Monday Morning Honors #237

Happy Monday.

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

Honor Roll

  • Karen Allen, Karen Allen Law
  • Matthew Anderson, Pratt Vreeland Kennelly Martin & White
  • Evan Barquist, Montroll Oettinger & Barquist
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor of Law, University of Illinois Chicago
  • Andrew Delaney, Martin Delaney & Ricci
  • Benjamin Gould, Paul Frank + Collins
  • Robert Grundstein
  • Glenn Jarrett, Jarrett & Luitjens
  • Deb Kirchwey, Law Office of Deborah Kirchwey
  • Jeanne Kennedy, JB Kennedy Associates, Mother of the Blogger
  • John Leddy, McNeil, Leddy & Sheahan
  • Pam Loginsky, Deputy Prosecutor, Pierce County (WA) Prosecutor’s Office
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeffrey Messina, Messina Law
  • Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
  • Keith Roberts, Darby Kolter & Roberts
  • Jonathan Teller-Elsberg, Sheehey Furlong & Behm
  • The Honorable John Valente, Vermont Superior Judge
  • Jason Warfield, Esq.
  • Jack Welch, Esq.
  • Thomas Wilkinson, Cozen O’Connor
  • Zachary York, Legal Assistant, Sheehey Furlong & Behm

 Answers

Question 1

 I often blog and talk about the 7 Cs of Legal Ethics.

With respect to one of the Cs, a comment indicates that the applicable rule “sets forth the special duties of lawyers as officers of the court to avoid conduct that undermines the integrity of the adjudicative process.”

Which C?

CANDOR TO A TRIBUNAL.  V.R.Pr.C. 3.3, Cmt. [2]

Question 2

Which involves a different rule than the others?

  • A.  don’t state or imply that you’re disinterested.
  • B.  the new matter is the same as or substantially related to the matter in which you represented the person.
  • C.  if the person misunderstands your role, correct the misunderstanding.
  • D.  if the person’s interests are likely to conflict with your client’s, don’t give the person any legal advice other than the advice to secure counsel.

 B is the correct answer because it is part of Rule 1.9(a)’s analysis of former client conflicts.  A, C, and D are part of Rule 4.3’s duties when dealing when an unrepresented person.

 Question 3

 There’s a rule that prohibits lawyers from making false or misleading statements about their services.

Can truthful statements that are misleading violate the rule?

  • A.  No.  Truth is an absolute defense, no matter how misleading it might be.
  • B.  Yes, if they omit a fact that is necessary to make the statement considered as a whole not materially misleading.

 V.R.Pr.C. 4.1.

Question 4

There’s a rule that includes an exception for an “insurance company . . . licensed to do business in the Vermont.”  This week, a lawyer emailed to ask me if I thought a particular company qualified as an “insurance company” and, therefore, that the exception applied.

The rule in question deals with:

  • A.  Safekeeping Property/Trust Accounting
  • B.  Conflicts of Interest
  • C.  Communicating with a represented person
  • D.  The Unauthorized Practice of Law

V.R.Pr.C. 1.15(f) prohibits lawyers from disbursing from trust without “collected funds.”  The exception in V.R.Pr.C. 1.15(g)(5) allows lawyers to disburse in reliance upon the deposit of a check issued by an insurance company that is licensed to do business in Vermont.

 Question 5

 In the intro I mentioned candy, intellectual property, and trademark infringement suits.

In late August, a California cookie company filed a trademark suit against a candy maker.  The lawsuit focuses on the shape of one the candy maker’s most famous products.  While most of us know the product as a tiny treat, the largest ever made weighed in at 30,540 pounds. Created in 2007, it was displayed in Pennsylvania to celebrate the candy maker’s 100th anniversary.

Name the candy maker and the product that is the subject of the trademark suit.

Hershey’s Kisses.   Lancaster Online and Lexology are among the outlets reporting the story.

Hershey Kiss

 

 

 

Five for Friday #237

Welcome to Friday and the 237th legal ethics quiz.

In the intro to the last quiz, I invited readers to participate in this blog’s first ever moot court-style competition. I posted my favorite responses here.

Last night, as I researched today’s introduction, I thought I’d found the subject matter for this blog’s second ever moot court-style competition, one that would require participants to act as lawyers in an intellectual property/trademark infringement case.  That’s because I learned that tomorrow is Sweetest Day 2021.

Personally, it was a literal discovery.  I’d never heard of the holiday.  The Cincinnati Enquirer reports that the holiday “is celebrated on the third Saturday in October [and is] touted as a way to share romantic deeds, expressions, acts of charity and kindness.” According to Wikipedia, the first took place in 1921 after a group of candy makers “concocted” a holiday in which people gave candy to others.

Initially, my spidey sense tingled.

“Hmm, I think I’ve heard of something like this before.  Mike, wait! This is nothing but Valentine’s Day repackaged for October!”

From there sprouted the idea of another moot court competition.  One in which readers could choose to represent either Valentine’s Day or Sweetest Day in the inevitable trademark infringement suit.  Surely some readers would’ve opted to champion Valentine’s Day and crafted sterling arguments in favor of an immediate injunction banning any observation of Sweetest Day.

Then I did some more research.

Per the National Day Calendar (and other sources not linked here), yes, the day includes “candy and treat for our sweethearts.”  Nevertheless, the holiday is more than that.  It “encourages everyone to be generous even in the smallest of ways” and “reminds us that even small tokens improve the lives of those around us.”  That is, even the smallest of gestures can help those in the greatest need.  Which is exactly what I was getting in “Ask the question” when I urged us to remember that, sometimes, “are you alright?” is all that it takes to improve another’s wellness.

So, with a better understanding of the meaning of Sweetest Day, I decided to cancel the moot court competition and to dismiss the trademark suit filed by Valentine’s Day.  Because high on the profession’s list of things to avoid should be “arguing against small acts of kindness.”

In my posts and CLEs on client confidences, I often steal a line from Thomas Edison and remind lawyers that we should take advantage of every opportunity to keep quiet.  The lesson struck me as I thought about Sweetest Day.

These days, the profession could use a little Sweetest Day. Whether today, tomorrow, or whenever, each of us will have opportunities for small, kind gestures, even towards people who haven’t been too kind to us.

We should take advantage of them all.

Onto the quiz!

the-quiz

Rules

  •  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

 I often blog and talk about the 7 Cs of Legal Ethics.

With respect to one of the Cs, a comment indicates that the applicable rule “sets forth the special duties of lawyers as officers of the court to avoid conduct that undermines the integrity of the adjudicative process.”

Which C?

Question 2

 Which is part of a different rule than the others?

  • A.  don’t state or imply that you’re disinterested.
  • B.  the new matter is the same as or substantially related to the matter in which you represented the person.
  • C.  if the person misunderstands your role, correct the misunderstanding.
  • D.  if the person’s interests are likely to conflict with your client’s, don’t give the person any legal advice other than the advice to secure counsel.

 Question 3

 There’s a rule that prohibits lawyers from making false or misleading statements about their services.

Can truthful statements that are misleading violate the rule?

  • A.  No.  Truth is an absolute defense, no matter how misleading it might be.
  • B.  Yes, if they omit a fact that is necessary to make the statement considered as a whole not materially misleading.

Question 4

 There’s a rule that includes an exception for an “insurance company . . . licensed to do business in the Vermont.”  This week, a lawyer emailed to ask me if I thought a particular company qualified as an “insurance company” and, therefore, that the exception applied.

The rule in question deals with:

  • A.  Safekeeping Property/Trust Accounting
  • B.  Conflicts of Interest
  • C.  Communicating with a represented person
  • D.  The Unauthorized Practice of Law

Question 5

 In the intro I mentioned candy, intellectual property, and trademark infringement suits.

In late August, a California cookie company filed a trademark suit against a candy maker.  The lawsuit focuses on the shape of one the candy maker’s most famous products.  While most of us know the product as a tiny treat, the largest ever made weighed in at 30,540 pounds. Created in 2007, it was displayed in Pennsylvania to celebrate the candy maker’s 100th anniversary.

Name the candy maker and the product that is the subject of the trademark suit.

 

Wellness Wednesday: Ask the question.

When it comes to attorney wellness, I do not doubt that most lawyers and legal professionals want to help those in need.  In that respect, we’ve come a long way from the days when we convinced ourselves “that person’s issues are none of my business.”

No, I don’t think we continue to ask ourselves “should I help?”  Instead, from personal experience and stories shared by other legal professionals, my sense is that we now tell ourselves “I want to help, but I have no idea what to do.  So, I probably should stay out of it so that I don’t make it worse.”

Fortunately, the folks at the Institute for Well-Being in the Law are here to help us to help others.

wellness

The Institute has created Managing Mental Health in the Workplace: A Challenging Conversations GuideI recommend it for anyone wondering how and where to begin.

The Guide begins by sharing 11 tips on how to approach a colleague.  I like them all, especially the first and last.

Recognizing that we’re often unsure whether to reach out, Tip 1 urges us to trust our instincts and to “err on the side of checking on the person.”  Meanwhile, Tip 11 echoes a point I’ve learned from experts in the wellness community: sometimes the best thing to do is to ask, “are things okay?”  As the Guide points out by quoting an anonymous person:

  • “What made a huge difference was being asked if I was okay – simple as that.”

From there, the 4-page Guide includes:

  1. Signs It May Be Time To Have A Conversation.
  2. Conversation Checklist.
  3. Questions/Statements That May Help.
  4. Questions To Encourage Action.
  5. Questions/Statements To Avoid.

And more.

Again, I’m no expert and I’m often reluctant to help and even more clueless how to do so.  But thanks to resources like the Guide and the people who published it, I’ve learned a few things, including that sometimes a simple “are you okay” is all that it takes.

Ask the question.

And, when you do, remember that if the person’s response is “no,” that’s okay too.

Because it’s okay not to be okay. Help is available.

Previous Wellness Wednesday Posts

Yes, wellness includes the results of my first moot court competetion

Wellness Wednesday:  It’s okay to ask for help.  Bar Assistance will listen and support you

Wellness Wednesday: Set communication boundaries with clients and opposing counsel

Wellness Wednesday: Compassion Fatigue

Wellness Wednesday: A message from Justice Eaton

Jessica Burke: “Well People Do”

Wellness Wednesday: Schitt$ Creek and Paddles

Wellness Wednesday: Be Kind to Lawyers

Civility Matters. Especially Now.

Coping with COVID-19 Related Stress & Anxiety

Wellness Wednesday: Unplug

Well-Being is an Aspect of Competence

Wellness Wednesday: Survival Skills

Wellness Wednesday: Make time for what (and who) matters

Wellness Wednesday: Risk & Response (this one is about the report I mentioned from the Virginia State Bar)

Do summer your way

Wellness Wednesday: Meet Alison, Shireen, Samantha, and Alison

Reach Out, Check In

Wellness Wednesday: Mentor Someone

Wellness Wednesday: Joan Loring Wing

Wellness Wednesday: Law Day & Pro Bono

Get your sleep

Take a Chance on Being Nice

Attorney Wellness: We’ve Only Just Begun

Be Kind to a Lawyer Today

Be Nice to Someone Today

Wellness v. Well-Being

Wellness Wednesday: Meet Molly Gray

Wellness Wednesday: Judge Garland & My Cousin Vinny

Shakespeare, Pink Floyd and Wellness

Wellness Wednesday: You are not an impostor

Wellness Wednesday: “N O” is “O K”

Wellness Wednesday: Stop it!

Wellness Wednesday: Meet Jeff Messina

Lawyers Helping Lawyers Part 2

Lawyers Helping Lawyers: Keep it on the front burner

Lawyer Well-Being: a call to action

Anxiety, Stress & Work-Life Balance for Lawyers

Make time for what matters

Lawyer Wellness: resolve to find 6 minutes for yourself

108 is way too many

Workplace Happiness

Make Wellness a Habit

A pledge by legal employers to focus on lawyer well-being

Legal Ethics & the Water Cooler

Wellness Wednesday: Island Vines

Wellness Wednesday: on ponds, puffery and paltering

Wellness Wednesday: Neil Diamond, the Lock Screen, and National Mental Health Day for Law Students

New Jersey approves remote work by lawyers who live in NJ but who are not admitted there.

Yesterday I blogged about Redesigning Legal, a project dedicated to rethinking and redesigning the attorney regulation system.  The project includes looking anew at the definition of the “unauthorized practice of law.”  With that in mind, I’m happy to report that yet another jurisdiction has concluded that lawyers who work remotely from a state in which they are not admitted do not necessarily engage in the unauthorized practice of law.

Legal Ethics

Last week, New Jersey’s Committee on the Unauthorized Practice of Law joined with the Advisory Committee on Professional Ethics to issue Joint Opinion 59/742.   Lexology’s Professional Responsibility Blog reported the opinion.

The committees framed the issue as follows:

  • “Many non-New Jersey licensed lawyers have called the attorney ethics research assistance hotline with questions about whether they would be considered to be practicing New Jersey law if they work remotely from their New Jersey homes for law firms, or as in-house counsel for companies, that are located out-of-state.”

The committees concluded that:

  • “Non-New Jersey licensed lawyers may practice out-of-state law from inside New Jersey provided they do not maintain a ‘continuous and systematic presence’ in New Jersey by practicing law from a New Jersey office or otherwise holding themselves out as being available for the practice of law in New Jersey.”

With the opinion, New Jersey joins the conclusion reached by a growing number of jurisdictions.[1]

How might this work in real life? Well, I think it’d be something like this.

My father lives in North Carolina. Let’s say that I decided to spend the winter there.[2]  Assuming my bosses approved, if North Carolina takes the same view as the ABA, New Jersey, Florida, Utah, Maine, and Pennsylvania, I’d be able to continue doing my job without getting admitted in North Carolina so long as I don’t hold myself out as practicing there or otherwise establish a continuous and systematic professional presence there.  On this point, I’m a big fan of statements of two statements.

The first appears in ABA Formal Opinion 495.  For UPL purposes, lawyers do not “hold themselves out to the public” when they are “for all intents and purposes invisible as a lawyer to a local jurisdiction where the lawyer is physically located, but not licensed.”  Invisible is how I prefer to roll.

The second, which is my favorite, appears in Utah State Bar Opinion 19-03. Referencing an Ohio decision that was on point, the Utah State Bar asked:

  • “what interest does the Utah State Bar have in regulating an out-of-state lawyer’s practice for out-of-state clients simply because he has a private home in Utah? And the answer is the same—none.”

Finally, while not today’s topic, the NJ opinion and others like it remind me of attorney wellness.

For some, working from home helps with wellness and work-life balance. Imagine a lawyer who is licensed in New Hampshire, has a New Hampshire office, and who practices only New Hampshire law.  Further imagine that the lawyer lives in Vermont but is not admitted here. Finally, imagine that the lawyer prefers to work from home a few times a week.

What should we care as long as the lawyer doesn’t do anything to suggest that the lawyer has a Vermont office, practices Vermont law, or is willing to provide legal advice on Vermont matters?  The lawyer remains subject to New Hampshire’s disciplinary jurisdiction for all of lawyer’s New Hampshire matters. So, there’s no risk to consumers, to the Vermont legal system, or to the Vermont legal profession. By understanding and accepting that, perhaps we help the lawyer to look out for their own wellness.

Rethink. Redesign.

[1] Bar Association of San Francisco Opinion 2021-1; Florida Supreme Court and Florida Bar (2021); Pennsylvania Bar Association & Philadelphia Bar Association Opinion 2021-100; ABA Formal Opinion 495 (2020); District of Columbia Opinion 24-20 (2020); Utah Ethics Opinion 19-103 (2019); Maine Ethics Opinion 189 (2005)

[2] Mom – this is a HYPOTHETICAL for learning purposes only.

Rethinking & Redesigning Attorney Regulation

Wednesday I’m on a panel that is part of the VBA’s Annual Meeting.  Laura Wilson, Ian Carleton, and I will present Wellness Tips for Legal Employers.  Laura and Ian co-chaired the Legal Employers Committee of the Vermont Commission on the Well-Being of the Legal Profession.  Their committee’s recommendations are fantastic and will serve as the outline for our seminar.

Anyhow, there was a time when a CLE on attorney wellness was big news.  Not anymore.  These days wellness is part of the Vermont legal profession. Thank goodness.  Alas, I’ve not been as successful gaining traction on reforming the way that we regulate lawyers.

In May 2016, I posted as series of blogs on Alternative Business Structures (ABS).  My goal was to spark debate over whether to amend Rule 5.4 of the Vermont Rules of Professional Conduct to drop the prohibition on nonlawyer ownership of and investment in law firms.  It didn’t take.

But now I’m back!

redesigning_legal_hero

Nationally, “reregulation” is a movement that aims to rethink attorney regulation.   The goal is to consider whether the current regulatory structure unnecessarily limits both innovation and access to legal services.  Stated differently, are there regulatory changes to be made that will increase access to legal services without compromising consumer protection?

Several groups are leading the discussion.  One is the Institute for the Advancement of American Legal System. I’ve had the good fortune to get to know some of the folks at IAALS through their Unlocking Legal Regulation project.  Another is the American Bar Association’s Committee on the Delivery of Legal Services.  The committee’s current chair is none other than Vermont’s own Fritz Langrock.

Earlier this year, IAALS, the Delivery Services Committee, and others started the Redesigning Legal Speaker Series.  The series provides “a forum to learn about and discuss the regulatory changes underway, the challenges they face, and the opportunities they provide.”  To date, the series has included:

So far, the series has been terrific.  The seminars provide an easy introduction to the reregulation discussion.  Next week the series risks jumping the shark: the organizers decided to include me on the panel tasked with discussing Lawyer UPL: Has it Jumped the SharkAnyhow, I intend to use the series as a road map to drive discussion in Vermont.

For now, practicing lawyers might be wondering “Mike, consumer protection and access to legal services are great, but what’s in it for me?”

Good question.  Here’s my answer.

Arizona was the first state to repeal the ethical prohibition on nonlawyer ownership.  In a recent edition of GPSolo Magazine, Arizona Supreme Court Justice Anne Zimmer shared Regulatory Reform: What’s in it for me?  It’s worth a read. As is an article that ran in the same issue.  Andrew Arruda’s Let’s Stop Cutting Off Our Noses: How Reregulation Benefits Lawyers.

In closing, today’s post is but a (re)-opening salvo.  This time, I’m not going to give up.

Stay tuned.

ABA issues guidance on a lawyer’s obligations regarding language access in a lawyer-client relationship.

I used to serve as an acting judge in Chittenden Small Claims Court.  I once presided over a landlord-tenant dispute.  The tenant was represented, the landlord was not.  Neither party’s first language was English.  The tenant was fluent in English and able to communicate clearly with counsel and me.  The landlord was not at all comfortable with English and I did not know a single word of the party’s shared native language.  So, I had an interpreter present.

The hearing went fine.  Still, it left me wondering.

As bar counsel, I’m quite familiar with the duties of competence and communication.  Each is one of my 7 Cs of Legal Ethics.  After the small claims hearing, I was struck by the difficulty that the landlord – and many others involved with the judicial system – must have in finding a lawyer who can help them to understand their legal matters. That is, a lawyer who can competently communicate with them.

Earlier this week, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 500: Language Access in the Client-Lawyer Relationship.  The ABA Journal reported the opinion here.

The opening lines of the synopsis provide the upshot:

  • “Communication between lawyer a lawyer and a client is necessary for the client to participate effectively in the representation and is a fundamental component of nearly every client-lawyer relationship. When a client’s ability to receive information from or convey information to a lawyer is impeded because the lawyer and client do not share a common language, or owing to a client’s non-cognitive physical condition, such as a hearing, speech, or vision disability, the duties of communication . . . and competence . . . are undiminished.”

Next, the body of the opinion starts with the “baseline” proposition that:

  • “when a lawyer and client cannot communicate with reasonable efficacy, the lawyer must take reasonable steps to engage the services of a qualified and impartial interpreter and/or employ an appropriate assistive or language-translation device to ensure that the client has sufficient information to intelligently participate in decisions relating to the representation and that the lawyer is procuring adequate information from the client to meet the standards of competence practice.”

From there, the opinion provides guidance on:

  1. a lawyer’s obligation to assess whether a translator or interpreter or interpretive device is necessary;
  2. the qualifications to look for (and to avoid) in a person or service that translates or interprets; and,
  3. a lawyer’s obligations when supervising a translator or interpreter.

I’m not going to go through the whole opinion here.  There’s no substitute for reading it.[i]

In the end, the duties of competence and communication require a lawyer to be able to deliver and receive information to and from the client.

As always, be careful out there.

communication

[i] I will stress one point: be careful in selecting an interpreter.  From inquires I’ve received, my sense is that many lawyers use a client’s friend or family member.  That’s understandable and not necessarily inappropriate.  Still, echoing this opinion issued by the New Hampshire Bar Association in 2010, the new ABA opinion warns that there is “substantial risk that an individual in a close relationship with the client may be biased by a personal interest in the outcome of the representation.”

Wellnes Wednesday: yes, wellness includes the results of this blog’s first ever moot court competition.

Wellness is a big tent.

Does it include understanding that it’s okay to reach out to the Bar Assistance Program?  Does it include prioritizing wellness within the profession’s workplaces?  Does it include CLEs on recognizing the signs of burnout?

Yes.

It includes all the serious issues associated with making the profession healthier.  Issues that I’ve blogged and spoken about for years.

But, today, I need a break.  Because wellness is also personal.  And, personally, beating the drum isn’t always what’s best for me.  My wellness includes finding the occasional harmless fun at the intersection of the law, legal ethics, and pop culture.

There’s nothing about this blog (and my job) that I enjoy more than reader responses to the Friday columns and quizzes.  Last Friday, I shared the story of the man who joined a search party that was trying to find himself.  Upon realizing that he was the “missing” person for whom the searchers were calling, the man replied, “I am here.”  Among others, BBC News and Sky News reported the story.

Melding the story with Seinfeld, I created the following scenario:

  • Kramer is the “missing” person.
  • Newman organizes the search party and posts a reward for whoever finds the missing Kramer.
  • George joins the search party, dutifully hollers “Kramer,” and is the person to whom Kramer responds, “I am here.”
  • George claims the reward.
  • Newman refuses to pay, insisting that Kramer was never missing and found the search party.

Then, with Rule 3.1 of the Vermont Rules of Professional Conduct in mind, I challenged contestants to make their best non-frivolous arguments on behalf of either George or Newman.

Your replies made me smile and laugh.  So much so that as I drafted this post yesterday morning, I decided to save it for today, realizing that the smiles and laughs were wellness.

Many thanks to all who submitted replies!  Not one took more than a few seconds to read, but each made my day a brighter place. In reverse order of receipt and under headings that capture what made me a fan, here are my favorites.

Wellness

*****

I’m a sucker for Latin phrases – and even Newman deserves representation.

No contract was formed due to lack of a condition precedent—Kramer was never missing. Therefore, the contract is void ab initio. Neumann cannot pay any reward in this case.

I’m a huge fan of both honesty and brevity.

No time to do an argument for George, but I think he should get the reward.

The internal reference to an actual Seinfeld episode is gold!

I think George should get the reward.  Newman was clearly convinced that Kramer was missing or else he would not have formed a search party.  Once he reached that mental conclusion, in his mind he was prepared to issue the reward and his claiming that Kramer was never missing is disingenuous.  Although George knows Kramer, he had no role of interfering with Newman’s process and determination of concluding that Kramer was missing or that a reward should be issued for finding him.  George may have known that Kramer was in the search party by recognizing him (and he had no obligation to point that out if he did see him which maybe he didn’t) and it was his action that “found” Kramer.  Therefore, George is entitled to the reward.  George should not be rewarded for using the system as it was organized and established to work.  But then again, in a just world (although certainly which Seinfeld is not given their narcissism and selfishness), the entire search party would split the reward as they are really the ones that found him.  If they shared the reward, maybe Newman could buy some soup for everyone.  As long as he knows what he wants when it’s his turn to order.

Bonus for writing as a lawyer.  Infinity bonus for the disclaimer. As disciplinary counsel, I had occasion to represent lawyers who, sadly, should’ve made the disclaimer a permanent part of their signature line.

I represent George.  My client, in good faith and in reliance on Newman’s offer of a reward, participated in the search and, had he not called Kramer’s name, Kramer would not have called out “I am here” when he did.  Thus, George’s actions (joining the search party and calling Kramer’s name) were the actual cause of Kramer being found when he was.  But for George’s actions, Kramer would not have been found when he was.  Newman’s conditional offer was accepted and acted upon by George, who fully performed his side of the contract by locating Kramer.  Newman must pay my client the reward.  Newman’s refusal to pay and his claim that Kramer was never missing is frivolous, both in law and in fact, and his attorney is in violation of the Rules of Professional Conduct.  Counsel’s claim that Kramer was not lost because “Kramer found the search party” is a blatant misrepresentation of the fact that Kramer responded to George’s call.  Thus, counsel’s factual claim is frivolous.  And counsel cites to no legal support for this theory.  Indeed, the well-established concepts of contract law render it clear that an offer was accepted and my client performed his part of the contract.  If Newman’s counsel is arguing that the meaning of “find” was ambiguous, any ambiguity must be resolved against the offeror.

(Disclaimer: Of course, this is not based upon actual legal research! Thus, whether my argument is frivolous is certainly in question!)

*****

If you’re still reading, there’s nothing wrong with having taken a minute to inject a bit of humor and entertainment into the workday.

Anybody who disagrees needs a bigger tent.

Wellness for all!

 

Monday Morning Honors #236

Happy Monday.

Friday’s questions are here.  Later today I’ll post the top 3 arguments submitted in response to my challenge to argue whether George is or is not entitled to the reward posted by Newman.  For now, the answers to Friday’s quiz follow today’s Honor Roll.

Honor Roll

  • Karen Allen, Karen Allen Law
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor of Law, University of Illinois Chicago
  • Beth DeBernardi, Administrative Law Judge, Vermont Department of Labor
  • Andrew Delaney, Martin Delaney & Ricci
  • Robert Grundstein
  • Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
  • Deb Kirchwey, Law Office of Deborah Kirchwey
  • John Leddy, McNeil, Leddy & Sheahan
  • Pam Loginsky, Washington State Association of Prosecutors
  • Kevin Lumpkin, Sheehey Furlong & Behm
  • Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
  • Nancy Hunter Rogers, Chamberlin Elementary School
  • Keith Roberts, Darby Kolter & Roberts
  • Jonathan Teller-Elsberg, Sheehey Furlong & Behm
  • Rachel Trow, Legal Assistant, Shoup Evers & Green
  • Jason Warfield, Esq.
  • The Honorable John Valente, Vermont Superior Judge
  • Zachary York, Legal Assistant, Sheehey Furlong & Behm

Answers

Question 1

A few days ago, I presented at the VBA’s Basic Skills seminar.  I shared with the new lawyers my 7Cs of Legal Ethics.  Here’s one of the questions:

Each of the following is related to which “C”?

  • The so called “self-defense” exception that is available to lawyers in certain situations.
  • The distinction between information that is “generally known” and information that is “public record.”
  • Safeguarding client information that is transmitted or stored electronically.
  • So-called “noisy” withdrawal from representing a client.

CONFIDENTIALITY.  See, V.R.Pr.C. 1.6.

Question 2

Attorney called me with an inquiry.  Attorney said “Mike, I represent Green in Green v. Yellow.   Lawyer represents Witness.  Witness is a fact witness, has nothing at stake in the dispute, and, obviously, isn’t a party.  So, I can contact Witness directly without Lawyer’s consent, right?

What was my response?

  • A.  Right.
  • B.  The rule is unclear.
  • C.  It depends. Is Witness testifying for your client or for Yellow?
  • D.  Wrong. The rule applies to any person who is represented in a matter.

 See, V.R.Pr.C. 4.2, Cmt. [2].

 Question 3

 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 the lawyer’s main contact on matters related to the representation.
  • C.  is a minor.
  • D.  asks the lawyer not to disclose to the other client information relevant to the common representation.

 See, V.R.Pr.C. 1.7, Cmt. [31].

 Question 4

 Attorney called me with an inquiry.  I listened and responded, “your ethical obligation is to notify the sender that you received it.  Depending on the circumstances, the rules of civil procedure might impose additional duties.”

What did Attorney receive?

  • A.  information that Attorney knows or should know was inadvertently sent.
  • B.  a last-minute change to previously arranged wiring instructions.
  • C.  a subpoena to produce confidential information related to the representation of a current or former client.
  • D.  a request to meet with a prospective client with whom Attorney knows there exists a conflict of interest.

V.R.Pr.C. 4.4(b).

Question 5

Keith Kasper frequently appears on the #fiveforfriday honor roll.  Keith is retiring at the end of the year.  A week ago today, I had the pleasure of stopping by Keith’s retirement party.  This week’s Question 5 honors Keith.

On January 31, 1970, a (still) well-known band played a concert in New Orleans.  Upon returning to their hotel, band members found police executing search warrants in their rooms.  Along with many others, the entire band was arrested on drug charges.

Low on money after posting bail, the band played a bonus show a few nights later to raise money to hire lawyers.  I can only assume that the lawyers performed competently, as all charges eventually were dismissed.

The experience inspired the band to write one of its most iconic songs.

Name the band.

Bonus: name the song.

“Sittin’ and starin’ out of the hotel window
Got a tip they’re gonna kick the door in again
I’d like to get some sleep before I travel
But if you got a warrant, I guess you’re gonna come in

Busted, down on Bourbon Street
Set up, like a bowlin’ pin
Knocked down, it gets to wearin’ thin
They just won’t let you be.”

The Grateful Dead, Truckin’.

truckin

Five for Friday #236

Welcome to Friday, October, and the 236th legal ethics quiz!

As the days grow shorter, I’ve resolved not to waste daylight.  It’s bad enough that I waste the darkness watching the Red Sox strive to avoid the playoffs.  Anyhow, with my new resolution, I’ve no time for a lengthy introduction to this week’s quiz. Yet, I’d be remiss not to share a story shared with me by a friend, fellow attorney, and one of the first people to follow this blog.

As reported earlier this week by BBC News and Sky News, after drinking a bit, a Turkish man wandered off and joined a search party. Only to discover that the search party was looking for himself.  Upon realizing that he was the “missing” person for whom the searchers were calling, the man replied, “I am here.”

The story amuses me on many levels.

It’s not far-fetched to imagine myself, my brother, and some many of our friends and cousins starring in a similar production.  Further, I chuckle at the version in which the “missing” person, upon recognizing his name and still melancholy about not having had his turn at the karaoke mic before going missing, channels his inner Lionel Richie and warbles  “Hello . . . is it me you’re looking for?”

Most importantly, the story joins the Was That Wrong? series as a perfect prop to connect two of this blog’s most favorite topics:  Seinfeld and legal ethics.  And I will do so by challenging readers to the first Ethical Grounds Moot Court Competition.  Consider it an alternative for readers averse to the quiz. Here’s the scenario:

  • Kramer is the “missing” person.
  • Newman organizes the search party and posts a reward for whoever finds the missing Kramer.
  • George joins the search party, dutifully hollers “Kramer,” and is the person to whom Kramer responds, “I am here.”
  • George claims the reward.
  • Newman refuses to pay, insisting that Kramer was never missing and that it was Kramer who found the search party.

You may choose to advocate for either George or Newman.  With Rule 3.1 of the Vermont Rules of Professional Conduct in mind, make your best non-frivolous argument on behalf of your client.  If you submit an argument, it might find its way to this blog, albeit I promise without any identifying information included.

For all others, onto the quiz!

the-quiz

Rules

  •  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

 A few days ago, I presented at the VBA’s Basic Skills seminar.  I shared with the new lawyers my 7Cs of Legal Ethics.  Here’s one of the questions:

Each of the following is related to which “C”?

  • The so called “self-defense” exception that is available to lawyers in certain situations.
  • The distinction between information that is “generally known” and information that is “public record.”
  • Safeguarding client information that is transmitted or stored electronically.
  • So-called “noisy” withdrawal from representing a client.

Question 2

 Attorney called me with an inquiry.  Attorney said “Mike, I represent Green in Green v. Yellow.   Lawyer represents Witness.  Witness is a fact witness, has nothing at stake in the dispute, and, obviously, isn’t a party.  So, I can contact Witness directly without Lawyer’s consent, right?

What was my response?

  •   A.  Right.
  •   B.  The rule is unclear.
  •   C.  It depends. Is Witness testifying for your client or for Yellow?
  •  D.  Wrong. The rule applies to any person who is represented in a matter

 Question 3

 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 the lawyer’s main contact on matters related to the representation.
  • C.  is a minor.
  • D.  asks the lawyer not to disclose to the other client information relevant to the common representation.

 Question 4

 Attorney called me with an inquiry.  I listened and responded, “your ethical obligation is to notify the sender that you received it.  Depending on the circumstances, the rules of civil procedure might impose additional duties.”

What did Attorney receive?

  • A.  information that Attorney knows or should know was inadvertently sent.
  • B.  a last-minute change to previously arranged wiring instructions.
  • C.  a subpoena to produce confidential information related to the representation of a current or former client.
  • D.  a request to meet with a prospective client with whom Attorney knows there exists a conflict of interest.

Question 5

 Keith Kasper frequently appears on the #fiveforfriday honor roll.  Keith is retiring at the end of the year.  A week ago today, I had the pleasure of stopping by Keith’s retirement party.  This week’s Question 5 honors Keith.

On January 31, 1970, a (still) well-known band played a concert in New Orleans.  Upon returning to their hotel, band members found police executing search warrants in their rooms.  Along with many others, the entire band was arrested on drug charges.

Low on money after posting bail, the band played a bonus show a few nights later to raise money to hire lawyers.  I can only assume that the lawyers performed competently, as all charges eventually were dismissed.

The experience inspired the band to write one of its most iconic songs.

Name the band.

Bonus: name the song.

 

Tech competence: don’t take the wrong message from this NJ decision declining to sanction a lawyer.

When I created this blog, many early posts focused on technology.  Long-time readers probably remember the mantra “competence includes tech competence.”  Key points included:

  1. At some point, a basic understanding of technology that impacts client matters is required.
  2. Technology is always evolving.
  3. Even if you don’t know everything about a new technology, sometimes it helps to analogize to a “paper” or “real life” situation.

Weaved into the messaging was a reminder that “but I don’t even know how that stuff works!” likely won’t excuse a violation of the Rules of Professional Conduct.  Which is why today’s story so interests me.

As reported by the ABA Journal, the New Jersey Supreme Court recently dismissed disciplinary charges against a lawyer whose paralegal had obtained information directly from a represented adverse party via Facebook.  Law360 and Law.com also reported the opinion.

First, I’m going to summarize what happened. Then, I’m going to share several of the New Jersey Supreme Court’s statements with which I agree, and one that gives me pause.

What happened?

Flashback to 2007.  Yes, 2007.  Plaintiff, a police officer, was struck by a police car while exercising in the police station’s parking lot.  Plaintiff sued the police department.  Plaintiff claimed significant injuries.

Attorney represented the Department. In 2008, Attorney instructed Paralegal to “conduct internet research” into Plaintiff.  Paralegal found Plaintiff’s Facebook page.

With respect to what happened next, here’s what’s not in dispute:

At a time when Attorney knew that Plaintiff was represented, Paralegal became Facebook friends with Plaintiff.  Paralegal found a video showing Plaintiff wrestling.  Paralegal downloaded the video and gave it to Attorney.  Attorney believed that the video was made after Plaintiff was struck by the police car.  So, another lawyer in Plaintiff’s firm asked questions about the video during Plaintiff’s deposition.  Afterwards, Attorney forwarded the video and other postings to Plaintiff’s Counsel.  Never having consented to direct communication with Plaintiff, Counsel filed an ethics complaint against Attorney.

Not all was undisputed.  At a disciplinary hearing that, for reasons not important here, did not happen until April 2018, different versions of what else happened next emerged.

Paralegal’s version:  for a while, Plaintiff’s Facebook account was public, Paralegal monitored the account, and reported publicly available information to Attorney.  The account became private. Paralegal told Attorney that the only way to continue to monitor the account was to become Facebook friends with Plaintiff.  Attorney did not seem to understand Facebook privacy settings or friend requests and instructed Paralegal to send a message that would grant access to Plaintiff’s postings.  Paralegal sent a Facebook message to Plaintiff stating that Plaintiff looked like Paralegal’s favorite hockey player.  Plaintiff responded with “flirtatious messages” and a friend request.  Paralegal accepted the request and resumed monitoring the account.

Plaintiff’s version:  the account was always private.  Paralegal sent a friend request that Plaintiff accepted.  Plaintiff messaged Paralegal, asking who Plaintiff was.  Paralegal replied that Plaintiff looked like Paralegal’s favorite hockey player.  Nothing in Paralegal’s profile or reply indicated that Paralegal worked with Attorney.

Attorney: I told Paralegal to conduct internet research.  Back then, I didn’t know what it meant to be Facebook friends or that Facebook offered various privacy settings.  I did not tell Paralegal to friend Plaintiff.   I told Plaintiff to monitor any information about the lawsuit that Plaintiff posted to the internet. I believed that information posted to Facebook was available to all and that the duties of competence and diligence that I owed to my client required me to review such information.

Over many years, the case worked its way through New Jersey’s disciplinary system.  Eventually, at the trial level, a Special Master concluded that Attorney did not violate the Rules of Professional Conduct.

On review, the Disciplinary Review Board (DRB) concluded otherwise, determining that Attorney violated (1) the rule that prohibits communication with represented persons; (2) the rule that prohibits dishonesty (Paralegal’s failure to identify Paralegal’s role was a misrepresentation by omission); and (3) the rule that required Attorney to ensure that Paralegal’s conduct conformed with Attorney’s professional obligations.

In the end, the New Jersey Supreme Court dismissed the charges, concluding that they had not been proven by clear and convincing evidence. To a large degree, the court’s opinion recognizes that the ultimate decision turns on witness credibility and that the Special Master – not the DRB or the court – was in the best position to assess credibility having presided over the evidentiary hearing.

Still, several of the court’s statements bear noting.  Because while the court declined to sanction Attorney, it also made clear our duties with respect to tech competence.

For instance,

  • “[Attorney] may have had a good faith misunderstanding about the nature of Facebook in 2008, as the special master found; but there should be no lack of clarity today about the professional strictures guiding attorneys in the use of Facebook and other similar social media platforms.”

The court went on:

  • “When the communication is ethically proscribed, it makes no difference in what medium the message is communicated. The same rule applies to communications in person or by letter, email, or telephone, or through social media, such as Facebook.”

Finally,

  • “Lawyers must educate themselves about the commonly used forms of social media to avoid the scenario that arose in this case. The defense of ignorance will not be a safe haven.”

I don’t disagree with any of the quoted statements.  I’m especially a fan of refusing to find port in the storm for the “the defense of ignorance.”  Yet, it’s another statement that gives me pause.

Essentially, a single statement underpins the court’s opinion:

  • “What attorneys know or reasonably should know about Facebook and other social media today is not a standard that we can impute to [Attorney] in 2008 when Facebook was in its infancy.”

I get it.  Really, I do.  But, for practicing lawyers and their nonlawyer assistants, I urge caution.

On tech competence, people in my practice area have been clear: we are long past the day when we will provide “hard and fast” pronouncements on each new technological development.  Rather, lawyers are reminded that technology will continue to develop and, as it does, lawyers remain under a duty to ensure that their use of technology complies with the Rules of Professional Conduct.[i]

Whether 2030, 2025, or sooner, there will be a new way to communicate that none of us has ever imagined.  In my view, the New Jersey opinion should not be viewed as suggesting that, with brand new technology, lawyers can use first, ask questions later.  That is, with respect to the conclusion that a technology’s “infancy” may excuse a violation, I’d be very careful in how I define “infancy.” Indeed, as I read the NJ opinion, both Paralegal and Plaintiff were well-versed in how Facebook worked. It was only Attorney who was not.

Also, for two reasons, don’t forget my point about analogizing to “paper” or “real life.”

First, when the day comes that an assistant asks you if you want to communicate with a represented person via the assistant’s Ansible, I hope your reaction isn’t “I wonder what Ansible is.”  Instead, I hope warning bells go off as you respond, “we can’t communicate with a represented person!!”[ii]

Second, I suppose an assistant might resort to Ansible without asking you first.  So, remember: if someone brings you information that seems too good to be true, it just might be.

Competence includes tech competence.  As always, be careful out there.

Social Media

[i] See, ABA Formal Opinion 477R

[ii] It’s okay if you clicked on the Wiki entry for Ansible before realizing that that you’d been asked to communicate with a represented person.  As an old coach, it’s best to make mistakes in practice, learn from them, and not repeat them in games.