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Why attorney and counselor?
Everyone practicing law must assume dual roles of an attorney and a counselor. A counselor must ask hard questions, such as whether to undertake a legal action. Indeed, the Rules which govern lawyers in Colorado expect us to "exercise independent professional judgment and render candid advice." As a counselor, sometimes you have to say no. An attorney who is an automatic conduit for a client's wishes has abandoned that role, and does a disservice to the client and to the profession.
For example, a potential client is in dire financial straits, and come to you to file bankruptcy, which is your specialty. The counselor in you must ask, is there a better way? Would financial counseling, consumer credit services, or mediation and/or negotiation with creditors be better?
At the same time, those practicing law assume the role of an attorney, an advocate who must zealously represent the wishes of his client. And this is as it should be, but only after investigating and testing those wishes against the counselor's insights into the potentially better interests of the client. After that, both client and attorney are making an informed choice to proceed.
The Colorado Supreme Court adopted the Rules of Professional Conduct in 1993, to train lawyers to be more protective of their clients, and to guide lawyers in representing clients diligently within the Rules, with competence, diligence, dialogue, and confidentiality and fair money dealing. Advocates cannot violate the Rules or laws, or assist a client in a crime or fraud. With that in mind, we work hard for our clients benefit.
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Family Law
Nina was married for several years and had a small child. Her marriage was ending,
and she needed help in navigating the minefields on the road to divorce.
My approach is always to firmly and relentlessly advocate for her - but only while
avoiding inflaming her husband and his attorney. Civility and consideration for all
parties serves everyone. No one "wins" a divorce. But if divorce undertaken in a
mean-spirited manner everyone loses more than their marriage - also their equilibrium
and their mental health.
Peter's marriage was ending, and he was especially concerned that his soon-to-be
ex-spouse would file for bankruptcy. Bankruptcy has been used as a weapon in the
war of the sexes, and he wanted to protect himself from any possible consequences.
If Peter's wife, in the divorce settlement, retained the family home, and Peter
received a promissory note in return, the note may later be discharged in bankruptcy,
while the home could be kept, at least as to the homestead exemption. We helped Peter
structure the settlement to make it resistant to such maneuvers.
I represent clients facing many family law issues, including divorce, property
settlements, child custody disputes, modification of child support and spousal
maintenance, and prenuptial agreements. I also obtain restraining orders in cases
of physical abuse, and litigate contempt actions. I also handle adoptions.
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Health Care Law
Mary had several frozen embryos created with her ex-husband. She wanted to use them
personally after the divorce because they were so difficult and expensive to create.
Failing that, she wanted to donate them to someone who would use them. Her ex-husband
wanted them destroyed.
The family and probate courts across the U.S. have struggled with this issue. In this
case, a compromise was reached, where the embryos were donated to a fertility clinic,
which could donate them to another couple or as a last resort use them for research.
A family physician, Jim, asked: "My patient just told me her boyfriend murdered
someone. Do I have to call the police, can I call the police, should I call the police"?
Should is a moral question, but the first two are governed by laws surrounding the
confidentiality of personal medical information. In this case, the information did not
warn of a future crime, requiring disclosure, but it was given gratuitously, not for
the purpose of treatment, so it was not confidential in the first place. Thus the
physician could report it, but did not have to.
Another family physician, Helena, had a teen aged patient with one kidney who wanted
to play football. She asked: "Does the Americans with Disabilities Act require me to
certify my patient as able to play"?
The ADA requires reasonable accommodation, so for example, if the patient would be
safe playing while wearing a flack jacket, the school might be required to allow it.
However, it is not the physician's responsibility to design the accommodation, only
to advise on the medical consequences of the options proposed.
No area of human activity is more complex, fast-changing, or vital. My health law
practice includes advance medical planning; patient confidentiality and reporting
crime; legal imperatives in patient care; patient incapacity, and guardians. On medical
ethics committees, I have worked on policy and care decisions.
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The Business of America is Business
David headed a thriving family-owned business in Denver. Morale was great until one
employee became too verbally flirtatious towards another employee. David had to deal
protect employees from harassment, while respecting other employees' first-amendment
right to express themselves -- to a degree. The business had been run informally for
years, since it was owned by a tight-knit family.
I helped them to balance these competing rights, by publishing an employee manual to
provide notice as to where the boundaries are, and conducting classes for both owners
and employees, to create a mutual understanding, and clear procedures for dealing with
these issues.
Amelia ran a specialty footwear and accessory store in Boston which marketed to
animal-rights and vegan shoppers who did not wear leather. Those consumers tend to
the young, hip and energetic, and Amelia wanted to sponsor and market a line of
skateboarding shoes endorsed by a known athlete.
I drafted an Endorsement Contract, advised her on U.S. Trademark Registration,
financing, and marketing agreements. What was needed was frank discussion and
recommendations about risk versus gain, control versus capital investors, and quick
sales performance versus fiscal stability.
James was a designer, builder and entrepreneur who wanted to participate in the
development of part of LODO. He was trying to leverage his vision by assembling a
team that could undertake the project.
James was not based in an established firm, but was one step removed. In other words,
he wanted to develop the team to develop the project. This required contracts between
all partiers. I analyzed contracts proposed by others, such as the real estate broker,
and drafted contracts for James to propose to others with whom he was negotiating.
I counsel entrepreneurs in forming businesses; Draft employment contracts and resolve
conflicts between employees, employers, vendors, customers, and regulatory agencies;
Draft commercial rental and purchase leases, and handle evictions and collections.
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Building America: Construction & Development
Lloyd built a one-of-a-kind home for his family in the Boulder foothills, with
$250,000.00 worth of distinctive custom cabinetry. He achieved the look he sought,
but not the durability, as the cabinets began to fall apart within the year.
Disputes over unique creations are problematic, since there is no other product to
directly compare them to. However, at this level of supposed quality, reputation is
precious, and a public trial disastrous. The filing of a civil lawsuit prompted swift
and earnest negotiations, ending in satisfaction for the homeowner.
Susan was an experienced subcontractor who built the concrete foundation of a branch
of a national supermarket chain, but the general contractor did not pay her. The
workmanship was not at issue, but the complexity of such a building project led to
disputes about the nature of the cash flow and responsibility between the hundreds
of workers for dozens of contractors.
I had to technically understand the applicable standards of good construction, the
building code, analyze the contracts between the parties, and apply legal issues
like mechanics liens and unjust enrichment, to help Sam recover his due. Since I was
a builder for many years, I bring a comprehensive and realistic understanding to the
resolution of these issues.
Tommy had renovated Damien's home. Tommy was a straight-up veteran who wanted to be
a policeman, and Damien was a devoted biker-gang member. When the relationship soured,
they landed in court, unwilling to settle - or even discuss the case.
I represented Tommy, but most of my task consisted of (successfully) disabusing him
of his unrealistic expectations, so that he could see this case as a business
transaction -- and not as a fundamental struggle between order and chaos. A settlement
was reached just before trial.
I negotiate construction contracts, and construction settlement agreements after
disputes are settled; I create Americans with Disabilities Act compliance opinions
which settle issues of building access for the disabled; I also serve as an expert
witness in trials involving construction disputes and the Americans with Disabilities Act.
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Making Peace: Construction Mediation & Arbitration
Robert bought a nice new townhouse, but no one told him it had a fire during
construction, and before his purchase. Although he and his family liked the home,
he did not trust the builder, reasoning that since he was lied to about the fire,
what other defects were covered up?
Drawing on my background as a building inspector, for many years, I first
determined that there was no structural danger in the repaired building. Then I
mediated between Robert and the developer (who were not on speaking terms) to reach
a reasonable settlement.
Glen and Anne were building their dream home, but before they even moved in, the
design and quality began to decline. Retaining walls, stairs, and electrical lines
were some of their concerns, and those can become major headaches if not done just right.
Because the house was in mid-construction, there were many more parties interested
in the outcome, including the architect, the developer, the contractor, and the
sub-contractors, in addition to the homeowners - and their individual attorneys. I
was able to mediate a settlement.
I speak everyone's language in mediation and arbitration. Since I was a builder for
many years, I understand how difficult a contractor's job is; since I was a craftsman,
I don't like shoddy work, and I support the consumer; since I was a private building
inspector, I am used to ferreting out problems; and as an attorney, I can speak with
them. Thus I'm usually able to reach a satisfactory settlement.
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Research in Cyberspace
The medical ethics committee at University Hospital in Denver is often asked to
resolve a family dispute over the treatment of a comatose patient. The proxy statute
that outlines the procedure states that a "consensus" much be reached as to treatment.
The meaning of that word is no mere technical issue, because if it means unanimous
agreement, it would make it difficult to resolve contentious disputes.
An apt description of law school is remedial reading and writing. Thus, I was asked
to advise what "consensus" meant in choosing a proxy for medical decision making.
Consensus sometimes means unanimity ("consensus of the jury"), and sometimes a
majority ("societal consensus about taxes"). Research about the proxy law, court
cases, and dictionaries led me to conclude that in this case, a simple majority was
all that was required.
I have been hired by law firms to research the Americans with Disabilities Act,
bankruptcy, construction, civil court procedures, divorce, easements, land use and
other issues. Research is best done in the seamless, digital realm. Cases and laws
are available on-line, depositions and court transcripts are imported as digital files,
and so the process of research and composing, thinking and editing, is merged into an
integrated process.
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Pro Bono Work
I have donated time to community activities, especially in the fields of medical
ethics, and historic building preservation. I am a member of the medical ethics
committee, University of Colorado Health Sciences Center, in Denver, and a
Faculty Associate at the Center for Bioethics and Humanities. I have also worked
for Historic Denver on conservation easements. In addition, I have represented
parents in their efforts to collect child support.
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