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Nov. 2013

November 2013
From the Colorado Bar Association
Business Law Section

Ed Naylor, Editor
In this issue...

Using the Cloud:
Trade Secrets and Confidential Information Aren’t So Secret

by Herrick K. Lidstone, Jr., Burns, Figa & Will, P.C.

Email is now ubiquitous, and used by almost every attorney and client. Some emails are from private domains; a large number are from free, cloud-based webmail services such as Gmail, iCloud, America Online (AOL), and Ymail. Lawyers and clients use these email services to transfer attorney-client communications and trade secrets for which they expect privacy. Many companies and law firms also use cloud-based facilities for storing files and sharing access. These include readily available (and mostly free) sources like Dropbox,1 GoogleDrive2 (formerly GoogleDocs), and Apple’s iCloud, among others. There are a number of commercial cloud storage and SaaS (software as a service) providers as well, such as Clio.3 Each of these services advertises their ease of use, flexibility, ability to avoid extensive hardware and software investments, and other benefits.

These webmail services and cloud-storage sites don’t advertise the dangers their use poses to trade secrets and confidential information, or other security issues. While there are many aspects to these issues, this article addresses those aspects of cloud-based email and storage services that can cause significant risk to attorneys and their clients: the lack of protection for documents stored in the cloud or transmitted by commercial email services, and the ease with which the cloud services permit unauthorized document transfer and potential misuse. These problems create ethical issues which need to be considered under the Colorado Rules of Professional Conduct (especially Rule 1.6) and available guidance.

Terms of Service—No Expectation of Privacy?

Recently, Google, Yahoo,4 the United States Congress, foreign leaders in Europe, Asia, and Latin America and many others have expressed surprise over reports that the National Security Agency is hacking into international web traffic and emails, telephone calls, and other electronic data. The NSA’s defenses are several: “The Europeans did it too”5; “We obtained a lot of our information from the Europeans”; and “We are just satisfying our Congressional mandate.” The Brazilian president6 cancelled a state visit to the United States because of the spying scandal; the German chancellor personally expressed her outrage to President Obama.7

The expressions of surprise on government information collection or spying are like police Captain Renault’s statement to Rick Blaine (Humphrey Bogart) in the film Casablanca as Captain Renault (Claude Rains) was shutting down Rick’s Cafe: “Gambling, I’m shocked.” Of course, Captain Renault made his statement just before receiving his winnings from the croupier.

This expression of “shock” in the Casablanca sense is especially true for the most popular commercial email and document storage services such as those provided by Google, Apple, AOL, and Yahoo. Google’s commercial offerings include Gmail and GoogleDocs as well as the Google search utility. When any person signs up for a Google service, the person must accept Google terms of service which provide:8

When you upload or otherwise submit content to our Services, you give Google (and those we work with) a worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that your content works better with our Services), communicate, publish, publicly perform, publicly display and distribute such content. The rights you grant in this license are for the limited purpose of operating, promoting, and improving our Services, and to develop new ones. This license continues even if you stop using our Services (for example, for a business listing you have added to Google Maps). Some Services may offer you ways to access and remove content that has been provided to that Service. Also, in some of our Services, there are terms or settings that narrow the scope of our use of the content submitted in those Services. Make sure you have the necessary rights to grant us this license for any content that you submit to our Services.

This applies not only to GoogleDocs, but also to Gmail, GoogleSearch, and all other Google applications. The Apple iCloud terms of service9 are almost identical to Google’s, and the AOL terms of service10 are similar, providing:

Except as otherwise provided in this TOS, you or the owner of any content that you post to our Services retain ownership of all rights, title, and interests in that content. However, by posting content on a Service, you grant us and our assigns, agents, and licensees the irrevocable, royalty free, perpetual, worldwide right and license to use, reproduce, modify, display, remix, perform, distribute, redistribute, adapt, promote, create derivative works, and syndicate this content in any medium and through any form of technology or distribution. We own all rights, title, and interests in any compilation, collective work or other derivative work created by us using or incorporating your content (but not your original content).

Email services provided by Comcast provide for similar terms of service,11 although Comcast adds: “If you remove content that you have posted to the Comcast Web Services or terminate your Comcast Web Services account, this license will automatically expire, with a few limited exceptions. Comcast may retain, but will not actively use, copies of your data that were archived in the normal course of Comcast’s database backups.”

With terms of service such as these, can there be any reasonable expectation of privacy for any documents stored in GoogleDocs or other cloud-based services? If “submitting content” or “posting content” includes sending messages or attachments by such services as Gmail, iCloud, or AOL, is the user licensing the service to publicly release that content? For Google’s apparent view on email privacy, and its right to scan emails, see thenextweb.com/google.

The Dropbox terms of service12 are more favorable, and state in part: “We guard your privacy to the best of our ability and work hard to protect your information from unauthorized access. Dropbox employees are prohibited from viewing the content of files you store in your Dropbox account, and are only permitted to view file metadata…we employ a number of physical and electronic security measures to protect user information from unauthorized access.” Dropbox uses 128 bit encryption while some private cloud storage services use 256 bit encryption. Nevertheless, as reported in Information Week,13 Dropbox has had security breaches which have resulted in the compromise of information and a flood of spam. Documents with any degree of confidentiality should not be stored in the cloud—especially in the “free” services—unless they are protected by a complex and secure password. Similarly, these documents should not be sent by email using services whose terms of service show a lack of reasonable expectations of privacy. Our clients, and we as lawyers, exert effort to identify and protect trade secrets, safeguard confidential information, and protect the attorney client privilege. Use of the wrong email or storage services can destroy our efforts.

This is evidenced in one September 2013 case from the Delaware Chancery Court (In re Info. Mgmt. Servs., Inc. Derivative Litig.14 ). In that case, senior officers of a biomed firm facing breach of fiduciary duty claims had communicated with their personal attorney and advisors using their work email accounts. Vice Chancellor Laster ruled that using work emails in such a circumstance resulted in a waiver of the attorney-client privilege since the corporate officers did not have a reasonable expectation of privacy in a work e-mail account where the company (the nominal plaintiff in derivative litigation) had the right to access the officers’ work e-mail accounts. Although the officers put the phrase “subject to the attorney client privilege” in their e-mails, “they failed to take the more significant and meaningful steps to defeat access such as shifting to a webmail account or encrypting communications.” In light of the various terms of service discussed above, might the result have been the same had the senior officers communicated with their personal attorneys using webmail without encryption?

The law requires that a company aggressively guard the information it classifies as trade secrets in order to receive legal protection. The question in each case is whether the company has taken reasonable steps to protect the trade secret. The cloud may not be an appropriate storage medium and web-based email programs may not be an appropriate transmission mechanism. Where the cloud storage medium is password protected, and the stored file or the file to be transmitted is also protected under a different, secure, password known only to a few, those might be deemed “reasonable steps.” Of course, no court has yet ruled on this question, and therefore the answer is still speculative. Or as Judy Collins sang in 1967, “I really don’t know clouds, at all.”15

Ethical Obligations

The American Bar Association has addressed the confidentiality of email communications in its Formal Opinion 11-459 (Aug. 4, 2011).16 In the introduction, the Opinion sets up the question and answer as follows:

A lawyer sending or receiving substantive communications with a client via e-mail or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access. In the context of representing an employee, this obligation arises, at the very least, when the lawyer knows or reasonably should know that the client is likely to send or receive substantive client-lawyer communications via e-mail or other electronic means, using a business device or system under circumstances where there is a significant risk that the communications will be read by the employer or another third party.

Formal Opinion 11-459 followed Formal Opinion 99-413 (Mar. 10, 1999)17 which generally allowed for use of email to communicate with clients, but also provides the caveat that “when the lawyer reasonably believes that confidential client information being transmitted is so highly sensitive that extraordinary measures to protect the transmission are warranted, the lawyer should consult the client as to whether another mode of transmission, such as special messenger delivery, is warranted.” The 1999 commentary stated (based on the technology that existed at the time): “[t]he Committee believes that e-mail communications, including those sent unencrypted over the Internet, pose no greater risk of interception or disclosure than other modes of communication commonly relied upon as having a reasonable expectation of privacy. The level of legal protection accorded e-mail transmissions, like that accorded other modes of electronic communication, also supports the reasonableness of an expectation of privacy for unencrypted e-mail transmissions.” Read in light of the known, legal interception of email transmission by the government and the increased use of webmail services that provide relatively no sense of security based on their terms of service, encryption of email transmissions is an alternative that should be considered by all attorneys and clients. The article, Easy Encryption is Not an Oxymoron18 provides information on three such services that employ different models for encryption. MS Word, Excel, Adobe Acrobat, and other programs have built-in means to add a password to documents which can then be attached to emails.

Warnings about the lack of security in email should take place in the engagement letter at the initiation of the engagement.19 ABA Formal Opinion 11-459 suggests that the lawyers continue to monitor their clients’ email usage even after the commencement of representation. Even beyond clients who use employer emails for personal matters, clients who send and receive emails through their Gmail, AOL, iCloud, Comcast or Ymail account also should be warned that the various terms of service give the third party provider significant rights to review and publicize any emails and attachments. Again, can there be a reasonable expectation of privacy if a client uses these webmail services even where the attorney’s email service is secure? This is becoming more apparent to more attorneys as witnessed by the numerous continuing education programs on cloud-based applications, electronic communications, and social media. Cornell University Law School20 recently advertised a CLE introduced as follows:

For most attorneys, practicing law today means routine use of mobile devices, receiving and sending emails throughout the day, and the use of social media to network, develop business and assist clients. This “new” way of practicing presents lawyers with a myriad of potential pitfalls to navigate around. Well established ethical rules continue to govern lawyers’ interactions with clients and third-parties. These rules apply regardless of whether these interactions are occurring live or on-line. However, it is not always obvious when and how lawyers’ online activities trigger these rules and what lawyers should do to comply with them.

It is important for attorneys to understand all of these risks and to have the knowledge and ability to warn clients when appropriate—either when the client is using an employer’s email to communicate with counsel on personal matters in the Formal Opinion 11-459 context, or when using Gmail or other web-based services to communicate confidential information or other trade secrets. This obligation is in fact imposed on attorneys by Rule 1.1 of the Colorado Rules of Professional Conduct. To make this clear, the ABA’s model rules have adopted Comment [8] to Rule 1.121 which is being considered in Colorado:

[8] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.22 [Emphasis supplied.]

Theft and Misuse

The ease of storing documents in the cloud has also made theft of important intellectual property easier. Furthermore, the intangibility of intellectual property and the ease of using the cloud services have lowered the psychological barrier against stealing company data. The intangibility of information has also made this theft easier than hauling out boxes of paper or microfilm cameras. Dropbox, for example, offers two gigabytes of storage for free—enough to store 1.36 million pages of text—and Dropbox easily accepts transfers of files from company file servers. Cloud-based storage makes it easier for disgruntled employees who have access to a huge amount of data to take sensitive information with them out the door.

In October 2012, the gaming site Zynga sued a former employee for uploading trade secrets from Zynga into the employee’s Dropbox account on his way out the door to work for a competitor. As reported in PC World magazine on Sept. 12, 2013,23 Zynga settled the litigation and received both a confidential settlement from the competitor and a public apology from the former employee. On Sept. 11, 2013, in court papers filed in Santa Clara, California, SanDisk Corp. accused an ex-worker of copying and transferring hundreds of company files and emails to his Dropbox account upon his termination.

Online data hosts like Dropbox and Google Docs have not only made it easier for employees to walk off with sensitive files; the services can also make it harder for companies to distinguish true data breaches from false alarms. What’s more, unlike USB thumb drives and writeable DVDs and CD-ROMs before them, cloud storage potentially introduces a third party to disputes and—along with them—unsettled legal questions and practical complications. Among the questions are:

Given the ease of hacking into some of the cloud-based sites, is there a reasonable expectation of privacy for trade secrets stored in cloud-based applications unless they are password protected (or even where the site is password protected)?

Where the server is located in one or more off-shore jurisdictions, what law will govern access to the data stored on the server (and how do you know where your data is really located)?

Computer forensics are helping deter some crime because computer technicians can establish that, at 1:15 a.m. on the day an employee gave notice to quit, the employee uploaded files into Dropbox. This necessarily involves Dropbox and the other cloud providers in the litigation, at least for discovery purposes. That is when the third party provider may also become a party to the legal action, at least as an information source. As a business matter, email and cloud storage providers often refuse to provide the requested information in civil litigation, which frequently results in ancillary litigation against the service provider to compel disclosure.

Offsetting the risks, it is important to recognize that cloud-based storage and SaaS can be terrific tools for remote workers, sharing documents with clients and co-workers, and protecting against internal hardware failure or electrical problems. Aided by smart phones, tablets, and laptops, employees have an increasing amount of access to company information outside the office and an increasing ability to be productive when the urge strikes. Where trade secrets and confidential information are involved, however, cloud storage may offer more risk than reward.

Cloud storage and transmission of important and confidential files and trade secrets is not going away and is likely to expand. Lawyers and our clients must be aware of the nuances of these issues, and we must try to predict the future and how courts will react to the expanding cloud storage technology and the expansive rights of webmail service providers. The greater the security assigned to the information, such as secure, complex passwords, the more likely it will receive the legal protection it deserves. On the other hand, as recently pointed out in news articles throughout the world, government and private hackers may be able to break any passcode or series of passcodes. The best (although likely impractical) protection for a trade secret may still be the Coca-Cola method—a vault. According to Wikipedia:24

After Dr. John S. Pemberton invented Coca-Cola in 1886, the formula was kept a close secret, only shared with a small group and not written down. In 1891, Asa Candler became the sole proprietor of Coca-Cola after purchasing the rights to the business. Then, in 1919, Ernest Woodruff and a group of investors purchased the Company from Candler and his family. To finance the purchase Woodruff arranged a loan and as collateral he provided documentation of the formula by asking Candler’s son to commit the formula to paper. This was placed in a vault in the Guaranty Bank in New York until the loan was repaid in 1925. At that point, Woodruff reclaimed the secret formula and returned it to Atlanta and placed it in the Trust Company Bank, now SunTrust Bank, where it remained through 2011. On Dec. 8, 2011, the Coca-Cola Company moved the secret formula to a purpose built vault in a permanent interactive exhibit at the World of Coca-Cola in Atlanta, Georgia.

Doesn’t this make us long for the long-lost days of yellow pads, pencils, and numerous boxes of paper files?


1 Available at dropbox.com.
2 Formerly known as GoogleDocs.
3 Available at goclio.com.
4finance.yahoo.com/news.
5finance.yahoo.com/news.
6online.wsj.com/news.
7presstv.ir/detail.
7google.com/intl/en/policies/terms/.
9apple.com/legal/internet-services/icloud/en/terms.html.
10legal.aol.com/terms-of-service/full-terms/.
11xfinity.comcast.net/terms/web/2013-03/.
12dropbox.com/privacy.
13informationweek.com/security/management.
14 2013 BL 237700 (Del. Ch. Consol., C.A. No. 8168-VCL) 9/5/13.
15 “Both Sides Now”, written by Joni Mitchell in 1967, and first performed that year by Judy Collins.
16 American Bar Association Standing Committee on Ethics and Professional Responsibility, Formal Opinion 11-459 (Duty to Protect the Confidentiality of E-mail Communications with One’s Client) (Aug. 4, 2011).
17 American Bar Association Standing Committee on Ethics and Professional Responsibility, Formal Opinion 99-413 (Protecting the Confidentiality of Unencrypted E-Mail) (March 10, 1999).
18 Reach, Catherine Sanders, Easy Encryption for Email—Not an Oxymoron, posted in Law Technology (Aug. 12, 2013).
19 Consider the following language that can be included in an engagement letter. The language should be modified appropriately:
Communications between attorney and client are important, as is the confidentiality of those communications. Typically our clients prefer that our written communications with them are sent primarily, if not exclusively, by electronic mail (“email”). We are happy to do so, but want to ensure you are aware that email communications are not a secure means of communicating. The contents of your email may be accessed by third parties, whether it is because your email has been hacked or because the internet service provider has terms of service that permit it to access, publish and use any information that travels through or resides on its system. If your matter is a personal matter and you are using your employer’s email service, you should understand that most employers have access to all email traffic and thus your communication with us using your employer’s email may not be confidential. There are other means of communication that can be used for confidential communications, and we will do so at your request. Nevertheless, and unless we receive your instructions not to do so, we will email most, if not all, written communications to you.
20support.law.cornell.edu/alumni/Events.
21professional_conduct/rule_1_1_competence.
22 Comment [6] to Rule 1.1 of the Colorado Rules of Professional Conduct is identical, except that it currently omits the emphasized language.
23pcworld.com/article/2048621.
24en.wikipedia.org/wiki/Coca-Cola_formula.

From the Secretary of State’s Office

Nonprofit Board Effectiveness Training

On Nov. 13, Secretary of State Scott Gessler announced the first release in a five-part eLearning series entitled “Board Education and Effectiveness.” The project is aimed at helping nonprofits train and strengthen their boards of directors. The first release is titled “Fiduciary Duties of Nonprofit Directors.” The course is free and open to the public.

The board effectiveness training project originated from a series of meetings in 2012 between the Secretary of State’s office and nonprofit community leaders centered on strengthening nonprofits in Colorado.

Leaders in the Colorado nonprofit community assisted in creating and reviewing course content, including the Colorado Nonprofit Association, Community Resource Center, Metro Volunteers, the Colorado Ballet, Boys and Girls Club of Metro Denver, the Sand Creek Regional Greenway, and Kids in Need of Dentistry (KIND). The review team included legal professionals from Leaffer Law, a Denver-based firm that specializes in providing counsel for nonprofit organizations.

The course will be provided through the Secretary of State’s eLearning platform so participants can take the training at the time and place of their choosing. The Secretary of State will release the remaining four modules over the next several months, with the entire course available to the public by mid-2014.

For more information and a link to the training, please visit the Secretary of State’s website.

Quarterly Business and Economic Indicators Report

The Secretary of State’s central business registry contains an ocean of business data—information like new business start-ups, trademarks, and dissolved businesses. The Secretary partnered with the Business Research Division (BRD) at the University of Colorado’s Leeds School of Business to analyze the data to see if it could provide greater insight into economic trends. The BRD ran a regression analysis comparing business filing data with economic trends. The analysis found that new entity filings were a leading indicator of employment.

Following the close of each quarter, the BRD analyzes filing data and prepares a report that is released to the public, at no charge.

The report for the third quarter of 2013 was released on Nov. 13. During the third quarter, new business filings increased by 6.6 percent compared to the same time last year. Based on increased business filings, the report projects sustained near-term employment growth. The increase in new business filings suggests Colorado will set a new employment peak in the last quarter of 2013 and the first quarter of 2014.

To view the report and sign up to receive it by email, please visit the Secretary of State’s website.

Report of the Meeting of the Working Group on Legal Opinions

by Herrick K. Lidstone, Jr., Burns, Figa & Will, P.C.,
CBA Business Law Section representative to the WGLO

On Oct. 28 and 29, 2013, the Working Group on Legal Opinions (the “WGLO”) met in New York City and, as usual, discussed many matters.

There was much discussion on the status of the (now almost four year) joint project undertaken by the ABA’s Legal Opinion Committee and the WGLO in preparing a description of common opinion practices. One challenge confronting the group is the use by some opinion givers of standard, extensive lists of qualifications and exceptions to the remedies or enforceability opinion and the appropriate allocation of responsibility for narrowing these qualifications and exceptions to those relevant to the transaction and to opinions given in connection with the transaction. Another is what to say about misleading opinions. Everyone agrees that they should not be issued, but the discussion surrounds whether to leave it at a simple statement or a more detailed statement. One of the papers presented at the WGLO included a useful analysis of the more commonly-used qualifications and exceptions.

Limitation of Liability Clauses in Opinions

One of the breakout sessions was focused on the November 2013 Colorado Lawyer article by Ronald Garfield, “Third Party Opinion Letters: Limiting the Liability of Opinion Givers” and several other similar articles. The article generally suggests that opinion letters should include limitations of liability which: (i) exclude individual lawyer liability; (ii) limit the amount of liability; (iii) limit the existence of liability to that covered by insurance; and (iv) defer all claims to arbitration. The discussion surrounded all aspects of the suggestions, but frequently reverted to: “Why would a sophisticated opinion recipient accept these limitations which are not customary?” The author and several others argued that these provisions are not customary YET, but should be considered for inclusion in more opinions. Opinion givers need to be prepared to justify the reasonableness and appropriateness of any deviation from the normally-expected form of opinion letter and, to the extent opinion givers are able to limit their liability in that manner, it could be a sea change. Perhaps there should be baby steps first, such as only a limitation: “The opinion recipient’s sole recourse under this opinion is to the opinion giver (the law firm) and not to any individual.”

Opinions on Alternative Entities

There was another panel discussion on alternative entity opinions—focusing on LLCs and partnership entities. Because of the prominence of Delaware law, much of the conversation focused on Delaware. While attorneys not licensed in Delaware are frequently willing to give opinions under the Delaware General Corporation Law on Delaware corporations, fewer are willing to do so under the Delaware LLC Act. In Delaware, as in Colorado, LLCs are contractual entities with a limited and skeletal statutory backdrop. Thus, while giving an opinion on a Delaware corporation is primarily based on the Delaware General Corporation Law and constitution, giving an opinion on a Delaware LLC requires competence (as defined in CRPC Rule 1.1) in Delaware contract law. The extent of the required competence will, of course, depend on the nature of the opinion requested—an opinion that the Delaware LLC was “duly organized” is not as extensive as an opinion that “the company [operating] agreement is legal, valid, binding, and enforceable.”

Due Diligence

There was a discussion of client due diligence and anti-money laundering proposals around the world and ABA Formal Opinion 463 (May 23, 2013). As has been discussed in other venues, under applicable law European attorneys have an obligation to complete a much more extensive client vetting process than do U.S. attorneys. In larger international firms, this can take a full time department and significant time and software expenditure.

An enforcement defense attorney discussed legal opinion practice in view of the SEC enforcement action against New Jersey attorney Virginia Sourlis, a former all-American basketball player for Stanford, Olympic gold medal winner, and WNBA player. Unfortunately, she was tangentially involved in a Ponzi scheme operated by Greenstone Holdings, Inc. (SEC Rel. 34-70031 (July 23, 2013)). She issued opinions under Rule 144(d)(2) regarding the tacking of holding periods for conversion of debt in reliance on representations of her client but without any other apparent factual inquiry. Suffice it to say the real facts did not comport with her client’s representations. Ms. Sourlis consented to a five year bar from appearing or practicing before the Securities and Exchange Commission under SEC Rule 102(e). Her situation, unfortunately, shows the value of carefully vetting your clients and making a conscious decision not to represent the “unworthy client” in business transactional matters; it also shows the risks that can result from that representation.

Ownership Disclosure

A comment was made that the states generally do not require disclosure of beneficial ownership of entities, but this will likely be coming. At the G-8 Summit in June 2013, President Obama discussed the need for U.S. national requirements for beneficial ownership disclosure, and the White House issued a “Fact Sheet: U.S. National Action Plan on Preventing the Misuse of Companies and Legal Arrangements.” “Entity Ownership Disclosure” and prospective new requirements were first discussed in the December 2007 Business Law Section Newsletter.

Client Indemnification of Attorneys

Several sessions discussed Opinion 969 (June 12, 2013) from the New York State Bar Association Committee on Professional Ethics. That Opinion addressed New York Rue 1.8(h) in responding to a question: “May the attorney ethically request prospectively that the client indemnify the attorney against a lawsuit brought by a third party?” Similar to the Colorado rule, New York Rule 1.8(h)(1) provides that a lawyer shall not “make an agreement prospectively limiting the lawyer’s liability for malpractice” to the client. In this case, however, the Opinion noted that the lawyer was not seeking the client to waive malpractice, but rather that the client indemnify the lawyer against claims by a third party resulting from the lawyer’s work for the client. The New York opinion found this to be permissible. The panels discussed this opinion in the context of an opinion giver asking for indemnification from the client for any liability that might arise out of an opinion delivered to a third party—either from the lawyer’s poor opinion practices or from factual misrepresentations of the client or other parties.

The New York opinion did not address several things that Colorado would find important—including the fact that, by requesting (requiring) indemnification, the attorney would be entering into a business transaction with a client, and thus would have to go through the disclosure and other steps required by C.R.P.C. Rule 1.8(a). Furthermore, if in the process of the representation for which the lawyer sought indemnification from the client the lawyer had committed malpractice, the indemnification request may be met by the client’s cross claim for malpractice. The indemnification amount would likely form a part of the damages the client requests. The session concluded that requesting indemnification from a client, while permissible, was messy, “so messy, in fact, that … the notion is one whose time may very well never come.”

There was an interesting sidebar discussion based on a Massachusetts case which held that agreements made in Massachusetts on a Sunday were illegal because of blue laws requiring certain businesses to be closed on Sunday. See, e.g., Hunt v. Rhodes, 369 F.2d 623, 626 (1st Cir. 1966). Whether this would survive in the 21st century or would be the law in Colorado (where we still have some blue laws) is open for debate (although probably not much).

As should be apparent from the discussion above, and as in the May 2013 seminar (discussed in the May 2013 newsletter) risk management in opinion practice and law firm operations was a significant discussion topic that found its way into each of the sessions.

Business Law Section Activities
Bankruptcy Subsection

Bankruptcy Litigation: Knowing and Navigating the Differences from Other Litigation—Thursday, Dec. 5

Co-Sponsored by the Bankruptcy Subsection of the CBA Business Law Section

This program is suitable not only for bankruptcy attorneys, but for attorneys who periodically litigate in Bankruptcy Court; attorneys who are about to step into the bankruptcy arena; and trial attorneys. Every litigator can benefit from knowing the ins and outs and hot topics of bankruptcy litigation.

Join us and receive invaluable perspectives from the Bankruptcy Court Judges, the Bankruptcy Court Clerk’s Office, and seasoned Bankruptcy court practitioners, and other court litigators. Offered for 7 CLE credits.

Bankruptcy Subsection Co-Chairs and Program Planners are Leigh Flanagan, Kutner Brinen Garber, PC; and Andrew Johnson, Onsager, Staelin & Guyerson, LLC.

Program location is at the CBA-CLE Classroom—1900 Grant Street, Ste. 300, Denver, CO. Learn more and register online, or call 303-860-0608 (toll free 888-860-2531).

Financial Institutions Subsection

OFAC’s Sanctions Programs: Financial Institution Compliance—Wednesday, Dec. 18

Co-sponsored by the Financial Institutions Subsection of the CBA Business Law Section

Attend this program to receive updates on the Sanctions Programs of the US Office of Foreign Assets Control (OFAC). Learn recent developments, including recent enforcement actions and trends, and the requirements of these Sanctions Programs as they pertain to banks and hear strategies for compliance. Register today to be prepared! Available for one general CLE credit.

Program speaker is Frank Schuchat, who has practiced in the area of international trade and business for three decades, in both Washington DC and Denver. He advises clients on export controls, sanctions, Foreign Corrupt Practices Act compliance, import rules, and transnational business and investment transactions. Mr. Schuchat is a director of the World Trade Center Denver and he serves by appointment of the U.S. Secretary of Commerce as a member of the Rocky Mountain District Export Council.

Program location is at the CBA-CLE Classroom—1900 Grant Street, Ste. 300, Denver, CO, or attend via webcast. One general CLE credit is available. Learn more and register online, or call 303-860-0608 (toll free 888-860-2531).

Mergers and Acquisitions Subsection

The New Healthcare Landscape: A Transactional View—Tuesday, Dec. 3

Co-Sponsored by the M&A Subsection of the CBA Business Law Section

Greg Anderson, Managing Director of the Healthcare Industry Practice of Green Manning & Bunch, provides a current overview of the investment and financing landscape for the healthcare industry after health care reform. Greg will focus on financing, investments, acquisitions and other ventures in the health and life sciences space and the issues that are currently affecting transactions in those areas.

Program location is at the CBA-CLE Classroom—1900 Grant Street, Ste. 300, Denver, CO, or attend via webcast. One general CLE credit is available. Learn more and register online, or call 303-860-0608 (toll free 888-860-2531).

CBA-CLE Information

Unless otherwise noted, all programs are at the CBA-CLE offices, 1900 Grant St., Ste. 300, Denver

Spend the Day with Sean Carter—Comedic Professional Education—Friday, Dec. 20

Continuing legal education can be both fun and informative—that is what speaker Sean Carter has proven in more than 500 lectures for lawyers, executives, HR professionals, and many others.

Mr. Carter draws on his unique background as a former securities lawyer, corporate vice president and stand-up comedian to create educational programs that are not only laugh out loud funny, but also relevant to business and legal professionals. His programs run the gamut from legal ethics to professionalism to corporate compliance to diversity, but they all have one thing in common—humor, and plenty of it.

Program location is at the CBA-CLE Classroom—1900 Grant Street, Ste. 300, Denver, CO, or attend via webcast. One general CLE credit is available. Learn more and register online, or call 303-860-0608 (toll free 888-860-2531).

Recent Homestudies

Check out the complete catalog of CLE Homestudies, plus some recent business law programs.

What to Do When the SEC Comes Knocking? —Original program date Nov. 20

2013 Business Law Institute —Original program date Oct. 16–17
If you missed this year’s Business Law Institute, you can get the content via homestudy! Includes course materials.

Ethics and Professionalism in the Practice of Law—Original program date Oct. 4

CBA-CLE Featured Publications

CBA-CLE carries an extensive catalog of business law ABA publications—and CBA members save 15 percent on the ABA regular price! Check out just some of the books available:

  • Advising the Small Business: Forms and Advice for the Legal Practitioner, 2nd Ed.
  • Business Bankruptcy Essentials, 1st Ed.
  • Business Torts Litigation, 2nd Ed.
  • Contract Drafting: Powerful Prose in Transactional Practice, 1st Ed.
  • Intellectual Property Deskbook for the Business Lawyer—A Transactions-based Guide to Intellectual Property, 3rd Ed.
  • Model Jury Instructions—Business Torts Litigation, 4th Ed.
  • A Manual of Style for Contract Drafting, 3rd Ed.

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Contact Ed Naylor at ed.naylor@moyewhite.com or 303-292-2900

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