Espionage, Bribery, and Reinstatement to the Practice of Law – Part 1

Every now and then I try to blog about aspects of the disciplinary process that aren’t as commonly understood as others. Today, a pair of recent stories spur me to highlight on one such aspect: the process by which a lawyer seeks reinstatement following suspension or disbarment.

The first involves a lawyer who was disbarred after being convicted of espionage. Last month, a committee of the D.C. Bar’s Professional Responsibility Board held a hearing on the lawyer’s petition for reinstatement.  Among others, the ABA Journal, Reuters, and the Legal Profession Blog, covered the hearing.

Then, two days ago, the Oklahoma Supreme Court reinstated a lawyer who had resigned his law license following a criminal conviction for bribery.  In a post that included a reference to my current binge – Ozark – the Legal Profession Blog reported the decision here.  The Stillwater News Press and KOSU also have coverage.

Surprised to learn that disbarment isn’t permanent?  Don’t worry, you’re not alone.  Yet, in most states, Vermont included, it isn’t.

And that gets us to the reinstatement process.

In Vermont, reinstatement is governed by Rule 26 of Supreme Court Administrative Order 9.  Per the rule, a lawyer who is disbarred may apply for reinstatement five years after the effective date of the disbarment.  Similarly, a lawyer who is suspended for 6 months or longer may apply for reinstatement when within 3 months of the suspension’s termination.[i]

Once a lawyer petitions for reinstatement, the matter is referred to a hearing panel for what is, essentially, the reverse of a disciplinary prosecution.  By rule,

  • “the respondent-attorney shall have the burden of demonstrating by clear and convincing evidence that he or she has the moral qualifications, competency, and learning required for admission to practice law in the state, and the resumption of the practice of law will be neither detrimental to the integrity and standing of the bar or the administration of justice nor subversive of the public interest and that the respondent-attorney has been rehabilitated.”

So, how does a lawyer meet their burden?  Well, I participated in a handful of reinstatement hearings when I was the disciplinary prosecutor. In my experience, Vermont’s reinstatement hearings have been similar to those described in the stories above.

Most start with the lawyer apologizing and expressing remorse.  For instance, according to the ABA Journal, the lawyer who was disbarred after having been convicted of espionage gave the following testimony during the reinstatement hearing:

  • “My contrition is real. My shame is real. I hurt my country. I hurt my profession. I hurt the bar I was a member of and I would like once again to apologize.”

Next, lawyers seeking reinstatement typically provide evidence of having taken sufficient CLE to demonstrate that they’re current on the law.  Indeed, in its opinion reinstating the lawyer who was convicted of bribery, the Oklahoma court noted that, since 2016, the lawyer had completed 150 hours of CLE, including 13.5 in ethics.[ii]

Finally, reinstatement hearings often include character witnesses testifying in support of the lawyer who is seeking to return. Their testimony usually focuses on the lawyer’s community involvement and potential to contribute to the legal profession if allowed to resume practicing.  The stories linked above include examples of each.

In theory, reinstatement hearings are adversarial.  Vermont’s reinstatement rule states that “in all proceedings upon a motion for reinstatement, disciplinary counsel shall conduct discovery, cross-examination, and the submission of evidence, if any, in response to the motion.” That said, it was not uncommon for me not to take a position on reinstatement and to leave the lawyer to their proof.

Once the evidence is presented, it’s up to the hearing panel to decide whether the lawyer has met their burden.  Then, Vermont’s rule allows either disciplinary counsel or the lawyer to appeal the panel’s decision to the Supreme Court. Like any disciplinary case, even if no appeal is taken, the Court can order review on its own motion.  Absent an appeal or court-ordered review, the panel’s decision becomes final after 30 days.

So, that’s how the process works.

I have additional thoughts on reinstatement. Specifically, thoughts on the tension between “believing in second chances” and “protecting clients, courts, and the integrity of the profession.” Alas, this post is too long already, so I’ll share those thoughts in a soon-to-come Part II.

Stay tuned.

legal ethics

[i] A lawyer who is suspended for fewer than 6 months may resume practicing immediately upon the expiration of the suspension without having to petition for reinstatement.

[ii] I’ll circle back to this in Part II.

Wellness Wednesday: Aiming for Well-Being

Whether blogging or presenting on wellness, I’ve frequently mentioned Jeena Cho.  I’m a big fan of Jeena’s thoughts and work on the well-being of the legal profession.

In 2017, the ABA Journal ran Jeena’s post Talking about the elephant in the room – social anxietyThe closing sentence has always resonated with me.  It strikes me as perfectly capturing the idea that well-being is an aspect of competence.  Jeena wrote:

 “Finally, remember: ‘Secure your own oxygen mask before assisting others.’”

 Of course, therein lies the challenge, right? How do we help ourselves?  More specifically, how do we align and balance our personal lives & values with our work lives & values?  It’s a question I addressed in this video during 2020’s Well-Being Week in Law, and again here during the same week last year.  Jeena has addressed the question too.

Last summer, the ABA Journal posted Jeena’s piece Are you living your values?  Use the ‘Bull’s Eye” exercise to check these 4 areas of your life.  Check it out.  The exercise Jeena shares a great tool to help to clarify values and to enhance well-being. And, as you read it, take note of the final paragraph.

When discussing wellness and well-being with legal professionals, it’s common for someone to tell me something like “I stink at this.”

Not true.

As Jeena writes:

  • “My advice is to practice being gentle with yourself. Most of us are overtaxed, juggling more than what can possibly be accomplished in a day, and working under intense pressure. It’s also possible that you may consciously choose to focus more of your time and energy in one domain. This exercise is a tool to increase your awareness so that you can actively pay attention to the areas of your life that are in balance as well as areas that have been neglected. If there are areas that you would like to prioritize, start by setting some achievable goals. This isn’t a test to see how successful you are at life but rather a tool you can use on a regular basis to pause, to reassess and make course adjustments as you go. Ultimately, it’s a tool for increasing self-awareness and learning to be a better person.”

Great advice!  Thank you, Jeena.

Wellness

Previous Wellness Wednesday Posts

Monday Morning Answers #243

Welcome to Monday! Friday’s questions are here.  The answers follow today’s Honor Roll.  Before I get to the answers, a few comments.

First, many thinks to all who weighed-in on the date beyond which it’s no longer appropriate to wish “Happy New Year” to someone you’ve yet to encounter in the calendar year.  Your responses are fodder for a stand-alone column that I hope to post tomorrow!

Also, on Friday, I suggested that today’s answers would be posted via video or podcast, with The First Brother appearing as a guest to offer the non-lawyer perspective.  Well, I failed to check with him prior to making that suggestion and as it turns out, he had other plans this weekend.

With that, I’m off to shovel.  Again.

Honor Roll

  • Evan Barquist, Montroll Oettinger & Barquist
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor of Law, University of Illinois Chicago
  • Andrew Delaney, Martin Delaney & Ricci
  • Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Bonneau Kennedy, Mother of the Blogger
  • Nicole KilloranProfessor, Vermont Law School
  • Elizabeth Kruska, Immediate Past-President, Vermont Bar Association Board of Managers
  • Cassandra Larae-Perez, Gravel & Shea 
  • John LeddyMcNeil, Leddy & Sheahan 
  • Pam Loginsky, Washington State Association of Prosecutors 
  • 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 
  • Herb Ogden
  • Keith Roberts, Darby Kolter & Roberts 
  • Jonathan Teller-Elsberg, Sheehey Furlong & Behm 
  • Rachel Trow, Legal Assistant, Shoup Evers & Green
  • The Honorable John Valente, Vermont Superior Judge 
  • Jason Warfield, J.D. 

Answers

Question 1

Imagine a CLE at which I address the distinction between “public record” and “generally known.”

Which 2 of the 7 Cs of Legal Ethics am I most likely to mention?

  • A.  Conflicts & Communication.
  • B.  Conflicts & Confidentiality.
  • C.  Confidentiality & Communication.
  • D.  Confidentiality & Candor.

V.R.Pr.C. 1.9 sets out a lawyer’s duties to former clients.  Rule 1.9(c)(1) prohibits a lawyer from using confidential information relating to the representation of a former client “to the disadvantage of the former client.”  One exception is unless “the information has become generally known.”  The law is clear that information that is “public record” is not necessarily “generally known.” 

 Meanwhile, Rule 1.7(a)(2) prohibits a lawyer from representing a client if there is a significant risk that the representation will be materially limited by the lawyer’s duties to, among others, a former client.  Thus, a lawyer has a conflict whenever there is a significant risk that the duty imposed by Rule 1.9(c)(1) will materially limit the representation of another client.   

 As such, when discussing the distinction between “public record” and “generally known,” I’m most likely to refer to conflicts and confidentiality.

Question 2

Office employs Paralegal.  In a new matter, Paralegal has a conflict that would prohibit Paralegal from accepting the representation if Paralegal were a lawyer.  Which is most accurate?

  • A.  Paralegal’s conflict is imputed to all lawyers in Office and Office must decline the representation.
  • B.  Paralegal’s conflict is imputed, but only to any lawyer at Office who regularly supervises Paralegal.
  • C.  A comment to one of the rules indicates that while Paralegal’s conflict is not imputed to any lawyer at Office, Paralegal should be screened from involvement in the new matter.  See, V.R.Pr.C. 1.10, Comment [4].
  • D.  Fake question. In Vermont, conflicts are not imputed from one lawyer to others in the same office, and they certainly aren’t imputed from non-lawyers to lawyers.

 Question 3

 Lawyer referred Client to Attorney.  Lawyer and Attorney do not work in the same firm.  Can Attorney share part of the fee with Lawyer?

  • A. No.
  • B. Yes, if the fee division is in proportion to the work done by each, or, each assumes joint responsibility for the representation.
  • C. Yes, if Client agrees, the fee sharing agreement is confirmed in writing, and the total fee is reasonable.
  • D.  B & C.  See, V.R.Pr.C. 1.5(e).  See also, Referral Fee? Think Thrice.

Question 4

 Client contacts Lawyer. Client explains that they are represented by Attorney in a matter.  Client wants a second opinion.   Lawyer is not otherwise involved in the matter.

True or False?

Vermont’s rule prohibits Lawyer from communicating with Client about the matter without Attorney’s consent.

False.  See, V.R.Pr.C. 4.2, Comment [4], and Reporter’s Notes – 2009 Amendment.

Question 5

A famous jurist was in the news this week.  The jurist made headlines for donating $5 million to her law school to fund scholarships – full tuition and books – for 10 women.  In addition, upon completing their first year of law school, each scholarship recipient will receive an offer of a summer fellowship with the jurist.

The jurist’s granddaughter, Sarah Rose, is currently a 3L at the same law school.  Sarah also works as a law clerk for her grandmother on their latest streaming venture.

Name the jurist.   Bonus: name the law school.

Judith Sheindlin, aka, “Judge Judy.”  New York Law School.   Among other, ABC News reported the story.

judge judy

Five for Friday #243

Welcome to Friday and the 243rd #fiveforfriday legal ethics quiz!

Wait . . . the Friday post is the only connection I have with many of you, and this is the first of 2022.  

So, should I have opened with “Happy New Year?” 

If so, I apologize.  I never know where the line is between a good-natured greeting and “hey weirdo, it’s not a new year anymore.”  Where’s the cutoff?  When is past time to open each conversation with New Year’s wishes?  Readers should feel free to weigh-in.  

Next, come Monday, I hope to present the answers in a new format. It’s either going to be by video or podcast.  I think this will provide an opportunity to drill deeper into the issues that the questions are intended to highlight.  Further, I’m going to include the First Brother as my guest.  He’s not a lawyer, but he’s a potential consumer of legal services.  And that’s the point.  There’s value in the non-lawyer perspective on rules that are intended to protect clients.

Finally, I should make a half-hearted effort to honor tradition and attempt to tie this introduction to the quiz number.

With 243 in mind, I’m struck by the fact that, but for Omicron, many of us would about now be departing for Montreal and the YLD Thaw. There’s a lot about the event that I will miss, including the epic CLE that Andrew Manitsky and I were scheduled to present, the camaraderie that’s always part of the weekend, and the VBA’s annual Friday-night takeover of Hurley’s.

I will not miss high temperatures of 2 with wind chills plummeting towards 43 below.

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

 Imagine a CLE at which I address the distinction between “public record” and “generally known.”

Which 2 of the 7 Cs of Legal Ethics am I most likely to mention?

  • A.  Conflicts & Communication.
  • B   Conflicts & Confidentiality.
  • C.  Confidentiality & Commingling.
  • D.  Confidentiality & Candor.

Question 2

 Office employs Paralegal.  In a new matter, Paralegal has a conflict that would prohibit Paralegal from accepting the representation if Paralegal were a lawyer.  Which is most accurate?

  • A.  Paralegal’s conflict is imputed to all lawyers in Office and Office must decline the representation.
  • B.  Paralegal’s conflict is imputed, but only to any lawyer at Office who regularly supervises Paralegal.
  • C.  A comment to one of the rules indicates that while Paralegal’s conflict is not imputed to any lawyer at Office, Paralegal should be screened from involvement in the new matter.
  • D.  Fake question. In Vermont, conflicts are not imputed from one lawyer to others in the same office, and they certainly aren’t imputed from non-lawyers to lawyers.

 Question 3

 Lawyer referred Client to Attorney.  Lawyer and Attorney do not work in the same firm.  Can Attorney share part of the fee with Lawyer?

  • A. No.
  • B.  Yes, if the fee division is in proportion to the work done by each, or, each assumes joint responsibility for the representation.
  • C.  Yes, if Client agrees, the fee sharing agreement is confirmed in writing, and the total fee is reasonable.
  • D.  B & C.

Question 4

 Client contacts Lawyer. Client explains that they are represented by Attorney in a matter.  Client wants a second opinion.   Lawyer is not otherwise involved in the matter.

True or False?

Vermont’s rule prohibits Lawyer from communicating with Client about the matter without Attorney’s consent.

Question 5

A famous jurist made headlines this week for donating $5 million to her law school to fund scholarships – full tuition and books – for 10 women.  In addition, upon completing their first year of law school, each scholarship recipient will receive an offer of a summer fellowship with the jurist.

The jurist’s granddaughter, Sarah Rose, is currently a 3L at the same law school.  Sarah also works as a law clerk for her grandmother on their latest streaming venture.

Name the jurist.

Bonus – name the law school.

The Top 11 of 2021

Welcome to the year’s final Friday!  You’re just in time for the Top 11 in 2021.[1]

I started Ethical Grounds six years ago.  My intent was to blog on issues related to the Rules of Professional Conduct. And that’s what I did: posted updates on things like tech competence, trust accounting, conflicts & confidences, and the perils of communicating with represented persons.

It’s interesting how a blog on legal ethics & professional responsibility has evolved.  I don’t remember anything about the day of my first ever post.  But I guarantee you that I woke up that morning not ever having heard of “lawyer wellness” or “attorney well-being.”

Flash-forward: of 2021’s eleven most-viewed posts, six involve wellness.

Looking at the other posts on the list, part of me is sad that two are about lawyers who are no longer with us.  However, I take comfort in knowing that we’re keeping their memories alive.

Not to mention that I know how mad Joan would be if I spent one more second sad.

Finally, many thanks to each of you who supports the blog.  I’ve said it before and I’ll say it again: there is nothing I like more about this job than interacting and building relationships with readers.

Enjoy the weekend and all the best in 2022.

Happy New Year!

The Top 11 in 2021

  1. Remembering Joan Wing
  2. Lawyer Wellness & Zoom Fatigue
  3. Wellness Wednesday: Compassion Fatigue
  4. Five for Friday #233: Remembering Judge Peter Hall
  5. Vermont Supreme Court Suspends Lawyer for Improper Use & Disclosure of Information Relating to the Representation of Current & Former Clients
  6. Lawyer’s Incivility Factors in Substantially Reduced Fee Award
  7. ABA Issues Guidance on a Lawyer’s Obligations Involving Language Access
  8. Unauthorized Practice or Work-From-Anywhere? An encouraging update from New York
  9. Emotional Regulation and the Power of “What’s Important Now?”
  10. A lesson from my Dad, Nandi, and the Foo Fighters: Experience Awe
  11. How NOT to sue for your fee

Legal Ethics

[1] The top 11 honors my mom.  Whether planning for a ride or to get together, she’ll suggest that we meet, for example, at “6:28.”  Because why is 6:30 any better or more deserving than 6:28?  Indeed!

Sanctions imposed for lawyer’s failure to cite to controlling & adverse authority.

I’ve worked in the Professional Responsibility Program a long time. I’ve screened, investigated, and prosecuted hundreds of disciplinary complaints and responded to thousands of ethics inquiries. I don’t recall a single complaint or inquiry involving Rule 3.3(a)(2) the Vermont Rules of Professional Conduct. Indeed, but for a random trivia question, I don’t think I’ve ever even mentioned the rule at a CLE or seminar.

The rule states:

  • “a lawyer shall not fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.”

Yesterday, the ABA Journal posted Judge slams Davis Wright for failing to mention settled, adverse case law, orders $40K in sanctions In a nutshell, lawyers representing a hospital asked a court to issue an injunction to prevent medical workers from striking. Under settled law, the court did not have the jurisdiction to do so.  As such, the court issued this order in which it imposed sanctions after concluding that the lawyers knowingly failed to disclose controlling authority that was adverse to their client. 

I understand that the absence of evidence isn’t necessarily evidence of absence.  Still, given the numbers in the opening paragraph, failing to disclose controlling authority doesn’t appear to be a significant issue in Vermont.  Nevertheless, the story is instructive.

According to the opinion, when ordered to show cause as to why a sanction shouldn’t issue, the lawyers argued

  • “that although in hindsight they could have done more to alert the Court of binding, contrary precedent, their actions are not sanctionable because they were merely arguing for an ‘extension’ of existing caselaw and were unable to identify any case ‘on all fours’ with the underlying facts here.”

The next line:

  • “This explanation is meritless.”

It goes without saying that intentionally failing to disclose controlling authority is a problem.  As stated in Comment [4] to Rule 3.3: “legal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal.”  Further, as is clear from today’s story, it’s no excuse that, surely, the other side will cite to the authority that you failed to mention.[1]

But my practical takeaway is this: don’t slice it too thin when confronted with questions such as “is this case on point?” or “is it adverse to our position?” Better to face a challenge head on than, as happened here, to have a court write this about you:

  • “It is not credible to believe this was merely an inadvertent omission. Additionally, [the lawyer’s] post-hoc argument, where he pieces together bits from his earlier memo to argue he indirectly alerted the Court to the jurisdictional issues, is unconvincing.”

As always, be careful out there.

sanctions

[1] Surely you didn’t think I could let that sentence pass without thinking of this.

Monday Morning Honors #242

Merry Monday!

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

And speaking of honors, congrats to those who read this post and who knew that a Gestetner is a type of copying machine.  Ah, the sweet smell of the old days!

Honor Roll

 

Answers

Question 1

 A comment to one of the Rules of Professional Conduct addresses “gifts to lawyers.”  Per the comment, can a lawyer ethically accept a gift from a client?

  • A.  No.
  • B.  Yes, but only if the client’s matter has ended and the client is a “former client.”
  • C.  Yes, if the transaction meets general standards of fairness.  V.R.Pr.C. 1.8, Comment 6.
  • D.  It doesn’t matter what the comment says. No client would ever give a gift to a lawyer.

Question 2

 True story: my microphone wasn’t working too well during a CLE I presented via Zoom this morning.  I didn’t discuss this issue during the CLE, but let’s pretend that I did.

Due to a bad mic, attendees would’ve heard the following clipped phrase: “significant risk . . . responsibilities to another client or former client . . . materially limits the representation.”

What concept was I discussing?

Conflicts of Interest.  Specifically, a concurrent conflict of interest as defined by V.R.Pr.C. 1.7(a)(2).

Question 3

Fill in the blank.

“A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly __________.”

  • A.  destroy the document.
  • B.  segregate the document.
  • C.  return the document to the sender.
  • D.  notify the sender.   

 The question uses the exact language of V.R.Pr.C. 4.4(b).  Comments 2 and 3 are important.  Also, please review my post Duties Associated with Inadvertent Receipt & Production.

 Question 4

 This one might be too difficult.  But, as a reward to the lawyers who sat through the trust accounting seminar that I did for the VBA’s Bankruptcy Section this morning, here it is:

Lawyer called me with an inquiry.  I replied “they escheat to the state. Check out the State Treasurer’s website for more information.”

Using context clues, what does “they” refer to?

Abandoned trust funds.  Meaning, the lawyer knows who the funds belong to, but cannot locate the person.

Question 5

Family gatherings can make for the best holiday stories!

I’ve referenced many television shows on this blog. Perhaps none more than a 90s sitcom.

There’s an episode in which much of the action takes place at the home of one of the main character’s parents, where everyone has gathered to celebrate a holiday.  In real life, the holiday falls on December 23.

A particular item is integral to celebrating the holiday.  One of the main character’s relatives is a big fan of the item. He likes it because it doesn’t require any decorations, isn’t as distracting as tinsel, and the aluminum has an amazing strength-to-weight ratio.

Question:            Name the holiday and the item.

Bonus:                 I mentioned Christmas cards in the introduction.  Well, in the same episode, the haracter whose family hosted the celebration gave out holiday cards in which he invited recipients to donate to a charity.  Name the charity.

The show is Seinfeld, the holiday is Festivus, and the itme is George’s father’s Festivus Pole.

 George’s fake charity:  The Human Fund (Money for people)

 Congrats to the Honor Roll member who is a verified donor and who sent me this picture:

 IMG_4091

 We are everywhere!

Five for Friday #242

Welcome to Friday and the 242nd legal ethics quiz.

I don’t have a new story this week.  Instead, I’m going to revise one that I shared a few years ago.

In the summer of 2019, I came across an advisory ethics opinion that the Texas State Bar issued in 1958.  The opinion concluded that:

  • “It is improper for an attorney to send Christmas cards to his clients which indicate that he is an attorney at law either on the cards or their envelopes.”

Yes. In fact, the opinion addressed the impropriety of sending a Christmas card that identified the sender as the recipient’s attorney.  It went on:

  • “If the Christmas cards and the envelope merely stated the name of the sender without any reference to his being an attorney, the sending thereof would not violate the Canons of Ethics of the State Bar.”

I remember chuckling as I thought “wow, the things that we thought were important in 1958.” Today, it makes me laugh to envision this scenario:

  •  Client: did you see the card we got from Mike Kennedy?
  • Client’s spouse: Who is Mike Kennedy?
  • Client: I don’t know.
  • Client’s spouse: Is there any contact info?
  • Client: Yes, an email address. I’ll send one.

(Client opens laptop)

  • Client’s email to MK: Thank you for the card. But who are you and how did you get our address?
  • MK’s reply: You’re welcome. I’m not allowed to answer.
  • Client’s reply: Stop contacting us!  You’ll be hearing from our lawyer!!
  • MK’s reply: That’s what makes this so difficult.

Anyhow, the profession’s views on legal ethics & professional responsibility have evolved since 1958. I’m aware of no clamor to sanction lawyers who send holiday (or other) cards to clients in which they identify themselves as lawyers.  As we approach 2022, our task is to continue to evolve.

There’s a theory in coaching that once a team stops looking for ways to improve, it stops improving. What’s comfortable and works well for the team today will someday be stale.

Legal ethics and professional responsibility are no different.  It’s likely that every single one of us is doing something today that makes sense now.  But, years from now, we’ll look back and wonder why we ever did it this way.

Yes, legal ethics and professional responsibility have evolved since 1958.  But now is no time to think we’ve figured it all out.  For 2022, let’s resolve to continue to look to improve.  To consider and to embrace change that makes the legal profession healthier.

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 comment to one of the Rules of Professional Conduct addresses “gifts to lawyers.”  Per the comment, can a lawyer ethically accept a gift from a client?

  • A.  No.
  • B.  Yes, but only if the client’s matter has ended and the client is a “former client.”
  • C.  Yes, if the transaction meets general standards of fairness.
  • D.  It doesn’t matter what the comment says. No client would ever give a gift to a lawyer.

Question 2

 True story: my microphone wasn’t working too well during a CLE I presented via Zoom this morning.  I didn’t discuss this issue during the CLE, but let’s pretend that I did.

Due to a bad mic, attendees would’ve heard the following clipped phrase: “significant risk . . . responsibilities to another client or former client . . . materially limits the representation.”

What concept was I discussing?

Question 3

This the text of one of the Rules of Professional Conduct.  Fill in the blank.

“A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly __________.”

  • A.  destroy the document.
  • B.  return the document to the sender.
  • C.  notify the sender.
  • D.  A or B.

 Question 4

This one might be too difficult.  But, as a reward to the lawyers who sat through the trust accounting seminar that I did for the VBA’s Bankruptcy Section this morning, here it is:

Lawyer called me with an inquiry.  I replied “they escheat to the state. Check out the State Treasurer’s website for more information.”

What does the “they” in my response refer to?

Question 5

Family gatherings can make for the best holiday stories!

I’ve referenced many television shows on this blog. Perhaps none more than a 90s sitcom.

On the show, there’s an episode in which much of the action takes place at the home of one of the main character’s parents, where everyone has gathered to celebrate a holiday. In real life, the holiday falls on December 23.

A particular item is integral to celebrating the holiday.  One of the main character’s relatives is a big fan of the item. He likes it because it doesn’t require any decorations, isn’t as distracting as tinsel, and the aluminum has an amazing strength-to-weight ratio.

Question:  Name the holiday and the item.

Bonus:  I mentioned Christmas cards in the introduction. Well, in the same episode, the character whose family hosted the celebration gave out holiday cards in which he invited recipients to donate to a fake charity.  Name the fake charity.

Logan Lucky and how to avoid neglecting client matters for 20 years.

I watched Logan Lucky last month.  I loved it but am not sure whether it’s a caper or a heist.  I was leaning towards “heist,” but then I found this review.  If a source such as The Atlantic considers it a caper, who am I to disagree?

Anyhow, over their careers, the Logan brothers have developed the “Top Ten Rules For Robbing Banks.”  Here’s a still from the movie:

Logan Lucky 10 rules

The 10th is relevant to today’s post.  If the picture is too small, #10 is “Hang Up And Know When To Walk Away.”

Keep that in mind as you read on.

When it comes to bizarre attorney discipline cases, I’ve investigated, prosecuted, and blogged about my fair share. This one is in a category of its own.  A category that I don’t know what to name or how to describe.

Last week, the Louisiana Supreme Court suspended a lawyer for a year and a day.  A tweet from Massachusetts Assistant Bar Counsel David Kluft alerted me to the opinion.[i]

The case involved two counts.  The first paragraph related to Count I might make you wonder if there’s a typo.

  • “In 1991, Joseph Duplessis, Sr. and his three brothers hired respondent to handle an employment discrimination lawsuit against their employer. According to Mr. Duplessis, their legal matter appeared to be progressing until Hurricane Katrina in 2005. Thereafter, respondent failed to return Mr. Duplessis’ telephone calls or otherwise keep him informed of the status of the case. When respondent did speak to Mr. Duplessis, she offered what he considered to be excuses as to why the case had not progressed. In 2011, respondent sent discovery requests to the defendant but received no response. She never confirmed that the defendant was served with the discovery requests and never filed a motion to compel the defendant to respond.”

There’s no typo.  The lawyer served the discovery requests twenty years after being retained. Alas, that didn’t get the matter back on track. Thus, in 2015, the client filed a disciplinary complaint against the lawyer. Formal disciplinary proceedings followed.

Count II is as strange.  It alleges that the lawyer neglected another client’s matter for 20 years. If I’m reading the opinion correctly, it appears as the second client’s timeline was:

  • 1994: hired lawyer
  • 1995: lawyer filed lawsuits on client’s behalf in state & federal court
  • 1995: federal case dismissed for lack of jurisdiction
  • 1997: lawyer served discovery requests in state court action
  • 1998: lawyer filed a motion to set the matter for trial
  • 2002: client filed a disciplinary complaint against lawyer
  • 2004: lawyer was sanctioned by Louisiana disciplinary authorities
  • 2004: client continued to retain lawyer
  • 2012: client filed another disciplinary complaint against lawyer
  • 2016: lawyer filed a motion to compel responses to discovery requests served in 2001, 2004, 2007, 2010, and 2013.  It was the first motion filed, by either party since lawyer’s 1998 motion to set the matter for trial.

Wow.

As I blogged in June, a lawyer has a duty to provide a client with candid legal advice. The duty includes giving the client legal advice that the client does not want to receive.  Or, as stated in Comment [1] to V.R.Pr.C. 2.1:

  • “A client is entitled to straightforward advice representing the lawyer’s honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront.  In presenting advice, a lawyer endeavors to sustain a client’s morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid legal advice by the prospect that the advice will be unpalatable to the client.”

In the opinion suspending the lawyer, the Louisiana Supreme Court wrote:

  • “We do not minimize the significance of the delay in respondent’s resolution of the two legal matters at issue, which resulted in harm to her clients. Nevertheless, we recognize that respondent did not cause her clients to lose a right or remedy in their legal matters.”

In other words, it appears that neither of the lawyer’s clients had much of a case.  Among other factors, this mitigated against a longer suspension.

I don’t know how it’s possible that the lawyer’s clients’ cases languished for so long.  Therefore, I will not comment on the fact that they did.  Rather, the neglect aside, I’ll reemphasize June’s post on V.R.Pr.C. 2.1.

The duty to render candid legal advice includes informing a client of their prospects.  Might the client fire you upon receiving bad news?  Yes.  But at least you won’t end up starring in a caper that ends with your law license suspended.

Hang up and know when to walk away.

[i] Here’s to bald bar counsels!