LAWYERS PROFESSIONAL LIABILITY IN COLORADO: Preventing Legal Malpractice and Disciplinary Actions

Transcription

1 LAWYERS PROFESSIONAL LIABILITY IN COLORADO: Preventing Legal Malpractice and Disciplinary Actions SECOND EDITION VOLUME ONE MICHAEL T. MIHM Managing Editor Supplemented January 2007 January 2008 July 2009 July 2010 November 2011 CONTINUING LEGAL EDUCATION IN COLORADO, INC. COLORADO BAR ASSOCIATION DENVER BAR ASSOCIATION 2011

2 LAWYERS PROFESSIONAL LIABILITY IN COLORADO: Preventing Legal Malpractice and Disciplinary Actions SECOND EDITION ISBN: Published by: CONTINUING LEGAL EDUCATION IN COLORADO, INC Grant Street, Suite 300 Denver, Colorado Phone: (303) Toll-free: (888) Fax: (303) Website: Dawn M. McKnight, Esq. Assistant Executive Director/ Publications Director Colorado Bar Association CLE Lisa C. Travis Fischer, J.D. Acquisitions Editor/Manager Colorado Bar Association CLE Darlene Johnson Legal Editor Colorado Bar Association CLE John and Lynn Cleveland Table of Authorities/Subject Index Lindex COLORADO BAR ASSOCIATION CLE CLE in Colorado, Inc. is the nonprofit educational arm of the Colorado Bar Association and the Denver Bar Association Continuing Legal Education in Colorado, Inc. (CBA-CLE) publications are intended to provide current and accurate information about the subject matter covered and are designed to help attorneys maintain their professional competence. Nothing contained in this book is legal advice or other professional advice. Readers are responsible for obtaining advice from their own lawyers or other professional. Publications are distributed with the understanding that CBA-CLE does not render any legal, accounting, or other professional service. The contents of this book do not necessarily reflect the views of the Internal Revenue Service or any other regulating governmental entity. The material in this book represents the opinions and views of the authors, and should not be construed as the views of any of the authors law firms or of Continuing Legal Education in Colorado, Inc. The proper interpretation or application of the material in the book is a matter for the considered judgment of the individual legal practitioner, and CBA-CLE disclaims all liability therefor. As with any legal textbook or other secondary authority, attorneys dealing with specific legal matters should also fully research current, primary authorities. Copyright by Continuing Legal Education in Colorado, Inc. All Rights Reserved. No part of this publication may be reproduced in any form or by any process without permission in writing from Colorado Bar Association CLE.

3 PUBLISHER S NOTE Risk management is essential for all legal practitioners. This book, Lawyers Professional Liability in Colorado: Preventing Legal Malpractice and Disciplinary Actions, focuses on issues relevant to every practicing lawyer in Colorado: professionalism, ethics, the client-lawyer relationship, professional liability insurance, the grievance process and attorney discipline, defenses, technology and the practice of law, fees, debt collections, trends in legal malpractice, and myriad special topics unique to particular practice areas, as well as many other issues. The book is a valuable preventive tool and indispensable guide to practicing Colorado law by the book. This 2011 supplement includes substantive updates to 37 of the 42 existing chapters in the book, in addition to the Subject Index and Table of Authorities. Some of the highlights are a completely revised Chapter 3, Attorney Fees and Costs ; updated charts and exhibits in Chapter 6, Choice of Law Firm Entity ; an all-new Chapter 20, Estate Planning and Probate ; and a 2011 version of Chapter 36, Trends in Legal Malpractice Litigation, which highlights important legal malpractice cases from the past year. Lawyers Professional Liability in Colorado is the product of several thousands of hours of work donated by our authors and our legal managing editor, Michael T. Mihm, of Starrs Mihm LLP. We thank them for unsparingly contributing their time and expertise to this project. It has been both a pleasure and a privilege to work with this fine group of volunteers, each of whom has been unfailingly responsive, diligent, gracious, and helpful in every way in producing this handbook. In particular, we would like to commend Michael Mihm, the one-man brain trust who first approached us about his keen interest in overhauling our Colorado Attorney s Professional Liability Handbook. When we met with him in the early spring of 2005, he presented to us a comprehensive outline of the handbook that expanded the original 13 chapters into 35 chapters, a brief sketch of important topics for each new chapter, and a roster of nearly two dozen new authors who d already been happily recruited by Michael. During this initial meeting, we too found ourselves happily recruited by Michael, and the rest, as they say, is history. Many, many thanks again to Michael, and to all of our talented authors, for continuing to find time outside of their work demands, their private lives, and their extrajudicial duties to make such a valuable contribution to the Colorado Bar, in the form of this excellent book you now hold. Likewise, we wish to acknowledge the generous financial contribution that we received from CNA, the largest writer of Lawyers Professional Liability in the United States. Thanks to Chris Buckman s advocacy on our behalf, CNA underwrote a significant portion of our costs in producing Lawyers Professional Liability in Colorado in We tip our hats to CNA in general, and Mr. Buckman in particular, for being such a valuable part of this handbook. (11/11) iii

4 Lawyers Professional Liability in Colorado As always, we welcome your thoughts, both positive and negative, on this handbook and encourage you to contact us with your suggestions. Darlene Johnson Legal Editor CBA-CLE Dawn McKnight, Esq. Assistant Executive Director/ Publications Director CBA-CLE A lawyer without history or literature is a mechanic, a mere working mason; if he possesses some knowledge of these, he may venture to call himself an architect. Sir Walter Scott iv (11/11)

5 MANAGING EDITOR S NOTE We are pleased to provide the 2011 update to the second edition of Lawyer s Professional Liability in Colorado. This 2-volume, 42-chapter work represents thousands of hours of hard work by many lawyers who are among the best in their fields of practice. Lawyers face increasingly novel and complex professional liability issues, and increasingly competitive pressures in the legal marketplace. As part of our commitment to help lawyers keep abreast of professional liability and ethics issues, we at CLE in Colorado, Inc., are dedicated to adding new chapters and revising existing chapters each year so that Lawyers Professional Liability in Colorado continues to be a practical and reliable resource for information on professional liability and ethics, client protection, and risk management. This year, our authors updated 37 chapters, ranging from Lawyer Advertising to Workers Compensation. Because of the many hundreds of hours required each year to prepare new chapters or update existing chapters and because our authors have families and changing personal and professional circumstances each year some of our authors withdraw and we introduce new authors. This year, we welcome several new authors: New author Marixa Frias, of the Denver firm of Roberts Levin Rosenberg, PC, worked with authors Bradley A. Levin and Michael J. Rosenberg to update Chapter 12, Professional Liability Insurance, and Chapter 27, The Claim or Lawsuit. New author Michael A. Kirtland, of Kirtland & Seal, LLC in Colorado Springs, has rewritten Part A of Chapter 20, Estate Planning and Probate, originally written by Martha L. Ridgway and updated by Sean C. Bell and Tammy Conover. We thank Martha and Sean for their many years of service on this important chapter, and Tammy for updating Part B of this chapter. New author Laura A. Menninger, of the Denver firm of Laura A. Menninger, PC, joined author Jeffrey S. Pagliuca to update Chapter 17, Professional Defense of the Accused. Finally, my law partner, Elizabeth Booka Smith has taken over the authorship and updating responsibilities for Chapter 19, Employment Issues, from the original authors, Laura E. Schwartz and Paula D. Greisen. We thank Laura and Paula for their many years of service. Next year, we hope to add new chapters on professional liability issues on subjects as varied as Spoliation of Evidence and Lawyers Relationships with the Press and Media. If you have any ideas for additional chapters for this book, please call or me or Lisa Travis Fischer, CBA-CLE s publications production manager. And, finally be careful out there! Michael T. Mihm, Managing Editor michael.mihm@starrslaw.com (303) (11/11) v

6 COLORADO BAR ASSOCIATION CLE Colorado Bar Association CLE (CBA-CLE) is the nonprofit educational arm of the Colorado and Denver bar associations. We strive to produce high-quality CLE programs and legal publications at competitive prices, with substantial member discounts. However, we are also financially independent from the bar associations and self-supporting. We receive no membership dues or other unearned revenue from the CBA or DBA. Nearly all of our income derives from program registration fees and from sales of books, audio homestudy courses, and course manuals. Every year, hundreds of Colorado lawyers and judges volunteer their time and expertise to help us produce these educational resources for our members. Without this generous contribution of talent, CBA-CLE could not fulfill its mission. CBA-CLE Board of Directors July 2011 to June 2012 Denver Bar Association Appointments Colorado Bar Association Appointments Richard I. Zuber Barbara Blumenthal Robert A. Holmes Baird B. Brown Michael T. Mihm E. David Griffith J. Marcus Painter Honorable Terry Ruckriegle Kristin Rozansky Deanna L. Westfall Gregory James Smith Eugene Zuspann, II Charles C. Turner CBA-CLE Staff B. Gary Abrams Executive Director Evan Brown Manager of Media and Web Development Ellen Buckley, Esq Legal Editor Lisa M. Cordova Program Coordinator Mary Dilworth Marketing Manager Lisa C. Travis Fischer, J.D Acquisitions Editor/Manager Terri L. Fonseca Customer Service Priscilla S. Fulmer, Esq Program Attorney Susan Hoyt Legal Editor Darlene M. Johnson Legal Editor Lori L. Krupske Finance Manager Melissa J. Lucas Publications Assistant Deb Marnocha Desktop Publisher Dawn M. McKnight, Esq Assistant Executive Director/Publications Director Jo McWilliams Order Fulfillment/Shipping Ryan Morris Program Coordinator/Data Specialist Kathryn Noble, Esq Legal Editor Heidi A. Ray, Esq Program Attorney Julie Lynn Revers Program Administrator Adrian Romero-Sosa Technical Producer Monica Santillanes Marketing Assistant Nena Saucerman Media Specialist Kenneth Sudduth Customer Service Zachary A. Willis, Esq Legal Editor vi (11/11)

7 ACKNOWLEDGMENT Production of Lawyers Professional Liability in Colorado, Second Edition, required the editors to Shepardize the citations used in the book. The research was made possible by a generous contribution from the Colorado Bar Association CLE s technology partner, LEXIS- NEXIS. HOW TO CITE THIS BOOK As the first full citation, you may cite this book as: Lawyers Professional Liability in Colorado, Second Ed. (Michael T. Mihm ed., CLE in Colo., Inc. Supp. 2011). After the first full citation, you may cite this book as: Lawyers Professional Liability in Colorado, supra n., at. (11/11) vii

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9 ABOUT THE MANAGING EDITOR Michael T. Mihm, Esq. Starrs Mihm LLP th St., Ste Denver, CO (303) Chapter 5 Conflicts of Interest Chapter 28 Common Law Legal Malpractice Claims by Clients Chapter 29 Statutory Legal Malpractice Claims Chapter 30 Liability to Third Parties Chapter 31 Damages for Injuries or Losses Caused by Legal Malpractice Chapter 32 Defenses to Legal Malpractice Claims Michael T. Mihm has since 2005 served as the managing editor of Lawyers Professional Liability in Colorado, Second Edition, in addition to authoring or co-authoring six chapters. He has held leadership positions within the CBA, including chairing the Lawyers Professional Liability Committee (1997 to 1999) and authoring much of the Colorado Attorney s Professional Liability Handbook (CLE in Colo., Inc. 1999), the predecessor book to Lawyers Professional Liability in Colorado, Second Edition. Michael also serves on the Board of Directors for CLE in Colorado, Inc. Michael s trial practice focuses on representing clients mostly plaintiffs in two areas: (1) legal malpractice litigation, and (2) commercial and business tort litigation. He also handles real estate litigation; estate, trust, and probate litigation; and select catastrophic injury and wrongful death litigation. He is included in The Best Lawyers in America in the field of Legal Malpractice Law Plaintiff. In 2010, Michael was elected an officer of the Colorado Trial Lawyers Association; he currently serves in CTLA s leadership as Secretary, as well as on the Executive Committee and Board of Directors. He is also active in the International Society of Primerus Law Firms, a society of more than 190 boutique law firms located in 135 cities around the world. He frequently speaks to bar organizations on the topics of trial practice, risk management, and malpractice prevention. Michael was been admitted to practice in state and federal courts in California in 1983 and in Colorado in He represents clients in litigation throughout the southwestern United States. (11/11) ix

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11 ABOUT THE AUTHORS Susan Bernhardt, Esq. Starrs Mihm LLP th St., Ste Denver, CO (303) Chapter 11 Technology and the Practice of Law Susan Bernhardt is Of Counsel with Starrs Mihm LLP. Her practice emphasizes complex commercial litigation, securities fraud, partnership and corporate governance disputes, business fraud and business torts, and attorney ethics litigation. She handles litigation in state and federal courts, including complex matters pending simultaneously in multiple courts, class actions, and shareholder derivative actions, as well as arbitrations. Ms. Bernhardt also arbitrates and mediates disputes. Ms. Bernhardt serves on the Committee on Conduct of the United States District Court for the District of Colorado and served as the chair of the Colorado Bar Association Ethics Committee. She served as the editor for the ethics column of The Colorado Lawyer for many years and is now on the board of that publication. She also serves as a member of the board of directors of the Colorado Trial Lawyers Association. She received her B.A. degree, with high honors, from Swarthmore College and her J.D. degree, with distinction, from Stanford University. Irvin Borenstein, Esq. Silverman/Borenstein PLLC E. Briarwood Ave., Ste. 340 Centennial, CO (303) irv@sblawpllc.com Chapter 18 Creditors Rights and Debt Collection Irvin Borenstein s practice focuses primarily on creditors rights. He represents creditors in both retail and commercial matters in Colorado as well as in several other states. He also represents individuals and entities in defense of claims brought under the Fair Debt Collection Practices Act. He has lectured frequently on creditors rights issues. Mr. Borenstein graduated from Binghamton University and graduated with honors from Vermont Law School in He is admitted to practice in New York and Colorado. Mr. Borenstein is a member of the Denver and Colorado bar associations and is a member of the Thompson G. Marsh Inn of Court. (11/11) xi

12 Lawyers Professional Liability in Colorado Tammy Conover, Esq. Steenrod, Schwartz & McMinimee, LLP 2009 Market St. Denver, CO (303) Chapter 20 Estate Planning and Probate Tammy Conover is an attorney with the Denver law firm Steenrod, Schwartz & McMinimee, LLP. She has limited her practice to the areas of elder law, specifically focusing on conservatorship and guardianship appointments, probate and trust administration, special needs planning, and Medicaid qualification and planning. Ms. Conover is active in many local and national associations, serving as the Co-Chair of the Second Annual Elder Law Retreat and the Treasurer of the Executive Counsel of the Colorado Bar Association Elder Law Section. She is a frequent lecturer in the areas of Medicaid, estate planning, guardianship and conservatorship, and other elder law topics for numerous professional and community organizations. Nike L. Fleming, Esq. Office of University Counsel, University of Colorado 1800 Grant St., Ste. 800 Denver, CO (303) nike.fleming@cu.edu Chapter 39 Interviewing and Preparing Witnesses Nike L. Fleming is Assistant University Counsel at the University of Colorado. She is an attorney in the system administration office, providing counsel to the President and Board of Regents. Until recently, she was an associate at Kennedy Childs & Fogg, P.C., where she practiced professional liability defense, with a focus in medical malpractice and legal malpractice defense. She received her B.A. from Valparaiso University (magna cum laude) in 2002 and her J.D. from the University of Iowa College of Law in While a student at the University of Iowa, she was the executive editor of the Journal of Corporation Law. Ms. Fleming was the cochair of the Community Action Network of the Denver Bar Association from 2009 to 2011 and the Publications Vice Chair for the Young Lawyers Committee of DRI from 2010 to She has also been named a Rising Star in 2009, 2010, and xii (11/11)

13 About the Authors Marixa Frias, Esq. Roberts Levin Rosenberg PC 1660 Wynkoop St., Ste. 800 Denver, CO (303) Chapter 12 Professional Liability Insurance Chapter 27 The Claim or Lawsuit Marixa Frias, Esq. is an associate in the Denver law firm of Roberts Levin Rosenberg PC, specializing in the areas of insurance recovery, insurance bad faith, commercial litigation, and personal injury. Ms. Frias earned her bachelor s degree from the University of Notre Dame and her master s degree in International Studies from the University of Denver Graduate School of International Studies. She is a 2006 graduate of the University of Denver Sturm College of Law, where she served as the managing editor for the Denver Journal of International Law & Policy and as a teaching assistant for the legal writing program. After graduation, Ms. Frias served as the appellate law clerk to the Honorable Gilbert M. Román and the Honorable David M. Furman of the Colorado Court of Appeals. After her clerkships, Ms. Frias worked as an associate at an insurance defense firm, where her practice focused on construction defect and medical malpractice litigation. Paul Gordon, Esq. Paul Gordon, LLC 5500 E. Yale Ave., Ste. 300 Denver, CO (303) pgordon@gorlaw.com Chapter 33 Vicarious Liability Paul Gordon s practice focuses primarily on representing plaintiffs with malpractice claims against lawyers. Mr. Gordon obtained his undergraduate degree, magna cum laude, at the University of Denver in 1989 and his law degree at the University of Colorado School of Law in In 2004, Mr. Gordon was lead trial counsel in Brill v. Colorado Air Cargo, Inc., which resulted in a $1.1 million jury verdict. In the field of legal malpractice, his work on reported cases includes Allen v. Steele, 252 P.3d 476 (Colo. 2011), and Aller v. Law Office of Carole C. Schriefer, P.C., 140 P.3d 23 (Colo. App. 2005). (11/11) xiii

14 Lawyers Professional Liability in Colorado Stephen D. Gurr, Esq. Holme Roberts & Owen LLP 1700 Lincoln St., Ste Denver, CO (303) Chapter 24 Transactions and Closely Held Businesses Stephen D. Gurr is a civil litigator and the chair of the construction litigation practice group at Holme Roberts & Owen LLP. He is a former member of the Colorado Bar Association Ethics Committee and a former board member of the Young Lawyers Division of the Denver Bar Association. Mr. Gurr s civil litigation practice focuses on the representation of leading businesses and their officers and directors in shareholder derivative, securities fraud, business tort, real estate, intellectual property, telecommunications, and environmental matters. He has extensive trial, arbitration, and dispute resolution experience in federal and state courts and national alternative dispute resolution forums. Richard F. Hennessey, Esq. Pendleton Friedberg Wilson & Hennessey P.C Lawrence St., Ste Denver, CO (303) rhennessey@penberg.com Chapter 37 Class Action Lawyers Professional Responsibilities Richard F. Hennessey is special counsel to Pendleton, Friedberg, Wilson & Hennessey P.C. He is a former shareholder, director, and president of the firm; and has been with the firm since Rich graduated from Notre Dame Law School and has practiced law in Colorado for more than 40 years. His practice currently emphasizes legal ethics, professional responsibility, risk management, and attorney discipline defense. He has been an expert witness in a variety of cases involving standards of practice and lawyers conduct, including class action counsel s responsibilities. Mr. Hennessey also practices in the areas of general business law, health law, and professional and business regulation and enforcement. He has served as general counsel; has assisted the financial services, legal, and medical professions in developing practice standards and regulatory procedures; and has assisted professional groups, businesses, and insurers in a variety of risk management projects. He also assists business and professional entities regarding entity formation, operations, and dissolution. Rich has significant experience in health law-related areas. xiv (11/11)

15 About the Authors Among other things, he is currently a member of the Colorado Supreme Court Attorney Regulation Advisory Committee. He served as the deputy attorney general of the State of Colorado, the statutory position currently called the chief deputy attorney general, from 1979 to He served both as the first Committee Counsel for the Colorado Supreme Court Grievance Committee from 1974 to 1979 and as a member of the Colorado Supreme Court Grievance Committee for six years, from 1981 through 1986, serving as chair in He also previously worked as associate regional attorney for the Office of General Counsel, U.S. Equal Employment Opportunity Commission. Mr. Hennessey also was an attorney with the Legal Aid Society of Metropolitan Denver from 1968 to 1973 and was associate director of the program from 1970 to He was an adjunct professor at the University of Denver College of Law from 1978 to 1981, and a visiting professor at the University of Colorado Law School from 1972 to Elizabeth J. Hyatt, Esq. Starrs Mihm LLP th St., Ste Denver, CO (303) elizabeth.hyatt@starrslaw.com Chapter 29 Statutory Legal Malpractice Claims Chapter 31 Damages for Injuries or Losses Caused by Legal Malpractice Elizabeth ( Betsy ) J. Hyatt is a partner with Starrs Mihm LLP. She graduated Phi Beta Kappa from Colorado State University with a degree in economics and a minor in mathematics. In 1998, Ms. Hyatt received her J.D. from the University of Colorado, where she served on the board of editors of the Colorado Journal of International Environmental Law and Policy. Ms. Hyatt s practice includes the areas of legal malpractice, business torts, and general civil litigation. She is a member of the Lawyers Professional Liability Committee of the Colorado Bar Association and has lectured at continuing legal education seminars on topics involving lawyers professional malpractice and the practice of law. Ms. Hyatt is also an active member of the Business Torts Litigation Committee of the American Bar Association s Section of Litigation and the Colorado Women s Bar Association. She has been selected for inclusion as a Rising Star in Business Litigation by Colorado Super Lawyers in 2009, 2010, and Ms. Hyatt is admitted to practice in the state courts of Colorado, the U.S. District Court for the District of Colorado, and the U.S. Courts of Appeals for the Tenth and Eleventh Circuits. (11/11) xv

16 Lawyers Professional Liability in Colorado Christine J. Jobin, Esq. The Jobin Law Firm, P.C Grant St., Ste. 815 Denver, CO (303) Chapter 15 Bankruptcy Since 1993, Christine J. Jobin has been president and shareholder of the Jobin Law Firm, P.C., where her practice emphasizes bankruptcy, fraudulent conveyance, and commercial litigation. She has served as receiver and a Chapter 7 Panel Trustee in the U.S. District Court for the District of Colorado, and represents trustees, creditors, and debtors in Chapter 11 and 7 bankruptcy cases. After graduating in 1973 from Wellesley College with a B.A. in mathematics and experimental psychology, Ms. Jobin was an actuary for Prudential Property & Casualty Company. In 1982, she received her J.D. from the University of Denver College of Law. She is admitted to practice in the U.S. District Court for the District of Colorado, the Fifth and Tenth Circuit Courts of Appeals, and the U.S. Supreme Court. Ms. Jobin is a member of the Denver and Colorado bar associations. Thomas L. Kanan, Jr., Esq. Of Counsel Ritsema & Lyon, P.C th St., Ste Denver, CO (303) tom.kanan@ritsema-lyon.com Chapter 42 Workers Compensation Thomas L. Kanan, Jr., has been active in litigation of a wide variety of legal areas including criminal, commercial, tort, civil rights, probate, governmental defense, insurance coverage, and appeals. He has been especially occupied with workers compensation law in his regular practice, for which he received the Lansford Butler Award from the Workers Compensation Section of the Colorado Bar Association in He has been an officer in many professional and civic organizations, including service as chairman of the Committee on Administrative Adjudication for the Governor s Taskforce on Civil Justice Reform from 2000 to He belongs to the CBA, DBA, and the Colorado Defense Lawyers Association. He has frequently been a lecturer for CLE in Colorado, Inc. xvi (11/11)

17 About the Authors Mr. Kanan has lived in Colorado almost all his life. He graduated magna cum laude from the University of Denver, which he attended on an Alumni Scholarship. He worked as a teaching assistant at DU for two years, then for six years at the Denver Department of Social Services, before attending the law school at the University of Colorado, from which he graduated in He has been a law clerk for Justice Luis Rovira, a deputy district attorney in Jefferson and Gilpin counties, and an expert witness in Colorado district courts on the state s workers compensation system. Robert R. Keatinge, Esq. Holland & Hart LLP P.O. Box 8749 Denver, CO (303) rkeatinge@hollandhart.com Chapter 6 Choice of Law Firm Entity Chapter 9 Multi-Jurisdictional Practice of Law Robert R. Keatinge is Of Counsel to the Denver law firm of Holland & Hart LLP. He practices in the areas of business organizations, taxation, and professional responsibility. Mr. Keatinge has represented a wide variety of business organizations and their owners, from small start-up companies to publicly traded corporations. He has acted as an expert witness on matters of business organizations and professional responsibility. He has written and spoken nationally in the areas of business law, tax, and professional responsibility. The co-author of Ribstein and Keatinge on Limited Liability Companies and Keatinge and Conaway on Choice of Entity (both West 2011), as well as law reviews and other articles on professional liability, business, and tax subjects, Mr. Keatinge is listed in the current The Best Lawyers in America (corporate, corporate governance, and tax law), and has been named the Best Lawyers 2012 Denver Corporate Law Lawyer of the Year, Who s Who in America, and other publications. He is a fellow of the American College of Tax Counsel and a member of the American Law Institute. He has been chair of the Joint Editorial Board for the ABA/BNA Lawyer s Manual on Professional Conduct, chair of the Publications Committee of the ABA Center for Professional Responsibility, and a member of the CBA Ethics Committee, the Committee on Partnerships and Unincorporated Business Organizations of the ABA Business Law Section, and the Committee on Entity Selection of the ABA Real Property, Trust and Estate Law Section. He is a former member of the American Bar Association House of Delegates. He is currently chair of the ABA Business Law Section/National Conference of Commissioners on Uniform State Laws (NCCUSL) Joint Editorial Board on Unincorporated Business Organizations, and a member of the Association of Professional Responsibility Lawyers. (11/11) xvii

18 Lawyers Professional Liability in Colorado Mr. Keatinge has been an ABA Advisor to the NCCUSL Drafting Committees on a Uniform Limited Liability Company Act, the Revision to the Uniform Limited Partnership Act, and Uniform on Harmonization of the Unincorporated Business Entity Act; and a member of the ABA Business Law Section Ad Hoc Subcommittee to Comment on the Revised Uniform Partnership Act. He is former chair of the CBA Taxation and Business Law Sections. Mr. Keatinge was the recipient of the CBA s 2002 Sue Burch Legislative Award and the ABA Business Law Section s 2004 Section Chair s Award. Michael A. Kirtland, Esq. Kirtland & Seal, L.L.C. 90 S. Cascade, Ste. 480 Colorado Springs, CO (719) mak@kirtlandseal.com Chapter 20 Estate Planning and Probate Michael A. Kirtland, Esq. is the managing member in the law firm of Kirtland & Seal, L.L.C. in Colorado Springs, where he limits his practice to the areas of estate planning, wills and trusts, probate, elder law, mediation, and taxation. He is a member of the American Bar Association s Real Property, Trust and Estate Law Section, where he is past-chair of the Elder Law, Disability Planning and Bioethics Group. He is also an acquisitions editor for the section s book publishing committee. Mr. Kirtland is a member of the Senior Lawyers Division, where he is a Council Member, and is the liaison between the Real Property, Trust and Estate Law Section and the Senior Lawyers Division. In the Colorado Bar Association, he serves as chair of the CBA s Joint Task Force on Advance Health Care Directives, and is the past-chair of the CBA Trust and Estate Section s Forms Book Committee. He is also a member of the CBA s Ethics Committee and the Ethics Committee of the El Paso County (Colorado) Medical Society. He is a member of the Judicial Performance Commission for Colorado s Fourth Judicial District. He is a member of the Board of Directors of the National Elder Law Foundation, and a member of the National Academy of Elder Law Attorneys. He has published numerous articles in a variety of legal publications. Mr. Kirtland received a B.A. degree from Coe College and an M.P.A. degree (summa cum laude) from the University of Colorado Colorado Springs. He received his law degree (magna cum laude) from Faulkner University s Jones School of Law and an LL.M. in taxation from the University of Alabama School of Law. Mr. Kirtland is licensed to practice law in both Alabama and Colorado. He is admitted to the U.S. Supreme Court, the U.S. Tax Court, the U.S. Courts of Appeals for the Tenth and Eleventh Circuits, as well as the Federal District Courts for the Middle District of Alabama and for the District of Colorado. He is one of only 10 attorneys in Colorado designated a Certified Elder Law Attorney by the National Elder Law Foundation. xviii (11/11)

19 About the Authors Christopher P. Koupal, Esq. Chalat Hatten & Koupal PC 1900 Grant St., Ste 1050 Denver, CO (303) Chapter 41 Disqualification of Counsel Christopher P. Koupal is a partner at Chalat Hatten & Koupal PC. A Colorado native, Mr. Koupal graduated from the University of Colorado, Boulder, and the University of Denver College of Law. While in law school, Mr. Koupal served as a member and a general editor for the Denver University Law Review, and served as an extern law clerk to the Honorable Wiley M. Daniel, Chief United States District Judge for the District of Colorado. His practice concentrates on civil trial work, with an emphasis on ski and snowboard accidents, professional negligence, premises liability, and automobile accidents. Mr. Koupal has tried cases to verdict in Colorado state and federal courts. Mr. Koupal has been recognized as a Rising Star by Colorado Super Lawyers /5280 Magazine in 2009, 2010, and Mr. Koupal is proud to serve on the Board of Trustees for Havern School, a Denver-area school providing a specialized education program for elementary and middle school students with diagnosed learning disabilities. Mr. Koupal is also a member of the Judge William E. Doyle American Inn of Court. Laura J. Koupal, Esq. Willoughby & Eckelberry, LLC 303 E. 17th Ave., Ste. 910 Denver, CO (303) laura@willoughbylaw.com Chapter 22 Family Law Laura J. Koupal joined Willoughby & Eckelberry, LLC as an associate in September Ms. Koupal primarily practices in the area of Alternative Reproductive Technology (ART) and adoption law. Specifically, she represents gestational carriers and intended parents in negotiating surrogacy contracts and obtaining Colorado Pre-Birth Orders. She also drafts and negotiates sperm and egg donation agreements and represents families interested in embryo adoption or donation. Since August 2007, she has represented families taking advantage of Colorado s new second-parent adoption legislation. (11/11) xix

20 Lawyers Professional Liability in Colorado Prior to joining Willoughby & Eckelberry, Ms. Koupal practiced in the domestic relations group of Montgomery Little Soran & Murray, PC. In 2004, Ms. Koupal completed a clerkship with the Honorable Christina M. Habas of the Denver District Court. She is a member of the Colorado and Denver bar associations. The Honorable John P. Leopold JAMS th St., Ste Denver, CO (303) jleopoldjams@gmail.com Chapter 1 Professionalism The Honorable John P. Leopold has been an arbitrator, mediator, special master, and statutory judge with JAMS since his 2006 retirement as Chief Judge of the Eighteenth Judicial District in Colorado. A native New Yorker, Judge Leopold attained his B.A. in government from Colby College in Maine in He served in the U.S. Air Force from 1968 to 1972, then received his J.D. from the University of Denver College of Law in He was in private practice from 1974 to 1987, until his appointment to the district court bench in 1987 by Governor Roy Romer. He also served as Associate Municipal Court Judge in Littleton and Sheridan from 1985 to Judge Leopold is a member of the Colorado, Arapahoe County, and Colorado Women s bar associations; the Thompson G. Marsh Inn, American Inns of Court; and is the immediate past chair of the Law Alumni Council Chair of the University of Denver Sturm College of Law. He is a Fellow in the Academy of Court-Appointed Masters. In 1999, he received the Judicial Excellence Award from the American Board of Trial Advocates, the Colorado Judicial Branch Outstanding Judicial Officer Award in 2001, and the Colorado Community Corrections Board s lifetime membership in Judge Leopold also served as lead faculty for Advanced New Judge Orientation from 2000 to 2006, and is a frequent presenter and speaker at judicial and legal conferences in Colorado. xx (11/11)