Courts in the Community: Through Their Eyes

In May, the Colorado Supreme Court visited Gunnison High School to hold oral arguments through the Courts in the Community Program.  This program is such an amazing opportunity for students and teachers, especially in more rural or remote areas of Colorado, and it really shines a light on the role and function of the Judicial Branch.

I had the opportunity to sit down with Justice Boatright, who oversees the program, Judge Steven Patrick, Chief Judge of the 7th Judicial District, and some Wester State Political Science students to discuss the importance of the program and their impressions.

Here is my write up in Colorado Lawyer: http://www.cobar.org/Portals/COBAR/TCL/AugSept2018/ATB_BarNewsHighlight.pdf?ver=2018-07-17-135955-250&timestamp=1531859361154

Civics Education for Educators

For three days in June, I had the pleasure of teaching in Western State Colorado University's Summer Teacher Institute.  I taught American Government and Effective Advocacy for 2 graduate credits.  The course participants were educators in a variety of settings--two elementary school teachers, two high school civics teachers, and one environmental studies college professor.  The participants came in with a pretty wide range of knowledge about civics and government, but all agreed that we need to prioritize civics in schools and society. 

We focused on three concepts: civic knowledge, civic values, and civic skills.  We agreed that schools primarily focus on civic knowledge (the structure and function of the government), but that the general public demonstrates a low level of understanding. 

In the course, we examined federalism (enumerated powers v. police powers; the 10th Amendment; the supremacy clause and preemption), Congress (structure and organization; the legislative path; enumerated powers, specifically the necessary and proper clause, tax and spend clause, and the commerce clause; post-Civil War Amendments), the judicial branch (structure and organization; federal jurisdiction; judicial review; limitations such as standing, ripeness, and mootness), the President (the Electoral College; inherent and Congressionally-granted powers; foreign policy; impeachment and civil suits), administrative agencies (structure and organization; creation; rulemaking and adjudications; limitations on agency action; judicial review), procedural due process (sources; meaning; personal jurisdiction; notice and opportunity; important components of a civil lawsuit), fundamental rights (Bill of Rights; incorporation; state actor requirement; recognition of new rights), and equal protection (levels of scrutiny).   We also discussed strategies for legal reading and analysis and briefed a case as a class exercise. 

We also discussed the principles of effective advocacy and ran through a hypothetical involving potential legislation and regulations around public lands.  

The course participants brainstormed with each other and generated several ideas for lesson plans, class exercises, or school-wide clubs, activities, or policies to promote civic knowledge, values, and skills. 

I strongly believe that lawyers have an important role to play in educating the public about civics and good government.  I left the course more energized and committed to promoting civics education as a core value of the legal profession.  The Summer Institute is a fabulous program that gives educators the opportunity to earn professional credit through a really wide variety of course offerings.  I look forward to working with Western State and the Summer Teacher Institute to expand future course offerings in civics, government, law, and advocacy. 

Balancing Life and Law on a Part-Time or Flexible Schedule

Here is an article I wrote about the challenges of and strategies for dealing with balancing parenting and lawyering when you work on a part-time schedule.  

Thanks to Jeeno Cho for being a strong voice for lawyer wellbeing!

 

http://jeenacho.com/2018/06/05/how-to-be-a-fully-present-parent-one-lawyers-perspective/

Colorado Lawyer--Ethical Considerations When Using Freelance Legal Services

I am so pleased to have the opportunity to spread the word about freelance legal services through Colorado Lawyer, the monthly publication of the Colorado Bar Association. 

This article discusses the basics of freelance legal services, compares freelance legal services to unbundled legal services, the hiring lawyer's duties with respect to disclosure to the client, confidentiality issues, conflict of interest issues, compensation arrangements, supervision, and fee agreements. 

Here is the article: https://www.cobar.org/Portals/COBAR/TCL/June%202018/CL_June_Features_Ethics.pdf

When Should I Call a Freelance Lawyer?

Lawyers can use freelance legal services in a variety of ways to serve their needs and their clients' needs.  Given the flexibility in the ways the lawyers can structure the relationship, I am sometimes asked when a hiring lawyer should reach out to a freelance lawyer.

Freelance Legal Services

As a freelance lawyer, I truly love helping other lawyers sustain and grow their practices.  I primarily work with solo and small firm lawyers, and I have practiced as a solo or in small firms for my entire legal career.  I know how difficult it can be to moderate your workflow when you can’t spread the work out among more lawyers.  Because I understand the unique challenges of solo and small firm practice, I love being able to add value and support lawyers by providing freelance legal services.

I like to think of myself as an ‘on-demand associate’ because you get support how and when you need it.  But when should you engage me for freelance legal services?  The answer is: it depends on your needs.  I’ve had lawyers call me with pressing legal research or writing needs as a hard deadline quickly approaches.  On the other hand, some lawyers have engaged me very early in litigation, well before any deadlines are looming in order to involve me in forming litigation or mediation strategy.

Keeping in mind that freelance legal services are flexible, on-demand, and individually-tailored, here are some of my observations about when to engage a lawyer on a freelance or contract basis.

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Ethical Obligations

Freelance lawyers are bound by all of the ethical obligations stemming from the attorney-client relationship, just like any other lawyer representing a client.  Colorado Bar Association Ethics Opinions are clear that a freelance lawyer forms an attorney-client relationship with the hiring lawyer’s clients, even if the freelance lawyer works only for a short duration, limited scope, or never meets the client.  As such, freelance lawyers need to screen for conflicts of interest, observe client confidentiality, and act competently.  The timing of when you engage a freelance lawyer can have a bearing on some ethical issues.

Before undertaking any new representation, the freelance lawyer must screen for conflicts of interest with current and former clients, and, if necessary, obtain conflict of interest waivers.  The hiring lawyer therefore needs to provide the freelance lawyer with sufficient information to evaluate conflicts of interest.   Pursuant to C.R.P.C. 1.6(b)(7), the hiring lawyer can “reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of the firm…”  Particularly in complex litigation or transactional matters with multiple parties, related parties, and associated counsel, be sure to allow sufficient time for conflicts checks.

I recommend that the hiring lawyer and freelance lawyer enter into a written Fee Agreement that lays out compensation, billing terms, the scope of the representation, and other important issues related to the representation.  If the hiring lawyer and freelance lawyer are working together for the first time, allow for sufficient time to negotiate the terms of the Fee Agreement and for execution. 

Conflicts screening and executing a Fee Agreement need not take a long time, but it is something to keep in mind to have realistic expectations about the formation of the relationship.

Competency is another core ethical responsibility.  Depending on deadlines and urgency, when you engage the freelance lawyer can have implications for the freelance lawyer’s ability to provide competent representation.  According to C.R.P.C. 1.1, “competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”  Comment 5 to Rule 1.1 states that “competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners.  It also includes adequate preparation.  The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more extensive treatment than matters of less complexity and consequence.”

Absent truly exigent and emergent situations, the hiring lawyer should contact and engage a freelance lawyer to allow for the required level of attention and preparation.  It takes time for a new lawyer on a case to come up to speed.  A freelance lawyer may need to review pleadings or internal memos in order to get a background picture and obtain the necessary information to complete the factual and legal analysis.  If you can avoid it, do not call a freelance lawyer with a new client matter and ask them to turn around a very complex analysis within a day.

Scope of Representation

If you’re thinking about bringing on a freelance lawyer, consider the scope of the representation and the type of support that you’re looking for from the freelance lawyer.  In the litigation context, it is important to evaluate whether you need ongoing support or one-time research or coverage needs.

Discovery is absolutely crucial but can be tedious, time consuming, and expensive.   A freelance lawyer can help propound discovery requests, review and organize voluminous disclosure and discovery documents, conduct witness interviews, and prepare to take or defend a deposition.  A good discovery strategy is centered around the elements of each claim or defense. 

Think about the case’s discovery deadlines and limitations.  Calendar the deadlines for close of discovery and work backwards to ensure that you’re submitting interrogatories, requests for admission, and requests for production of documents within the time limitations.  You don’t want discovery deadlines to sneak up on you before you can engage a freelance lawyer.

If you need litigation support during the discovery process, it is important that the freelance lawyer understand the parties, issues, claims for relief, and defenses.  Bring the freelance lawyer on board with enough time to allow for this type of background, get-up-to speed work.

The weeks leading up to a major hearing or trial can be overwhelming.  A freelance lawyer can help prepare witness and exhibit lists, trial briefs, jury instructions, anticipate evidentiary issues and objections, and prepare outlines of witness questions centered around the elements of each claim or defense.  I’ve found that this phase of litigation is often much more time-consuming than lawyers tend to plan for.  The deadlines get progressively tight and the details really need to be nailed down in this stage.

Much of the trial preparation work is appropriate to outsource to a freelance lawyer.  Early lead time will ensure that the freelance lawyer has adequate time to devote to these tasks and there are no surprises or bottlenecks at the 11th hour.  You’ve worked really hard to get the case this far—invest the time in engaging a freelance lawyer.

Going to trial can feel like a Herculean task, especially as a solo.  Even relatively simple cases can involve thousands of pages of documents or several witnesses.  If you think you’ll need or want trial support, consider engaging a freelance lawyer to serve as second chair.  A freelance lawyer can manage exhibits and witnesses, deal with evidentiary issues and objections, prepare for impeachment of witnesses, ensure that relevant evidence is on the record and issues are preserved for appeal, and do on-the-fly legal research for bench memos.

Major hearings and trials are booked months in advance.  Get your second chair support lined up early.  Lawyers' calendars fill up quickly.  It is better to get your trial support booked than be floundering at the last moment while you’re dealing with multiple trial-related deadlines.

Set Everyone Up for Success

I understand that when you’re barely holding your head above water, you sometimes feel that you cannot come up for air to even delegate work.  It is tempting to handle all of the work yourself rather than to take the time to bring someone new on board, get them up to speed, and explain the issues and legal needs.  I’ve been there.  But planning ahead and building in a modest amount of time to engage a freelance lawyer will pay dividends.  Ultimately, for both the hiring lawyer and the freelance lawyer, it is about providing excellent representation for the client.  Giving the freelance lawyer the tools they need, including time, will lead to better outcomes for the client.

Freelance legal services are responsive to the hiring lawyer's (and client's) needs, and the timing of the representation will necessarily depend on the unique circumstances.  Bringing a freelance lawyer on the case with plenty of lead time before deadlines and major events will start the relationship off with the best foot forward.

Serving on the Professionalism Committee

I have been asked to serve on the Karl Ranous Professionalism Committee.  Each year, the Committee recognizes and honors a lawyer in Gunnison County, Colorado who exemplifies the values and practices of professionalism in the legal field.  I am happy to serve on the Committee and help promote professionalism in our community!