¶4 In the present case, the trial court denied the developers' disqualification motion without meaningfully analyzing for purposes of Colo. RPC 1.9(a) whether this case is "substantially related" to the prior matters in which Perczak represented Francescon. Instead, the trial court relied on issue preclusion, the doctrine that bars relitigation of an issue that is "identical" to an issue that was previously litigated and decided, Stanton v. Schultz , 222 P.3d 303, 307 (Colo. 2010). Here, the trial court appeared to conclude that the Sawgrass ruling denying the motion to disqualify Perczak in that case had preclusive effect so as to bar the developers' motion under Colo. RPC 1.9(a) in this case.

Colorado courts have made clear that an opportunity for review is required to preclude relitigation of an issue. See, e.g., Stanton v. Schultz, 222 P.3d 303, 309 (Colo. 2010); Rantz, 109 P.3d at 141; Carpenter, 773 P.2d at 566. See also Cook v. Aagard, 547 F. App'x 857, 859 (10th Cir. 2013) (unpublished) (applying Utah claim preclusion standard to determine whether underlying Utah criminal proceedings precluded current issue).

Under Colorado law, issue preclusion, also known as collateral estoppel, "bars relitigation of an issue that is identical to an issue that has been actually litigated and necessarily adjudicated in a prior proceeding." Bristol Bay Prod., LLC v. Lampack, 2013 CO 60, ¶ 17 (citing Stanton v. Schultz, 222 P.3d 303, 307 (Colo. 2010)); see B & BHardware, Inc. v. Hargis Indus., Inc., 135 S. Ct. 1293, 1302-03 (2015) (articulating the rationale behind the doctrine of issue preclusion). Issue preclusion bars relitigation of an issue where four elements are present:

"The standard for legal malpractice in Colorado requires a plaintiff to show that the attorney breached a duty of care owed to the plaintiff, thereby causing damage to the plaintiff." Stanton v. Schultz, 222 P.3d 303, 307 (Colo. 2010) (citing Bebo Constr. Co. v. Mattox & O'Brien, P.C., 990 P.2d 78, 83 (Colo. 1999)). Thus, a plaintiff must establish that: (1) the defendant attorney owed him a duty of care; (2) the defendant attorney breached that duty of care; and, (3) the breach caused him damage.

Even if state law controlled preclusion principles, the analysis in this case would not change because the elements of collateral estoppel under Colorado law are similar to those under federal law. See Stanton v. Schultz, 222 P.3d 303, 307 (Colo. 2010).In its Brief in Support of Motion for Summary Judgment, Portal Investments argues that Debtor is collaterally estopped from relitigating issues in this adversary proceeding because an arbitrator determined the factual and legal issues relevant to its bankruptcy claims.

Section 18 of the Restatement addresses the question presented in this appeal. It provides: See, e.g., Stanton v. Schultz, 222 P.3d 303, 306 (Colo. 2010) (citing Restatement (Second) of Judgments § 27); Michaelson v. Michaelson, 884 P.2d 695, 701 & n.7 (Colo. 1994)(citing Restatement (Second) of Judgments § 27); Cont'l W. Ins. Co. v. Heritage Estates Mut. Hous. Ass'n, 77 P.3d 911, 916 (Colo. App. 2003) (citing Restatement (Second) of Judgments § 18).

The Second Restatement position has been the subject of criticism by many courts. The Colorado Supreme Court has not ruled on this issue, but in Stanton v. Schultz, 222 P.3d 303, 308 (Colo.2010), it recognized the criticism of and declined to adopt the Second Restatement position, instead affirming the judgment below on a different ground. “When the federal courts are called upon to interpret state law, the federal court must look to the rulings of the highest state court, and, if no such rulings exist, must endeavor to predict how that high court would rule.”

The Colorado Supreme Court has not ruled on this issue. In fact, in Stanton v. Schultz, 222 P.3d 303, 308 (Colo. 2010), the Colorado Supreme Court recognized the criticism of the Second Restatement rule and expressly declined to adopt it, instead affirming the Court of Appeals on a different basis. "When the federal courts are called upon to interpret state law, the federal court must look to the rulings of the highest state court, and, if no such rulings exist, must endeavor to predict how that high court would rule."

Id. Stanton v. Schultz, 222 P.3d 303, 307 (Colo. 2010); Bebo Constr. Co. v. Mattox & O'Brien, P.C., 990 P.2d 78, 84-85 (Colo.1999); People v. Zukowski, 260 P.3d 339, 346 (Colo. App. 2010).

Under Colorado law, collateral estoppel, or issue preclusion "bars re-litigation of an issue if (1) the issue is identical to an issue actually litigated and necessarily adjudicated in the prior proceeding; (2) the party against whom estoppel was sought was a party to or was in privity with a party in the prior proceeding; (3) there was a final judgment on the merits in the prior proceeding; and (4) the party against whom the doctrine is asserted had a full and fair opportunity to litigate in the prior proceeding." Stanton v. Schultz, 222 P.3d 303, 307 (Colo. 2010);Bebo Constr. Co. v. Mattox O'Brien, P.C., 990 P.2d 78, 84-85 (Colo. 1999).