Five for Friday #270

Welcome to Friday and the 270h legal ethics quiz.

If you’re a regular reader, you know how I feel about winter.  Then, upon noticing that the welcoming sentence didn’t end with its usual exclamation point, you likely guessed that this week’s introduction would be about the wind chill.

Good guess!  But wrong. 

If this was the 273rd quiz, then yes, today’s post would reference the miserable temperature and the fact that -273 degrees is absolute zero. However, this is the 270th quiz, which means I’m going to discuss artificial intelligence.

My dear readers, the end might be nigh.

AI and its impact on the legal profession burst into the conversation earlier this month with a tweet from DoNotPay founder Joshua Browder:

Well, as they say about mice, men, and plans, here’s what Browder Tweeted last week:
Some of the headlines were catchy.

As the DoNotPay story was unfolding, multiple outlets, including Reuters and the ABA Journal, reported that Open AI’s ChatGPT had earned passing scores in Torts and Evidence on the multiple choice segment of the bar exam.  Also, as reported by CNN, ChatGPT passed four courses at the University of Minnesota Law School.

I used the DoNotPay and ChatGPT stories as questions in Montreal during the Thaw Bowl. Going through the answers, I remarked – not jokingly – that my job might be the first to go once the robots start to replace lawyers.  People seemed to disagree, suggesting that there’s nuance in ethics inquiries that AI can’t replicate. 

I’m not so sure. So, I ran a test this morning.

I asked ChatGPT three questions that are common ethics inquiries.  Each answer came within 5 seconds.  You be the judge.

Question 1

MK:       In legal ethics, is it a conflict of interest to represent a person in a divorce after representing the couple during the marriage?

ChatGPT:  In legal ethics, representing a person in a divorce after representing the couple during the marriage may be considered a conflict of interest. Representing a client in a divorce case after representing both parties during their marriage may create a situation where the lawyer has confidential information obtained during the previous representation that could potentially be harmful to one of the parties in the divorce case.

The American Bar Association Model Rules of Professional Conduct, which provides ethical guidelines for lawyers, state that a lawyer shall not represent a client if the representation will be directly adverse to another client, unless the client consents after consultation.

Whether representing a person in a divorce after representing the couple during the marriage constitutes a conflict of interest will depend on the specific circumstances of the case and the ethical rules that apply in the jurisdiction in which the lawyer is practicing. It’s important for lawyers to consider their ethical obligations and to seek guidance from their state bar association or ethics committee if they have any questions or concerns.

Not bad.

Question 2:

MK: What are lawyer’s duties upon learning that a client may have presented false evidence to a court?

ChatGPT: A lawyer’s duty when they learn that their client may have presented false evidence to a court is to take steps to rectify the situation. This may include, but is not limited to, withdrawing from the case, informing the court of the false evidence, or seeking to have the evidence corrected or stricken from the record.

However, the specific steps that a lawyer must take will depend on the jurisdiction in which they are practicing and the ethical rules that apply to their profession. It’s important to note that in some cases, a lawyer may have an obligation to continue representing the client if they believe that doing so would not result in harm to the administration of justice. In these circumstances, the lawyer may have a duty to provide advice to the client to correct the situation and to comply with the ethical rules that govern the legal profession.

 Again, not bad.

Question 3

MK:  In Vermont, how much of a lawyer’s own money can be in a trust account?

ChatGPT In Vermont, there is no specific rule regarding the amount of a lawyer’s own money that can be placed in a trust account. However, trust accounts are intended for holding clients’ funds and any personal funds deposited in the account must be kept separate from client funds and properly accounted for.

Lawyers must comply with the Vermont Rules of Professional Conduct and any applicable laws and regulations governing trust accounts. Vermont Rule 1.15 provides that a lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds belonging to the lawyer may be deposited in a client trust account only as permitted by Vermont Rule 1.15(e), which states that a lawyer may deposit the lawyer’s own funds in a client trust account only as permitted by law and only in an amount reasonably sufficient to pay service charges.

It’s important for lawyers to familiarize themselves with the specific rules and regulations that apply to trust accounts in Vermont and to seek guidance from the Vermont Bar Association or a professional liability insurance provider if they have any questions or concerns.

This one is interesting. The first sentence is wrong. In fact, we have a specific rule, it’s V.R.Pr.C. 1.15(b). However, in the second paragraph, ChatGPT got to the correct answer (although incorrectly citing to Rule 1.15(e)).

Again, the answers aren’t bad.  And remember – AI learns as it goes.

What’s all of this this got to do with 270?

Apparently, we aren’t too far from AI passing the bar exam.  And when it does, I could be the first to go.

What’s the passing on score on the Vermont Bar Exam?

270.

Onto the quiz!

 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 consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

By rule, what is required to be “communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation?”

  • A.   Whether the lawyer has malpractice insurance and, if so, the policy limits.
  • B.   Whether the lawyer has designated a successor to review and triage files if the lawyer becomes incapacitated during the representation.
  • C.   The basis or rate of the lawyer’s fee, and expenses for which the client will be responsible, except when the lawyer will charge a regularly represented client on the same basis or rate.
  • D.  All the above.

Question 2

Competent representation includes knowing the other rules.

There’s a rule that prohibits charging a contingent fee to secure a ______ and to represent to represent a _______________.

Question 3

Absent a written agreement between Lawyer & Client saying it will be treated otherwise, a flat fee paid in advance of any services being performed by Lawyer ____________:

  • A. must be deposited into trust.
  • B.  must not be deposited into trust.
  • C.  violates the rules.
  • D.  None of the above.

Question 4

If a lawyer calls me with an inquiry related to client confidences, which situation is most likely to cause me to give a different response than to the others?

  • A.  Client files disciplinary complaint against lawyer.
  • B.  Client leaves negative online review for lawyer.
  • C.  Client sues lawyer for malpractice.
  • D.  Client files petition for post-conviction relief that makes allegations about the lawyer’s representation of client.

Question 5

One of Netflix’s most-watched shows of 2022 starred Julia Garner as the so-called “SoHo Grifter . . . who stole the hearts of New York’s social scene — and stole their money as well.” Garner’s performance earned Emmy and Golden Globe nominations, and required a much different accent than Garner used as Ruth in Ozark.

In real life, the “grifter’s” lawyer was disbarred last year. Ironically, for stealing money from another client.

In the fall, the real-life “SoHo Grifter” sued the lawyer, alleging that the lawyer had failed to turn over the complete file after being fired last April.  The lawyer told the press that she had delivered the entire file, that the lawsuit is a vendetta, and that the former client is an “ungrateful b*&*%.”

Name the Netflix show.

Another lawyer sanctioned for social media conduct that would’ve resulted in a sanction even before social media existed.

I’m trying to get back into things.  In the past, a trick I’ve used to escape blogging ruts has been to re-post old blogs, often under the guise of a “Throwback Thursday” gimmick. Today, I’m doing something similar.

It’s been a while since I’ve posted on the intersection between legal ethics, professional responsibility, and social media. Formerly a so-called “hot topic,” interest seems to have waned as we’ve become more accustomed to social media.  

Back in the “hot topic” days, many seminars focused on a common theme best described as “Social Media Traps for Unwary Lawyers.” My view has long remained unchanged: on its own, social media doesn’t pose a trap for the unwary. That is, ethical conduct doesn’t become unethical when done on social media.  Rather, social media serves to expose unethical conduct that might not have become apparent in a pre-social media age.

That’s the point that I tried to make in Social Media & Legal Ethics: Keep It Real. Referring to a recent seminar, I wrote:

  • The topic was social media & legal ethics.  My theme was “Keep it Real.”  I tried to convey that social media isn’t so much the cause of misconduct as it is a relatively new forum for misconduct that has always existed. That is, if it’s wrong in real life, it’s wrong on social media.

Last year, I argued the point again in Social Media Isn’t The Problem.

I was reminded of the posts this morning.

David Kluft is Assistant Bar Counsel in Massachusetts.  David often shares “#LegalEthics Tidbits” on LinkedIn. I recommend a follow, for both the educational and entertainment value that the tips provide.  A few hours ago, David posted:

#LegalEthics Tidbit: Don’t tweet impounded settlement terms.

David linked to this report in which a hearing committee of the DC Court of Appeals Board of Professional Responsibility recommended that a lawyer be suspended from practice for 60 days. The recommendation followed a conclusion that the lawyer had committed several violations, including one involving a Tweet.

Long story short, the lawyer (Lawyer) represented a client who sued after being on a train that filled with smoke after breaking down in a tunnel. For reasons that also factored in the sanction recommendation, Lawyer was eventually replaced as the client’s counsel of record. The client’s new attorney also represented other passengers who had been on the train.

The new attorney settled the claim. The court approved the settlement and placed it under seal.  The new attorney informed Lawyer of the settlement’s provisions.

The next day, Lawyer posted a Tweet that included:

  • Unredacted portions of the sealed settlement agreement;
  • Emails between Lawyer and the new attorney about the settlement;
  • a picture of the new attorney; and
  • the words “Where’s MY CA$H.”

The Tweet tagged the new attorney’s law firm and mentioned several celebrities and major news outlets.

As is usually the case, social media isn’t the problem here. The fact that Lawyer took to Twitter doesn’t make the conduct any more unethical than if Lawyer had distributed unredacted copies of the settlement agreement on Pennsylvania Avenue while holding a sign with the new attorney’s picture, name, and the words “Where’s MY CA$H.” Publicizing a confidential settlement agreement is wrong no matter how it is publicized.  Here, doing so on social media didn’t make it “more” unethical.  It made it more likely that Lawyer would get caught.

As always, let’s be careful out there.  How?  See below.

Resources

VBA distributes a survey on civility & professionalism

I first started blogging about civility in 2017.  Ever since, it’s been a frequent topic.  Still, I find those early posts interesting, if only from the perspective of how my thoughts on civility evolved. 

In February 2017, I posted President’s Day & CivilityMy first post that includes “civility” in the headline, it includes no original thought.  Rather, I used the occasion to share then-ABA President Linda Klein’s message on the role that lawyers can play in promoting civil discourse. President Klein wrote:

  • “As leaders in society, lawyers must ensure that civility once again becomes a quality that defines us. We need to set the tone for constructive communication and rational decision-making. It starts with us and every individual committing to a more civil manner, insisting that civility be a part of meetings and interactions. Indeed, we need to hold ourselves and our leaders to a higher standard.”

Later that year, W.I.N. Your 3-Feet of Influence marked the first post in which I urged lawyers to practice civility.[1] The post doesn’t include a single reference or citation to the Rules of Professional Conduct.  Rather, echoing President Klein and using a prop from my coaching days, I wrote:

  • “What’s Important Now?  That in the next interaction I have with someone, I’m going to commit to a civil, honest, respectful communication – – regardless of how that person treats me.  I can’t control how that person acts, but I can control how I react.”

Finally, 2017’s civility posts concluded with Don’t Be a JerkThe post was the first in my series on the 50 Original Rules and the first in which I attempted to argue that, in fact, civility has long been one of our professional obligations. 

As the years have gone by, I’ve continued to address civility & professionalism both in this space and at seminars.  I’m not the only one. As I wrote here, at the 2021 swearing-in ceremony, Justice Eaton’s remarks to Vermont’s newest lawyers focused on civility and included this statement:

  • “I would ask you to remember that incivility is not advocacy, nor is it effective lawyering.”

Similarly, at the same ceremony in 2022, Chief Justice Reiber celebrated new lawyers’ taking of the oath with a speech “about ethics and civility as both are wrapped in professional judgment and character.” Early in his address, the Chief noted:

  • “Let there be no doubt the notion of zealous advocacy is alive and well in the courts.  But does it excuse us as practicing lawyers from exercising common sense and moral judgment, obligations to non-clients?”

As you might guess, the remainder of the Chief’s remarks answered the question in the negative.  In the process, and referring to the late Joan Wing, the Chief stated:

  • “It is well known that lawyers serve the public by serving clients and administering justice.  But good lawyers also serve the public by modeling civility and respect for human dignity, including to those who have fallen.  Civility as in not mere politeness but a trait of character evidenced in speech and conduct, grace.”

And yet despite years of promoting civility, the feedback from practicing lawyers is that incivility remains a problem.  I noticed an increase in incivility that coincided with the onset of the pandemic. I’m not so naïve to believe that a waning public health crisis will counteract the rise, and I’ve received reports that stress and anxiety associated with both the backlog and the reopening have contributed to a further increase in incivility.

What to do? I don’t know.  But maybe there’s a place to start.

Andrew Manitsky is the current President of the Vermont Bar Association.  Andrew has made civility and professionalism a major focus of his tenure.  He addresses the topic in his forthcoming “President’s Column” in the Vermont Bar Journal.  Also, on March 31, Andrew, Judge Teachout, and I will present a seminar on civility/professionalism at the Mid-Year Meeting in Manchester.

 Yesterday, the VBA sent a survey on civility/professionalism. By the end of the day, more than 300 lawyers had responded.  I understand that the data is already quite illuminating.  We will share the results at the Mid-Year Meeting.

Please check your email and take the survey.  Your voice matters as we redouble our efforts to promote civility and civil discourse within the Vermont legal profession.


[1] It’s the third most-read post in this blog’s history, trailing only my posts on Joan Wing and Peter Hall. Therefore, in a way, each of my 3 most-read posts is about civility.

RELATED POSTS

Identified by facial recognition software, a lawyer was kicked out of a holiday show at Radio City Music Hall because she works at a firm that is suing the corporation that owns the venue.

Happy New Year!

I didn’t blog over the final few weeks of 2022. With the calendar having turned, it’s time to get back at it. Today, I’ll ease back into things with a post that relates to a story I shared a few months ago.

Kelly Conlon is a lawyer at a firm that has offices in New York and New Jersey. As reported by NBC4, Ars Technica and the ABA Journal, Attorney Conlon’s holiday season got off to an eventful start.

The weekend after Thanksgiving, Attorney Conlon went to Radio City Music Hall with her daughter’s Girl Scouts troop. They planned to attend the Rockettes’ Christmas Spectacular. Despite having a ticket, staff forced Attorney Conlon to leave after identifying her via facial recognition software.  

Why?

Because of the law firm where she works.

Attorney Conlon’s firm is involved in litigation against a restaurant that is controlled by Madison Square Garden Entertainment (MSG). Like the restaurant, Radio City Music Hall is an MSG venue.  In a statement issued to NBC4, a spokesperson for MSG said:

  • “MSG instituted a straightforward policy that precludes attorneys pursuing active litigation against the Company from attending events at our venues until that litigation has been resolved. While we understand this policy is disappointing to some, we cannot ignore the fact that litigation creates an inherently adverse environment. All impacted attorneys were notified of the policy, including (Attorney Conlon’s firm), which was notified twice.”

Attorney Conlon told NBC4 that she is not involved with her firm’s cases against MSG.  Referring to a case in which another firm sued after being informed that it would be denied entrance to events at MSG venue, Conlon added that she thought a judge had ruled that MSG could not bar entry to people, like her, who had valid tickets.

In October and November, I blogged about the case that Attorney Conlon referred to.  It involved Larry Hutcher. 

Since the 1970s, Attorney Hutcher has had season tickets to New York Knicks games.  The Knicks play at Madison Square Garden.

Attorney Hutcher is lead counsel for a group of ticket resellers who, in September, sued MSG.  Once the suit was filed, MSG banned Hutcher and other lawyers at his firm from attending events at Defendant’s properties.  Among other things, MSG cited New York’s version of ABA Model Rule 4.2 as a basis for the ban.[1]  The ABA Journal reported that MSG released the following statement:

  • “It is not unreasonable that while in active litigation, we would want to preserve our right to protect ourselves against improper disclosure and discovery. That is why we instituted this policy, and we have repeatedly made clear that once litigation is resolved, impacted attorneys will be allowed back in our venues.’”

On behalf of his firm, Hutcher asked a court to enjoin MSG from prohibiting the firm’s lawyers from attending events at MSG properties.[2] 

In his complaint, Hutcher argued that:

“Rule 4.2 is meant to ensure that there is no contact between represented parties by counsel relating only to the ‘subject of the litigation.’ Certainly, there are only very few employees of MSG in a position to discuss the ‘subject of the litigation ‘with any of the individual plaintiffs. In essence, MSG feigns concern over the unlikely scenario that any individual plaintiff will discuss ‘the substance of the litigation’ with such an MSG employee while watching a Knicks game or attending a concert. This is absurd and is nothing more than a flimsy unsupportable pretext to justify the infantile behavior of MSG’s principals.”

He went on:

“Furthermore, Rule 4.2, when applied to corporate organizations, only affects limited categories of corporate employees and not all employees as MSG disingenuously implies in its notice. As described in more detail below, the affected MSG employee must be someone with the authority to bind MSG to a decision that will impact the subject litigation. How many MSG employees fall into this limited category? The odds of an individual plaintiff discussing the subject of the litigation with that MSG employee are astronomical. There are better odds of being struck by lightning or the Knicks winning the NBA championship this year.”[3]

In November, a court issued this opinion. Here’s how the court resolved the 4.2 issue:

  • “. . . there appears to be no rational basis for the policy instituted by the defendants except to dissuade attorneys from bringing suit against them. The concern that the defendants could be prejudiced by allowing attorneys who are representing those who have brought action against the defendant to attend events with thousands of other people is unavailing to this Court.”[4]

To my knowledge, nothing like what has happened to Attorney Conlon and Attorney Hutcher has happened in Vermont. To think that it might strikes me as somewhat preposterous.

V.R.Pr.C. 4.2 prohibits a lawyer from communicating with a represented person on the subject matter of the representation.  The first sentence of Comment [7] to Vermont’s rule states that

  • “In the case of a represented organization, this rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.”

I don’t interpret V.R.Pr.C. 4.2 as authorizing a grocery chain’s law firm to ban a lawyer who is representing a plaintiff who slipped on a wet floor from shopping at its stores.  Nor do I interpret the rule to authorize a lawyer for the hospital to ban me from visiting a sick relative merely because I’m representing a client who is suing the hospital.

For all I know, such bans might be valid under other law.[5]  And I am not suggesting that lawyers should undermine the discovery rules, make themselves witnesses, or do anything that violates V.R.Pr.C. 4.2 or V.R.Pr.C. 4.4(a).  

However, while I’m open to discussion, to me, absent actual communication with a represented organization’s constituent on the subject of the representation, a lawyer does not violate V.R.Pr.C. 4.2 by going shopping, going to a game or concert, or visiting a sick relative.

As always, let’s be careful out there.

Related Posts


[1] Rule 4.2 prohibits a lawyer from communicating with a represented person on the subject of the representation. 

[2] The suit drew coverage from multiple outlets, including Forbes, the New York Times, the New York Post, ESPN, and the ABA Journal

[3] Hutcher appears correct. As of today, the Knicks are tied for 7th in the NBA’s Eastern Conference, 6.5 games behind the Boston Celtics, owners of 17 NBA championships and the league’s best record so far this season.

[4] Alas, while Rule 4.2 was not dispositive, Hutcher and his co-workers fell short of total victory.  While the court concluded that New York law requires MSG to honor valid tickets to non-sporting events that are presented by people 21 or older who are behaving appropriately, it also determined that the same law does not apply to sporting events and, further, that MSG can revoke tickets at will until the moment they are presented.

[5] I don’t know much law.

Monday Morning Honors #269

Happy Monday!

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

Honor Roll

  • Karen Allen, Karen Allen Law
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, UIC School of Law
  • Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labor
  • Andrew Delaney, Martin Delaney & Ricci
  • Benjamin Gould, Paul Frank + Collins
  • Robert Grundstein
  • Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
  • Deb Kirchwey, Law Office of Deborah Kirchwey
  • Elizabeth Kruska, Past-President, Vermont Bar Association
  • Pam Loginsky, Deputy Prosecuting Attorney, Pierce County (WA)
  • Kevin Lumpkin, Sheehey Furlong & Behm
  • Bob Lydon, Law Clerk for Vermont Supreme Court Justice Nancy Waples
  • Pam Marsh, Marsh & Wagner
  • Susan McManus, Office of the Bennington County Public Defender
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeff Messina, Messina Law
  • Hal Miller, First American Title, Hawaii State Counsel
  • Keith Roberts, Darby Kolter & Roberts
  • Honorable John Valente, Vermont Superior Judge
  • Jason Warfield, J.D.
  • Thomas G. Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

Regular reader Professor Alberto Bernabe urges law students to remember the core principles of legal ethics by associating those principles with the letter grades that they don’t want to receive in his class. So, Professor Bernabe refers to 4 Cs, 1 D, and 1F.

There’s a rule that requires lawyers to act with “reasonable _______ and promptness” when representing a client. A comment to the rule states that a “lawyer’s duty to act with reasonable ________ does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.”

Which core duty that is one of Professor Bernabe’s “bad grades” properly fills in the blank?

DILIGENCE.   The language is from Comment 1 to V.R.Pr.C. 1.3.

Question 2

A recent amendment to the Vermont Rules of Professional Conduct prohibits lawyers from issuing a check that is drawn on a pooled interest-bearing trust account (IOLTA) to ________:

Question 3

Fill in the blank.

A comment to one of the conflicts rules states that “continued common representation will almost always be inadequate if one client _________________.”

  • A.  pays a higher percentage of the lawyer’s fee than the other client.
  • B.  is also a client of the lawyer’s in an unrelated matter.
  • C.  is the lawyer’s main contact on matters related to the representation.
  • D.  asks the lawyer not to disclose to the other client information relevant to the common representation.V.R.Pr.C. 1.7, Cmt. [31].

Question 4

Fill-in-the-blank.

True story.  Earlier this week I received an email from a lawyer who was trying to avoid “noisy _______.”  Indeed, “noisy _______” is a phrase intended to remind lawyers not to disclose confidential information when filing and arguing a certain type of motion. 

What word properly fills in the blank?

Withdrawal.  See, Stop Making Noise

Question 5

Today’s introduction includes a link to the press release that DOJ issued after Attorney Michael Avenatti was sentenced to 14 years in prison for stealing millions from clients.

Last month, Netflix released a documentary in which Avenatti appeared. The documentary re-tells the true story of Avenatti’s former client, John Leonard.  In the mid-90s, Leonard, then 20, found a loophole in a promotion run by a major corporation that, according to Leonard, entitled him to a $30 million fighter jet. The corporation, which ran the promotion as part of the so-called “Cola Wars,” claimed that the offer of a jet was an obvious joke and that nobody could have reasonably believed that they could actually win a fighter jet. 

Netflix teased the documentary by describing the man’s attempts to claim the fighter jet as setting “the stage for a David & Goliath court battle for the ages.”   In the end, the corporation prevailed.

Name the corporation.

Pepsi. The documentary is Pepsi, Where’s My Jet?  According to Salon, Avenatti’s work uncovering prior Pepsi promotion scandals was one of most bizarre revelations in the documentary.  Pepsi may have won the legal action but, depending on how you view things, arguably lost the Cola Wars.  Indeed, the Garage Bar menu includes Jack & Coke, no substitutions.

Five for Friday #269

Welcome to Friday and the 269th legal ethics quiz!

I haven’t blogged much lately and can’t remember the last time I posted a quiz. However, to borrow from an evidentiary phrase, the absence of posts on legal ethics news does not mean that legal ethics has been absent from the news.

To wit, since the last quiz:

That’s quite a month. And it doesn’t even include the crazy stories that I actually found time to blog about over the past few weeks!

Perhaps the lesson is this.

Sadly, legal ethics blogs will never run out of material.  When they appear to have done just that, rest assured, they haven’t.  That is, the absence of evidence of legal ethics news is not evidence of an absence of legal ethics news.  Rather, I confess: it’s evidence of the blogger’s lack of diligence.

Stay safe in the storm.  Onto the quiz!

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 consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

Regular reader Professor Alberto Bernabe urges law students to remember the core principles of legal ethics by associating those principles with the letter grades that they don’t want to receive in his class. So, Professor Bernabe refers to 4 Cs, 1 D, and 1F.

There’s a rule that requires lawyers to act with “reasonable _______ and promptness” when representing a client. A comment to the rule states that a “lawyer’s duty to act with reasonable ________ does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.”

Which core duty that is one of Professor Bernabe’s “bad grades” properly fills in the blank?

Question 2

A recent amendment to the Vermont Rules of Professional Conduct prohibits lawyers from issuing a check that is drawn on a pooled interest-bearing trust account (IOLTA) to ________:

  • A.   A relative.
  • B.   An employee.
  • C.   Themselves.
  • D.   Cash.

Question 3

Fill in the blank.

A comment to one of the conflicts rules states that “continued common representation will almost always be inadequate if one client _________________.”

  • A.  pays a higher percentage of the lawyer’s fee than the other client.
  • B.  is also a client of the lawyer’s in an unrelated matter.
  • C.  is the lawyer’s main contact on matters related to the representation.
  • D.  asks the lawyer not to disclose to the other client information relevant to the common representation.

Question 4

Fill-in-the-blank.

True story.  Earlier this week I received an email from a lawyer who was trying to avoid “noisy _______.”  Indeed, “noisy _______” is a phrase intended to remind lawyers not to disclose confidential information when filing and arguing a certain type of motion. 

What word properly fills in the blank?

Question 5

Today’s introduction includes a link to the press release that DOJ issued after Attorney Michael Avenatti was sentenced to 14 years in prison for stealing millions from clients.

Last month, Netflix released a documentary in which Avenatti appeared. The documentary re-tells the true story of Avenatti’s former client, John Leonard.  In the mid-90s, Leonard, then 20, found a loophole in a promotion run by a major corporation that, according to Leonard, entitled him to a $30 million fighter jet. The corporation, which ran the promotion as part of the so-called “Cola Wars,” claimed that the offer of a jet was an obvious joke and that nobody could have reasonably believed that they could actually win a fighter jet. 

Netflix teased the documentary by describing the man’s attempts to claim the fighter jet as setting “the stage for a David & Goliath court battle for the ages.”   In the end, the corporation prevailed.

Name the corporation.

Court upholds order prohibiting Drew Peterson’s former lawyer from disclosing information about Peterson’s missing ex-wife

Prologue

This post is longer than most.  You’ve been warned.

Summary

Today’s story verges on the tabloid-esque.  Still, it includes a helpful reminder on the scope of the so-called “self-defense” exception to a lawyer’s duty of confidentiality.

Post

In May, I posted Judge orders Drew Peterson’s former lawyer not to disclose information about Peterson’s missing ex-wife.  Peterson is a former police officer who gained national attention in 2007 when his fourth wife, Stacy Peterson, disappeared. Stacy has never been found. 

Stacy’s disappearance refocused attention on the 2004 death of Kathleen Savio, Drew’s third wife. Kathleen’s death was originally ruled an accident. Then, after Stacy’s disappearance, Kathleen’s body was exhumed. Following a forensics examination, the cause of death was changed to homicide.

In 2012, a jury convicted Drew of the premeditated murder of Kathleen. He was sentenced to 38 years in prison.  .

Joel Brodsky represented Peterson at trial.  Earlier this year, Peterson filed a petition for post-conviction relief.  Among other things, the petition alleges that Brodsky lied about his experience handling murder cases, failed to provide effective assistance of counsel during the trial, and threatened to withdraw if Peterson testified.  Shortly after the PCR was filed, and as reported here, Brodsky told WGN Investigates that “maybe it’s time” to reveal Stacy’s whereabouts.  Brodsky added:

  • “It’s something that weighs on my conscience.  I would never do anything that would hurt a former client, but he’s in prison, he’s never getting out.  So, if he’s a man, he’d say ‘I’m done, here’s what happened,’ so people can have closure.” 

Brodsky went on:

  • “I know everything about both of his wives – everything. I feel bad about Drew still not taking responsibility and Stacy still being missing.  I’m thinking about maybe revealing what happened to Stacy and where she is.”

Peterson’s lawyer requested an order prohibiting Brodsky from revealing the information. A judge granted the order, stating “[t]his may be the most vile crime in the U.S. but [defendants] still have a right to speak in confidence with their attorney.” 

Unsurprisingly, Brodsky appealed.  He raised both procedural and substantive arguments.  Last week, the appellate court affirmed the lower court’s ruling.  WGN9 and the ABA Journal have coverage.  The opinion includes references to the Rules of Professional Conduct. I’m going to focus on the court’s analysis of the confidentiality rule.[1]

Brodsky argued Peterson’s allegation of ineffective assistance of counsel constituted a waiver of the attorney-client privilege that allowed Brodsky to respond. In support, he cited to Rule 1.6(b)(5) of the Illinois Rules of Professional Conduct.  The rule is identical to Vermont’s Rule 1.6(c)(4).  Both permit disclosure of otherwise confidential information when a lawyer reasonably believes that disclosure is necessary:

  • “to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.”

This is the so-called “self-defense exception” to the confidentiality rule.  What’s critical to remember, and as I often mention during CLEs, is that the exception is a narrow one.  In Vermont, Comment [14] states that the exception permits disclosure “only to the extent the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes specified.”  It also states that “a disclosure adverse to the client’s interest should be no greater than the lawyer reasonably believes necessary to accomplish the purpose.”

I’ve made this point often in different contexts. For example, let’s assume the following:

  • Lawyer represents Client.
  • Client is charged with aggravated assault.
  • Client agrees to a plea.
  • Immediately after the change of plea hearing, Client thanks Lawyer and says “unrelated, but last summer, a friend paid me to burn down his lake house as part an insurance scheme. If they find out about that, will you represent me?”
  • Later, Client isn’t so thankful.  After a few months of incarceration, he files a petition for post-conviction relief alleging that Lawyer misled him about the strength of the State’s case in the aggravated assault.

I’ve explained to lawyers that it’s possible to respond to the allegation without adding “oh, and by the way, that lake house that burned last summer?  You know, the one that they haven’t solved? Well, my client told me that a friend paid him to set it as part of an insurance fraud scheme.”

Back to Brodsky and Peterson.  The appellate court interpreted the Illinois rule in a similar manner, stating:

  • “We find clear support for a narrow waiver in the language of Rule 1.6(b)(5), stating that an attorney is permitted to respond to the extent the attorney reasonably believes necessary to establish a defense to the client’s claim. We concur with defendant’s conclusion that ‘nothing about the specific allegations of ineffective assistance of counsel made by Defendant-Appellee in his pro se petition for post-conviction relief would require Appellant to disclose any supposed inculpatory statements (especially any supposed inculpatory statements about Stacy Peterson) in order to establish a defense to such claims.’”[2]

In sum, yes, the self-defense exception permits disclosure of otherwise confidential information to respond to certain allegations from clients and former clients.  However, any disclosure made pursuant to the exception must be limited to information reasonably necessary to respond to the allegations.

As always, let’s be careful out there.


[1] The opinion also references Rule 3.6, the rule on trial publicity. In Illinois, it states that “an attorney who is participating in or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and would pose a serious and imminent threat to the fairness of an administrative proceeding in the matter.” Noting that Peterson’s PCR might result in a new trial, the appellate court wrote “Few people in the history of Illinois jurisprudence have achieved Drew Peterson’s level of notoriety. We find it nearly inconceivable that any revelation about Stacy would not taking the jury pool should Peterson receive a new trial.”  People v. Peterson, 2022 Il App (3d) 220206, p. 19, ¶56.

[2]  People v. Peterson, 2022 Il App (3d) 220206, p. 19, ¶74.

Update: how I might respond if assigned to investigate a case like the one involving the poop in the Pringles can.

Last week I shared this story, one that left even me shaking my head in disbelief.  Several readers contacted me.  While agreeing that the conduct was reprehensible, many asked “what rule does it violate to throw a poop-filled Pringles cannister into a parking lot?”

Good question. Even as a former disciplinary prosecutor, I’m not certain how it’d be charged in Vermont.  Alas, if you’re reading, you didn’t come here for me not to have an opinion.  So, forced to wager, here’s how I suspect I’d approach a similar incident in Vermont.

Ohio’s disciplinary prosecutors charged the lawyer with a single count: violating Rule 8.4(d) of the Ohio Rules of Professional Conduct. The rule makes it “professional misconduct for a lawyer to engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.”

You might be wondering “wouldn’t Vermont file the same charge?”  Fair question.  But the answer is an unequivocal “no.” 

For many years, V.R.Pr.C. 8.4(h) made it professional misconduct for a Vermont lawyer to engage in conduct that adversely reflected on the lawyer’s fitness to practice. The rule, however, was repealed in 2009.  While I don’t remember the debate or discussion, the Reporter’s Note to the 2009 Amendment includes this statement:

  • “The present amendment follows the Model Rules in deleting subdivision (h) and related language in Comment [5] in light of the omission of from these Rules of ABA Model Rule 1.8(j) [1] prohibiting sexual relations with a client and the fact that as drafted the provision was overly broad.[2] (emphasis added).

So, in that Vermont no longer has the sole rule that Ohio charged the lawyer with violating, that wouldn’t be the charge here.

Well Mike, now what?  Surely, we must be able to respond to a lawyer who throws a container of their own poop into the lot where a person who the lawyer perceives as adverse to a client parks, right?!?!

I think so. And don’t call me Shirley.

If assigned to investigate and prosecute a similar incident here, I’d consider three violations.

First, V.R.Pr.C. 8.4(b) “makes it professional misconduct for a lawyer to engage in a ‘serious crime,’ defined as any felony or any lesser crime that adversely reflects on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.” In Ohio, the lawyer was charged with and pled guilty to two misdemeanors: Disorderly Conduct and Littering.  While I don’t think either is a per se violation of Rule 8.4(b), if misdemeanor charges were filed against a Vermont lawyer who did what the Ohio lawyer did, I’d argue that the conduct that resulted in the charges and plea is conduct that adversely reflects on the lawyer’s fitness.

Next, here’s the first clause of V.R.Pr.C. 4.4(a):

  • “In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay or burden a third person. . .”

While I’d be open to explanation, I cannot imagine any scenario in which a criminal defense lawyer who throws their own feces at the victim’s advocate’s car does so with a substantial purpose other than to embarrass or burden the victim’s advocate.

And, finally, V.R.Pr.C. 8.4(d) makes it professional misconduct for a lawyer “to engage in conduct that is prejudicial to the administration of justice.”  Reviewing the annotations to Model Rule 8.4(d), I might have an uphill battle on this charge. Still, I’d be comfortable arguing that the lawyer for a criminal defendant impedes the proper functioning of the judicial system when, on the way to an appearance in the case, the lawyer throws a cannister of their own feces into the victim’s advocate’s parking lot.

So, you readers who raised it are correct: Vermont does not have the rule that Ohio charged the lawyer with violating. Still, I don’t think that’d be the end of it.

As always, let’s be careful out there.


[1] Vermont has since adopted a rule that prohibits most sexual relations with clients.  See, V.R.Pr.C. 1.8(j). 

[2] It’s interesting that the rule prohibiting “conduct that adversely reflects on the lawyer’s fitness to practice law” was deemed overbroad.  While Rule 8.4(h) has been deleted, similar language remains in place. For one, in 2009, the Supreme Court held that the rule was “meant to capture other conduct similar to that described in [Rule 8.4’s] preceding subsections and to specifically define such conduct as that which reflects adversely on fitness to practice law.”  In re PRB Docket Nos. 2007-046 and 2007-047, 2009 VT 115, ¶ 12.  The rule’s other subsections remain on the books.  Meanwhile, Rule 25.C of Supreme Court Administrative Order 9 states “Information relating to a lawyer’s physical or mental condition which adversely affects his or her ability to practice law shall be the subject of formal proceedings to determine whether the lawyer shall be transferred to disability inactive status.”  Finally, keep reading for my discussion of V.R.Pr.C. 8.4(b).

Finally — misconduct that left even me in disbelief.

Every so often, a lawyer will preface a story about legal ethics with a statement like “Mike, I GUARANTEE that you WILL NOT believe this one.”

Yes, I will.  That’s what 22 years in this field can do to a person.

Then I read today’s story.  It involves misconduct that, until now, I would only have imagined in a TV or movie script. I mean, I’m not even certain that Saul Goodman would stoop so low.  Sadly, it’s real life.

I learned of the story via the ABA Journal and the Legal Profession Blog.  Respectively, the headlines:

The story is mind-boggling.

According to disciplinary charges filed last week, the lawyer represented a client charged with several criminal offenses, including Murder.  In June 2021, both the lawyer and a victim’s advocate appeared at the client’s arraignment.  The lawyer had known the victims’ advocate for years, knew that the advocate was involved in the lawyer’s client’s case, and new that the victim’s advocate worked for an organization named “Haven of Hope.”

The court set a pretrial hearing for November 30, 2021.  The client’s last name is Wells, the victim advocate’s Wilkinson-Carpenter.  What follows in italics is an excerpt from the disciplinary complaint, which refers to the lawyer as “respondent.”

  • 15. On November 30, 2021, the day of Wells’s pretrial hearing, respondent deposited his feces into an empty potato chip can before leaving his home. He did not put a lid on the can. Respondent drove with the can of feces to Cambridge, Ohio.
  • 16. At approximately 8:10 a.m. – 8:15 a.m., respondent turned his vehicle down the alley where Haven of Hope’s parking lot is located.
  • 17. At the entry to the alley, there is a sign on the side of the building indicating that Haven of Hope is housed there. Further, there was construction at the entrance to the alley which made the alley more difficult to access.
  • 18. Respondent slowed his vehicle down as he initially passed Haven of Hope’s parking lot.
  • 19. Respondent then drove further down the alley, passing by other parking lots, and turned around, allowing him to drive past Haven of Hope’s parking lot a second time.
  • 20. Respondent slowed again as he passed Haven of Hope’s parking lot for the second time and threw the open chip can containing his feces out of his car window and into Haven of Hope’s parking lot.
  • 21. Wilkinson-Carpenter observed respondent throw the can out of the window of his vehicle toward Haven of Hope’s parking lot.
  • 22. Respondent then sped off in his vehicle and drove to the courthouse for Wells’s 8:30 a.m. pretrial hearing.
  • 23. Wilkinson-Carpenter approached the item which landed close to her car and discovered it was a Pringles can containing what appeared to be human feces.

The charges go on to allege that the victim’s advocate reported the incident to law enforcement and that the lawyer eventually pled guilty to Disorderly Conduct and Littering.

So far, I’d yet to reach the part of the story that left me in disbelief. Then I read paragraph 27 of the disciplinary complaint.  It alleges:

  • “27. Respondent has engaged in similar conduct on approximately ten previous occasions, indiscriminately choosing the location where he throws the chip cans containing his feces.”

Thinking back to the opening and a jingle of my youth, I GUARANTEE this: today’s story certainly does not leave me with a fever for the flavor.

As always, let’s be careful out there.

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