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70D47D9471920C82872589EC00541408 Hearing Summary




PUBLIC
BILL SUMMARY For RETENTION OF COUNSEL FOR PENDING LITIGATION

JOINT COMMITTEE COMMITTEE ON LEGAL SERVICES
Date Jul 14, 2023      
Location HCR 0107



Retention of counsel for pending litigation - Committee Discussion Only
09:18:15 AM  
Senator Gonzales,
chair, stated that there are a number of possibilities for the committee
to take on retaining counsel and opened up the discussion.
09:19:03 AM  
Senator Gardner commented
on whether it would be best to have single counsel or multiple counsel
and asked if an executive session is necessary to discuss the topic.
09:20:19 AM  
Sharon Eubanks, OLLS,
stated that the committee had the option to go into executive session if
they wished and that it would allow them to have more flexibility in what
they could discuss while receiving legal advice and strategy.
09:21:08 AM  
Representative Weissman
commented on executive sessions done in the past, stated that he was prepared
to have the discussion needed today outside of executive session, and encouraged
the committee to go that route.
09:22:47 AM  
Senator Gardner disagreed
and stated that he didn't want the OLLS to be constrained in the discussion
when giving the committee legal advice.


09:23:43 AM
 Motion I move that the Committee on Legal Services meet in executive session in accordance with section 24-6-402 (3)(a)(II) for the purpose of conducting attorney-client discussion and receiving legal advice concerning pending court actions for a lawsuit recently filed in the Denver District court and retaining counsel to represent legislative defendants in the pending litigation.
Moved Gardner
Seconded
Dickson
Gardner
Mabrey
Moreno
Roberts
Van Winkle
Weissman
Wilson
Soper
Gonzales
YES: 0   NO: 0   EXC: 0   ABS:  0   FINAL ACTION:  Withdrawn
09:25:13 AM  
Senator Moreno opened
discussion on the motion by suggesting the committee begin by having the
discussion in open session and going into executive session if necessary.
09:26:09 AM  
Representative Weissman
stated that the committee has not tended to go into executive session in
the past when considering a first-instance question.
09:27:20 AM  
Sharon Eubanks, OLLS,
explained that there was a shift in the position of the committee a few
years ago to not be as involved in litigation strategy and that this is
a new situation that the committee has not faced since changing its position.
09:29:51 AM  
Representative Soper,
vice chair, asked if the times that the committee has not gone into executive
were a result of the shift in position.
09:30:36 AM  
Sharon Eubanks, OLLS,
stated that the decision to go into executive session is always the committee's
and that different members of the committee will have different rationales
on it.
09:31:50 AM  
Senator Gonzales,
chair, agreed with Senator Moreno and supported remaining in open session
for the time being.
09:33:02 AM  
Senator Gardner withdrew
his motion.
09:34:34 AM  
Senator Gonzales,
chair, moved forward with the discussion.
09:34:55 AM  
Senator Moreno asked
committee members to take caution and make sure comments don't fall under
something that should be discussed in executive session.
09:35:27 AM  
Senator Gonzales,
chair, returned the discussion to retaining counsel.
09:36:26 AM  
Representative Weissman
asked if it was appropriate to retain counsel in this case and stated that
his belief is yes, it is, asserted that a previous court case makes it
clear that counsel can be retained for a party caucus, and asked the committee
to consider whom should be retained.
09:39:26 AM  
Senator Gonzales,
chair, agreed that the first question before the committee is whether they
should retain counsel.
09:40:02 AM  
Representative Soper,
vice chair, agreed with Representative Weissman and added that the committee
should discuss whether they should retain single counsel or separate counsel
for the parties.
09:41:18 AM  
Senator Gardner agreed
that the committee should retain counsel and stated his thoughts on whether
single or separate counsel should be retained, explaining that there could
be a conflict of interest under Colorado Rules of Professional Conduct
(CRPC) Rule 1.7 if single counsel is retained. He then asked Director Eubanks
about how the entire House of Representatives could be represented.
09:47:06 AM  
Sharon Eubanks, OLLS,
commented on what has been done in the past, which is that neither chamber
has been named in a lawsuit but that the entire general assembly has before
and that she would see the House leadership as being the ones to speak
for the entire named party of the whole House of Representatives. She also
stated that there could be a joint-defense agreement to avoid a conflict
of interest should the committee retain only single counsel for all parties.
09:51:16 AM  
Representative Dickson
commented on whether the committee should have shared counsel and asked
if it would make sense to have two separate motions to hire representation.
09:53:11 AM  
Sharon Eubanks, OLLS,
stated the committee could combine both matters in a single motion or split
them into a motion about how much counsel to retain and another motion
about whom to retain.
09:54:18 AM  
Representative Weissman
spoke about which leadership positions in the House are the figureheads
for each of the named parties and discussed CRPC 1.7 and its possible implications
on retaining counsel.
09:58:08 AM  
Sharon Eubanks, OLLS,
agreed that addressing a conflict of interest under Rule 1.7 would be the
role of the retained counsel when they decide to accept the client or not.
10:00:16 AM  
Senator Gonzales,
chair, commented on the list of attorneys who were contacted about the
case and stated that discussing conversations Director Eubanks had with
the attorneys would maybe be better to have in an executive session.
10:02:22 AM  
Representative Soper,
vice chair, asked what it would mean for who could represent the entire
House of Representatives if the two party caucuses were represented by
different attorneys.
10:04:18 AM  
Sharon Eubanks, OLLS,
explained that there would need to be a legal analysis investigating if
there would be a conflict of interest for an attorney to represent the
House of Representatives and one or both caucuses.
10:08:59 AM  
Senator Moreno went
over which parties are named as defendants and expressed that because there
are so many parties, he believes they should discuss retaining separate
counsel for some of the parties but that if they do, the attorneys should
act as co-counsel since the entire House of Representatives cannot operate
without both the majority and minority political parties.
10:11:40 AM  
Senator Gardner agreed
that the expectation for separate counsel should be that they cooperate
as much as possible with each other so long as it fits the needs and best
interests of their client(s). He also expressed interest in hearing what
Director Eubanks had to say about potential counsel's comments on the conflict
of interest issue in executive session and asked if the OLLS could possibly
serve as counsel for one or more of the parties.
10:14:10 AM  
Sharon Eubanks, OLLS,
expressed that the attorneys of the OLLS are not litigation attorneys and
that the committee has authorized OLLS attorneys to serve as counsel for
smaller cases but that she doesn't feel comfortable with the OLLS representing
the entire House to the level that would be required.
10:16:13 AM  
Senator Roberts asked
if there was an interpretation of the entire House being named as a defendant
that could include more than just the members of the House, such as House
staff.
10:17:26 AM  
Sharon Eubanks, OLLS,
stated that she legally views the House of Representatives as an entity
that is part of the legislative institution and the general assembly and
stated this interpretation would likely not extend past the 65 elected
members to staff.
10:19:19 AM  
Representative Weissman
reviewed some details of what the OLLS does to give background to those
listening to the committee and explained the list of possible outside counsel
that the committee maintains.
10:23:00 AM  
Senator Gonzales,
chair, brought up the idea of co-counsel again.


10:24:24 AM
 Motion I move that the Committee on Legal Services meet in executive session in accordance with section 24-6-402 (3)(a)(II) for the purpose of conducting attorney-client discussions and receiving legal advice concerning pending court actions for a lawsuit recently filed in the Denver District court and retaining counsel to represent legislative defendants in the pending litigation.
Moved Gardner
Seconded
Dickson Yes
Gardner Yes
Mabrey No
Moreno Yes
Roberts Yes
Van Winkle Yes
Weissman No
Wilson Yes
Soper Yes
Gonzales Yes
YES: 8   NO: 2   EXC: 0   ABS:  0   FINAL ACTION:  PASS
10:27:23 AM  
The committee met
in executive session.
11:43:30 AM  
The committee returned
from executive session.
11:44:16 AM  
Senator Gonzales,
chair, opened discussion up for retention of counsel.
11:44:52 AM  
Senator Moreno suggested
the committee retain more than one counsel.
11:45:57 AM  
Representative Soper,
vice chair, agreed that there should be separate counsel to represent the
majority and minority caucuses and that those counsel co-represent the
entire House of Representatives if possible.
11:47:55 AM  
Senator Gardner agreed
that the committee should select different counsel for the caucuses and
expressed that the majority party counsel be selected to represent the
House of Representatives with the minority party counsel as co-counsel.
11:51:00 AM  
Representative Weissman
supported the co-counsel arrangement idea for the House.
11:52:41 AM  
Representative Dickson
brought up co-counsel for all 6 parties.


11:53:49 AM
 Motion I move to appoint attorney Mark Grueskin to represent the Speaker of the House, the Majority Leader of the House, and the Democrat caucus and to serve as lead counsel in a co-counsel representation for the House of Representatives and to appoint attorney John Zakham to represent the Minority Leader of the House and the Republican caucus and to serve as co-counsel to Mark Grueskin in representing the House of Representatives and that instruction be given that the two attorneys work together.
Moved Soper
Seconded
Dickson Yes
Gardner Yes
Mabrey Yes
Moreno Yes
Roberts Yes
Van Winkle Yes
Weissman Yes
Wilson Yes
Soper Yes
Gonzales Yes
YES: 10   NO: 0   EXC: 0   ABS:  0   FINAL ACTION:  PASS
11:54:35 AM  
Representative Weissman
opened discussion on the motion by stating he supported the idea of attorney
Grueskin as lead counsel and attorney Zakham as co-counsel but asked for
further discussion regarding the representation of all six defendants and
commented on the idea of having distinct representation based on political
parties.
11:56:08 AM  
Senator Moreno was
also largely in agreement with the motion but reminded the committee that
amendments could be made to the motion if members felt it was too prescriptive.
11:57:18 AM  
Senator Gardner was
in favor of Mr. Vice Chair's motion and asked him for clarification on
the attorneys' roles in representing the House.
11:58:15 AM  
Representative Weissman
asked nonpartisan staff about the proper way to make another motion.


11:59:06 AM
 Motion I move a substitute motion that the Committee on Legal Services retain as co-counsel for all six of the defendants Mr. Mark Grusekin and Mr. John Zakham and that Mr. Grueskin be designated as the lead counsel for the House of Representatives, the Democratic caucus, the Speaker of the House, and the Majority Leader of the House and Mr. Zakham be designated as the lead counsel for the Republican caucus and the Minority Leader of the House.
Moved Weissman
Seconded
Dickson
Gardner
Mabrey
Moreno
Roberts
Van Winkle
Weissman
Wilson
Soper
Gonzales
YES: 0   NO: 0   EXC: 0   ABS:  0   FINAL ACTION:  Withdrawn
12:00:13 PM  
Senator Gardner countered
that he believes the substitute motion is not a workable solution because
it appoints two lead counsels for different parties in a co-counsel arrangement
and could cause ethical issues.
12:02:12 PM  
Senator Moreno asked
if the substitute motion would preclude attorney-client privilege among
different defendants.
12:03:13 PM  
Sharon Eubanks, OLLS,
state that discussions between the two attorneys and all six defendants
wouldn't create an issue with attorney-client privilege but was unsure
how one attorney being lead counsel for some defendants and one attorney
being lead counsel for others would work.
12:04:35 PM  
Senator Moreno asked
for further clarification regarding attorney-client privilege in the proposed
substitute motion.
12:05:09 PM  
Sharon Eubanks, OLLS,
stated that all six defendants would have attorney-client privilege with
both attorneys unless there was separate counsel.
12:06:38 PM  
Representative Weissman
agreed that the situation was unusual and explained that the substitute
motion was meant to be fair to the minority caucus and minority leader.
12:08:45 PM  
Senator Gardner voiced
strong opposition to the substitute motion since the two attorneys' principal
duties to their clients could be unclear and conflicts of interest could
occur.
12:11:30 PM  
Representative Weissman
withdrew the substitute motion and moved a new substitute motion.
12:12:55 PM  
Representative Dickson
opened the discussion on the new substitute motion stating she was in favor
of it.
12:13:52 PM  
Sharon Eubanks, OLLS,
explained the co-counsel idea and stated that the attorneys would be the
ultimate deciders on how to proceed in a matter based on discussions with
the client.
12:14:52 PM  
Senator Gardner voiced
strong opposition to the new substitute motion on the grounds that the
two caucuses have different interests and made different decisions.
12:17:19 PM  
Representative Mabrey
agreed with Senator Gardner and supported the adoption of the underlying
motion on the grounds that it would better avoid potential conflicts of
interest.
12:19:05 PM  
Representative Soper
agreed with Senator Gardner and Representative Mabrey regarding the idea
that the substitute motion could create conflicts of interest.
12:20:27 PM  
Representative Weissman
reminded the committee of its role so as to not decide on what should instead
be decided on by counsel and stated that there is a high degree of speculation
regarding conflicts of interest.
12:23:44 PM  
Senator Roberts asked
that the motion and substitute motion be restated, voiced support for the
idea that the two attorneys work together in Mr. Vice Chair's original
underlying motion, and commented on the possibility of a joint­-defense
agreement.
12:25:10 PM  
Representative Mabrey
voiced support for the provision that the two attorneys work together in
Mr. Vice Chair's original underlying motion.
12:27:16 PM  
Senator Roberts asked
about the possibility of a joint­-defense agreement and if it would require
a motion.
12:27:52 PM  
Sharon Eubanks, OLLS,
replied that a joint-defense agreement usually has to be authorized by
the client(s) so is not under the purview of the committee.
12:28:40 PM  
Representative Weissman
agreed with Director Eubanks and stated that the committee could ask that
the possibility of a joint-defense agreement be brought up to the defendants.
12:30:04 PM  
Senator Gonzales,
chair, voiced concern about having separate lead counsel for the Democratic
and Republican caucuses while also maintaining co-counsel for the House
overall.
12:32:41 PM  
Senator Moreno asked
again about attorney-client privilege.
12:33:32 PM  
Sharon Eubanks, OLLS,
responded by saying that in a co-counsel situation, the parties would have
attorney-client privilege with both attorneys and the attorneys could discuss
those matters between themselves.
12:34:42 PM  
Representative Wilson
asked a further clarifying question on attorney-client privilege.
12:35:10 PM  
Sharon Eubanks, OLLS,
agreed that yes, each attorney would have attorney-client privilege with
just their caucus but that they would both have it when it comes to representing
the whole House under the original motion.
12:36:36 PM  
Senator Gonzales,
chair, thanked the committee for their discussion and asked for votes on
the motions. Then substitute motion failed, and the original motion passed.
12:45:52 PM  
Senator Gonzales,
chair, asked if there were any other comments from the OLLS.
12:46:30 PM  
Sharon Eubanks, OLLS,
stated that the OLLS has what they need to proceed and will contact the
attorneys.
12:47:25 PM  
The committee discussed
the procedure for deciding who will speak for each party.
12:50:27 PM  
Representative Weissman
agreed that the Speaker of the House speaks for the whole House but that
that is for the Speaker and co-counsel to determine.






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