legal ethics in a changing world 1:00 p.m. to 4:30 p.m

Legal Ethics in a Changing World 1:00 p.m. to 4:30 p.m.

Where: Zoom Remote Connection

General Description: Water lawyers, join the Colorado Water Congress for our annual Legal Ethics Workshop and learn more about how legal ethical practices have evolved in today’s day and age! How do you manage courthouse operations and trials in a remote working environment? How do you handle remote witnesses? How do you handle confidentiality and working from home? What about impacts on government clients? We will hear from Judge Hartmann on what Division 1 has experienced, and from Referee Ryan on what Division 5 is doing about ethical issues in this changing new world.

Speakers: • Judge Hartmann, Chief Judge, 19th Judicial District, Water Judge, Division 1• Referee Ryan, Water Referee, Division 5• Cynthia Covell, Attorney, Alperstein and Covell, P.C.• Kevin Kinnear, Attorney, Porzak Browning & Bushong LLP• Stephen H. Leonhardt, Attorney, Burns, Figa & Will, P.C.

1:00 p.m. Introductions and Overview

1:05 p.m. Ethical Issues in Remote and Hybrid Court Proceedings in Division 1 and Division 5 Judge Hartmann, Chief Judge, 19th Judicial District, Water Judge, Division 1 Referee Ryan, Water Referee, Division 5 Judge Hartmann and Referee Ryan will address ethical issues in water court practice and proceedings in the world of COVID-19. What is the status of water cases and jury trials? What is the update in-person proceedings? What are the rules of operation for using WebEx in court hearings/trials? How has witness preparation and use of exhibits changed?

2:35 p.m. Break

2:45 p.m. Virtual Trials – An Attorney's Perspective Kevin Kinnear, Porzak Browning & Bushong LLP Kevin will give a brief presentation providing insights resulting from his recent four-day trial by WebEx. This trial was held in the “virtual courtroom” of Judge Boyd, acting as District Court Judge for Garfield County rather than as Water Judge, presiding over a “Roaring Fork Club”-type ditch relocation dispute. Kevin’s presentation will include his thoughts regarding preparing for a trial by WebEx, document management, technology requirements and suggestions, witness management including access to technology, sequestration, and challenges associated with managing witness access to documents and communications while testifying. Ethical considerations include attorney competence (Rule 1.1), confidentiality (Rule 1.6), and candor to the Court (Rule 3.3).

3:30 p.m. A Panel on Hypothetical Issues Cynthia Covell, Attorney, Alperstein and Covell, P.C. Kevin Kinnear, Attorney, Porzak Browning & Bushong LLP Stephen H. Leonhardt, Attorney, Burns, Figa & Will, P.C. This section will address some of the above issues as well as confidentiality, unauthorized access to client information, etc. with reference to applicable Rules of Professional Conduct and ethics opinions.

4:30 p.m. Adjourn

Workshop Outline

CWC Ethics Workshop Presentation Outline Judge Hartmann and Referee Ryan

October 21, 2020

The purpose of this presentation is to provide an explanation of the process for conducting virtual hearings/trials with a focus on the Colorado Rules of Professional Conduct. Through practical examples of their virtual courtroom experience, Judge Hartmann and Referee Ryan will incorporate Rules of Professional Conduct 1.1, 1.3, 1.4, and 3.2 and explain the application in the virtual court context. Attendees will gain an understanding of current court operations, pros/cons of virtual court, and an understanding of how to apply the Rules of Professional Conduct in virtual court proceedings. Attendees are encouraged to ask questions throughout the presentation. 1. Background on COVID-19 (Hartmann – 10 minutes) a. Chief Judge role in determining court operations b. Developing a process for virtual court 2. Court operation in Division 1 and 19th Judicial District (Hartmann – 10 minutes) a. Status of water cases in Division 1 b. Status of jury trials c. Update on in-person proceedings 3. Court operation in Division 5 and the 9th Judicial District (Ryan – 10 minutes) a. Status of water cases in Division 5 b. Status of jury trials c. Update on in-person proceedings 4. Using WebEx for court hearings/trials (Hartmann and Ryan – 40 minutes) a. Case management b. Court expectations of attorneys and parties c. Witness preparation d. Exhibits e. Use of interpreters 5. Benefits of WebEx (Hartmann and Ryan – 20 minutes) a. Time and cost effective b. Allows greater access to the courts c. Level playing field for all parties

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District Court, Weld County, State of Colorado Tribunal de distrito, condado de Weld, estado de Colorado Court Address: 901 9th Avenue, Greeley, CO 80631 Dirección del tribunal: Mail Address: P.O. Box 2038, Greeley, CO 80632 Dirección postal: Phone Number: (970) 475-2400 Teléfono: In the matter of: En el asunto de: Respondent/Demandado

COURT USE ONLY USO EXCLUSIVO DEL TRIBUNAL

Case Number: PR Número de causa: Div.1 División:1

NOTICE OF COURT PROCEEDINGS BY WEBEX

AVISO SOBRE LOS PROCEDIMIENTOS JUDICIALES POR WEBEX This matter is set for a on at in DIVISION 1. Este asunto se ha fijado para el día a las en la DIVISIÓN 1. This proceeding is by WebEx ONLY. THE PARTIES AND PUBLIC OBSERVERS ARE NOT TO APPEAR IN PERSON. Este procedimiento judicial se lleva a cabo solamente por Webex. LAS PARTES Y LAS PERSONAS QUE QUIERAN OBSERVAR EL PROCEDIMIENTO JUDICIAL NO PODRÁN COMPARECER EN PERSONA. WebEx allows for parties, professionals, witnesses, courtroom attendees, and any members of the public to appear by video and/or by phone. Webex permite a las partes, a los profesionales, a los testigos, a las personas que asisten al tribunal, y a los miembros del público a comparecer por video o por teléfono. TO JOIN USING THE CISCO WEBEX APPLICATION ON A PHONE/TABLET OR COMPUTER CÓMO UNIRSE A LA APLICACIÓN CISCO WEBEX POR TELÉFONO, TABLET O COMPUTADORA Click on JOIN a MEETING in the application. ENTER THE MEETING ROOM CODE: 923 086 125 En la aplicación, haga clic en "JOIN a MEETING" (Únase a una reunión). INGRESE EL CÓDIGO CON EL NÚMERO DE REUNIÓN: 923 086 125

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TO CALL INTO THE WEBEX HEARING TO APPEAR BY PHONE ONLY CÓMO LLAMAR PARA UNIRSE A UNA AUDIENCIA VIRTUAL POR WEBEX PARA COMPARECER SOLO POR TELÉFONO Please dial one of the two numbers below: Marque uno de los dos números que aparecen abajo: 1-415-655-0001 US Toll/Línea directa en los Estados Unidos 1-720-650-7664 United States Toll (Denver)/Línea directa en los Estados Unidos (Denver) WHEN PROMPTED ENTER THE ACCESS CODE: 923 086 125 CUANDO ASÍ SE LE INDIQUE, INGRESE EL CÓDIGO DE ACCESO: 923 086 125 TO JOIN THE MEETING USING A VIDEO CONFERENCING SYSTEM CÓMO UNIRSE A UNA REUNIÓN VIRTUAL POR UN SISTEMA DE VIDEO CONFERENCIAS Dial [email protected] OR Marque [email protected] O Dial 173.243.2.68 and enter the meeting number: 923 086 125 Marque 173.243.2.68 e ingrese el número de reunión: 923 086 125 Need help? Go to http://help.webex.com ¿Necesita ayuda? Vaya a http://help.webex.com When participating by WebEx, please remember that this is a formal court proceeding: Cuando participe en una reunión o audiencia virtual por Webex, recuerde que éste es un procedimiento judicial formal: 1) Please mute your microphone unless you are speaking so that others can hear the proceedings; Silencie su micrófono a menos de que esté hablando para que otros puedan escuchar el procedimiento judicial; 2) Be aware that if you are appearing by video others can see you. Tenga en cuenta que, si comparece por video, otros pueden verlo. 3) You are not permitted to record any of the proceedings and a violation of this order is punishable by contempt of court or in any other manner authorized by law. No está autorizado para grabar ninguno de los procedimientos judiciales y cualquier incumplimiento de esta orden puede resultar en que se le imponga el cargo de desacato al juez u otras sanciones permitidas por la ley. 4) Please be patient. The Court may have multiple hearings set on the docket, as it would in the courtroom setting. Sea paciente. Es posible que el juez tenga varias audiencias virtuales fijadas en el listado de causas, de la misma manera que las tendría en la sala del tribunal. 5) Disruptive behavior will not be tolerated, and the Court will address any such behavior in the same fashion as the Court would if it occurred in court, which could include contempt proceedings or exclusion from the proceedings.

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No se tolerarán actos que reflejen un comportamiento perturbador, y el juez abordará tal comportamiento de la misma manera que si estuvieran en la sala del tribunal, lo cual podría resultar en que se lleven a cabo procedimientos judiciales por desacato al juez o que lo excluyan de tales procedimientos judiciales. DO NOT APPEAR IN PERSON WITHOUT PRIOR AUTHORIZATION FROM THE COURT. NO COMPAREZCA EN PERSONA SIN LA PREVIA AUTORIZACIÓN DEL JUEZ. Dated/Fecha: BY THE COURT/POR EL JUEZ:

James F. Hartmann Chief Judge, 19th Judicial District/Juez Principal, Distrito Judicial Decimonoveno

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NINTH JUDICIAL DISTRICT, COLORADO

Court Address: Garfield County Courthouse

109 Eighth St., Suite 104

Glenwood Springs, Colorado 81601

Phone Number: 970-928-3065

ADMINISTRATIVE ORDER

The Honorable James B. Boyd

Administrative Order 20-02

WEBEX PROCEDURES FOR THE NINTH JUDICIAL DISTRICT

Pursuant to and in accordance with the Administrative Order about Operations during

COVID-19 Period as it may be updated from time to time, unless otherwise notified by the

Court, all dockets and hearings shall be conducted electronically by using the procedures

described below.

The Court will use Cisco WebEx meetings, which is an internet based software program

that can be operated from a desktop computer, laptop computer, or a smartphone. WebEx allows

for video and/or audio participation in court proceedings. For users without access to video,

WebEx allows for audio access only by computer or phone.

Using WebEx will require additional preparation and planning on the part of all counsel,

parties, and witnesses. The Court expects attorneys to provide their clients and witnesses with

the appropriate remote access/call in information before the hearing and to have communicated

with their clients and witnesses to make sure they can access the electronic system well in

advance of the hearing.

ACCESS TO WEBEX

Virtual Courtrooms. Each judicial officer in the Ninth Judicial District has a virtual

courtroom set up in WebEx. The access code for the virtual courtroom is unique to each judicial

officer and does not change. Attached to this Order is a list with the access information for each

judicial officer’s virtual courtroom. As a general rule, judicial officers will not send email

invitations for every docket or hearing. Each virtual courtroom allows for video and an audio

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only connection. This information will also be available on the Ninth Judicial District’s website.

Please keep in mind that the virtual courtrooms are open to the public during all WebEx

proceedings, unless otherwise ordered by the Court.

Instructions for Joining WebEx. First, install the WebEx application on your phone or

computer. Instructions for installing the WebEx application that can be provided to witnesses

and parties are available at https://help.webex.com/en-us/nrbgeodb/Join-a-Webex-

Meeting#id_134856.

To join a WebEx proceeding, follow the instructions on the invitation (if you received

one) or use the meeting number (access code) in the WebEx application.

o to join by video (preferred method) hit the “Join Meeting” link. If that does not

work, cut and paste the address into your browser.

o you will be directed to virtual courtroom. At the bottom of the page select “Join

from your browser.”

o it is helpful to enter identifying information – name and email address (so we

know who you are). You will then be in the meeting.

o Select your audio setting. If the audio on your computer or tablet does not work,

please use the alternate audio option of calling in to the number in the invitation

and using your participant code.

o If you do not have a device that will support a video connection, you may still

participate by audio only by calling the number in the invitation and using the

access code.

https://help.webex.com/en-us/nrbgeodb/Join-a-Webex-Meeting#id_134856

https://help.webex.com/en-us/nrbgeodb/Join-a-Webex-Meeting#id_134856

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USING WEBEX

Before the Court Proceeding.

o Install and practice with WebEx in advance of the scheduled court date and time.

o Ensure that there is adequate internet connection.

o Eliminate background noise, including side conversations and paper shuffling.

o Only connect to audio through one device.

o Connect from a location with good lighting.

During the Court Proceeding.

o Mute your microphone when not speaking.

o Avoid using a speaker phone.

o Avoid calling while driving.

o Speak into a microphone or close to the phone.

o Make sure your microphone is not on mute when speaking.

o Speak loudly and clearly.

o Only one person may speak at a time, allowing a pause between speakers in case

there is an audio delay.

o Parties should call in at their regularly scheduled hearing time. Parties dialing

into the court shall not interrupt any ongoing proceedings, but wait to be

acknowledged by the court. It is very important that only one person speak at a

time and that parties wait their turn to be called upon to speak.

Technical Difficulties. In the event of technical difficulties with WebEx, please identify

those issues to the Court as soon as possible. If the WebEx system crashes, contact the court

clerk for the division where your case is being heard.

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COURT PROCEDURES FOR WEBEX

Recording. The Court records the audio for all WebEx proceedings through its recording

devices in the courtroom. Any other audio and/or video recording of any portion of a WebEx

hearing is strictly prohibited. Violation of this prohibition may result in the imposition of

sanctions including contempt of court.

Decorum. WebEx hearings are court proceedings and all participants shall follow

ordinary standards of decorum. Participants should ensure they are appropriately dressed, that

their surroundings are quiet and well lit, that their electronic devices are functioning correctly,

that they have an adequate internet connection, and that distractions in home environments are

minimized.

Attorney Responsibilities. Attorneys shall forward the meeting information to their

clients and any witnesses. In all matters requiring compliance with the Victim’s Rights Act, the

District Attorney shall be responsible to provide the information to any victim that desires to

appear. The court may also forward meeting information to any member of the public upon

request. See Colo.R.Crim.P. 43(f)(1)(2020-6). It is the responsibility of the attorney to ensure

clients and witnesses have the necessary contact information.

Closed Hearings. Adoption, relinquishment and any other proceedings closed by law or

Order may be sent a separate WebEx invitation reflecting the date of the hearing and that shall

not be made public.

Chat Function. WebEx has a function that allows participants to chat with everyone or

privately. The written chats are not part of the Court’s record. Parties should not use the chat

function during court proceedings. Parties should have another device available to speak with

their clients off the record if necessary during the proceeding, such as a separate phone

connection or by separate text message.

Criminal Proceedings. In accordance with Colo.R.Crim.P. 43, with the defendant’s oral

or written consent, the Court will allow the defendant and counsel to appear electronically for all

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proceedings identified in Rule 43(f). The Court will also provide for electronic appearances in

first appearances, reviews and status conferences.

o Pleas in criminal cases: the Court expects the defense attorney to have the plea

paperwork signed by the client and uploaded to the case file before the hearing

begins. The Court will consider temporarily accepting an electronic signature

(e.g. /John Doe) on plea paperwork on a case by case basis, but will require a

written guilty plea and waiver of rights bearing the defendant’s signature to be

uploaded in all cases.

o If a defendant is out of custody, defense counsel must ensure that the defendant

has a means of communicating with defense counsel outside of the WebEx

conference in the event there is a need for confidential communication. Parties

should not rely on the WebEx chat function to accomplish this alternate

communication. The Court suggests that such communication occur separately

by phone between counsel and client and that the WebEx conference be muted

during this time.

o Parties can participate in the 1:30 p.m. advisement docket in Garfield County by

accessing the presiding judicial officer’s virtual courtroom. For advisements

occurring in Pitkin and Rio Blanco Counties, contact the court clerks for

information.

Proceedings with Interpreters. WebEx can be used for cases requiring interpreters.

Parties needing an interpreter should contact the Court in advance of the hearing to discuss

logistics and whether simultaneous interpretation is possible. Parties should keep the following

in mind when using an interpreter:

o All parties must speak into a microphone or close to the phone.

o Parties must speak slowly, loudly, and clearly.

o Parties must pause periodically between statements to facilitate consecutive

interpreting.

o Only one person may speak at a time, allowing a pause between speakers.

This includes question/answer sessions: Allow the interpreter to render his/her

interpretation after each person speaks to avoid confusion.

o Alert the Court and/or interpreter immediately if there are any technical

difficulties.

Evidentiary Hearings. Evidentiary hearings via WebEx shall be conducted per the

following requirements.

o All proposed exhibits must be provided to the Court and the parties prior to

any evidentiary hearing. Any audio or audiovisual recording that may be

offered into evidence must be provided to the court in advance of the hearing

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on a jump-drive and must be in a format that can be played without

proprietary software. Counsel is expected to know how to utilize the “share

screen” function in WebEx to publish exhibits for all participants.

o Testifying witnesses shall make every effort to appear by video, rather than by

audio only.

o Testifying witnesses are not permitted to look at any documents or other

material while testifying, unless specifically authorized by the Court.

o Parties and attorney shall not communicate with any witness by chat or

otherwise during the proceeding.

o If witness sequestration is requested, the Court will move the sequestered

participants into the WebEx lobby until it is time for the witness’s testimony.

o Parties are encouraged to reach stipulations concerning exhibits and other

evidentiary issues.

o The Colorado Rules of Evidence shall continue to apply in all hearings.

o Objections must be made orally for the record.

o A “pre-hearing” conference may be conducted in any case in which an

evidentiary hearing is sought to address any procedural issues.

o Parties should allow additional time for WebEx hearings and should anticipate

the need to take more frequent breaks.

The procedures outlined herein are evolving and may be modified or updated periodically.

SO ORDERED this 14th day of May, 2020.

BY THE COURT

_________________________________

Chief Judge

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VIRTUAL COURTROOM MEETING ACCESS CODES

BY JUDICIAL OFFICER

When using either a phone or the WebEx app and not using computer audio, call 720-650-7664

and when prompted enter the judge specific nine-digit access/meeting code (see below) and press

#, then press # again.

DISTRICT COURT JUDGES

BOYD: 921 555 409

LYNCH: 920 849 792

NEILEY: 922 832 732

NORRDIN: 922 835 897

SELDIN: Contact court clerk

COUNTY COURT JUDGES

FERNANDEZ-ELY: Contact court clerk

METZGER: 928 727 665

NOBLE: 925 897 784

POTOTSKY: 927 711 467

DISTRICT COURT MAGISTRATE/WATER REFEREE

RYAN: 924 160 381

DISTRICT COURT, GARFIELD COUNTY, COLORADO 109 Eighth Street, Suite 104 Glenwood Springs, Colorado 81601 THE PEOPLE OF THE STATE OF COLORADO IN THE INTEREST OF: CHILDREN and Concerning PARENTS

▲COURT USE ONLY▲

Case Number: JV

CASE MANAGEMENT ORDER FOR HEARING ON JUNE 5, 2020

This case is scheduled for a contested allocation of parental responsibilities hearing on June 5, 2020 at 1:00 p.m. As discussed during the status conference held on May 8, 2020, counsel for Respondent Mother shall email the other parties a list of the issues to be addressed at the hearing on or before May 15, 2020. The parties shall file witness and exhibit lists with the Court by May 29, 2020. The parties shall exchange exhibits on or before May 29, 2020.

The hearing will be held via Cisco WebEx meetings, which is an internet based software program that can be operated from a desktop computer, laptop computer, or a smartphone. WebEx allows for video and/or audio participation in court proceedings. For users without access to video, WebEx allows for audio access only by computer or phone. The procedures described below shall govern the hearing.

Access to WebEx

Instructions for Joining WebEx. First, install the WebEx application on your phone or computer. Instructions for installing the WebEx application that can be provided to witnesses and parties are available at https://help.webex.com/en-us/nrbgeodb/Join-a-Webex-Meeting#id_134856.

To join a WebEx proceeding, follow the instructions on the invitation (if you received one) or use the meeting number (access code) in the WebEx application.

o to join by video (preferred method) hit the “Join Meeting” link. If that does not work, cut and paste the address into your browser.

o you will be directed to virtual courtroom. At the bottom of the page select “Join from your browser.”

o it is helpful to enter identifying information – name and email address (so we know who you are). You will then be in the meeting.

o Select your audio setting. If the audio on your computer or tablet does not work, please use the alternate audio option of calling in to the number in the invitation and using your participant code.

o If you do not have a device that will support a video connection, you may still participate by audio only by calling the number in the invitation and using the access code.

Using WebEx

Before the Court Proceeding.

o Install and practice with WebEx in advance of the scheduled court date and time.

o Schedule a time to practice WebEx with the Court’s clerk, if necessary.

o Ensure that there is adequate internet connection.

o Eliminate background noise, including side conversations and paper shuffling.

o Only connect to audio through one device.

o Connect from a location with good lighting.

During the Court Proceeding.

o Mute your microphone when not speaking.

o Avoid using a speaker phone.

o Avoid calling while driving.

o Speak into a microphone or close to the phone.

o Make sure your microphone is not on mute when speaking.

o Speak loudly and clearly.

o Only one person may speak at a time, allowing a pause between speakers in case there is an audio delay.

o Parties should call in at their regularly scheduled hearing time. Parties dialing into the court shall not interrupt any ongoing proceedings, but wait to be acknowledged by the court. It is very important that only one person speak at a time and that parties wait their turn to be called upon to speak.

Technical Difficulties. In the event of technical difficulties with WebEx, please identify those issues to the Court as soon as possible. If the WebEx system crashes, the Court will use its conference line as a back-up. The conference line number is 971-319-4993.

Court Procedures for WebEx

Recording. The Court records the audio for all WebEx proceedings through its recording devices in the courtroom. Any other audio and/or video recording of any portion of a WebEx hearing is strictly prohibited. Violation of this prohibition may result in the imposition of sanctions including contempt of court.

Decorum. WebEx hearings are court proceedings and all participants shall follow ordinary standards of decorum. Participants should ensure they are appropriately dressed, that their surroundings are quiet and well lit, that their electronic devices are functioning correctly, that they have an adequate internet connection, and that distractions in home environments are minimized.

Attorney Responsibilities. Attorneys shall forward the meeting information to their clients and any witnesses. It is the responsibility of the attorney to ensure clients and witnesses have the necessary contact information.

Chat Function. WebEx has a function that allows participants to chat with everyone or privately. The written chats are not part of the Court’s record. Parties should not use the chat function during court proceedings. Parties should have another device available to speak with their clients off the record if necessary during the proceeding, such as a separate phone connection or by separate text message.

Evidentiary Hearings. Evidentiary hearings via WebEx shall be conducted per the following requirements.

o All proposed exhibits must be provided to the Court and the parties prior to any evidentiary hearing. Any audio or audiovisual recording that may be offered into evidence must be provided to the court in advance of the hearing on a jump-drive and must be in a format that can be played without

proprietary software. Counsel is expected to know how to utilize the “share screen” function in WebEx to publish exhibits for all participants.

o Testifying witnesses shall make every effort to appear by video, rather than by audio only.

o Testifying witnesses are not permitted to look at any documents or other material while testifying, unless specifically authorized by the Court.

o Parties and attorney shall not communicate with any witness by chat or otherwise during the proceeding.

o If witness sequestration is requested, the Court will move the sequestered participants into the WebEx lobby until it is time for the witness’s testimony.

o Parties are encouraged to reach stipulations concerning exhibits and other evidentiary issues.

o The Colorado Rules of Evidence shall continue to apply in all hearings.

o Objections must be made orally for the record.

o A “pre-hearing” conference shall be conducted in any case in which an evidentiary hearing is sought to address any procedural issues.

o Parties should allow additional time for WebEx hearings and should anticipate the need to take more frequent breaks.

SO ORDERED this 11th day of May, 2020.

BY THE COURT

Susan M. Ryan District Court Magistrate

VIRTUAL COURT EXPECTATIONS

During COVID-19, we transitioned to virtual court dockets and hearings for dependency and neglect

cases. This change has been a major adjustment for everyone. We understand that there are additional

challenges with our current situation; however, the core aspects of your case and treatment plan- court

hearings, treatment groups, and individual sessions-- are still essential. The purpose of this document is

to explain the Court’s expectations of you in this virtual format.

Standard Expectations (in person or virtually):

Appear early or on time.

Engagement for the entirety of hearing- this means:

o Active listening

o Meaningful participation

o Focusing on the conversation

Be prepared with book, pens, etc.

Additional “Virtual” Expectations:

Appear by video- NO exceptions.

o Camera must remain on for entirety of hearing or group.

o Your face must be centered in the frame.

o Contact your attorney or the Court’s clerk if you need help setting up the video.

Plan on being home or in a quiet space. If you were appearing in person, you would have to plan

around court. This is expected for virtual court also.

o No driving/riding in a vehicle (with the exception of parking somewhere to get stable

connection—library, courthouse, etc.)

Remain in one appropriate place.

o No walking from room to room.

o No excessive moving around.

Have appropriate behavior-even if it is not your “turn” to speak.

o Do not interrupt others.

o No eating.

o No smoking.

o No bathroom breaks.

It is your responsibility to have a consistent, solid connection.

o If you lose connection, you may not be able to rejoin the proceeding.

o You must be able to consistently participate through your connection.

o Obviously, technology can be finnicky and sometimes issues arise. Video freezing for a

moment is different than consistent freezing. These issues will be addressed on a case

by case basis.

o There is free WiFi connection at several places including outside of the courthouses and

the library.

Dress appropriately.

Use courtroom appropriate language. NO cussing.

Failure to be on time, have video on, have consistent connection, have inappropriate behavior,

etc. can result in a failure to appear and a warrant being issued.

For contested hearings, the Court will issue a separate detailed case management order and

expects all parties to comply with that order, including the electronic exchange/filing of exhibits

prior to the hearing.

COLORADO WATER CONGRESS LEGAL ETHICS WORKSHOP

October 21, 2020

Outline of Hypothetical Problems

1. Attorney A is an associate in a law firm. Due to the COVID-19 pandemic, the firm has closed its office and strongly encouraged all employees to work remotely for the foreseeable future. Attorney A lives in a secluded area with poor internet connection, so she decided to go to the nearest Starbucks to work.

a. While Attorney A was in Starbucks, she was scheduled to participate in a

videoconference with her client and other attorneys from her firm.

i. Should Attorney A participate in the videoconference? • Colo. RPC 1.6: a lawyer shall make reasonable efforts to prevent

unauthorized access to client information.

o Colo. RPC 1.6, cmt. [18]. o CBA Ethics Comm., Formal Op. 90 (amended 2018). o ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 477R

(2017).

• Colo. RPC 1.4: a lawyer shall consult with the client about the means by which the client’s objectives are to be accomplished.

o CBA Ethics Comm., Formal Op. 90 (amended 2018).

ii. If Attorney A participates in the videoconference, what can she do to maintain confidentiality? • Pa. Bar Ass’n Comm. on Legal Ethics & Prof’l Responsibility, Formal

Op. 2020-300 (2020).

b. Before connecting to the VPN, Attorney A logged into her work email using the Starbucks wifi, and a hacker was able to record her login credentials. Is anyone other than Attorney A at risk of having violated the Rules of Professional Conduct?

• Colo. RPC 1.6: a lawyer shall make reasonable efforts to prevent unauthorized access to client information.

o Colo. RPC 1.6, cmt. [18] (factors to consider regarding “reasonable efforts”).

o CBA Ethics Comm., Formal Op. 90 (2018).

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o CBA Ethics Comm., Formal Op. 141 (2020). o ABA Ethics Comm., Formal Op. 477R (2017).

• Colo. RPC 5.1 & 5.3: Partners/attorneys with managerial authority shall

make reasonable efforts to ensure that all lawyers and nonlawyers in the firm conform to the Rules of Professional Conduct.

o CBA Ethics Comm., Formal Op. 141 (2020). o ABA Ethics Comm., Formal Op. 483 (2018).

c. After checking her email, Attorney A connected to a VPN to access the firm’s network.

Once the morning rush cleared and Attorney A noticed that there were only a few other patrons inside the Starbucks, she locked and shut her computer and went to order more coffee. When Attorney A returned to the table a few minutes later, her laptop was gone.

i. What should be considered when determining whether Attorney A violated her duty of confidentiality? • Colo. RPC 1.6: a lawyer shall make reasonable efforts to prevent

unauthorized access to client information.

o Colo. RPC 1.6, cmt. [18] (factors to consider regarding “reasonable efforts”).

o CBA Ethics Comm., Formal Op. 141 (2020). o Pa. Bar Comm., Formal Op. 2020-300 (2020).

• Colo. RPC 1.1: lawyers must provide competent representation to their

clients.

o Colo. RPC 1.1, cmt. [8] (keeping abreast of changes in technology).

o CBA Ethics Comm., Formal Op. 90 (amended 2018).

ii. What must Attorney A do to communicate with her client about the incident? • Colo. RPC 1.4: a lawyer shall keep the client reasonably informed about

the status of the matter and explain matters to the extent reasonably necessary to permit the client to make informed decisions.

o CBA Ethics Comm., Formal Op. 141 (2020). o ABA Ethics Comm., Formal Op. 483 (2018).

iii. What else should Attorney A do in response to the incident?

• CBA Ethics Comm., Formal Op. 141 (2020).

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2. John is an attorney litigating a case on behalf of his client Jane, and the opposing party Bob is represented by Becky. During the trial, which is being conducted by WebEx, the Judge orders a 15-minute recess. During the recess, John discusses case strategy with Jane over the WebEx connection, which Bob and Becky can see and hear because the Judge did not suspend the videoconferencing session for this recess.

a. What ethical issues does John face? Would it make a difference if his “on air” discussion was with a witness rather than his client? If the witness was an expert witness and he was doing final preparation? Would it make a difference if John and Jane were in the same office and had stepped away from their computers, believing that they could not be overheard but in fact could still be heard through the computer’s microphone?

b. What ethical obligations, if any, does Becky have as the not-so-private “private” discussion between John and Jane begins? Would it make a difference if Jane were recording the trial through the WebEx record function (with the Court’s permission), and John’s discussions were captured on the recording?

3. Attorney A has represented Ditch Company for many years. He has also represented Client Farmer, who is a shareholder of Ditch Company, in various matters, including real estate matters and estate planning. Attorney A has considerable information about Client Farmer’s farm business, his real estate holdings and water rights, and his financial plans. Client Farmer and Ditch Company have never had a dispute with each other. Now, Client Farmer wants to sell his Ditch Company shares to Developer D, who is assembling Ditch Company water rights for sale to City C. Ditch Company’s current shareholders are only agricultural irrigators, and no Ditch Company shares have been changed to other uses. Developer D and City C will want to change the use of the Ditch Company shares to municipal purposes.

a. May Attorney A represent Client Farmer in the negotiation and sale of his Ditch Company shares to Developer D?

Rule 1.7 (a)(2): “material limitation”

• Does it make a difference if the price Client Farmer will receive depends on the outcome of a water court change case?

• Does it make a difference if Developer D wants to pursue a ditchwide analysis of the historical use of the shares?

If Ditch Company must approve any change of use of its shares, does this affect Attorney

A’s ability to represent Client Farmer in the negotiation and sale of his Ditch Company shares to Developer D?

Rule 1.7(a)(1) or (2): Direct conflict or material limitation conflict?

• Does it make a difference if Developer D wants to pursue a ditchwide analysis of the historical use of the shares?

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Rule 1.13: Obligations to Ditch Company as an entity client

b. Attorney A does not represent Client Farmer in the negotiation and sale of his Ditch

Company shares to Developer D.

i. May Attorney A nevertheless continue to represent Client Farmer in other matters?

Rule 1.7(a)(2)

ii. May Attorney A represent Ditch Company in connection with Ditch Company’s review of Developer D’s and City C’s proposed change of the Ditch Company shares to municipal uses?

Rule 1.7(a)(2)

c. Client Farmer decides to engage a new firm and terminate all representation by Attorney

A.

i. What are Attorney A’s obligations with respect to Client Farmer’s files?

Rule 1.16A CBA Ethics Committee Opinion 104 (revised 2018)

ii. May Attorney A represent Ditch Company if it wishes to oppose Developer D’s

and City C’s water court change case? Rule 1.9(a) and (c) Persichetti v. Owners Ins. Co. (2020CO33, May 4, 2020): “same or substantially related matter”

iii. Does your answer change if Former Client Farmer is a co-applicant in water court with Developer D and City C?

iv. Does your answer change if the Ditch Company approved the proposed change, and is a “friendly” opposer?

d. Assume that Developer D acquires a majority of Ditch Company shares, whereupon the

Ditch Company’s Board not only approves the change, but desires to be a co-applicant in the change case.  Developer D desires to be represented by Attorney A in the change case. 

i. May Attorney A represent both Ditch Company and Developer D as co-applicants in the change case? 

Rule 1.7(a)(2) and (b)

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CBA Ethics Opinion 135 (2018)

ii. May Attorney A also represent City C as another co-applicant?

Rule 1.7(a)(2) and (b) CBA Ethics Opinion 135 (2018)

legal ethics in a changing world 1:00 p.m. to 4:30 p.m

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