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AMENDED AND RESTATED BYLAWS OF THE
FACULTY OF FEDERAL ADVOCATES
(Amended and Restated Effective August 26, 2020)
Section 1. Principal Office. The principal office and place of business of the Corporation in the State of Colorado shall be in the City and County of Denver, or at such other location as the Board of Directors may from time to time determine. Other offices and places of business may be established by the Board of Directors.
Section 2. Corporate Seal. The seal of the Corporation shall be inscribed with the name of the Corporation, the year of its incorporation, and the words "Colorado" and "Seal," and shall be in a form approved by the Board of Directors.
ARTICLE II – Members
Section 1. Qualifications. The members of the Corporation (the “Members”) shall consist of all persons licensed to practice law before the United States District Court for the District of Colorado (the “Court”) who have paid dues as may be established by the Board of Directors.
Section 2. Annual Meeting. An annual meeting of voting Members shall be held at the date, time, and place or electronic manner as determined by the Board of Directors for the purpose of electing Directors and for the transaction of other business. Members may participate in the meeting through any means of communication by which all participants can hear each other. Written notice of the annual meeting shall be mailed or delivered electronically at least ten days before the date fixed for the annual meeting. Failure to hold an annual meeting shall not work a forfeiture or dissolution of the Corporation or invalidate any action taken by the Board of Directors or Officers of the Corporation.
Section 3. Special Meetings. Special meetings of the Members may be called at any time by the Board of Directors, by two–thirds of the Members, or by the President. Special meetings shall be held at such time and place or electronic manner as may be designated by the authority calling such meeting. If called by the Board of Directors, written notice of the time and place or electronic manner of the special meeting shall be given, mailed or delivered electronically to the Members at least ten days before the date fixed for the meeting. The purpose of the special meeting of the Members shall be stated in the notice.
Section 4. Voting by Mail or Electronic Means. In any instance where a vote of the Members is required or permitted to be taken at a meeting of Members, such vote may be taken by mail or electronic means in lieu of action at a meeting. Where a vote by mail or electronic means occurs in lieu of action at a meeting, the Secretary or a designee shall mail or provide electronic notice to all Members’ addresses as appear in the records of the Corporation. The notice shall include: (i) a statement of the proposed action, (ii) a statement that Members are entitled to vote by mail or electronic means, (iii) a date at least ten days after the date such notices shall have been given on or before which all votes must be received by the Secretary, and (iv) the number of votes which must be received to meet quorum requirements and percentage of votes needed to approve the action. The Corporation may conduct elections of Directors by mail or electronic means, in the sole discretion of the Board of Directors, and pursuant to procedures adopted by it; provided however, that any procedure adopted shall provide for notice to Members of the opportunity to run for a vacant position or nominate any other Member for a vacant position, subject to the nominated Member’s consent.
ARTICLE III – Directors
Section 1. Qualifications; Appointment; Tenure. The Board of Directors of the Corporation shall be composed of seventeen Directors. In the event that the election of additional individuals to the Board of Directors results in more than seventeen Directors serving at any time, without these Bylaws having been previously amended to increase the number of authorized Directors beyond seventeen, then the action of the Board of Directors or the Members, as the case may be, resulting in such election shall automatically be deemed to constitute an amendment to these Bylaws increasing the number of authorized Directors provided for in the preceding sentence to the number of Directors actually serving in such capacity.
Section 2. Elections.
[b] The Secretary of the Corporation, or a designee, shall cause to be distributed to each Member, not less than thirty and not more than sixty days before the annual Member meeting, ballots in such form as the Board of Directors may determine for the election of a number of Members necessary to fill the positions of those Directors whose terms are set to expire. Ballots shall be distributed, executed, collected, and tallied pursuant to such procedures as the Board of Directors may determine.
[c] The Board shall establish a deadline not less than seven days before the annual meeting for the submission of ballots. Ballots submitted by electronic means will be accepted if they are received by the Secretary or designee on or before the deadline. No ballots received after the deadline will be counted.
[e] Directors shall be elected for a term of three years and shall hold office until the annual meeting of the Members occurring at the expiration of their terms and until their successors have been elected and qualified. In the event of any change in the number of Directors, the Board of Directors shall adjust and stagger the terms of office of the Directors so that, as nearly as reasonable, the terms of one–third of the Directors expire each year. A Director may be elected to serve a maximum of two consecutive terms, plus the remainder of any unexpired term to which the Director has been appointed by the Board in the event of a vacancy between elections. Terms are considered consecutive unless they are more than two years apart.
Section 3. Emeritus Directors. Emeritus Directors may be appointed by and serve at the pleasure of the Board so long as they meet attendance requirements in Article III Section 14. Emeritus Directors must have previously served as a Director of the Corporation. Emeritus Directors may receive all notices distributed to the Board and may attend regular and special meetings of the Board with privilege of the floor but shall not be entitled to vote. Emeritus Directors may have such other duties and responsibilities as may, from time to time, be assigned by the Board or the Executive Committee.
Section 6. Special Meetings. Special meetings of the Board of Directors may be called at any time by the President or by a majority of the members of the Board of Directors. Special meetings shall be held at such date, time and place or electronic manner as may be designated by the authority calling such meeting. Notice stating the date, time and place or electronic manner of every special meeting shall be given to each member of the Board of Directors either by mailing or delivering electronically such notice at least five days before, or by an oral or written communication personally delivered at least two days before, the date fixed for the meeting. The notice of such special meeting shall specify the business to be transacted and the purpose of any special meeting of the Board of Directors.
[a] Executive Committee. The Executive Committee of the Board of Directors shall consist of all elected Officers and the Immediate Past President. Only Directors of the Corporation may be members of the Executive Committee. The Executive Committee shall have the power and authority of the Board of Directors between meetings of the Board, except as prohibited by the Colorado Non-Profit Act.
[b] Nominating Committee. The Nominating Committee shall consist of the Members of the Executive Committee and additional Directors appointed by the Board of Directors in its discretion. Each year the Nominating Committee may nominate candidates to fill vacancies of the Board of Directors which arise as the result of the expiration of terms or otherwise. A list of nominated candidates shall be presented to the voting Members not less than thirty days before the date of the election of Directors. The voting Members may elect Directors who are not included on the list submitted by the Nominating Committee.
[c] Finance/Compliance Committee. The Finance/Compliance Committee shall consist of the Treasurer and at least two additional Directors appointed by the Executive Committee. The Finance/Compliance Committee shall be responsible for the oversight of the Corporation’s financial affairs, investment policies and guidelines, and insurance coverage. The Finance Committee shall also serve as the audit committee.
[d] Civil Pro Bono Committee. The Civil Pro Bono Committee shall consist of at least three Directors appointed by the Executive Committee. The Civil Pro Bono Committee shall, in accordance with guidance from the Court, manage and provide reports to the Court regarding the Civil Pro Bono Panel Reimbursement Fund, assist the Court in training of volunteer attorneys, and approve requests for reimbursement of out-of-pocket expenses in cases handled by panel attorneys for the Civil Pro Bono Panel of the Court.
Section 10. Advisory Committees. The Board of Directors may form one or more advisory committees or other bodies composed of such Members as the Board of Directors shall designate. The name, objectives and responsibilities of each advisory committee, and the rules and procedures for the conduct of its activities, shall be determined by the Board of Directors. Advisory committees may provide such advice, service, and assistance to the Corporation, and carry out such duties and responsibilities for the Corporation as may be prescribed by the Board of Directors. The President shall appoint a chair of each committee who shall preside at all meetings of the committee and generally supervise the conduct of the committee’s affairs.
Section 11. Standard of Conduct for Directors. Each Director shall always perform duties in a manner the Director reasonably believes to be in the best interests of the Corporation, and with the care an ordinarily prudent person in a like position would exercise under similar circumstances. A Director shall be entitled to rely on information, opinions, reports or statements, including financial statements and other financial data, in each case prepared or presented by the persons designated below, unless the Director has knowledge concerning the matter in question that would cause such reliance to be unwarranted. A Director shall not be liable to the Corporation or the Members for any action the Director takes or omits to take as a Director if, in connection with such action or omission, the Director performs duties in compliance with this section. A Director, regardless of title, shall not be deemed to be a trustee with respect to the Corporation or with respect to any property held or administered by the Corporation including, without limitation, property that may be subject to restrictions imposed by the donor or transferor of such property. The designated persons on whom a Director is entitled to rely are: [a] one or more Officers or employees of the Corporation whom the Director reasonably believes to be reliable and competent in the matters presented; [b] legal counsel, a public accountant or other person as to matters which the Director reasonably believes to be within such person's professional or expert competence; or [c] a committee of the Board of Directors on which the Director does not serve if the Director reasonably believes the committee merits confidence.
Section 12. Conflicts of Interest. Each member of the Board of Directors should avoid undisclosed conflicts of interest and refrain from influencing the Board’s action on a matter in which a Director has a financial interest. It is the policy of the Corporation to avoid the participation of any Director in the Board of Directors’ consideration of a matter which poses a conflict of interest, as defined by the Colorado Rules of Professional Conduct, for that Director.
[a] Whenever any matter comes before a meeting of the Board of Directors that gives rise to a potential conflict of interest, the affected Director shall make known the conflict to the remaining Directors present at such meeting; shall, after answering any questions posed by the other Directors, withdraw from the meeting for as long as the matter is under consideration; and shall neither be present for, nor cast, a vote.
[b] If the withdrawal of the affected Director results in the loss of a quorum, no action shall be taken on the matter in question until a quorum of disinterested Directors can be established.
[c] The minutes of a meeting at which a conflict of interest arises shall reflect that a disclosure was made, the affected Director’s withdrawal from the meeting and abstention from voting, and, if action is taken on the matter, the continued presence of a quorum.
Section 13. Removal. Any member of the Board of Directors of the Corporation may be removed by the Members of the Corporation or by the affirmative vote of two–thirds of the Board of Directors present at a meeting at which a quorum is present whenever, in their judgment, such removal would serve the best interests of the Corporation.
Section 14. Absences. Absence in any twelve-month period from five meetings with or without excuse may, at the option of the Board, be deemed a resignation from the Board and the position declared vacant. Cumulative attendance reports may be published with the minutes of each Board meeting. Nothing in this provision shall be interpreted to prevent the Board from re- appointing, or the Members from re-electing, a member who has resigned due to absences. Written notice of possible resignation, which may be electronic, shall be sent to a Board member who has missed four meetings within any twelve-month period.
Section 15. Action Without a Meeting. Any action to be taken at a meeting of the Board of Directors may be taken without a meeting only under conditions that require action before the next regularly scheduled meeting of the Board. In such case, a telephone meeting or a meeting held by electronic communications shall be deemed to comply with this provision in the discretion of the Board. The action taken by the Board shall only be effective if there are writings which describe the action and are filed with the minutes. Actions taken shall be effective when the last writing necessary to effect the action is received by the Corporation or on a designated date.
Section 16. Telephonic and Video Meetings. Directors may participate in a regular or special meeting of the Board or any committee by using any means of communication that allows all participants to hear one another. A Director participating in a meeting in this manner shall be deemed to be present at such meeting.
Section 17. Expenses. The Corporation shall reimburse any member of the Board of Directors for reasonable expenses incurred in connection with service on the Board.
ARTICLE IV – Officers
Section 1. Number; Qualification. The Officers of the Corporation shall be a President, a President–Elect, a Secretary and a Treasurer, each of whom shall be a Member of the Corporation. Any individual may hold more than one office except that of President and Secretary. The Board of Directors shall at their annual meeting appoint these and any other Officers it deems advisable.
Section 2. Powers and Duties. The Officers of the Corporation shall exercise and perform the respective powers, duties and functions as are stated below and as may be assigned to them by the Board of Directors.
[b] The President–Elect shall assist the President in the performance of the duties of the President, shall assume the duties of the President in the absence of the President, and shall perform such additional duties as are incident to such office and as may be assigned by the Board of Directors or the President.
[c] The Secretary, or a designee, shall keep accurate minutes of the proceedings of the Members and of the Board of Directors and of any committees of the Board of Directors; shall ensure that all notices are duly given in accordance with the provisions of these Bylaws; shall be custodian of the records and of the seal of the Corporation and shall attest the affixing of the seal of the Corporation when authorized by the Board of Directors; and shall perform such additional duties as are incident to such office and as may be assigned by the Board of Directors or the President.
Section 3. Selection and Terms of Offices. Officers must be Directors of the Corporation. The Board of Directors shall elect or appoint Officers in conjunction with each annual board meeting in accordance with rules and procedures adopted by the Board from time to time. The President shall hold office for no more than two terms of one year each and shall serve in such capacity until a successor shall have been elected and shall have qualified. The President–Elect shall be elected by the Board of Directors and shall serve in such capacity until the expiration of the term of office of the President, at which time the President–Elect shall succeed to the office of the President. All other Officers of the Corporation shall be elected by the Board of Directors and shall hold office for no more than two terms of one year each and until their successors shall have been elected and shall have qualified. Immediately following service as President, the Member shall serve as Immediate Past President during the tenure of the successor President. The Immediate Past President shall assist the Board as the President may request.
Section 4. Expenses. The Corporation shall reimburse any Officer for all reasonable expenses incurred by such individual in connection with services rendered to or for the Corporation.
Section 5. Removal. Any Officer or agent elected or appointed by the Board of Directors may be removed by the Board of Directors whenever, in its judgment, such removal will serve the best interests of the Corporation.
Section 6. Vacancies. A vacancy in any office because of the death, resignation, removal, disqualification or otherwise, of an Officer elected or appointed by the Board of Directors may be filled by the Board of Directors for the unexpired portion of the term.
ARTICLE V – Executive Agents
Section 1. Executive Director. The Board of Directors may authorize and appoint an Executive Director and other assistant agents as it may consider necessary and useful. The Executive Director shall be an ex-officio non-voting member of the Executive Committee.
Section 2. Duties. The Executive Director, if any, shall, subject to the direction and supervision of the President and the Board of Directors, (i) be the chief operating Officer of the Corporation with general responsibility for all day-to-day operations of the Corporation; (ii) propose, prepare, and present to the President and the Board of Directors specific programs and activities that will further the Corporation’s purposes; (iii) direct and supervise the implementation of the programs and activities approved by the President or the Board of Directors; and (iv) prepare draft budgets and perform all other duties and responsibilities as from time to time be assigned to the Executive Director by the President or Board of Directors.
ARTICLE VI – Contracts, Loans, and Deposits
Section 1. Contracts. The Board of Directors may authorize any Officer or Officers, or agent or agents, to enter into any contract or execute and deliver any instrument in the name of and on behalf of the Corporation, and such authority may be general or confined to specific instances.
Section 2. Loans. No loans shall be contracted for on behalf of the Corporation and no evidence of indebtedness shall be issued in the name of the Corporation unless authorized by a resolution of the Board of Directors. Such authority may be general if confined to a specific dollar limit determined by resolution of the Board of Directors and shall otherwise be confined to specific instances. No loan shall be made to any Officer, Director or employee of the Corporation.
Section 3. Checks, Drafts, and Notes. All checks, drafts or other orders for payment of money, notes or other evidence of indebtedness issued in the name of the Corporation shall be signed by such Officers, agent or agents of the Corporation and in such manner as determined by resolution of the Board of Directors.
Section 4. Deposits. All funds of the Corporation not otherwise employed shall be deposited to the credit of the Corporation as soon as practicable in such banks, trust companies, or other custodians as the Board of Directors may select.
Section 5. Investment Managers. The Board of Directors shall have the authority to designate any bank, trust company, brokerage firm or investment advisor to manage the assets and investment of the assets of the Corporation.
Section 6. Fiscal Year. The fiscal year of the Corporation shall begin January 1 of each year.
ARTICLE VII – Indemnification
Section 1. Authority for Indemnification. Any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, and whether formal or informal, by reason of the fact that such person is or was a Director, Officer, employee, fiduciary or agent of the Corporation, may, on approval pursuant to Section 3 of this Article, be indemnified by the Corporation against expenses, including attorney’s fees, judgments, penalties, fines, including an excise tax assessed with respect to an employee benefit plan, and amounts paid in settlement reasonably incurred by such person in connection with such action, suit or proceeding if it is determined by the groups set forth in Section 3 of this Article that such person conducted that person in good faith and that such person (1) reasonably believed in the case of conduct in the official capacity with the Corporation, that the person’s conduct was in the Corporation’s best interest, or (2) in all other cases (except criminal cases) believed that such person’s conduct was at least not opposed to the Corporation’s best interests, or (3) with respect to criminal proceedings had no reasonable cause to believe the conduct was unlawful. A person will be deemed to be acting in such person’s official capacity while acting as a Director, Officer, employee or agent of this Corporation. No indemnification shall be made under this Section to a Director with respect to any claim, issue or matter in connection with a proceeding by or in the right of the Corporation in which the Director was adjudged liable to the Corporation or in connection with any proceeding charging improper personal benefit to the Director, whether or not involving action in such person’s official capacity, in which such person was adjudged liable on the basis that personal benefit was improperly received by that person. Further, indemnification under this Section in connection with a proceeding brought by or in the right of the Corporation shall be limited to reasonable expenses, including attorney’s fees, incurred in connection with the proceeding. These limitations shall apply to Directors only and not to Officers, employees, fiduciaries, or agents of the Corporation, except that Director shall include, unless the context otherwise requires, the estate or personal representative of a Director.
Section 2. Effect of Termination of Action. The termination of any action, suit or proceeding by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not of itself create a presumption that the person seeking indemnification did not meet the standards of conduct described in Section 1 of this Article. Entry of a judgment by consent as part of a settlement shall not be deemed an adjudication of liability.
Section 3. Groups Authorized to Make Indemnification Determination. Any indemnification shall be made by the Corporation only as authorized in the specific case and upon a determination that indemnification is permissible under the circumstances as set forth in Section 1. This determination shall be made by the Board of Directors by a majority vote of a quorum, which quorum shall consist of Directors not parties to the proceeding. If a quorum of the Board of Directors cannot be obtained, or even if a quorum can be obtained but such quorum so directs, the determination may be made by independent legal counsel selected by vote of a quorum of the Board of Directors or, if a quorum of the full Board of Directors cannot be obtained, by independent legal counsel selected by a majority vote of the full Board, including Directors who are parties to the action.
Section 4. Advance of Expenses. Expenses, including attorney’s fees incurred in defending a civil or criminal action, suit or proceeding, may be paid by the Corporation to the person being indemnified under this provision in advance of the final disposition of such action, suit or proceeding upon receipt of (1) a written affirmation of that person’s good faith belief that such person has met the standards of conduct prescribed by Section 1 of this Article; (2) a written undertaking, executed personally or on such person’s behalf, to repay such advances if it is ultimately determined that such person did not meet the prescribed standards of conduct; (3) the undertaking shall be an unlimited general obligation of the person but need not be secured and may be accepted without reference to financial ability to make repayment; and (4) a determination is made by the proper group, as described in Section 3 of this Article, that the facts as then known to the group would not preclude indemnification. Determination and authorization of payments shall be made in the same manner specified in Section 3.
Section 5. Insurance. The Board of Directors may exercise the Corporation’s power to purchase and maintain insurance, including, without limitation, insurance for legal expenses and costs incurred in connection with defending any claim, proceeding or lawsuit on behalf of any person who is or was a Director or Officer of the Corporation against any liability asserted against the Director or incurred by the Director in any such capacity or arising out of the Director’s status as such, whether or not the Corporation would have the power to indemnify the Director against such liability under the provisions of this Article.
Section 6. Nonexclusivity of Article. The indemnification provided by this Article shall not be deemed exclusive of any other rights and procedures to which one indemnified may be entitled under the Articles of Incorporation, any bylaw, agreement, resolution of disinterested Directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a Director or Officer, and shall inure to the benefit of such person’s heirs, executors, and administrators.
ARTICLE VIII – Amendments
These Bylaws may be amended, altered, or repealed and new Bylaws may be adopted by a vote of the Directors present at any meeting of the Board of Directors at which a quorum is present, and not otherwise, provided that notice of the proposed amendment, alteration or repeal shall have been delivered to each Director of the Corporation with the notice of the meeting at which the proposed amendment, alteration or repeal will be presented to the Directors for action.
The preceding Amended and Restated Bylaws were approved and adopted by the Board of Directors of the Faculty of Federal Advocates on this 26th day of August, 2020.