Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
A jury found Khalil Sanders guilty of first-degree extreme indifference assault, illegal discharge of a firearm and menacing after he shot a woman in a road rage incident. Sanders appealed his conviction arguing the trial court violated his right to due process and a fair trial.
The judge presiding over the trial disclosed that she experienced a similar incident when her car was hit in crossfire from a nearby conflict between other drivers. Sanders’ counsel moved to disqualify her based on Colorado statute and the right to due process and a fair trial. Given the judge’s personal experience with a similar incident, Sanders argued, she couldn’t be unbiased. The judge denied the motion, reasoning that she wasn’t going to bring prejudice, didn’t know Sanders or any witnesses, had disclosed the incident in an abundance of caution and had presided over a number of cases involving cars and guns since.
On appeal, Sanders reasserted that the judge should’ve been disqualified from the case. The Colorado Court of Appeals didn’t find that state statute or the Constitution barred the judge from overseeing Sanders’ case but it did consider his argument based on Rule 2.1(a)1 of the Code of Judicial Conduct. The rule requires judges to step away from cases where “the judge’s impartiality might reasonably be questioned,” meaning a reasonable observer could have doubts over their impartiality.
Prosecutors argued that the Court of Appeals shouldn’t consider the CJC rule since in its 2020 opinion in Richardson v. People, the Colorado Supreme Court emphasized the rules are meant to support public confidence not protect the rights of litigants. They argued that without evidence of actual bias, the potential violation of the rules didn’t require reversal.
The Court of Appeals disagreed. “While Richardson held that a violation of the C.J.C. does not always mandate reversal, the Richardson court was addressing whether a judge must, sua sponte, recuse herself when a party has waived disqualification despite an appearance of bias,” wrote Judge David Richman for the majority in the opinion. Richardson didn’t explicitly overrule earlier courts’ precedent, the Court of Appeals found, meaning reversal could be warranted if a party moves for disqualification over the appearance of bias when the judge did have a duty to disqualify themselves.
But the Court of Appeals didn’t find any appearance of bias in Sanders’ case. It found no precedent to support that an appearance of bias occurs when a judge overseeing a case has experienced similar criminal conduct. “Such a bright line rule is too great an encroachment on a judge’s duty to impartially preside over her assigned cases,” the opinion emphasized.
Sanders also argued the trial court erred in reseating a juror after a sustained Baston challenge instead of restarting the jury selection process and it also erred by proceeding with an alternate juror on the second day of trial after the reseated juror arrived late to the court.
The Court of Appeals found that in the U.S. Supreme Court’s decision in Batson v. Kentucky, it held that reseating a juror or dismissing the panel of prospective jurors are both appropriate remedies that a judge can select at their discretion based on the most appropriate option for the case. Reseating the juror was therefore not plain error, the court held. In this case, the court added that reseating the juror was the most appropriate remedy.
The court rejected Sanders’ other jury argument. It found that Sanders’ counsel waived the right to later claim the juror’s dismissal was erroneous after they responded “that’s fine, Your Honor” when asked by the presiding judge if they wanted to keep proceeding with an alternate juror. The Court of Appeals didn’t consider this portion of the appeal.
The Court of Appeals rejected Sanders’ other appeals over jury instruction, prosecutorial misconduct and misstatement of law and affirmed his conviction.
In a special concurrence, Judge Ted Tow emphasized that a lot of the court’s decision and reasoning over if the judge should’ve excused herself based on CJC rules “is merely an advisory opinion.” Since there wasn’t an appearance of partiality, the Court of Appeals didn’t need to consider reversal which leaves open questions from Richardson v. People open. Based on the Richardson court’s reasoning, reversal isn’t appropriate for the mere appearance of impropriety “because the defendant’s trial was not presided over by a judge with actual bias or prejudice,” wrote Tow. “On the other hand, the supreme court did not say, at least explicitly, that reversal in such a case would never be warranted.”
“In short, the post-Richardson landscape has not been charted,” Tow reasoned, but since there wasn’t any appearance of partiality in Sanders’ case “we, therefore, should not endeavor to unnecessarily map it.”
Johnson Family Law, P.C. v. Grant Bursek
The Colorado Court of Appeals weighed in on what restrictions law firms can place on attorneys who are leaving their firm’s practice and taking clients with them. While courts have held agreements that directly restrict an attorney’s right to practice are unenforceable, the court considered for the first time if financial disincentives that indirectly do so are illegal under Colorado’s Rules of Professional Conduct.
Johnson Family Law, P.C., doing business as Modern Family Law, appealed a district court’s finding that an agreement with a former associate Grant Bursek was unenforceable under Rule 5.6(a) of Colorado’s Rules of Professional Conduct.
Bursek joined MFL in 2018 and in 2019 he signed a reimbursement agreement that required him to pay the firm $1,053 per client that left the firm with him if he departed. The agreement explained that the amount was based on the firm’s historic costs for marketing and recruiting new clients.
When he resigned in September 2019, 18 of MFL’s clients elected to leave with Bursek. The firm requested $18,963 but Bursek refused, saying the agreement was unenforceable.
MFL filed a complaint asserting breach of contract for refusing to pay the client fee and requesting declaratory judgment that a confidentiality and nondisclosure contract was enforceable against Bursek. The firm filed a motion requesting the court to decide if the agreement and contract were enforceable.
The district court ruled the fee agreement was “an unreasonable restriction on [Bursek’s] right to practice,” violating Colorado law. The entire agreement was unenforceable as a matter of law, it held, and it dismissed the breach of contract claim with prejudice. The other contract was enforceable, the court held, and entered judgment in favor of MFL.
MFL appealed the district court’s decision and ruling that the client fee agreement restricted Bursek’s right to practice.
The appeal asked the Court of Appeals two questions that haven’t been addressed in Colorado. First, does an agreement that creates a financial disincentive but not a direct prohibition on a departing lawyers’ continued representation of a client violate Rule 5.6(a)? And, if it does, is that agreement enforceable?
State courts across the country have split on the issue, the Colorado Court of Appeals noted. A majority of courts – including New York and New Jersey – have read Rule 5.6(a)’s counterparts to prohibit any agreement that penalizes a lawyer for post-departure competitive practice. A minority of courts on the other hand – including California and Arizona – read similar rules in a more narrow scope, finding that financial disincentives don’t “restrict” the practice of law but instead offer an economic consequence to the departing lawyer’s choice. The Colorado Court of Appeals wasn’t swayed by either school of reasoning.
It found that the majority’s reading “oversimplifies the tension between such compensatory arrangements and their effect on client choice” and that it overlooks the “legitimate interests of law firms facing the reality of increased lawyer mobility in modern practice.” The minority view, the Court of Appeals found, read the rule too narrowly by holding financial disincentives don’t restrict the practice of law. “Such an interpretation ignores the plain language of Rule 5.6(a) and overlooks the practical effect of compensatory agreements,” wrote Judge Terry Fox in the unanimous opinion. The court did agree that a case-by-case assessment of disincentive agreements, as adopted by a minority of courts, made sense.
The Court of Appeals ruled courts should ask if an agreement unreasonably restricts a departing lawyers’ practice to decide if it’s enforceable.
“Thus, we conclude that whether a financial disincentive violates Rule 5.6(a) is best assessed under a reasonableness standard looking at the particular circumstances of each case,” the opinion explained. A reasonable disincentive will be based on its effect on lawyer autonomy and client choice, the financial burden of an attorney’s departure to the firm, the relationship between the disincentive and harm, if there are justifications unrelated to disincentivizing competition and other relevant and nonexclusive factors.
The Colorado Court of Appeals then turned to the agreement between Bursek and MFL.
The agreement’s client-by-client fee “can have a heightened effect on a lawyer’s autonomy and his clients’ choice of counsel,” the court wrote. “Such a fee acts as a substantial disincentive to representation, and it may give rise to a conflict of interest that precludes representation.” Given that the fee was more than half of Bursek’s monthly salary when he was with MFL, the court was further persuaded that it had a “substantially restrictive effect” on his practice. Especially in family law where attorneys handle sensitive matters for clients, the Court of Appeals added, it’s reasonable for clients to want to stay with an attorney long term.
The Court of Appeals also considered MFL’s commercial interests, but ruled that the fee wasn’t meant to maintain the firm’s financial structure and instead was “an affirmative obligation to pay MFL.” While the fee was explained as a way to recover marketing costs, the firm didn’t explain why the blanket $1,052 per client fee was a fair estimate of the marketing costs. Since Bursek was an associate, rather than a partner or other high-level staff member, his departure wasn’t especially disrupting, the court added.
The court ruled, in a matter of first impression, that an agreement in violation of Rule 5.6(a) is an expression of public policy that is necessarily voided. But it added that the violation doesn’t void an entire contract, just the specific provision.
The Colorado Court of Appeals affirmed that the portion of the agreement in violation of Rule 5.6(a) is unenforceable, but reversed the finding that the entire agreement was void.