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 MoyeWhite’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  “I just looked up Sections 12-5-119 and -120, and they’ve been repealed.”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  Sections 12-5-119 and -120, C.R.S. were, in fact, repealed.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.