Monday, September 24, 2018

(Only) Tempus Fugit


HOLY COW! – it’s been nearly a year since I posted a blog.  An accounting for such a long sabbatical seems in order.

It’s not that I have stopped writing about ethics; far from it.  Nor, sadly, have I been off flying instead of writing.  Tempus fugit, non mihi.   So what the heck have I been doing?


Well, first I developed a brand new continuing legal education program for National Business Institute, which I recorded in Wisconsin last Monday.  It’s called Legal Ethics of Handling Digital Documents, and is scheduled for release as a national webinar on 24 October (register for it here).  Believe me, researching and writing a 40 page outline, and then creating 185 PowerPoint slides for filming, is a whole lot of work.

Why do I do it?  Two words:  Winzer Stube.

Winzer Stube is a fabulous German restaurant located in Hudson, Wisconsin that I discovered with Ron Nemirow when we flew out to record an NBI webinar a few years ago.  Read my Trip Advisor review for all the scrumptious details. It’s so good, I even bought the t-shirt. 

Winzer Stube is conveniently located directly en route between KMSP (where NBI flies its speakers into) and Altoona, Wisconsin (where NBI’s studios are located).  Bribe me with great schnitzel, spaetzli, authentic German beer, and apfelstrudel and I’m your guy.
 
Also, this spring I agreed to chair a subcommittee of the Colorado Bar
 Association’s Ethics Committee to draft an opinion explaining the effect of the Colorado Supreme Court’s change to Rule 8.4(c), about which I have written extensively.  The opinion will explore the legal and ethical issues that arise when an attorney gets involved in pretextual investigations.  The first draft is nearly done, and the hard work of editing is about to commence.  If the Committee approves it, expect to see a formal opinion next spring.
  
Last (and most fun), this summer I agreed to assemble and chair the panel of ethicists who provide the “meat and potatoes” analysis to the cotton candy that is The Law Club’s annual Ethics Review.  Produced by CLE of Colorado, this year’s review will once again be held at Lannie’s Clocktower Cabaret, located in basement of the historic Daniels & Fisher Tower in downtown Denver, 13 and 14 November.  There’s also a special noon matinee in Boulder on 29 November.  CLE has not posted the advert for the Ethics Review yet, however here’s taste of what’s in store – a teaser video from 2010 show (yours truly appears for a fleeting moment at 0:24). 

We’ve got a great panel this year including, for ONE NIGHT ONLY (14 November), Jessica Yates, the Colorado Supreme Court’s new Attorney Regulation Counsel.  If you have never been to the Ethics Review, it is the easiest, most fun way to accumulate those precious CLE ethics credits ever invented.  Be sure to tip your waiters and bartender.



 

With so much still on my plate, the sabbatical from blogging will continue for the foreseeable future.  Fear not, though – I have 34 great topics warehoused, just waiting to be written.

Prost!

Sunday, October 22, 2017

What happened to the Colorado Attorney’s Lien Statutes?



Google Snippet

One of the earliest ethics articles I published on the Web – nearly 20 years ago – was titled Lean on Me: Making Sense (and Dollars) of the Colorado Attorney's Lien Statutes.  It’s a timeless article in at least two respects:

First, at the time I wrote it, the attorney’s lien statutes, passed in 1903, had remained unaltered for 95 years.  I once asked a colleague why this was, given their dense and confusing language.  His response, perhaps tongue-in-cheek, was that the Bar was afraid if it asked the legislature to update them, it would repeal them instead.

Second, of all I have written about Colorado legal ethics and the practice of law, I have probably received more calls and thank -yous regarding this article than any other.  That’s staying power.  This week it was a “featured snippet” at the top of the Google’s rankings for the search:  Colorado attorney's liens.  I suspect that may be more a function of Internet longevity than quality, but I have a confession to make:  I wrote this article for myself.  The attorney’s lien statutes and interpretive case law is such a mosh pit that every time an attorney’s lien issue arose I had to relearn the law.  The article is, in truth, a legal memorandum to myself.  It is merely a happy coincidence that others have found it useful.

With this background, imagine my surprise when my partner and co-chair of Moye White’s Law Practice Professionals Group, Eric Liebman, stuck his head in my door a few days ago and asked:

“What happened to the attorney’s lien statutes?”
“What?” I asked.

“They’re gone,” Eric explained.  “I just looked up Sections 12-5-119 and -120, and they’ve been repealed.”

“My God,” I thought, “they finally went and did it!” Raising one eyebrow in the tradition of Mr. Spock, I replied, “Interesting.”
A few days later the mystery was solved.  Sections 12-5-119 and -120, C.R.S. were, in fact, repealed.  However, they were concurrently reenacted as §§ 13-93-114 and -115.  Colorado Senate Bill 17-227 moved the attorney’s lien statutes from Title 12, which compiles statutes regarding certain professions and occupations, to a new Article 93 in Colorado Revised Statues Title 13, which concerns courts and the law.

Consolidating the statutes relating to the practice of law is logical, and the attorney’s lien statutes survived the move nearly intact.  I did notice two minor changes:

First, everywhere the statute formerly said “his” it now says “his OR HER.”  This kind of change in the name of political correctness drives English language traditionalists crazy.  One might be led to believe this update was required because there were no female members of the Colorado Bar in 1903.  There were.

Mary Sternberg Thomas and Josephine Moody Luthe were both admitted to the Colorado Bar in 1891.  Ann Hunt was the first female graduate of a Colorado law school (DU) in 1894.  See Vivian Epstein, History of Colorado’s Women for Young People, p. 41 (1978). 

Josephine Luthe
Josephine Luthe’s first court appearance was widely reported in breathless, tabloid style.  The account published in The Topeka State Journal on 11 July 1892 (and in numerous other papers from Ohio to California) described the novelty of a woman before the Bar: 


Mrs. Luthe appeared to good advantage in a closely fitting gown of dark green and a jaunty hat, not made ridiculous by tufts of feathers and impossible flowers.  A whole court room full of lawyers heard her examination of the witnesses, which she carried on in the same regular form which characterizes the old practitioner, and while her voice wavered a little at times, it was evident she had full command of the situation.  . . . Mrs. Luthe, having first taken off her hat, disclosing a glorious supply of auburn hair, commenced her talk to the delighted jurymen, and no syllable or gesture was lost upon them.

Excepted from Women at the Bar,” The Law Student’s Helper, vol. 1, no. 6, p. 139 (June 1893).

Mary Florence Lathrop
Mary Florence Lathrop joined this admittedly small Colorado Women’s Bar in 1895, becoming the first woman to open a law office in Denver.  She set up shop in the Equitable Building, where I first officed, too.  She was the first woman to try a case to the Colorado Supreme Court, and one of the first two women accepted to the American Bar Association in 1918.  Lathrop also “passed the Colorado Bar in 1896 with a score that would stand as a record until 1941.”


Headnote 2 to the Colorado Supreme Court’s opinion granting Mary Sternberg Thomas’ petition for admission to the bar states:

The use of the masculine pronoun exclusively in the statues relating to application for admission the bar and to licensed attorneys is not sufficient to show a legislative intent to exclude women from the bar.

The Equitable Building
Of course it wasn’t.  Both in 1891 and 2017 even casual students of English know that the masculine pronoun includes the feminine.  As Chief Justice Helm wrote in his opinion granting Mary Thomas’ petition for admission:

The masculine pronoun is constantly used in legal and secular literature to designate both sexes; besides, it is expressly provided by law here, as in other States, that, unless the language contains something inconsistent therewith, this rule may be followed in construing statues: “Every word importing the masculine gender may extend to and be applied to females as well as males.”  Mills, Ann. Stat. § 4185.

The intrusion of so-called “gender equity” politics into grammar is unnecessary tokenism of the worst kind.  Perhaps it is a peculiar malady of the legal mind – the same affliction that causes lawyers to include, as standard contract boilerplate, clauses like “Pronouns in masculine, feminine, and neuter genders shall be construed to include every other gender, and words in the singular form shall be construed to include the plural and vice versa, unless the context otherwise requires.” 

I commend the drafters of Senate Bill 17-227 for not diving headlong into the P.C. tank.   They might have substituted Spivak pronouns or other gender-neutral neologisms, which would have left future historians wondering why Coloradans in the early 21st century had suddenly reverted to Middle English.  The drafters also eschewed changing all gender-specific pronouns to “they,” a practice which has gained some traction as a gender-neutral pronoun in some instances, even among respected English scholars, such as Charles Harrington Elster.  The goal of statutory drafting should be clarity, not kowtowing to the latest politically correct fad.  Clarity depends on the use of accepted conventions, and avoiding wordiness.  Frankly, I don’t care if you change all the “hims” to “hers.”  Just pick one and stick with it.  Leave the quest for the perfect gender-neutral pronoun to others.

The other change to the attorney’s lien statutes is that “which” has been replaced by “that” in the first sentence of Section 13-93-115.  This change is more defensible.  Grammarians recognize that American English favors the use of “that” in “restrictive” (or “defining”) clauses, and limits the use of “which” to nonrestrictive (or non-defining) clauses.  A restrictive clause is one that contains essential information about the noun that comes before it.  A nonrestrictive clause contains extra information which, if omitted, does not affect the meaning or structure of the sentence.  In contrast, British English uses “which” and “that” interchangeably, depending upon which sounds better.  (The Oxford Dictionaries has a good article on this distinction.)  I wonder whether the Fourteenth Session of the Colorado General Assembly was more simply influenced by British English.  Regardless, it’s a change that should not offend even the English majors among us.

Despite these changes, at least for now the Colorado Attorney’s Lien Statutes are safe from oblivion, provided you can find them.
 

Saturday, October 14, 2017

CHEEZO: The Last Morsel




This was so predictable.  I knew this was going to happen.  So did Jim Coyle and several others who testified before the Colorado Supreme Court at the 14 September hearing on this proposed change to Colo. RPC 8.4:


Rule 8.4 Misconduct


It is professional misconduct for a lawyer to:

(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation, except that a lawyer may advise, direct, or supervise others, including client, law enforcement officers, or investigators, who participate in lawful investigative activities.


Garrett Morris
To paraphrase Garrett Morris, “CHEEZO has been berry berry good to me.”  Beginning last December, it’s been the main ingredient for three blog posts, a Law 360 editorial, and a Colorado Law Week article.  I’m quoted again this week in the print edition of Colorado Law Week regarding the now-issued rule.  But barring new developments, this is the last morsel.
 
On Thursday, 28 September the Colorado Supreme Court adopted the proposed rule change, unaltered.  The Denver Post accurately reported this the following day.  By Monday morning the Facebook post reproduced above hit my friend feed.  I had to respond, explaining that, no, lawyers may not “now engage in conduct involving dishonesty, fraud, deceit, or misrepresentation when advising law enforcement officers . . . .”  Rather, the rule change simply states that lawyers may now advise, direct, and supervise others who have always been free to engage in covert operations and subterfuge, provided those activities are lawful, without fear of being professionally disciplined for violating Rule 8.4(c).


This is a good thing.  There are myriad state and federal laws which must be navigated to lawfully conduct covert operations.  For example, in Colorado an ordinary citizen (but not a lawyer) may record a conversation without the other parties’ consent.  This is the so-called “the unilateral consent rule,” one of the great oxymorons of the law.  However, if the same citizen accesses their spouse’s Gmail account because they know the password, or because their spouse left their browser open, they’ve violated the federal Stored Communications Act.  If a law enforcement official goes too far with a covert operation it constitutes entrapment.  Evidence gathered will be suppressed and the bad guys will go free.  That’s a bad thing.  So having lawyers involved in advising, directing, and supervising such activities is good – it safeguards the rights of those who are surveilled.


It is not, however, an “exception” to the prohibition against attorneys engaging “in conduct involving dishonesty, fraud, deceit, or misrepresentation.”  Providing legal advice to help others conform their actions to the law is not “conduct involving dishonesty, fraud, deceit, or misrepresentation” for which an exception is needed.  It’s just a lawyer doing her job. 


It’s analogous to the situation in which Colorado lawyers found themselves in 2014 – caught between the inane, yet persistent, classification of cannabis as a Schedule 1 drug under the federal Controlled Substances Act, and the fact that cultivation, distribution, possession, and consumption of marijuana is lawful under the Colorado Constitution.  Since the licensure and regulation of attorneys remains, at least for now, the sole province of the states, of course Colorado attorneys should be permitted to advise Colorado citizens and government officials regarding the laws regulating marijuana.  It would be ludicrous to suggest otherwise.  Indeed, a compelling argument can be made that Colorado attorneys have an ethical duty to provide such counsel.  The Colorado Supreme Court – or at least a narrow majority – felt the same way and issued what I called A Curious Comment, providing guidance and comfort on this issue to lawyers in Comment [14] to Colo. RPC 1.2.


Yet against the advice of some of those testifying, the court issued its rule regarding covert operations as an “exception” to Rule 8.4(c), which it is clearly not.  More egregiously, the amended rule fails to fully address the CHEEZO problem for the reasons I spelled out in my comments to the court.  Having drawn a road map for the defense bar to continue to use the Rule of Professional Conduct as an offensive weapon against attorneys who provide such advice and counsel, it’s only a matter of time before the issue will be back before the court.   
If my Facebook friends are incredulous at this rule change, it’s not because they are uninformed or illiterate.  Rather, it is it’s because the court knowingly invited such criticism by slapping a Band-Aid® on the CHEEZO problem instead drafting a comprehensive rule, such as one I suggested be adopted in my testimony – a new Rule 8.4(i):


(i)  It is not misconduct or a violation of the rules of professional conduct for a lawyer to advise, direct, or supervise others, including clients, law enforcement officers, or investigators, who participate in lawful investigative activities, or to recommend the employment of an investigator or the use of lawful investigative techniques.

Why did the court do what it did?  Unlike Comment [14] to Colo. RPC 1.2, from which Justice Coats and Justice Eid expressly dissented, the proposed rule change was unanimously adopted by the court, so amended Rule 8.4(c) does not appear to be a creature of compromise.  Law Week Colorado reports that Colorado Attorney General Cynthia Coffman, whose ultimatum – to “abandon all of her pending undercover investigations” unless the court addressed the issue – was the impetus for the amendment, praised the change.   

To ethicists, however, the court’s fix is an egregious drafting error, and extremely shortsighted.  The court had an opportunity to consider and fully address the CHEEZO problem.  Instead, it fouled off the pitch.  The adopted rule is not a strike, but it’s not a hit, and lawyers in the stands who advise covert operations are at risk of being hit.  As I told the reporter for Law Week Colorado, the new rule is “Better than nothing, but not much better.”