LAW WEEK COLORADO

DENVER – David Hersh, a shareholder at Greenwood Village litigation law firm Burg Simpson Eldredge Hersh & Jardine, has been appointed to the board of directors for the Arapahoe County Bar Association.

Hersh will chair the association’s Continuing Legal Education committee, where he will oversee the bar association’s CLE programs. He was also elected chair of a membership development committee for the Colorado Judicial Institute earlier this month. Much of Hersh’s practice focuses on civil trial law in liability and damages.

“We are very proud of David, his work and his support of numerous legal service groups,” said managing shareholder Kerry Jardine in an announcement.

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By Alicia McNally, LAW WEEK COLORADO
DENVER — According to Chuck Passaglia of Littleton-based Employment Law Solutions, a positive drug test for marijuana isn’t sufficient evidence of whether an employee is “under the influence” on the job.

“Positive drug test doesn’t prove jack,” Passaglia said. “A drug test doesn’t certainly indicate how long ago the employee used it and it also doesn’t indicate how a person is impaired … They could have been using the marijuana at night legally at home and coming into work the next day without any impairment.”

The State of Colorado has not enacted any employment-related drug or alcohol testing laws, but a positive drug test can penalize workers’ compensation benefits by 50 percent. Medical marijuana is presently not a “medically prescribed controlled substance.”

Passaglia and employment lawyer Kim Ryan gave a presentation, entitled “”Waiting to Exhale! Medical Marijuana at Work,” at the Colorado Bar CLE on Monday about employment issues and medical marijuana. Video of the seminar can be purchased here.

Medical Marijuana in the Workplace: Drug Testing from Colorado Bar Association CLE on Vimeo.

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The Colorado Bar Association will hold its National CLE in Vail, with sections on IP, real estate, bankruptcy, tax and more. The four-day “CLE & Ski” will be held Jan. 6-10 at the Marriott Mountain Resort in Vail.

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Bryan Garner

By Ali McNally, LAW WEEK COLORADO
DENVER — The Faculty of Federal Advocates will hold its Annual Year End CLE Extravaganza tomorrow at the Magnolia Ballroom in Denver.
Guests will hear from speakers such as lawyer and lexicographer Bryan Garner, jury consultant Jo-Ellan Dimitrius and attorney Rob Cary. FFA board member John Walsh said the speakers are a “star-studded cast,” adding that the organization tries to cover all angles when selecting speakers for their largest event.
“We evened it out. We wanted to offer an array of different topics to try to cover the interests of as many federal practitioners as we can,” Walsh said, adding, “We’re excited about all three parts of the annual meeting, but we’re very excited to have Garner to be our keynote speaker.”
Garner, editor-in-chief of Black’s Law Dictionary, will discuss a book he wrote with Supreme Court Justice Antonin Scalia titled “Making Your Case: The Art of Persuading Federal Judges.” Attendees will receive a copy at the event. Garner said the book was inspired by a series of filmed interviews he did with eight of the nine Supreme Court Justices on advocacy and writing. The videos are available to the public at Garner’s Web site, LawProse.org.
“The justices had never sat down and opened up this way on camera,” he said. “It’s an unusual archive of what Supreme Court justices do.”
Garner is also an attorney and lexicographer. He said he’s been writing dictionaries since he was a first-year law student when he started writing Garner’s Modern American Usage, which became an Oxford publication. It all started, he said, with a crush.
“When I was 15 years old, a girl I had a crush on said I had a big vocabulary and I decided that working on my vocabulary would be a great way to impress her,” he said. “It all went from there.”
FFA president Reid Neureiter said, “We thought it would be really a service to our membership to bring in Garner. Our organization is all about improving administration of justice in the federal court. If lawyers are better prepared and make their arguments better, it helps out the judges.”
In addition to learning about improving language for federal judges, attendees will also learn how to untangle the mysteries of juries by working with jury consultants, like Dimitrius. Local lawyers Dan Reilly, Natalie Hanlon-Leh and Lino Lipinsky will also join her on the panel.
Neureiter added that they also looked for speakers presenting information relevant to current events. Last year, he said, they had a city attorney and someone from the American Civil Liberties Union discussing the Democratic National Convention in Denver. This year, they have Rob Cary of Washington D.C.-based firm Williams & Connolly and defense attorney for former Alaska Sen. Ted Stevens.
Stevens was convicted in Ocrober 2008 for failing to report alleged gifts totaling to $250,000 from VECO Corporation. The conviction was voided and charges were dismissed because of prosecutorial misconduct. Cary will tell the story of the “many failures” of the trial and discuss ways to reform the rules to prevent misconduct.
“I think that it’s a story of a judge who went to heroic lengths to try to make the government live up to its constitutional obligations. It’s also a story of new prosecutors doing the right thing,” he said. “I hope to make everybody who works in the criminal justice system more vigilant about providing citizens and their lawyers and everything they need to have fair proceedings.”

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By Don Knox, LAW WEEK COLORADO
DENVER — The medical marijuana situation in Colorado has gotten so bad that the venerable Colorado Bar Association has taken notice.
The Denver-based bar association, through its continuing legal education division CLE In Colorado Inc., next week will convene a one-hour program to deal with issues surrounding the proliferation of dispensaries and attempts by governments and courts to interpret their role.
The session is dubbed “Medical Marijuana: Legal Chaos.” It will be taught by Boulder lawyer Leonard Frieling and Denver lawyer Ann Toney. Both practice criminal defense law, and both are lifetime members of the National Organization for the Reform of Marijuana Laws, or NORML.
The bar association is starting to do more quick presentations that are on issues “that are hot because of a new decision, statute or regulation,” said Gary Abrams, CLE in Colorado’s executive director. “We put this together with faculty just last week, and we also are planning a full day to follow up in early 2010.
The program is to cover:
* The Facts, the Law and the Media
* Federal Government vs. States Rights
* Uniquely Colorado: Home Rule, Constitutional Provision Art 18 Sec 14.
* Caregivers before and after August 20, 2009
The Colorado Board of Health moved in recent days to change its definition of a “caregiver” in the wake of a late October Colorado Court of Appeals case that said a Longmont woman convicted on charges of growing pot didn’t qualify for caregiver protections because she didn’t personally know her clients.
The case is People v. Clendenin.

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Source: Law Week Colorado

By Don Knox, LAW WEEK COLORADO
Colorado Secretary of State Bernie Buescher today blasted a bill being heard in Congress that would increase corporate financial reporting requirements as a means of stemming money laundering.
At a conference of business lawyers, the Colorado Bar Association CLE’s Business Law Institute, Buescher said the bill would impose financial hardships on states and may be a disincentive to the creation of new businesses.
Buescher said SB 569 would significantly change “the way you do business, and frankly I find it quite scary.”
If the bill passes, the names, addresses and identification of beneficial owners of corporations would have to be disclosed upon corporation creation, he said. Changes in ownership would also have to be disclosed.
“You would have to examine a credible digital ID,” Buescher told the lawyers. “Now, I don’t know how you’re going to do that. … (And) my clients didn’t always tell me when there was a change in beneficial ownership.”
At another point in his speech, Buescher noted that 98.5 percent of Colorado corporations are created remotely and electronically without a lawyer or an incorporating person visiting the secretary of state’s office.
Senator Carl Levin, Democrat of Michigan, who co-sponsored the legislation, contends that the state laws effectively allow arms trafficking, money laundering, drug smuggling and tax fraud to flourish, The New York Times reported today.

SB_569_Levin

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STATE BILL COLORADO
Colorado Secretary of State Bernie Buescher will address Colorado business lawyers at 10 a.m. Thursday during the Colorado Bar Association CLE’s 10th annual Business Law Institute. A host of other speakers and panel discussions are planned.

The complete conference schedule is published here:

10th Annual Colorado Business Law Institute

Program Highlights

What You Will Learn:

- Case Law and Legislative Update
- Securities Litigation Update
- LLC and Partnership Law Update
- Corporate Governance: Emerging Issues for Boards of Private and Public Companies
- Hot Issues for Creditors and Unincorporated Business Organizations
- Recent Developments in Executive Compensation
- Preventing Trade Secrets from Leaving with Departing Employees
- Ethics for In-house Counsel
- Government Investigations – Trends and Developments
- Acquiring a Distressed Business Both In and Out Bankruptcy
- And Much, Much More!

Who Should Attend:

- Outside Counsel
- In-house Counsel
- Litigators
- Bankruptcy Law Attorneys
- Tax Attorneys
- Securities Law Attorneys
- Employment Law Attorneys
- Real Estate Attorneys
- Corporate Management
- Anyone Who Needs to Get Up to Speed Fast on the Most Important Emerging Issues in the World of Business Law!

Program Description

The Colorado Business Law Institute, Colorado’s premier CLE experience for business law attorneys, is better than ever as it returns for its 10th consecutive year!

If your practice includes business law transactional or litigation matters, you owe it to yourself to attend the Institute. The Institute’s experienced faculty will provide you with practical information you can put to use right away in your practice!

As always, you will receive updates in a wide variety of business law areas, including case law, new legislation, securities law, LLC and partnership law, and franchise law.

In addition, this year’s Institute will get you up to speed on how the recession is affecting the practice of business law in Colorado. How are commercial transactions changing in response to the economic downturn? Are there key bankruptcy and insolvency issues you need to know? What are the current trends, issues, and players in the world of commercial litigation? How is corporate governance changing because of the recession? What about employment law issues in a down economy? Attend the 2009 Colorado Business Law Institute and learn the answers to these and many other important questions!

The Institute’s faculty includes distinguished practitioners, law professors, and government officials drawn from a wide variety of business law areas. The faculty includes both outside and in-house counsel.

Generous amounts of ethics credit, a new 2-day format, more breakout session choices, and a convenient new location in Denver make this an Institute you can’t afford to miss…

Register Today!

Agenda

DAY 1: THURSDAY, NOVEMBER 5, 2009

8:00 AM – 9:00 AM
Registration

9:00 AM – 9:05 AM
Welcome and Introduction
Extended by Carolyn J. Hariton, Esq. and Deanna L. Westfall, Esq., Program Co-chairs

9:05 AM – 9:55 AM
Business Case Law and Legislative Update: Delaware and Colorado
Presented by Professor Mark J. Loewenstein and Professor Ann E. Conaway

10:00 AM – 10:30 AM
Secretary of State Update
Presented by the Honorable Bernie Buescher, Colorado Secretary of State

10:30 AM – 10:45 AM
Break (15 minutes)

10:45 AM – 12:00 PM
Corporate Governance Update: Governance in Tough Times and Emerging Issues for Boards of Private and Public Companies
Presented by Cathy S. Krendl, Esq. and Jill B. Sisson, Esq.

12:00 PM – 1:10 PM (Includes “1 Ethics Credit”
Lunch* at the Hotel
(*You MUST indicate if you plan to attend or lunch will NOT be ordered for you.)

Luncheon Presentation (12:10 PM – 1:00 PM): Ethics Issues for Business Law Attorneys During Tough Times
- Alternative Fee Arrangements
- Collecting Fees
- Taking an Interest in the Client
Presented by Susan Bernhardt, Esq. and Nancy L. Cohen, Esq.

BREAKOUT SESSIONS BEGIN (Note: Please make your selections on the registration page)

TRACK 1

1:10 PM – 2:00 PM
Session A: Anatomy of an Opinion Letter
Presented by Herrick K. Lidstone, Jr., Esq.

2:05 PM – 2:55 PM
Session B: Executive Compensation on the Hot Seat: Recent Developments Concerning Executives and Compensation Committees
Presented by Paul Hilton, Esq.

2:55 PM – 3:10 PM
Break (15 minutes)

3:10 PM – 4:00 PM
Session C: Securities Litigation Update
Presented by Michael MacPhail, Esq.

4:05 PM – 4:55 PM (Includes 1 Ethics Credit)
Session D: Ethics for In-house Counsel
Presented by Jack Tanner, Esq.

TRACK 2

1:10 PM – 2:00 PM
Session A: Hot Intellectual Property Issues for the Business Law Attorney
Presented by Charles F. Luce, Jr., Esq.

2:05 PM – 2:55 PM
Session B: Evaluating Intellectual Property in Transactions Involving Alternative Energy Industry Companies
Presented by Scott R. Bialecki, Esq., Charles B. (Charlie) Bruce, Jr., Esq. and Mark L. Yaskanin, Esq.

2:55 PM – 3:10 PM
Break (15 minutes)

3:10 PM – 4:00 PM
Session C: Changes in the Practice of Corporate Law in Light of the Recession – for both In-house and Outside Counsel
- Automation of Document Drafting
- Venture Capital Firm Funding of Contingent Litigation
- And More!
Presented by Michael A. Sabian, Esq. and Patrick Meyers, Esq.

4:05 PM – 4:55 PM
Session D: Employment Law: Preventing Trade Secrets from Leaving with Departing Employees and Retaining Key Employees Without Breaking the Bank
Presented by Bill C. Berger, Esq.

5:00 PM – 6:00 PM
Reception at the Hotel
Enjoy Light Appetizers, Complimentary Beer and Wine, and the Opportunity to Network with Your Colleagues!

6:00 PM
Adjourn, Day 1

DAY 2: FRIDAY, NOVEMBER 6, 2009

Choose The Topics that Interest You Most – Enjoy Breakout Sessions All Day!

8:30 AM – 9:00 AM
Registration

TRACK 1

9:00 AM – 9:55 AM
Session A: The Recession’s Effect on Real Estate Development: Bankruptcy and Workout Issues You Need to Know
Presented by Donald D. Allen, Esq.

10:00 AM – 10:50 AM
Session B: Hot Tax Issues for the Business Law Attorney
Presented by Randi Grassgreen, Esq.

10:50 AM – 11:05 AM
Break (15 minutes)

11:05 AM – 11:55 AM (Includes 1 Ethics Credit)
Session C: Challenges, Ethical and Otherwise, that Transactional Lawyers Face from the Push to Reveal Beneficial Ownership
Presented by Allen Sparkman, Esq., Robert R. Keatinge, Esq. and Matthew Kirsch, Esq.

11:55 AM – 1:15 PM
Lunch (On Your Own)

1:15 PM – 2:05 PM
Session D: Secretary of State Update II: Filing Changes and More
Presented by Sarah Steinbeck, Esq. and Keith Whitelaw, Esq.

2:10 PM – 3:00 PM
Session E: Creditors and Unincorporated Business Organizations
- Veil Piercing
- Reverse Piercing
- Fiduciary Claims
- UCC and Foreclosure
- Charging Orders – Rights as Assignee Only
Presented by J. William (Bill) Callison, Esq.

Part 1: Anatomy of an Opinion Letter
(30 minutes)

2:40 PM – 3:00 PM
Part 2: Opinion Letters and Legal Ethics (.4 ethics credit)
(20 minutes)

3:00 PM – 3:15 PM
Break (15 minutes)

3:15 PM – 4:05 PM
Session F: Corporate Compliance: What’s New in Government Investigations
Presented by William J. (Bill) Leone, Esq.

TRACK 2

9:00 AM – 9:55 AM
Session A: Litigation Issues for the Business Law Attorney
Presented by Peter G. Koclanes, Esq.

10:00 AM – 10:50 AM
Session B: LLC and Partnership Law Update
Presented by Robert R. Keatinge, Esq. and Professor Ann E. Conaway

10:50 AM – 11:05 AM
Break (15 minutes)

11:05 AM – 11:55 AM
Session C: M&A, Private Placements, Business Incubators and Raising Capital for Small to Medium Size Businesses During Tough Times
Presented by S. Lee Terry, Jr., Esq.

11:55 AM – 1:15 PM
Lunch (On Your Own)

1:15 PM – 2:05 PM
Session D: Acquiring a Distressed Business Both In and Out of Bankruptcy
- Legal Risks: Fraudulent Transfers and Fiduciary Duties
- Section 363 Sales in Bankruptcy
- ”Loan to Own” Scenarios In and Out of Bankruptcy
- Receivership Strategies
- Real and Personal Property Foreclosures
Presented by Duncan E. Barber, Esq. and Eric E. Johnson, Esq.

2:10 PM – 3:00 PM
Session E: Franchise Law Update
Presented by Jennifer Wisniewski, Esq. and Jeffrey A. Brimer, Esq.

3:00 PM – 3:15 PM
Break (15 minutes)

3:15 PM – 4:05 PM
Session F: The Law of “Green” and Other Government Incentives
Presented by Rex O’Neal, Esq.

4:05 PM
Adjourn, Day 2

Faculty:

Honorable Bernie Buescher
Colorado Secretary of State
Denver, CO

Donald D. Allen, Esq.
Markus Williams Young & Zimmermann, LLC
Denver, CO

Duncan E. Barber, Esq.
Bieging Shapiro & Burrus, LLP
Denver, CO

Bill C. Berger, Esq.
Stettner Miller, PC
Denver, CO

Susan Bernhardt, Esq.
Sherman & Howard, LLC
Denver, CO

Scott R. Bialecki, Esq.
Holme Roberts & Owen, LLP
Denver, CO

Jeffrey A. Brimer, Esq.
Faegre & Benson, LLP
Denver, CO

Charles B. (Charlie) Bruce, Jr., Esq.
Holme Roberts & Owen, LLP
Denver, CO

J. William (Bill) Callison, Esq.
Faegre & Benson, LLP
Denver, CO

Nancy L. Cohen, Esq.
Deputy Regulation Counsel
Colorado Supreme Court
Denver, CO

Ann E. Conaway, Professor of Law
Widener University School of Law
Wilmington, DE

Randi Grassgreen, Esq.
Crestone Capital Advisors, LLC
Boulder, CO

Paul Hilton, Esq.
Hogan & Hartson, LLP
Denver, CO

Eric E. Johnson, Esq.
Holme Roberts & Owen, LLP
Denver, CO

Robert R. Keatinge, Esq.
Holland & Hart, LLP
Denver, CO

Matthew Kirsch, Esq.
United States Attorney’s Office
Denver, CO

Peter G. Koclanes, Esq.
Sherman & Howard, LLC
Denver, CO

Cathy S. Krendl, Esq.
Krendl Krendl Sachnoff & Way, PC
Denver, CO

William J. (Bill) Leone, Esq.
Faegre & Benson, LLP
Denver, CO

Herrick K. Lidstone, Jr., Esq.
Burns Figa & Will, PC
Greenwood Village, CO

Mark J. Loewenstein, Professor of Law
University of Colorado Law School
Boulder, CO

Charles F. Luce, Jr., Esq.
Moye White, LLP
Denver, CO

Michael MacPhail, Esq.
Holme Roberts & Owen, LLP
Denver, CO

Patrick Meyers, Esq., CLO, Partner
Consumer Capital Partners
Denver, CO

Rex O’Neal, Esq.
Faegre & Benson, LLP
Boulder, CO

Michael A. Sabian, Esq.
Polsinelli Shughart, PC
Denver, CO

Jill B. Sisson, Esq.
Einstein Noah Restaurant Group, Inc.
Lakewood, CO

Allen Sparkman, Esq.
Sparkman Shaffer Perlick, LLP
Boulder/Denver, CO

Sarah Steinbeck, Esq.
Senior Legislative and Legal Analyst
Business Division
Colorado Department of State
Denver, CO

John M. (Jack) Tanner, Esq.
Fairfield & Woods, PC
Denver, CO

S. Lee Terry, Jr., Esq.
Davis Graham & Stubbs, LLP
Denver, CO

Keith Whitelaw, Esq.
Director, Business Division
Colorado Department of State
Denver, CO

Jennifer Wisniewski, Esq.
TAB Boards International, Inc.
Westminster, CO

Mark L. Yaskanin, Esq.
Holme Roberts & Owen, LLP
Denver, CO

Program Co-chairs:

Carolyn J. Hariton, Esq.
Centennial, CO

Deanna L. Westfall, Esq.
Castle Meinhold & Stawiarski, LLC
Denver, CO

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LAW WEEK COLORADO
The Colorado Association of Litigation Support Professionals has set its 3rd Annual E-Discovery Summit for Friday, Oct. 30, at the Grand Hyatt Denver, 1750 Welton St., in the 38th Floor Ballroom.
The event is from 8 a.m. to 6 p.m. It’s free for COALSP members and $125 for non-members.
Speakers are:
* Magistrate Judge Andrew J. Peck, Southern District Of New York
* Beth Niepokuj, Litigation Support Manager, Plunkett Cooney, Detroit
* Marcy M. Heronimus, Esq., Member, Sherman & Howard, Denver
* David E. Garrett, Esq., Managing Director, Stroz Friedberg, San Francisco
* Elleanor H. Chin, Esq., Associate, Davis Wright & Tremaine, Portland, Ore.
* Timothy Gordon, Esq., Partner, Holland & Hart, Denver

20091030_COALSP

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By Matt Masich, LAW WEEK COLORADO
DENVER — Law firms will emerge from the financial crisis permanently changed, says international legal consultant Bruce MacEwen.
On Friday, he will outline the key areas to watch for change in an hour-long presentation called “The Evolution of the Law Firm” at the first day of the 2009 Futures Conference at the University of Denver Sturm College of Law. The conference, sponsored by the College of Law Practice Management and DU Law’s Master of Science in Legal Administration program, features presentations and discussion groups on how to navigate the profession’s future.
MacEwen, founder of Adam Smith, Esq. consulting firm, has a view on law firm evolution that is similar to what biologists call “punctuated equilibrium” — the idea that long periods of stability are punctuated by rapid bursts of change. The current shake-up of the financial industry could trigger such change for law firms, he said.
“The financial services sector is the locomotive that has been driving the performance of big law firms since the mid-1980s,” MacEwen said. But growth in the financial services sector has stalled, he said, and the fallout from that development has a direct impact on law firms.
“The size of the changes that we’re seeing in the fundamental structure of the economy — the trade deficit, the regulatory intrusiveness of the federal government — are things that maybe happen once in a career, and I think that we may very well see a different legal business model on the other side.”
One way MacEwen said he expects law firms to adjust to the new economic reality is decreased associate/partner leverage, with the ratio of associates to partners at a firm being more even. The demise, or at least obsolescence, of the billable hour, is also a topic of much conversation.
“I know its death has been predicted for 30 years,” MacEwen said. “It’s a very durable creature, it’s very familiar to everybody — corporate clients included — but it’s fundamentally economically irrational. It prices based on cost of production rather than value to the client, and that’s just a categorical economic error.”
“The billable hour will always have a role, but I really see alternative fees as mounting the most serious challenges of my career.”
Lockstep compensation for associates is another dinosaur whose extinction may be close at hand, MacEwen said, with international firms like Howrey and Orrick Herrington & Sutcliffe announcing moves toward merit-based pay. And once a firm abandons lockstep, it’s not likely to go back.
“I wonder if we’re not about to see a period of experimentation in terms of different law firm business models,” MacEwen said, “some of which will not work, just as most of the species that ever existed are now extinct.”

20090923_Futures

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