18 June 2008

Somebody Needs More Firm Meetings

My law partner and I talk, a lot, about firm business and firm clients. We do so almost every day, and often on weekends.

The law firm Zakhem Atherton, whose most prominent partner is Colorado Republican scion John Zakhem, who is about the same age as I am and has a similar practice in a small to medium sized law firm (and in person, mostly a nice guy), apparently doesn't.

The Colorado Supreme Court has launched an ethics investigation into a prominent tax attorney whose firm represents the Colorado Republican Party.

The inquiry was initiated after the high court received a complaint filed by the Colorado Division of Real Estate against Rodney Atherton for his involvement in a controversial state conservation tax credit program.

Erin Toll, an attorney director of the real estate division, said she and her staff felt compelled to file the complaint because, by law, attorneys are required to report potential ethical violations or face penalties themselves.

Atherton, a partner in the law firm Zakhem Atherton, said in an e-mail to the Rocky Mountain News that Toll was misinformed "and in error with her unfortunate allegations."

The court responded to Toll on June 13, saying it had assigned the investigation to attorney Nancy Cohen, and had given Atherton 20 days to respond.

In her letter to the Supreme Court, Toll wrote, "The division is not directly investigating Mr. Atherton. However, during the Division's investigation of appraisers, who performed appraisals for state conservation easement tax credits, information about Mr. Atherton was learned that, if true, could mean Mr. Atherton violated several Rules of professional conduct raising a substantial question as to Mr. Atherton's honesty, trustworthiness and fitness as a lawyer."

John Zakhem, Atherton's partner, declined to comment on the complaint, saying that he was unaware one had been filed. He also said that he was not aware that any investigation by the division of real estate involved work by Atherton after Atherton joined his firm.


I express no opinion on the merits of the ethics complaint lodged against Rodney Atherton. Conservation easement tax credit rules are arcane, and without knowing the details it is hard to know if this is a case of a legitimate disagreement or an actual ethical breach. Most legal ethics rules are geared towards litigation and negotation, not transactional practice, and federal ethical rules for tax practice (Circular 230) do not directly apply to Colorado tax practice.

But I can state definitively that I would know if any lawyer in my firm was being investigated by the Colorado Supreme Court for an alleged ethical violation within minutes of the time that the lawyer in question learned of the charges.

1 comment:

Andrew Oh-Willeke said...

Update:

"The state contends that a handful of these transactions done by Atherton have been investigated because of the way they were structured and amid complaints that land values were inflated.

In the complaint, Toll alleges Atherton represented several parties involved in the same transaction. She also claims he promoted and sold interests in a company in which he also had a vested interest."