collections, sentencing, probation, or parole; awkward personal situations among judges and staff; delays; loss of temper by judge, lawyer, or litigant; and, self-reported complaint from a judge. Judges may call the Commission for dialogue about Code issues. Alternatives are JEAB or Carol Haller at SCAO.

Phase One of the complaint process: screening by Mr. Campbell under Rule 13. Approximately 90% are dismissed and the judge is not notified. The dismissal letter is very important to the Complainant, so time is dedicated to those letters. The remaining ten percent of the complaints survive the initial review and the judge is then notified. Allegations that usually survive screening: unprofessional demeanor; discourtesy to litigants or to staff; derogatory statements; emails -inappropriate statements; a pattern of bias in rulings or comments; appearance of impropriety; lack of diligence in Docket Management -delays; ex parte communications; inappropriate personal relationships; non-compliance with filing requirements regarding oaths of office or personal financial disclosures; and, Facebook issues.

Allegations that do not survive screening include appellate issues, e.g., terms of parenting plan or conservator's reports; misconduct by DAs, PDs, private attorneys, police, sheriff, probation, magistrates, and staff; clearly groundless; and, use of grievance primarily to "judge shop."

Phase Two is a preliminary investigation under Rule 14: notify judge -request response; obtain pleadings, transcripts, or audio; and, interview witnesses. The Commission needs a judge's candid view of what occurred. Most disciplinary measures are private. Preliminary investigations may result in the dismissal of the complaint. No reports are made to Commissions on Judicial Performance. Proceedings are confidential, with exceptions in limited circumstances under Rule 6. Preliminary investigation can be a beneficial process for a judge, even if the Commission finds no misconduct.

Phase Three involves dispositions or formal proceedings under Rules 16, 35, and 36: private dispositions. The dispositions available to the Commission include: dismissal; deferral options include professional counseling, medical treatment, or training; private letter of admonition; private letter of reprimand; private letter of censure; and, other action including a combination of the foregoing, e.g., admonition with docket management reports. The judge and the complainant are advised of the Rule 35 Disposition, otherwise disciplinary measures are confidential.

Formal proceedings under Rules 18-33 are for cases when private discipline is inadequate. The process includes a trial involving pleadings, discovery, pre-hearing procedures, testimony, etc., under the Rules of Civil Procedure. If the Commission determines there is probable cause and Special Counsel is appointed to prosecute the charges. The Supreme Court appoints a hearing panel of three Special Masters, and based on the Special Masters' findings and conclusions, the Commission then recommends Sanctions to the Supreme Court. Sanctions under Rule 36 include: removal; retirement for a disability (can be stipulated without a hearing); public reprimand or censure; assessment of costs of disciplinary proceedings; other sanctions determined by the Supreme Court; and, a Rule 35 Disposition, in lieu of sanctions. The Supreme Court has final decision on Sanctions. There have been only two reported Formal Proceedings by the Colorado Supreme Court and 30

Formal Proceedings in 44 years.

Recent Changes in Commission's operations and procedures­

"How can we make the commission more transparent even though our work is confidential?" Mr. Campbell discussed that they moved their office from an obscure building near the Governor's Mansion to be with Attorney Regulation briefly, but now have their own space. The Commission has in-person meetings now; used to meet only by phone. Also, the Commission uses a Secured email system now. The Commission set up a website -the number of phone calls went down, but they get more hits on the website than they ever had in phone calls. Contacts with the public are about 2,000 -2,500 a year. They used to get about 500 phone calls a year. The Commission gives detailed dismissal letters; used to be only a form letter. The Commission needs people to understand that they do read their submissions and did review it. "We've got to hear them through and respond to them," he stated. The Commission has pre-authorized Mr. Campbell to do preliminary investigations if delay is involved. Rule 3S is the most common complaint; comes up in final orders in family law cases for permanent orders.

The Commission has proposed rule revisions pending before the Supreme Court. Jurisdiction comes from the Constitution -so there is some ambiguity. In the past when an investigation was started with a judge, the Commission used to drop the case if the judge resigned/retired. The Commission is changing that; there are some situations when the Commission cannot look the other way. So going forward the investigation will continue, even if the judge resigns. The new jurisdictional rules allow the Commission to proceed and conclude the full process.

Other changes in the rules address the issue of confidentiality -the Commission can now respond to the Supreme Court if a judge is moving up through the nominations process. If there was disciplinary action taken, the Commission can report that. If just a complaint filed, the Commission does not report it. Other exceptions­if one of the Commission's proceedings gets public when not intended, the Commission has an obligation to set the record straight. The Commission should be able to respond to investigators, e.g., law enforcement, as well. As to the proceedings themselves, that will remain confidential. For disability proceedings the previous rules did not provide guidance. The Commission now will have very detailed rules on how to proceed, allowing due process.

The new rules will allow the Commission to talk to Judicial Performance; old rules did not. If an ethics issue comes up under the judicial performance process, currently the Commission cannot be notified about it. The new rules will allow these issues to come to us. Judges also get the three free counseling sessions from Mines & Associates. Lawyers seem to know about this, but not the judges. Bill's appointment is by the Commission. He reports to them. The Chief is sort of everyone's boss, but he does not have formal lines of reporting to the Chief Justice -the Commission would have jurisdiction over the Chief Justice.

The Council thanked Mr. Campbell for his attendance at the meeting and providing such a thorough report to be shared with the Section.

5. NEW BUSINESS

A. New Council Secretary -volunteers or nominations? No takers. We will work on that; Lorraine Parker would like to step down as secretary.

B. Real Estate Privacy Task Force Andy Toft has agreed to represent the Section on this task force; did participate in a conference call but nothing has gone on lately. Putting together a white paper to the legislature -how to deal with private information in the real estate records. But, there is nothing of significance to report at this time.

C. Request to Suggest Change to C.R.C.P. 5(b)(2)(D) Discussed earlier under Civil Rules Sub-Committee; to be discussed more in depth at the next meeting.

D. Proposal to Adopt A Public Domain Citation Format for Colorado Supreme Court and Court of Appeals Published Opinions This is an access to justice initiative so the public have access to court opinions, particularly pro se parties. This may affect lawyers if you go to court often with pro se litigants on the opposing side, if lawyers need to add the court public citation as a parallel cite. It is unclear what is the requirement for lawyers to include the parallel cite. However, Publishers will be required to include the court's citation format beginning January 1, 2012. The Court's stated objective is "to adopt a public domain citation format that will support the use of Colorado case law in both book and electronic formats."

E. Rules Revisions for U.S. District Court The U.S. District Court approved revisions to its Local Rules that were effective December 2,2011. The revisions are on the court's website at: www.cod.uscourts.gov/LocaIRules/Rules.aspx. The rules are available on the website as an entire set, with appendices.

The Advisory Committee on the Local Rules of Practice invites comments and suggestions for rule revisions and additions that will be collected in a central e-mail clearinghouse: LocalRule Comments@cod.uscourts.gov. Comments received by June 1, 2012 will be considered in the 2012 cycle. After consideration of comments on the proposed rule revisions, the proposed rules with any necessary changes will be considered by the court, with an anticipated effective date of December 1, 2012.

 

6. OLD BUSINESS.

A. Speakers for future meetings? With Civil Access Pilot Project -maybe have some of the Chief Judges come and talk about what issues have come up, how's it going, etc.; maybe two at a time. Would like to have a representative from the U.S. District Court.

B. State E-Filing Project. Andy Toft has been going to these meetings. The top two officers of this project at State Judicial had left. At the last meeting, the new project lead -narrowed down the scope of work they plan to do. Have confidence this project will be ready to go and well taken care of by January of 2013. Fees will be the same to start with; but with new people in charge, the fee issues may be revisited. Will most likely not see a decrease in filing fees; possible that we will see a reduction of the charges for printing materials from a large case. G. Mahroney will be the person who has final say on the price, or the Chief Justice.

C. Dead Man Statute Discussion: The Trust & Estate Section would like an answer. Defer until January until more council members are present at the meeting or get feedback from concerned Council members about the T&E Section's proposal. Argument is that rules of evidence adequately deal with it; some do not like either the rule or the statute, or the proposal. Constraints exist on both sides. Does anyone want to have this discussion with the T&E Section? Mr. Darling and Herb Tucker gave us their paper; T&E put together a very thorough packet on why they wanted it. Please review those materials in depth so the Council can take a position as soon as possible. Motion & second to defer. All in favor. Deal with on January 7'h.

D. Meeting Dates -Jan. 7, Feb. 4, March 3, April 7, and May 5. The next Board of Governor's meeting is in May, 2012.

7. Motion to Adjourn and Seconded. All approved. Adjourned at 11:55 am.