As the Colorado legislature gets back to work for 2019, the Colorado Bar Association is likewise getting down to work in pushing for issues that affect its members.
CBA director of legislative relations Jeremy Schupbach is the point person for the bar association in coordinating with the state legislature on key issues. When either party controls the legislature, it is likely to push bills that meet its goals. And with a Democratic majority in both chambers of the legislature, the upcoming session is likely to be a busy one. That doesn’t necessarily carry over for the non-partisan bar association, though.
“We have attorneys on both sides of issues,” Schupbach said. In past sessions, the bar stayed involved in controversial issues that affected lawyers on both sides — such as construction defects — by working to keep the legislature informed rather than influencing policy. That is likely to be a focus this year as well. “Our focus will be to polish up legislation that, regardless of policy issue, will need some sort of sanding to make sure it fits in with the existing [statutes] and fits the existing structures.”
For many attorneys, the impact of big legislation could be the ripple effects on other areas of the law or on other statutes. Schupbach said the bar is likely to concern itself mostly with identifying areas where a new bill might have consequences for existing legislation. For example, major affordable housing legislation will likely affect real estate law. Those working in the bar’s policy department will be working to educate legislators on those relationships.
“Bold ideas have consequences, so a major change or a major policy shift has downstream effects on everything else,” Schupbach said.
Two areas where the bar will get directly involved, however, are in pushing for change in Colorado’s corporate code and a potentially nation-leading change in estate planning laws.
The bar will be drafting legislation sponsored by Rep. Dylan Roberts that seeks to make it easier for attorneys to handle abandoned estate documents by digitizing them and storing them with the state. The issue is obscure enough that Colorado would likely be the first state in the country to address it, and it bubbled up within the bar from a handful of attorneys who are dealing with the problem themselves.
Under current laws, attorneys can be held responsible for abandoned estate documents for decades with no easy means of transferring them or storing them elsewhere. As Schupbach describes the problem, if a client leaves signed estate documents with an attorney and then disappears, those original documents are required by law to be kept for 100 years.
In most cases, a simple follow-up call will tell the attorney what to do with the documents, but in a small number of cases, the attorney is unable to find the client and doesn’t know if the documents are even still valid. With a 100-year requirement, that attorney will eventually want to retire but would still be required to keep those original documents. Without a repository at the courts, the attorney must sell part of their business or the documents to another attorney.
The bill’s solution is to allow attorneys to digitize those documents and store a PDF with the state — either the secretary of state or judicial branch.
Although the goal of the bill might appear simple, Schupbach said the hurdles will be finding the right place to house the digital documents and proving the authenticity of the original document when all that is left is a PDF.
Schupbach said the concern about proving the authenticity is legitimate, but the practical likelihood of the problem arising is slim. “Consider the number of documents in the first place that have been lost. … The likelihood of that person coming back to Greeley to look you up is a minute little group,” Schupbach said. “The likelihood of someone then suing over it is even smaller. I think it’s a legitimate concern when talking about the legal precedent of destroying legal documents, but the potential of court cases arising from it is going to be infinitesimally small.”
The other potential issue might be in convincing the state to be a nationwide leader in digitizing official legal documents, Schupbach said.
In addition to the bar’s own bills, Schupbach said he knows there will be a few bills related to arbitration that are likely to be important to the bar association, though he hasn’t seen them yet. He said he expects them to have similar focuses to arbitration bills that were introduced last year. He’s also keeping an eye out for a remote notary bill that might make a return to the legislature.
“There’s nothing right now that we’re scared or paranoid about,” Schupbach said. “We’re just eagerly waiting to see the first round of bills.”
— Tony Flesor