Have you heard the one about the $1 million fee award that walked into a spam filter?

It’s no joke.

UPDATE:  After reading my original post, a lawyer shared a story with me and authorized me to share it with you.  I’ve appended the story to this column. Because I think the story might serve as a valuable tip, I’m re-posting this blog to help draw attention to it. 

I’ve often blogged on the ethical duty of tech competence.  My posts on the topic are here.

Now, a cautionary tale from the real world.

Alberto Bernabe is a law professor at The John Marshall Law School. He’s also a regular presence on this blog’s #fiveforfriday Honor Roll.  Yesterday, on his own blog, Professor Bernabe posted ‘My computer ate my homework’ is not a good excuse.  His post links to a case that involves tech competence and a missed deadline to appeal an order awarding $1,000,000.00 in attorney’s fees.

The full story comes from Law For Lawyers Today.  The headline says it all: Deleted spam leads to missed appeal; not excusable, FL court of appeals holds.  Here’s the quick version:

  • Ben sued Tom.
  • Lawyer represented Ben.  Attorney, who works at Firm, represented Tom.
  • Ben won.
  • Lawyer moved for attorney’s fees.
  • The court granted the motion.
  • The court e-mailed the order to Attorney.
  • Attorney’s Firm’s e-mail system “filtered out” the order as spam.
  • Firm’s e-mail system was configured to delete spam after 30 days, without notice to a person.
  • Firm’s e-mail system deleted the order.
  • Tom moved for relief from judgment.
  • Attorney argued that Firm did not receive the order in time to file an appeal.
  • The trial court denied the motion.
  • An appellate court affirmed the trial court’s decision.

At the hearing on Tom’s motion for relief from judgment, Firm’s former IT person testified that he had advised Firm against configuring its e-mail system to delete spam after 30 days and without notice to a person.  He also testified that he advised Firm to buy an e-mail backup system and to retain a tech vendor to deal with e-mail spam.  Firm did not take the advice, in part to save money.

The appellate court noted that Firm’s failure to learn about the order was not the result from “mistake, inadvertence, surprise or excusable neglect.”  Rather, Firm intentionally chose to use “a defective e-mail system without any safeguards or oversight to save money. Such a decision cannot constitute excusable neglect.”

Competence includes tech competence.  For now, I’ll leave you with the final paragraph from the blog post that’s on The Law for Lawyers Today:

  • “The harsh result here may yet be ameliorated if the court of appeals grants rehearing.  In the meantime, however, the scary scenario points to the need to pay attention to your firm’s  technology and processes for handling spam.  And old-fashioned procedures like checking the court’s docket can also help avoid an unpalatable spam situation.”

UPDATE – here’s the abridged version of the story that a lawyer shared with me after reading my original post.

  • Lawyer represented Client.
  • Throughout matter, Lawyer & Client communicated via e-mail.
  • Matter went to a bench trial.
  • In a written decision, Trial Court found against Client.
  • Lawyer scanned the decision and attached it to an e-mail to Client.  In the body of the e-mail, Lawyer asked “Do you want to appeal?”
  • 31 days after decision was issued, Client called Lawyer and asked “have we heard anything from the trial court?”
  • Lawyer investigated and determined that the e-mail to Client was stuck in outgoing mail and had never left Firm’s server.
  • Over Opposing Party’s objection, Trial Court granted Lawyer & Client leave to file an untimely appeal.
  • On appeal, the Vermont Supreme Court granted Opposing Party’s motion to dismiss the appeal as untimely.

Lawyer’s firm took two lessons from the experience: (1) Lawyer regularly checks Lawyer’s spam folder & outgoing mailbox; and, (2) rather than relying on e-mail silence, Firm adopted a protocol to call clients on important issues, such as the decision whether to appeal.

 

Tech Incompetence

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Have you heard the one about the $1 million fee award that walked into a spam filter?

It’s no joke.

I’ve often blogged on the ethical duty of tech competence.  My posts on the topic are here.

Now, a cautionary tale from the real world.

Alberto Bernabe is a law professor at The John Marshall Law School. He’s also a regular presence on this blog’s #fiveforfriday Honor Roll.  Yesterday, on his own blog, Professor Bernabe posted ‘My computer ate my homework’ is not a good excuse.  His post links to a case that involves tech competence and a missed deadline to appeal an order awarding $1,000,000.00 in attorney’s fees.

The full story comes from Law For Lawyers Today.  The headline says it all: Deleted spam leads to missed appeal; not excusable, FL court of appeals holds.  Here’s the quick version:

  • Ben sued Tom.
  • Lawyer represented Ben.  Attorney, who works at Firm, represented Tom.
  • Ben won.
  • Lawyer moved for attorney’s fees.
  • The court granted the motion.
  • The court e-mailed the order to Attorney.
  • Attorney’s Firm’s e-mail system “filtered out” the order as spam.
  • Firm’s e-mail system was configured to delete spam after 30 days, without notice to a person.
  • Firm’s e-mail system deleted the order.
  • Tom moved for relief from judgment.
  • Attorney argued that Firm did not receive the order in time to file an appeal.
  • The trial court denied the motion.
  • An appellate court affirmed the trial court’s decision.

At the hearing on Tom’s motion for relief from judgment, Firm’s former IT person testified that he had advised Firm against configuring its e-mail system to delete spam after 30 days and without notice to a person.  He also testified that he advised Firm to buy an e-mail backup system and to retain a tech vendor to deal with e-mail spam.  Firm did not take the advice, in part to save money.

The appellate court noted that Firm’s failure to learn about the order was not the result from “mistake, inadvertence, surprise or excusable neglect.”  Rather, Firm intentionally chose to use “a defective e-mail system without any safeguards or oversight to save money. Such a decision cannot constitute excusable neglect.”

Competence includes tech competence.  For now, I’ll leave you with the final paragraph from the blog post that’s on The Law for Lawyers Today:

  • “The harsh result here may yet be ameliorated if the court of appeals grants rehearing.  In the meantime, however, the scary scenario points to the need to pay attention to your firm’s  technology and processes for handling spam.  And old-fashioned procedures like checking the court’s docket can also help avoid an unpalatable spam situation.”

Tech Incompetence

 

 

 

Monday Morning Answers: #90

Friday’s questions are here.  Spoiler alert – today’s answers immediately follow the honor roll.

Honor Roll

  • A1A – Beachfront Avenue!
    • Kane Smart, Office of General Counsel, Agency of Natural Resources
  • Ed AdrianMonaghan Safar Ducham
  • Karen AllenKaren Allen Law
  • Matt AndersonPratt Vreeland Kennelly Martin & White
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor of Law, John Marshall Law School
  • Robert Grundstein, Esq.
  • Glenn JarrettJarrett & Luitjens
  • Jim Johnson, Chittenden South Supervisory Union
  • Kevin LumpkinSheehey Furlong & Behm
  • Hal Miller, First American
  • Herb Ogden, Esq.
  • Daron Raleigh, Deputy State’s Attorney, Windsor County
  • Nancy Hunter Rogers, Chamberlin School, South Burlington
  • Jack Welch, Esq.

Answers

Question 1

If you attend a CLE and I discuss “puffery,” what ethics issue am I most likely addressing?

  • A.   Whether a  lawyer violates federal law by using marijuana
  • B.   The extent to which the rules on candor & honesty apply during negotiations.
  • C.   Dishonest trust accounting practices
  • D.   Viewing an adverse party’s social media posts

Here’s my post on whether “puffery” constitutes dishonesty or a false statement of material fact to a third person.

Question 2

In legal ethics, the word “imputed” is most often associated with:

  • A.   The advertising rules
  • B.   Interest earned on lawyer trust accounts
  • C.  Conflicts of Interest.   Vermont’s rule on imputed conflicts is V.R.Pr.C. 1.10.
  • D.  Technology & The Duty of Competence

Question 3

I spoke at CLE yesterday.  One point I emphasized was:

“If it’s yours, get it out.”

When I made the statement, what general topic was I discussing?

Trust accounting.  Leaving your own money in trust is “commingling.”  If it’s yours, get it out of trust.

Question 4

By rule, “a lawyer employed or retained by an organization represents the organization acting through its duty authorized constituents.”  Do the rules allow the lawyer who represents an organization to represent its individual directors, officers, employees, members, or other constituents?

  • A.   No
  • B.   Yes
  • C.   Yes, subject to Rule 1.7 (the rule on conflicts of interest).  See, V.R.Pr.C. 1.13(g).
  • D.   The rules are silent on this issue

Question 5

And speaking of lawyers who represent organizations . . .

. . . in 2008, Tilda Swinton won the Academy Award for Best Supporting Actress for her portrayal of corporate lawyer Karen Crowder.  Crowder was in-house counsel for U-North, a giant manufacturer of agro-chemical products.  U-North was the defendant in a class action lawsuit involving allegations that U-North manufactured, marketed, and distributed a carcinogenic weed killer.

Crowder retained an outside law firm to handle the defense.  The firm’s leading litigator, Arthur Edens (Tom Wilkinson), discovered an internal memo that Crowder and U-North had intentionally withheld from the plaintiffs.  The move proved that, in fact, U-North continued to sell its product despite knowing that it would kill people in addition to killing weeds.

On the horns of the ethical dilemma of whether to blow the whistle on Crowder and U-North, Edens cracked.  During a deposition, he stripped naked and ran outside into a snowstorm.  Fearful that Edens would disclose the memo, Crowder did what any self-respecting in-house counsel would do – brought the matter to the attention of U-North’s CEO, then had Edens killed.

Shocked, Edens’ firm brought in George Clooney to figure out what happened.  It didn’t take Clooney long to determine that the firm’s client and its general counsel had been up to no good.  And it didn’t take Crowder & U-North long to attempt to send Clooney to the same fate as his law partner, Arthur Edens.

Your task: identify this movie, a film replete with legal ethics issues, including the duty to disclose a client’s fraud and crimes.  Oh yeah, and the duty not to have outside counsel murdered.

MICHAEL CLAYTON

Michael_clayton

 

 

 

A Sex Rule

Earlier this week, the Professional Responsibility Board forwarded to the Vermont Supreme Court its recommendation that the Court amend Rule 1.8 of the Vermont Rules of Professional Conduct as follows:

  • (j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.

31 states have a specific ban on client-lawyer sexual relationships.  As of now, Vermont does not.

Rather, in Vermont, for a sexual relationship with a client to be an ethics violation, the lawyer must do something else wrong. That is, disciplinary counsel would have to prove, for example, that the relationship created an impermissible conflict of interest under Rule 1.7(a)(2). The conflict being the risk that the relationship would materially limit the lawyer’s duties to the client.

The notion that a sexual relationship crosses the line only if leads to another violation is codified in Comment [17] to the current version of Rule 1.8:

  • “The relationship between the lawyer and client is a fiduciary one in which the lawyer occupies the highest position of trust and confidence.  The relationship is almost always unequal; thus, a sexual relationship between and client can involve unfair exploitation of the lawyer’s fiduciary role, in violation of the lawyer’s basic ethical obligation not to use the trust of the client to the client’s disadvantage.  In addition, such a relationship presents a significant danger that, because of the lawyer’s emotional involvement, the lawyer will be unable to represent the client without impairment of the exercise of independent professional judgment.  Moreover, a blurred line between the professional and personal relationships may make it difficult to predict to what extent client confidences will be protected by the attorney-client evidentiary privilege, since client confidences are protected by privilege only when they are imparted in the context of the client-lawyer relationship.  For all of these reasons, lawyers are cautioned that sexual relations with a current client could give rise to claims of incompetence under Rule 1.1, of lack of diligence under Rule 1.3, of a conflict with the lawyer’s personal interests under Rule 1.7(a)(2), of using client information to the client’s disadvantage under Rule 1.8(b), of conduct involving dishonesty or the like under Rule 8.4(c), or of conduct prejudicial to the administration of justice.”

The PRB disagrees.  The Board’s position is that the imbalance of power inherent in the professional relationship between lawyer and client necessitates an absolute ban on a sexual relationship between the two.  At least 19 other of Vermont’s licensed professions have just such a ban.

The Court will consider the Board’s proposal at its next administrative meeting.  After that, the proposal might be published for notice & comment.  If you are interested in the topic, please keep an eye on the memos to the bar that the State Court Administrator sends via e-mail. Proposed rules are published in those memos.

For further reading, here are my previous blogs on the issue:

salt-n-pepa

Referral Fees: Think Thrice

I continue to encounter confusion about referral fees.  This week, the topic arose during an inquiry I received, and again at a CLE seminar I presented.

My position remains that Vermont’s rules do not authorize straight referral fees.

Here’s my quick analysis:

  1. Rule 7.2(b) prohibits a lawyer from “giving anything of value to a person for recommending the lawyer’s services;”
  2. Rule 7.2(b)(4) authorizes lawyers to make referrals and enter into reciprocal referral arrangements; but,
  3. Comment [8]  states that “[e]xcept as provided in Rule 1.5(e), a lawyer who receives referrals from a lawyer or nonlawyer must not pay anything solely for the referral . . .”
  4. Rule 1.5(e) authorizes lawyers who are not in the same firm to share fees if:
    • the division is in proportion to the services each performs, OR, each lawyer assumes joint responsibility for the representation;
    • the client confirms in writing the client’s agreement to the division of the fee; and,
    • the overall fee is reasonable.

Here’s a primer on referral fees.  And, here’s a post that discusses what it means”to assume joint responsibility for a representation,” and thereby trigger Rule 1.5’s authorization of a division of fees.

dollar sign

Five for Friday #90

Alright, stop.  Collaborate and listen.

Actually, I should stop there.

As many of you know, I use the introduction to the #fiveforfriday legal ethics quiz to talk about something related to the week’s number.  I’ve found that intros related to music generate the most interest.  Indeed, there’s a county bar president who continues to take great umbrage over my preference for The Rolling Stones over The Beatles.

Unlike 89 in last week’s ode to Taylor Swift, 90 evokes little for me.  So, I’ll foreshadow two upcoming intros with these teasers:

  • 1990 was the year that Chris Cornell formed Temple of the Dog in response to the death of Andrew Wood, lead singer for Mother Love Bone; and,
  • 1990 was the last full calendar year before Dr. Dre left NWA.

I want to keep this week’s intro quick and to the point.  That’s an intentional reflection of the unfortunate fact that 1990 was the year that Robert Van Winkle scored a number 1 hit with a song whose lyrics included:

“Quick to the point, to the point no fakin’
I’m cookin’ MC’s like a pound of bacon.”

Finally, compounding the misfortune, it was 1990 when, as a 1L at GW Law, a friend nicknamed me “Strawberry Ice.”  For years, another friend never called me anything but “Ice.”

And the story behind the nickname is exactly why I started this post by saying  “actually, i should stop there.”  Heeding my own advice . . .

. . . onto the quiz.  Word to your mother!

 

vanilla_ice

Rules

  • None.  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Please consider sharing the quiz on social media with the hashtag #fiveforfriday

Question 1

If you attend a CLE and I discuss “puffery,” what ethics issue am I most likely addressing?

  • A.   Whether a  lawyer violates federal law by using marijuana
  • B.   The extent to which the rules on candor & honesty apply during negotiations
  • C.   Dishonest trust accounting practices
  • D.   Viewing an adverse party’s social media posts

Question 2

In legal ethics, the word “imputed” is most often associated with:

  • A.   The advertising rules
  • B.   Interest earned on lawyer trust accounts
  • C.  Conflicts of Interest
  • D.  Technology & The Duty of Competence

Question 3

I spoke at CLE yesterday.  One point I emphasized was:

“If it’s yours, get it out.”

When I made the statement, what general topic was I discussing?

Question 4

By rule, “a lawyer employed or retained by an organization represents the organization acting through its duty authorized constituents.”  Do the rules allow the lawyer who represents an organization to represent its individual directors, officers, employees, members, or other constituents?

  • A.   No
  • B.   Yes
  • C.   Yes, subject to Rule 1.7 (the rule on conflicts of interest)
  • D.   The rules are silent on this issue

Question 5

And speaking of lawyers who represent organizations . . .

. . . in 2008, Tilda Swinton won the Academy Award for Best Supporting Actress for her portrayal of corporate lawyer Karen Crowder.  Crowder was in-house counsel for U-North, a giant manufacturer of agro-chemical products.  U-North was the defendant in a class action lawsuit involving allegations that U-North manufactured, marketed, and distributed a carcinogenic weed killer.

Crowder retained an outside law firm to handle the defense.  The firm’s leading litigator, Arthur Edens (Tom Wilkinson), discovered an internal memo that Crowder and U-North had intentionally withheld from the plaintiffs.  The move proved that, in fact, U-North continued to sell its product despite knowing that it would kill people in addition to killing weeds.

On the horns of the ethical dilemma of whether to blow the whistle on Crowder and U-North, Edens cracked.  During a deposition, he stripped naked and ran outside into a snowstorm.  Fearful that Edens would disclose the memo, Crowder did what any self-respecting in-house counsel would do – brought the matter to the attention of U-North’s CEO, then had Edens killed.

Shocked, Edens’ firm brought in George Clooney to figure out what happened.  It didn’t take Clooney long to determine that the firm’s client and its general counsel had been up to no good.  And it didn’t take Crowder & U-North long to attempt to send Clooney to the same fate as his law partner, Arthur Edens.

Your task: identify this movie, a film replete with legal ethics issues, including the duty to disclose a client’s fraud and crimes.  Oh yeah, and the duty not to have outside counsel murdered.

 

 

the-quiz

 

Monday Morning Answers – T. Swift & T. Petty

Now I know what drives traffic – Taylor Swift!

Friday’s questions are here.   The answers follow today’s Honor Roll.

Honor Roll

Answers

Question 1 – American Girl

“Well she was an American girl
Raised on promises . . .”

Later, the American girl became a lawyer and is admitted to practice in Vermont.  By rule, she has essentially promised:

  • A.  Not to disclose information related to the representation of her clients.
  • B.  Not to disclose information related to the representation of her clients, unless the information is a matter of public record.
  • C.  Not to disclose information related to the representation of her clients, unless the information falls outside the attorney-client privilege.
  • D.  Not to disclose her clients confidences and secrets.

For more on this, please see this blog post in which I discuss Rule 1.6 and its interplay with matters of privilege & matters in the public record.

Question 2 – Refugee

Lawyer represents Client in a civil matter.  Trial is scheduled for next week.  Most of Lawyer’s strategy sessions with Client have focused on Witness.  Lawyer plans to have Witness testify and offer evidence in support of Client’s claim.

Yesterday, Client said to Lawyer:

  • “We got somethin’, we both know it, we don’t talk too much about it
    Ain’t no real big secret, all the same, somehow we get around it
    Oh listen, it don’t really matter to me, baby
    You believe what you wanna believe.”

Lawyer was somewhat confused, but, having thought about it, thinks that Client might have convinced Witness to offer false evidence.  Which is most accurate?

  • A. If Lawyer reasonably believes that Witness will offer false evidence, Lawyer may refuse to offer Witness’s testimony. See, V.R.Pr.C. 3.3(a)(3).  
  • B.  Lawyer must offer Witness’s testimony.
  • C.  Lawyer must not offer Witness’s testimony.
  • D.  Lawyer must withdraw.

The key here is that Lawyer suspected, but did not know, that Client might have convinced Witness to offer false evidence.  A prudent course here would be to remonstrate with client & to make clear to Client (1) that “C” would be correct if Lawyer “knows” Witness will offer false testimony; and, (2) that if Lawyer discovers after-the-fact that Witness provided false evidence, Lawyer has a duty to take reasonable remedial measures, up to and including disclosure to the court.

Question 3 – Don’t Do Me Like ThatJammin’ Me

This is a different case than in Question 2.

Attorney informs Client that Attorney intends to file a motion to withdraw.  Client responds:

  • “Don’t do me like that
    Don’t do me like that
    Someday I might need you baby
    Don’t do me like that!”

Attorney replies “the ethics rules require me to withdraw.” Client retorts:

  • “You’re jammin’ me, you’re jammin’ me
    Quit jammin’ me
    Baby you can keep me painted in a corner
    You can walk away but it’s not over.”

Assuming that Attorney is correct and that withdrawal is mandatory, which of the following will Attorney be most likely to cite in the motion?

  • A.  Client has failed substantially to comply with the terms of the fee agreement.
  • B.  Attorney has discovered a non-waivable conflict of interest with a former client.
  • C.  The representation has been rendered unreasonably difficult by Client.
  • D.  Client insists on taking a course of action that Attorney considers repugnant.

Rule 1.16(a)(1) mandates withdrawal when continued representation will result in a violation of the rules of professional conduct.  Continuing despite a non-waivable conflict would cause Attorney to violate the rules.   Thus, B is correct.  Choices A, C, and D are instances in which withdrawal is permitted, but is not mandatory.  

Question 4 – Runnin’ Down A Dream

Continuing the scenario from the previous question, Attorney filed the motion to withdraw.  As it remained pending, stress & anxiety bedeviled Client.  Then, the court granted the motion.  Shortly thereafter, Client contacted the VBA’s Lawyer Referral Service and received a list of potential new lawyers.  Uplifted, Client called Attorney to schedule an appointment to pick up the file. Client said:

  • “I rolled on as the sky grew dark
    I put the pedal down to make some time
    There’s something good waitin’ down this road
    I’m pickin’ up whatever’s mine.”

When Client arrives, Vermont’s rule specifically requires Attorney to:

  • A.   Keep a copy of Client’s file.
  • B.   Surrender Papers & Property to which Client is entitled.
  • C.   A, B, and refund any unearned fee.
  • D.   B and refund any unearned fee.

This is Rule 1.16(d).  After complying with the rule by delivering the file, there is nothing in the rules of professional conduct that requires Attorney to keep a copy of the file.  Most carriers, however, have language in their policies that require lawyers to keep copies of a closed files for X number of years.

Question 5 – Free Fallin’

Continuing the scenario . . . Client followed through on her statement that Attorney could walk away, but it’s not over.  Before runnin’ down her dream elsewhere, Client posted a negative online review about Attorney, sued Attorney for malpractice, and filed a disciplinary complaint against Attorney.

Attorney intends to respond with:

  • “She’s a good girl, loves her mama
    Loves Jesus and America too
    She’s a good girl, crazy ’bout Elvis
    Loves horses and her boyfriend too
  • It’s a long day livin’ in Reseda
    There’s a freeway runnin’ through the yard
    And I’m a bad boy, ’cause I don’t even miss her
    I’m a bad boy for breakin’ her heart”

Assume the information in the response is true, but is not generally known.  Attorney would likely violate the rules by:

  • A.  Posting the information online, in response to the negative review.
  • B.  Incorporating the response into the defense of the malpractice complaint.
  • C.  Incorporating the response into his answer to the disciplinary complaint.
  • D.  None of the above.  No matter the forum, Client put the representation in issue.

Client is a “former client.”   Rule 1.9(c)(2) prohibits disclosure of information relating to the representation of a former client unless the rules otherwise permit disclosure.  Here, Rule 1.6(c)(3) permits B & C.  The rule is often referred to as the “self-defense exception” to the general prohibition against disclosure.  It is well-settled that the “self-defense exception” does not apply to negative online reviews.  For more, see my post Negative Online Review? What NOT to do.

swift and petty

Five for Friday #89: T. Swift & T. Petty

89!

Regular readers – what did you guess I’d use as my “89” reference?

  • The fact that it’s one of Vermont’s interstates?  Terrible guess. Horribly wrong.
  • The fact that it’s a Fibonacci number?  Good guess.  Still wrong.

No more guesses! For 89, I’m using a musical reference and, in the process, making a confession:

I’m a Swiftie.

For those of you who haven’t fallen out of your chairs and are still reading, that means that I’m a big (and now unabashed) fan of Taylor Swift.  The connection to this post is her album (and birth year) 1989.

Swift

I first learned of Taylor in 2007.  My friend Jenny (from the block) and I went to the Champlain Valley Fair to see Brad Paisley, Kellie Pickler, and someone named Taylor Swift.  Paisley was a superstar, Pickler had a #1 album, and I’d never heard of Swift.  The only thing I knew about her was that she was scheduled to open.

Open she did.  To state the obvious, when the concert closed, Jenny (from the block) and I walked out singing about how much we hated “that stupid ol’ pickup truck that he never let me drive……”  The rest is history.

And the history inclues legal ethics.

I’ve used one of Swift’s songs at several CLE seminars.  I often speak on the importance of choosing clients wisely & managing client expectations.  When I do, I mention that there are 3 clients whose expectations can be difficult to manage:

  1. The Blondie client (“Call Me“)
  2. The Sinatra client (“My Way“)
  3. The Swift client (“Blank Space“)

The first two references speak for themselves.  However, I usually have to explain the reference to “the Swift client.” (Young lawyers! Please! Assert yourselves at the next seminar!)

“Blank Space” is a song off 1989.  It tells the story of a budding romance in which Swift warns a new (& soon-to-be former) suitor that the relationship quickly will devolve, lilely in a manner similar to the devolution of prior relationships. The lyrics include:

  • “I’ve gotta a long list of ex-lovers, they’ll tell you I’m insane,  but I’ve got a blank space baby, and I’ll write your name.”

In my seminars, I tell lawyers that “the Swift client” is the client who comes to them after having burned through 3 or 4 prior attorneys.  As I put it, the “Swift client” has:

  • “a long list of ex-lawyers, they’ll tell you I’m insane, but I’ve got a blank space baby and I’ll write your name.”

And you know what the “blank space” is?  It’s the space on a disciplinary complaint where the Swift client will write the new (& soon-to-be former) lawyer’s name once the relationship quickly devolves in a manner similar to the client’s relationships with prior attorneys.

Don’t believe me? Conjure up the memory of the promising client who turned into one of the most difficult clients you’ve ever had to manage .  . . then watch the video and listen to the lyrics.

Sometimes the prospective client who looks like your next mistake . . . is.

Don’t say I didn’t say I didn’t warn ya.

T: I promise I’ll never blog about Katy Perry!

Next, I’m going to honor Tom Petty.  So, Damn the Torpedoes and onto the quiz!

Petty

Rules

  • None.  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Please consider sharing the quiz on social media with the hashtag #fiveforfriday

Question 1 – American Girl

“Well she was an American girl
Raised on promises . . .”

Later, the American girl became a lawyer and is admitted to practice in Vermont.  By rule, she has essentially promised:

  • A.  Not to disclose information related to the representation of her clients.
  • B.  Not to disclose information related to the representation of her clients, unless the information is a matter of public record.
  • C.  Not to disclose information related to the representation of her clients, unless the information falls outside the attorney-client privilege.
  • D.  Not to disclose her clients confidences and secrets.

Question 2 – Refugee

Lawyer represents Client in a civil matter.  Trial is scheduled for next week.  Most of Lawyer’s strategy sessions with Client have focused on Witness.  Lawyer plans to have Witness testify and offer evidence in support of Client’s claim.

Yesterday, Client said to Lawyer:

  • “We got somethin’, we both know it, we don’t talk too much about it
    Ain’t no real big secret, all the same, somehow we get around it
    Oh listen, it don’t really matter to me, baby
    You believe what you wanna believe.”

Lawyer was somewhat confused, but, having thought about it, thinks that Client might have convinced Witness to offer false evidence.  Which is most accurate?

  • A. If Lawyer reasonably believes that Witness will offer false evidence, Lawyer may refuse to offer Witness’s testimony.
  • B.  Lawyer must offer Witness’s testimony.
  • C.  Lawyer must not offer Witness’s testimony.
  • D.  Lawyer must withdraw.

Question 3 – Don’t Do Me Like ThatJammin’ Me

This is a different case than in Question 2.

Attorney informs Client that Attorney intends to file a motion to withdraw.  Client responds:

  • “Don’t do me like that
    Don’t do me like that
    Someday I might need you baby
    Don’t do me like that!”

Attorney replies “the ethics rules require me to withdraw.” Client retorts:

  • “You’re jammin’ me, you’re jammin’ me
    Quit jammin’ me
    Baby you can keep me painted in a corner
    You can walk away but it’s not over.”

Assuming that Attorney is correct and that withdrawal is mandatory, which of the following will Attorney be most likely to cite in the motion?

  • A.  Client has failed substantially to comply with the terms of the fee agreement.
  • B.  Attorney has discovered a non-waivable conflict of interest with a former client.
  • C.  The representation has been rendered unreasonably difficult by Client.
  • D.  Client insists on taking a course of action that Attorney considers repugnant.

Question 4 – Runnin’ Down A Dream

Continuing the scenario from the previous question, Attorney filed the motion to withdraw.  As it remained pending, stress & anxiety bedeviled Client.  Then, the court granted the motion.  Shortly thereafter, Client contacted the VBA’s Lawyer Referral Service and received a list of potential new lawyers.  Uplifted, Client called Attorney to schedule an appointment to pick up the file. Client said:

  • “I rolled on as the sky grew dark
    I put the pedal down to make some time
    There’s something good waitin’ down this road
    I’m pickin’ up whatever’s mine.”

When Client arrives, Vermont’s rule specifically requires Attorney to:

  • A.   Keep a copy of Client’s file.
  • B.   Surrender Papers & Property to which Client is entitled.
  • C.   A, B, and refund any unearned fee.
  • D.   B and refund any unearned fee.

Question 5 – Free Fallin’

Continuing the scenario . . . Client followed through on her statement that Attorney could walk away, but it’s not over.  Before runnin’ down her dream elsewhere, Client posted a negative online review about Attorney, sued Attorney for malpractice, and filed a disciplinary complaint against Attorney.

Attorney intends to respond with:

  • “She’s a good girl, loves her mama
    Loves Jesus and America too
    She’s a good girl, crazy ’bout Elvis
    Loves horses and her boyfriend too
  • It’s a long day livin’ in Reseda
    There’s a freeway runnin’ through the yard
    And I’m a bad boy, ’cause I don’t even miss her
    I’m a bad boy for breakin’ her heart”

Assume the information in the response is true, but is not generally known.  Attorney would likely violate the rules by:

  • A.  Posting the information online, in response to the negative review.
  • B.  Incorporating the response into the defense of the malpractice complaint.
  • C.  Incorporating the response into his answer to the disciplinary complaint.
  • D.  None of the above.  No matter the forum, Client put the representation in issue.

swift and petty

 

 

Competence, ESI, and E-Discovery

I’ll say it again: Rule 1.1’s duty of competence includes tech competence.

To me, the duty includes:

  • knowing that that “it” exists,
  • knowing that clients, their adversaries, and witnesses have “it;” and,
  • knowing how to protect, preserve, produce, request, review, and use “it.”

What is “it?”

It is Electronically Stored Information (“ESI”).  Nearly every lawyer who has a client, has a client whose lawyer needs to know about ESI.  Indeed, I can’t think of a practice area in which a lawyer need not know about ESI.

  • Whether civil, criminal, probate, or family court, with so many of us so active on social media, ESI is a treasure trove of evidence.  Wondering how to admit a text, tweet, or social media post into evidence?  Check out the Evidence in Practice seminar at next week’s Annual Meeting of the Vermont Bar Association.
  • Wondering about your duties if a client asks about “scrubbing” or “taking down” social media posts?  The Pennsylvania Bar has issued some guidance.
  • For those of you practicing in the Vermont Superior Court’s Civil & Family Divisions, VRCP 26(a) lists the methods by which a party may obtain discovery.  Among them: a Rule 34 request to produce ESI.  Rule 26(b)(2)(A) imposes specific limitations on the discovery of ESI.  The federal rules of civil procedure have similar provisions.
  • Doing any estate work? There’s a new  Vermont law on digital assets.
  • Those of you who are in-house or general counsel . . . do you have some idea as to what ESI your client has, where it’s stored, and how long it’s kept? Have you talked to your client about its policy on employees using personal devices to access company data? Today, Above The Law posted some practical tips on preservation letters, including tips related to preserving & producing ESI.

I could go on & on. It is everwhere.

In 2015, the State Bar of California’s Standing Committee on Professional Responsibility and Conduct issued Formal Opinion 2015-193.  The opinion responds to the question “[w]hat are an attorney’s ethical duties in the handling of discovery of electronically stored information?”  Here’s the digest:

  • “An attorney’s obligations under the ethical duty of competence evolve as new
    technologies develop and become integrated with the practice of law. Attorney
    competence related to litigation generally requires, among other things, and at a
    minimum, a basic understanding of, and facility with, issues relating to e-discovery,
    including the discovery of electronically stored information (“ESI”). On a case-by-case basis, the duty of competence may require a higher level of technical knowledge and ability, depending on the e-discovery issues involved in a matter, and the nature of the ESI. Competency may require even a highly experienced attorney to seek assistance in some litigation matters involving ESI. An attorney lacking the required competence for e-discovery issues has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. Lack of competence in e-discovery issues also may lead to an ethical violation of an attorney’s duty of confidentiality.”

Give the full opinion a read.

I assume most lawyers understand this, but here’s the critical point I want to make:  ESI is something that can be preserved, produced, and used.  Not knowing how to handle the discovery of ESI is no different from not knowing how to handle the discovery of paper documents.

 

If you’re new to ESI, here’s a primer that the ABA issued several years ago.  It’s a good start, but only a start.

E Discovery

 

 

Hey Lawyers! STFU!!!

So, for those of you still adjusting to the interwebs, that headline is what we call “clickbait.”

And here you are.  Keepers, I hope.

But, seriously lawyers, shut up!

I’m talking about client confidences and the duty not to reveal “information relating to the representation” of a client.

The rule is Rule 1.6. For those of you averse to clicking on the hyperlink due to my repeated warnings about scams inviting you to do so, I applaud the effort, but frown upon your tech competence. Anyhow, here’s the language you need to remember:

  • “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation, or the disclosure is required by paragraph (b) or is permitted by paragraph (c).”

Let’s look at it a bit differently.  Per the rule, a lawyer may “reveal information relating to the representation of a client” if:

  • the client gives informed consent to disclosure; or,
  • disclosure is impliedly authorized to carry out the representation; or,
  • disclosure is required by paragraph (b); or,
  • disclosure is permitted by paragraph (c).

Now, please click on this and review paragraphs (a), (b), and (c).  As you do, I want you to think of, and be prepared to tell me, the two things that you will raise as defenses to a disciplinary complaint and that I will tell you DO NOT APPEAR in either paragraph.

Are you ready?

Here they are:

  1. But Mike, the information I revealed wasn’t privileged.
  2. But Mike, the information I revealed is a matter of public record.

My responses:

  1.  Did you read the rule? It says that you “shall not reveal information relating to the representation of a client unless the client gives informed consent [or] the disclosure is impliedly authorized to carry out the representation . . . ”  As made clear by Comment [3], the duty not to reveal “information relating to the representation” encompasses far more information than is covered by the attorney-client privilege. It encompasses “all information relating to the representation, whatever its source.” (emphasis added)
  2. Where in paragraph (a), (b), or (c) does it say that a lawyer may reveal “information that is public record?”  Hint – you don’t need to go back and look.  The answer is “nowhere.”  In other words, “it’s public record” is not the same as:
  • the client providing informed consent; or,
  • information that is impliedly authorized to be revealed in order to carry out the representation; or,
  • one of the disclosures mandated by paragraph (b); or,
  • one of the disclosures permitted by paragraph (c),

Rather, it remains “information relating to the representation” that a lawyer “shall not reveal.”

Lawyers seem to get hung-up on the “public record” thing.  No need to get hung-up.  As I just said, the rule makes it very, very clear: “it’s public record” is not one of the exceptions to “a lawyer shall not reveal information relating to the representation.”

Of course, this almost never comes up with “current clients.” In my experience, lawyers seem to think that they can disclose information relating to the representation of a former client if the information is in the public record.

Nope.

Please look at Rule 1.9(c)(2).

Still click averse? Fine.

  • “A lawyer who has formerly represented a client in a matter . . . shall not reveal information relating to the representation except as these rules would permit or require, or when the information has become generally known.”

The rules do not require or permit lawyer to reveal information merely because it has become a matter of public record.  Further, the fact that information is “public record” does not necessarily mean that it has become “generally known.”  There is plenty of authority for the proposition that “public record” does not equal “has become generally known.” I’ve listed a few cases at the end of this post.  For now, I’ll start with this:

Vermont’s Rule 1.6 is derived from ABA Model Rule 1.6.  The model rule expresses “the basic principle of professional ethics that all information `relating to’ a lawyer’s professional relationship with a client is presumptively confidential and must not be disclosed unless an exception applies.”  1 Hazard & Hodes, The Law of Lawyering (3d Ed.2001) 9-52, Section 9.15.

Or, think about it this way:

  1. 25 years ago, you represented me in a divorce. The case went to a trial and the evidence, including my own testimony, established that I had an affair.
  2. Now, in 2017, I’m running for public office, or, applying for a job and I listed you as a reference.  You tell a voter or my prospective employer “i’d never support someone who had an affair.”

Good luck with your “but it’s in the public record!” defense to my ethics complaint.

I’ve mellowed since I typed the headline.  So, I’ll conclude with this:

“Hey Lawyers! Be Quiet.”

But . . .

STFU

UPDATE – OCTOBER 5, 2017 

A few cites:

Most recently, take a look at, Dougherty v. Pepper Hamilton LLP, 133 A.3d  792 (2016), 2016 PA Super 23.  A thorough and relevant analysis begins on page 798. The court quotes the Restatement 3d, which includes the following language: “the fact that information has become known to some others does not deprive it of protection if it has not become generally known in the relevant sector of the public.”  Restatement (Third) of the Law Governing Lawyers § 59, cmt. d.

Akron Bar Ass’n v. Holder, 102 Ohio St. 3d 307 (2004). The case was decided under the Ohio rule that prohibited the disclosure of a client’s “confidendences & secrets.”  Some of you might remember that “confidences & secrets” are what we were required to keep confidential when Vermont followed the Code. We switched to the Rules in 1999.  In any event, after noting that its standard was “less encompassing than that in [ABA] Model Rule 1.6(a),” the Ohio court stated that “[t\here being an ethical duty to maintain client secrets available from sources other than the client, it follows that an attorney is not free to disclose embarrassing or harmful features of a client’s life just because they are documented in public records or the attorney learned of them in some other way.” 102 Ohio St. 3d (306, paragraphs 38-39). Again, the Ohio rule is encompasses less than the rule on which Vermont’s rule is based.

Here’s another: Lawyer Disciplinary Board v.McGraw, 461 S.E.2d 850 (W.Va. 1995).  The Moutaineer Supreme Court stated that “[t]he ethical duty of confidentiality is not nullified by the fact that the information is part of a public record or by the fact that someone else is privy to it.” Id. at 861-862.

Finally, I concede that the Restatement is not as restrictive as my take in the blog post.  Here’s more language from the Restatement:

  • Whether information is generally known depends on all circumstances relevant in obtaining the information. Information contained in books or records in public libraries, public-record depositaries such as government offices, or in publicly accessible electronic-data storage is generally known if the particular information is obtainable through publicly available indexes and similar methods of access. Information is not generally known when a person interested in knowing the information could obtain it only by means of special knowledge or substantial difficulty or expense. Special knowledge includes information about the whereabouts or identity of a person or other source from which the information can be acquired, if those facts are not themselves generally known.”

Still, as a lawyer, I’d be wary.  Arguably, “special knowledge” includes “I’m the only person who knows or remembers that there’s something in the public record about my former client.”