Monday Morning Honors #232

Welcome to Monday!  What a comeback by the Sox!

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

Honor Roll

  • Penny Benelli, Dakin & Benelli
  • Beth DeBernardi, Administrative Law Judge, Vermont Department of Labor
  • Andrew DelaneyMartin, Delaney & Ricci Law Group
  • Benjamin Gould, Paul Frank + Collins
  • Robert Grundstein
  • Glenn Jarrett, Jarrett & Luitjens
  • Jeanne Kennedy, JB Kennedy Associates, Mother of the Blogger
  • Deb Kirchwey, Law Office of Deborah Kirchwey
  • Elizabeth Kruska, President, Vermont Bar Association
  • John Leddy, McNeil, Leddy & Sheahan
  • Stark Ligon, Ethics Counsel, Arkansas
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Jeffrey Messina, Bergeron, Paradis, Fitzpatrick
  • Jack McCullough, Vermont Legal Aid, Project Director, Mental Health Law Project
  • Jonathan Teller-Elsberg, Sheehey, Furlong & Behm
  • Rachel Trow, Shoup Evers & Green; Four-Year Law Office Study Program
  • The Honorable John Valente, Vermont Superior Judge
  • Zachary York, Legal Administrative Assistant, Sheehey Furlong & Behm

 Answers

 Question 1

“Confidentiality” wouldn’t be a bad answer. However, which of the 7 Cs of Legal Ethics is most specifically governed by rules that include the following words in their titles?

  • Current
  • Former
  • Prospective

CONFLICTS OF INTEREST.  See, V.R.Pr.C. 1.7, V.R.P.C. 1.9, V.R.Pr.C. 1.18

Question 2

Lawyer represents Client.  Lawyer knows that Client expects assistance that is not permitted by the Rules of Professional Conduct or other law.  Thus, by rule, Lawyer’s first step is:

  • A.  to withdraw.
  • B   to inform the tribunal.
  • C.  to consult with the client on any relevant limitation on Lawyer’s conduct.  V.R.Pr.C. 1.4(a)(5).
  • D.  Trick question.  It’s A & B.

Question 3

Lawyer represents Client. Client is distraught about information that will be made public during a trial scheduled to begin next week.  This morning, Client made statements to Lawyer that caused Lawyer reasonably to believe that Client intends to take their own life tonight.  Lawyer wants to disclose Client’s intent to someone who can intervene.  Under Vermont’s rules, Lawyer

  •  A.  must not disclose client’s intent.
  •  B.  must disclose client’s intent.
  •  C.  may disclose client’s intent.  See, V.R.P.C. 1.6(c)(1), Cmt. [10].

Question 4

 Which does the rule treat differently than the others?

  • a client’s personal check in the amount of $2000
  • a certified check
  • a trust account check from a lawyer licensed to practice law in Vermont in the amount of $100,001.00
  • a check issued by an insurance company licensed to do business in Vermont in the amount of $500,001.00.

V.R.Pr.C. 1.15(f) prohibits lawyers from disbursing from trust without collected funds.  Paragraph (g) lists exceptions – instruments against which a lawyer may disburse upon deposit.  B, C, and D are among the exceptions. The exception for personal checks is limited to $1,000 per transaction.

 Question 5 (and bonuses)

In honor of the bar exam being upon us . . .

. . . in 2002, one of Hollywood’s megastars was nominated for the Golden Globe for Best Actor for his work playing a character named Frank Abergnale, Jr.  The movie also starred another megastar as an FBI agent named Carl.

Here’s an exchange from the movie:

  • Carl: “How’d you do it Frank? How did you cheat on the bar exam in Louisiana?
  • Frank: “I didn’t cheat. I studied for two weeks, and I passed.”     

Name the movie and the Hollywood stars who played Frank and Carl.

Catch Me If You Can

Leonardo Dicaprio played Frank Abergnale.

Tom Hanks played Carl Ross.

catch me if you can

Five for Friday #232

Welcome to Friday and the 232nd #fiveforfriday legal ethics quiz.

My brother has two tickets to Sunday’s Red Sox game against the Yankees.  Originally, our respective plans did not include me using the 2nd ticket.  Of course, plans, as they say, change.  And while ours remain in flux, it looks like I’ll be joining my brother Sunday afternoon at Fenway.

Let me emphasize that my brother has the tickets. As in, he paid for them and they’re in his possession.

Why is that deserving of emphasis?

Because as anyone who recalls the 204th #fiveforfriday post knows, the last time Patrick and I went to a Red Sox-Yankees game, we didn’t have tickets.

Enjoy the weekend!

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 don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

 Question 1

“Confidentiality” wouldn’t be a bad answer. However, which of the 7 Cs of Legal Ethics is most specifically covered by rules that include the following words in their titles?

  • Concurrent
  • Former
  • Prospective

Question 2

Lawyer represents Client.  Lawyer knows that Client expects assistance that is not permitted by the Rules of Professional Conduct or other law.  Thus, by rule, Lawyer’s first step is:

  • A.  to withdraw.
  • B.  to inform the tribunal.
  • C.  to consult with Client on any relevant limitation on Lawyer’s conduct.
  • D.  A & B.

Question 3

Lawyer represents Client. Client is distraught about information that will be made public during a trial scheduled to begin next week.  This morning, Client made statements to Lawyer that caused Lawyer reasonably to believe that Client intends to take their own life tonight.  Lawyer wants to disclose Client’s intent to someone who can intervene.  Under Vermont’s rules, Lawyer

  •  A.   must disclose Client’s intent.
  •  B.   may disclose Client’s intent.
  •  C.   must not disclose Client’s intent.

Question 4

 Which does the rule treat differently than the others?

  • A.  a client’s personal check in the amount of $2000.
  • B.  a certified check.
  • C.  a check for $100,001.00 that is drawn on the trust account of a lawyer licensed to practice law in Vermont.
  • D. a check for $500,001.00 issued by an insurance company licensed to do business in Vermont.

 Question 5 (and bonuses)

Speaking of checks, and in honor of the bar exam being upon us . . .

. . . in 2002, one of Hollywood’s megastars was nominated for the Golden Globe for Best Actor for his work playing real-life forger and fraudster Frank Abergnale, Jr.  The movie also starred another megastar as an FBI agent named Carl, who devoted much of his work to tracking down Abergnale.

Here’s an exchange from the movie:

  • Carl: “How’d you do it Frank? How did you cheat on the bar exam in Louisiana?
  • Frank: “I didn’t cheat. I studied for two weeks, and I passed.”     

Name the movie and the Hollywood stars who played Frank and Carl.

 

Stories from a Bar: 1

Whether with my family & friends, as part of the teams I’ve coached, or as a member of the Vermont bar, I’ve always thought we should do more to record, remember, and pass on stories of & from those who went before us.  You know, establish something akin to an oral history.

So, today, I’m starting a new column: Stories from a Bar.

Double entendre intended.

I don’t know if this will be a regular feature. Eventually, I might accept reader submissions.[1]  Especially from members of the Rutland County Bar Association.[2]  Alas, for now, it’ll be limited to stories from my time in the Professional Responsibility Program.  It’s with a mixture of amazement, bemusement, and sadness that I note that “limited to stories from my time in the Professional Responsibility Program” provides more than 22 years’ worth of material.

Today’s inaugural installment might be my personal favorite.

Many years ago, I was a prosecuting a disciplinary matter against an attorney.  It was one of the most contentious, difficult, and work-intensive cases I ever handled.  While it was pending, I was also a member of the Vermont Bar Association’s Board of Managers.  Here’s the picture that the VBA used on the section of its website devoted to then-Board members:

Screenshot 2021-07-22 at 4.36.27 PM

The picture was taken at a wedding reception.  If the photo isn’t clear, that’s an “exit” sign glowing above my head.  The lawyer I was prosecuting most definitely recognized the sign for what it was.

How do I know?

Because the lawyer sent an email referencing the picture and, more specifically, the exit sign.  I don’t remember if the email was to the hearing panel before which the case was pending or if it was to the Professional Responsibility Board.  It doesn’t matter.  What matters is the substance of the email.

While dealing with the lawyer frustrated me to no end, I give the lawyer credit for one of the funniest, wittiest, and most clever digs ever aimed in my direction.  The lawyer wrote something along the lines of:

  • “I found the attached picture of Michael Kennedy. It dismays me that there is an ‘Exit’ sign in the background. Because that means that Kennedy is neither in jail nor in Hell, and those are the only two places he belongs.”

What else could I say other than . . .

well-played

[1] You’re free to send a story.  If you do, I’m not required to print or use your story.  Ever. In fact, I probably won’t. I might, but I make no guarantees.  With “no guarantees” meaning “absolutely zero guarantees.”

[2] My honorary membership in the RCBA ranks quite high on my personal list of career accomplishments.  Many thanks JV.

Ohio lawyer alleged to have engaged in sexual misconduct with court staff and clients allowed to resign prior to a public disciplinary hearing. How would a similar situation play out in Vermont?

It’s been a while since I’ve blogged.  I hope your summer is going well.

Today’s goal is to outline a little-known aspect of Vermont’s disciplinary program.   Perhaps I’m wrong to describe it as “little known.”  To test my assumption that it is, I’ll use this scenario:

  1. Disciplinary complaint is filed against Attorney.
  2. Screening Counsel reviews the complaint and refers it to Disciplinary Counsel for investigation.
  3. Screening Counsel’s referral directs Attorney to provide Disciplinary Counsel with a written response to the complaint within 21 days.
  4. Attorney sends Disciplinary Counsel a letter in which Attorney does not respond to the allegations in the complaint. Rather, Attorney writes “I hereby resign my Vermont law license and waive my right to reactivate it.  This ends this matter.  It’s moot. I no longer have a license for you to sanction.”

Does Attorney’s argument hold water?

No.  Attorney is as wrong as was the defense in My Cousin Vinny.

Before I get to Vermont’s rule, why am I even blogging about a lawyer’s attempt to resign while under disciplinary investigation?  Because, as reported by The Legal Profession Blog and Bloomberg Law, the Ohio Supreme Court recently accepted the resignation of an attorney who, according to a complaint filed by Ohio Disciplinary Counsel, had engaged “in inappropriate comments and conduct with female court staff and clients.”   The complaint can be accessed here.  As noted on the Legal Profession Blog, ‘[t]he lengthy charges make for painful reading.”

The disciplinary complaint did not result in a hearing.  Rather, last week, the Ohio Supreme Court granted the attorney’s application for “resignation with disciplinary action pending.”  The opinion is here.

One justice dissented, focusing on the fact that under Ohio’s rules, when the Court approves a request to resign while under disciplinary investigation, most of the details remain confidential.  As such, the proceedings:

  • “are generally enshrouded in a cloud of secrecy that keeps the public, the bench, and the practicing bar ignorant of the reasons for the request to resign with discipline pending. This is problematic, especially when the allegations against an attorney describe a disturbing pattern of predatory behavior toward a vulnerable population.” (internal citation omitted.)

The dissenting justice acknowledged that the result left the attorney ineligible to practice law.  However, the justice added:

  • “But I do not think that this court should favor a process that is quick over a process that is designed to obtain truth and dispense justice that more effectively protects the public. The disciplinary proceedings governed by this court may provide the victims, the public, and [the attorney] with much-needed transparency about the entire situation. While the alleged victims would bear the heavy burden of testifying before a hearing panel, I believe that they should at least have the opportunity to have their voices heard by the public and by this court. The public should know what this court and the numerous volunteers and employees participating in this court’s disciplinary process are doing to keep the public safe from attorneys who are alleged to have violated the Rules of Professional Conduct in perturbing manners. And at least in the disciplinary process, this court has the opportunity to provide help to the attorney should an addiction or other issue be the root cause of the problem. By accepting [the attorney’s] resignation, the court simply washes its hands of the problem without providing any real resolution.”

In Vermont, Supreme Court Administrative Order 9 establishes the Professional Responsibility Program and sets out the rules that govern the disciplinary process.  Rule 23 of A.O. 9 is entitled “Resignation by Attorneys Under Disciplinary Investigation.”  The rule allows an attorney under investigation to resign by affidavit.

Among other things, the affidavit must acknowledge “that the material facts upon which the complaint is predicated are true” and that “the attorney knows that if charges were predicated upon the misconduct under investigation the attorney could not successfully defend against them.”  Rule 23 also allows Disciplinary Counsel to file a statement of facts that supports a finding that the attorney violated the Rules of Professional Conduct. If accepted, the Court enters “an order disbarring the attorney on consent.”

Rule 23(D) is most relevant to today’s post.

  • (D). Disclosure. The order disbarring the attorney on consent as well as the affidavit and statement of facts shall be a matter of public record.”

So, returning to the scenario I posed at the beginning of this post, Attorney would not be able to avoid investigation and public scrutiny by writing to Disciplinary Counsel “I resign and that’s that.”

Unless you’re disciplinary counsel investigating an attorney who attempts to resign, or on the Supreme Court or the Professional Responsibility Board and tasked to review an affidavit by resignation, may this post never be one to which you need to refer for guidance.

Legal Ethics

Monday Morning Honors #231

Welcome to last Monday of the first half of the year.

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

Honor Roll

  • Karen Allen, Karen Allen Law
  • Evan BarquistMontroll, Backus & Oettinger
  • Penny Benelli, Dakin & Benelli
  • Andrew DelaneyMartin, Delaney & Ricci Law Group
  • Glenn Jarrett, Jarrett & Luitjens
  • John Leddy, McNeil, Leddy & Sheahan
  • Mick Leddy, McNeil, Leddy & Sheahan; President, Chittenden County Bar Association
  • Herb Ogden, Esq.
  • Keith RobertsDarby Kolter & Nordle
  • Jonathan Teller-Elsberg, Sheehey, Furlong & Behm
  • Rachel Trow, Shoup Evers & Green; Four-Year Law Office Study Program
  • The Honorable John Valente, Vermont Superior Judge
  • Jason Warfield, Candidate for Admission to the Vermont Bar
  • Thomas WilkinsonCozen O’Connor

Answers

Question 1

By rule, a lawyer shall not use information relating to the representation of a former client to the former client’s disadvantage.  One exception is when the information ______:

  • A.  has become generally known.  V.R.Pr.C. 1.9(c)(1).2
  • B.  is public record.
  • C.  Trick question.  There are 2 exceptions, and they are A & B.
  • D.  Trick question.  There are no exceptions.

Question 2

Consider the following:

  • must be in a writing that is signed by the client.
  • cannot be used for representing a defendant in a criminal case.
  • cannot be based on securing a divorce.

Here, we’re talking about:

  •   A.  Contingent Fees.  V.R.Pr.C. 1.5(c)
  •   B.  Flat Fees
  •  C.  An agreement to limit the scope of a representation
  •  D.  All the Above

 Question 3

There’s a rule that applies to “prospective clients.”   To qualify for the protections the rule affords, the prospective client must:

  1. Consult with the lawyer in good faith.
  2. Pay for the consultation.
  3. A & B.

This is V.R.Pr.C. 1.18.  Comment 2 explains the “good faith” requirement.

Question 4

Which is prohibited by the Rules of Professional Conduct?

  • A.  Accepting cryptocurrency as payment for legal fees.
  • B.  Accepting stock in the client’s company as payment for legal fees.
  • C.  Accepting payment of legal fees via mobile app like PayPal or Venmo.
  • D.  None of the above is a per se violation of the rules.

Question 5

Speaking of Giuliani . . .

. . . 1993, Giuliani had a cameo as himself in Seinfeld.  The episode included a fictionalized version of Giuliani’s campaign for mayor of NYC.  The plot focused on whether a restaurant had falsely marketed a particular food product as “non-fat.”  Due to a mishap caused by Kramer, a sample of Giuliani’s blood revealed high levels of cholesterol.  Giuliani, who had regularly frequented the restaurant, immediately promised voters an investigation into the potential fraud.  The controversy surrounding the falsely labeled food product swept him to victory.

Name the food product:  NON-FAT YOGURT.  Who can forget Elaine suggesting to Lloyd Braun that Mayor Dinkins run on a platform that everyone in NYC should wear nametags??  Yes, LLOYD BRAUN.

Bonus:  in 2021, Giuliani won Razzies for “Worst Supporting Actor” and “Worst Screen Combo” for his appearance in a movie.

Name the movie.  Borat Subsequent Moviefilm (aka “Borat 2”).

Giuliani

Five for Friday #231

Welcome to Friday and the 231st legal ethics quiz!

Judging from the number of emails that I received yesterday, people took note of the order suspending Rudy Giuliani’s law license.  More than one person commented that Giuliani had been disbarred. He was not.  Rather, his license to practice law in New York was suspended on an interim basis.

So, I thought I’d use today’s column as a teachable moment to (1) outline Vermont’s disciplinary process and a specific aspect thereof: the immediate interim suspension of a lawyer’s law license; and (2) explain the effect of yesterday’s order.

Vermont’s Rule

In Vermont, every disciplinary complaint is reviewed by “screening counsel.”  Complaints are either dismissed, referred for non-disciplinary dispute resolution (diversion), or referred to disciplinary counsel for an investigation.

Upon referral of a complaint, disciplinary counsel investigates.  If the investigation leads disciplinary counsel to conclude that the evidence supports an allegation that the lawyer violated the Rules of Professional Conduct, there are two ways to commence formal disciplinary proceedings.

The first is via stipulation.  Disciplinary counsel and the respondent file stipulated facts with a hearing panel of the Professional Responsibility Board.

The second is via “petition of misconduct.”  A petition of misconduct is analogous to a civil complaint. It includes factual allegations and, if you will, “counts” that allege violations of the Rules of Professional Conduct.  Before filing a petition of misconduct, disciplinary counsel must first file a “request for review for probable cause.”  The request summarizes the investigation and argues why the lawyer should be charged.  If granted, a petition of misconduct follows and is assigned to a different hearing panel than considered the request for review for probable cause.  The lawyer must file an answer to the petition.  Then, following a 60-day period in which limited types of discovery are allowed, an evidentiary hearing takes place.

Whether charges are commenced via stipulation or petition of misconduct, disciplinary counsel bears the burden of proving a violation by “clear and convincing” evidence.  Both disciplinary counsel and the lawyer can appeal the panel’s decision to the Vermont Supreme Court.  Or, even if no appeal is taken, the Court can order review on its own motion.

That’s the typical process.  Throughout, the lawyer is authorized to continue to practice law.

However, the rules that govern the Professional Responsibility Program recognize that there will be cases so serious that the lawyer should not be allowed to practice pending the outcome of the investigation. By rule, if disciplinary counsel receives “sufficient evidence demonstrating” that a lawyer has violated the rules and “presently poses a threat of serious harm to the public,” disciplinary counsel must transmit the evidence to the Supreme Court, along with a proposed order for the immediate interim suspension of the lawyer’s license.  If granted, the interim suspension remains in effect until the final resolution of the underlying disciplinary complaint via the process outlined above.  In that sense, I suppose an interim suspension is analogous to “hold without bail” in a criminal matter.

Unsurprisingly, it’s rare to request an interim suspension.  In Vermont, they generally issue when a lawyer abandons a practice, commits a serious crime, suffers from a severe behavioral health issue, misappropriates client funds, or refuses to cooperate with a disciplinary investigation.

New York & Giuliani

New York’s judicial system is structured differently than Vermont’s.  In New York, there are four appellate divisions of the supreme court, one in each of the state’s judicial departments.  As the Giuliani opinion stated, “[e]ach Judicial Department of the Appellate Divisions of the New York Supreme Court is responsible for the enforcement of the Rules of Professional Conduct within its departmental jurisdiction.”  Misconduct is investigated and prosecuted by the Attorney Grievance Committee in each department.

As in Vermont, there’s a typical process by which matters proceed through the system.  Quoting again from the Giuliani opinion, “[i]n certain cases, the Committee may, during the pendency of its investigation, make a motion to the Court for an attorney’s interim suspension. Interim suspension is a serious remedy, available only in situations where it is immediately necessary to protect the public from the respondent’s violation of the Rules [of Professional Conduct.]”

That’s what happened yesterday.  The Supreme Court of the State of New York for the Appellate Division of the First Judicial Department concluded that Giuliani had violated three rules and should be immediately suspended from the practice of law.  Specifically, the court stated that the Attorney Grievance Committee:

  • “has made a showing of an immediate threat to the public, justifying respondent’s interim suspension. We find that there is evidence of continuing misconduct, the underlying offense is incredibly serious, and the uncontroverted misconduct in itself will likely result in substantial permanent sanctions at the conclusion of these disciplinary proceedings.”

In sum, yesterday’s Giuliani decision was the equivalent of the Vermont Supreme Court immediately suspending a lawyer’s law license pending the outcome of a disciplinary investigation.  I don’t know when the Giuliani matter will finally resolve.  However, until it does, Giuliani’s New York law license will remain suspended.

Onto 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 don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

 Question 1

By rule, a lawyer shall not use information relating to the representation of a former client to the former client’s disadvantage.  One exception is when the information ______:

  • A.  has become generally known.
  • B.  is public record.
  • C.  Trick question.  There are 2 exceptions, and they are A & B.
  • D.  Trick question.  There are no exceptions.

Question 2

Consider the following:

  • must be in a writing that is signed by the client.
  • cannot be used for representing a defendant in a criminal case.
  • cannot be based on securing a divorce.

Here, we’re considering:

  •  A.  Contingent fee agreements
  •  B.  An agreement to allow the lawyer to treat a fee paid in advance as “earned upon receipt.”
  •  C.  An agreement to limit the scope of a representation.
  •  D. All the Above.

 Question 3

There’s a rule that applies to “prospective clients.”   To qualify for the protections afforded by the rule, the prospective client must:

  1. Consult with the lawyer in good faith.
  2. Pay for the consultation.
  3. A & B.

Question 4

Which is prohibited by the Rules of Professional Conduct?

  • A.  Accepting cryptocurrency as payment for legal fees.
  • B.  Accepting stock in the client’s company as payment for legal fees.
  • C.  Accepting payment of legal fees via mobile app like PayPal or Venmo.
  • D.  None of the above is a per se violation of the rules.

Question 5

Speaking of Giuliani . . .

. . . 1993, Giuliani had a cameo as himself in Seinfeld.  The episode included a fictionalized version of Giuliani’s campaign for mayor of NYC.  The plot focused on whether a restaurant had falsely marketed a particular food product as “non-fat.”  Due to a mishap caused by Kramer, a sample of Giuliani’s blood revealed high levels of cholesterol.  Giuliani, who had regularly frequented the restaurant, immediately promised voters an investigation into the potential fraud.  The controversy surrounding the falsely labeled food product swept him to victory.

Name the food product.

Bonus:  in 2021, Giuliani won Razzies for “Worst Supporting Actor” and “Worst Screen Combo” for his appearance in a movie.

Name the movie.

the-quiz

Wellness Wednesday: Set Communication Boundaries with Clients and Opposing Counsel.

I’ve presented several wellness CLEs over the past month. At each, I’ve highlighted the recommendations made by the Legal Employers Committee in the 2018 State Action plan issued by the Vermont Commission on the Well-Being of the Legal Profession.  Outlined on page 11 and presented in full beginning on page 68, the Committee’s recommendations provide fantastic and prescient tips for legal employers, both public and private, interested in improving well-being in the workplace.

wellness

Today, I post to focus on one of the tips. It’s one that’s drawn significant attention and support during wellness seminars.  The Committee recommended:

  • “Consider a policy that employees should not—apart from emergencies—check their work email during non-working hours. Moreover, employers should allow all legal professionals to set reasonable boundaries on responding to emails, for example, letting clients know that barring an emergency, they may not get an email response immediately, but the employee will respond within a certain period of time.”

All over Vermont, lawyers report the stress that comes from being constantly available. Given technology, many lawyers find themselves being contacted by clients and opposing counsel around the clock.  The sheer volume is often exacerbated by the lawyer’s sense that an immediate response is required.

It isn’t.

Yes, I understand that there will be emergency situations that demand a response.  But as the Committee recommended in 2018, legal employers should encourage and assist employees to set boundaries with clients and opposing counsel.  From an ethics perspective, Rule 1.4 does not require lawyers to be available on-demand, 24/7.  Rather, it requires lawyers to:

  • “keep clients reasonably informed about the status of the matter;” and,
  • “promptly comply with reasonable requests for information.”

Sometimes, each of the following is not only prompt and reasonable, but healthy:

  • Tomorrow morning.
  • After my kid’s game ends.
  • After I finish the lunch I’m eating.
  • After the weekend.
  • After I finish the letter I’m drafting for another client.

Last night, I found an informative post in the ABA Journal.  In Lawyers weigh in: Why is there a depression epidemic in the profession?, Dina Roth Port asked for insight from practicing attorneys. One response stood out to me:

  • “’I think technology has made the profession of law more anxiety- and depression-inducing. Emails, texts and cellphone calls—there is no escape. At night or early in the morning, your phone or PDA is beeping, dinging and ringing. Then on weekends, your clients are emailing or texting. To make matters worse, in the techno world in which we live, clients, colleagues and opposing lawyers expect an immediate answer. Sometimes mere minutes are too long! Because there is no break and no respite, there is no release for the constant pressure. Taken to an extreme, there is no hope. This can push lawyers over the edge.’ —Marc Lamber, co-founder of the Lamber-Goodnow Injury Law Team at Fennemore Craig”

This is an area in which the profession can improve.   And, as the Committee recommended, improvement starts with legal employers being willing to consider allowing their employees to set communication boundaries with clients and opposing counsel.

Finally, I’d like to acknowledge the members of the Legal Employers Committee.  Thank you for your important work.

Related Posts:

Maybe narcissistic lawyers who espouse ludicous arguments don’t necessarily violate the duty of competence.

Warning:  do not read this post if you are a narcissistic trial attorney or an attorney who has espoused ludicrous legal positions.

*******************************************************************

Competence.

I blog about it often, always in the context of the duty to provide clients with competent representation. For obvious reasons, I never address the legal analysis that applies when assessing whether an accused is competent to waive the right to counsel. 

Well, today, the latter meets the former.

In an opinion issued earlier this week, the United States Court of Appeals for the Fourth Circuit analyzed whether a criminal defendant was competent to waive counsel. The court’s analysis includes reference to whether, upon waiving counsel, the defendant provided himself with competent representation.   The Legal Profession Blog and ABA Journal reported the opinion.

As far as this post is concerned, I’m most interested in sharing two sentences from the court’s opinion.  As far as seminars on the duty of competence are concerned, I cannot wait until I’m able to work at least one of those sentences into my presentation.

But first, some background. 

The court’s opening paragraph succinctly sets the stage:

  • “After wrecking his car, Joseph Ziegler falsely claimed to be an Assistant United States Attorney to avoid charges and retrieve his impounded car. The real United States Attorney prosecuted him for impersonating a federal officer. Though not a lawyer, Ziegler waived his right to counsel and represented himself at trial. The jury convicted him.”

The next sentence gets us closer to the sentences I’m most interested in sharing:

  • “Ziegler now claims that the district court erred in permitting Ziegler to represent himself because he was incapable of doing so and because the district court failed to make necessary inquiries into his mental competency to waive counsel.”

Then, after concluding that the defendant was competent to waive counsel:

  • “Ziegler’s performance during trial only confirmed his competency. Ziegler gave an opening and closing argument, conducted far-reaching cross-examinations, introduced evidence, including three witnesses, and won several objections. While Ziegler continued to make some bizarre statements and mistakes, those occurrences related more to a lack of training and experience, which is to be expected of any non-lawyer, than to concerns about competency. In fact, Ziegler did quite well for someone proceeding pro se. His apparent ability to consider strategic choices, develop a defense strategy, and operate in the courtroom is all evidence of competence to both stand trial and waive the right to counsel.”

And, finally, here’s the paragraph that includes the sentences that I most wanted to share. (I’ve omitted the internal citation.)

  • “Still, Ziegler contends that his grandiose statements about his legal acumen, his combative approach to witnesses, his bizarre questions and theories, and his arguments with the court should have raised red flags. We disagree. Many great trial lawyers are combative and a bit full of themselves, if not outright narcissists. And ‘persons of unquestioned competence have espoused ludicrous legal positions.’”

I cannot wait until the seminar at which I’m first able to work in the following remark:

  • “You wouldn’t believe the things I’ve seen as disciplinary and bar counsel.  As the Fourth Circuit has noted, ‘persons of unquestioned competence have espoused ludicrous legal positions.’”

narcissus

PS:  If the defendant had been a lawyer, he might’ve qualified for Was That Wrong?

A lawyer’s professional obligation to provide candid legal advice.

During a seminar that I did last week for Vermont Law School’s South Royalton Legal Clinic, I reminded clinicians that a lawyer’s job is not to tell the client what the client wants to hear.  A lawyer’s job is to provide the client with candid legal advice.  I said the same thing again today in a CLE for government lawyers. Indeed, it’s a tip I’ve shared for more than decade, including in the five blogposts linked below.

Typically, I deliver the message when discussing one of my 5 Cs of legal ethics: communication.  In my experience, most disciplinary complaints are not rooted in a lawyer’s failure to respond to a client’s calls or emails. Rather, they are rooted in a lawyer’s failure to communicate reasonable expectations to the client at the outset of the professional relationship. Or, stated differently, they’re rooted in a lawyer’s failure to disabuse the client of expectations that the lawyer knows are unrealistic.

communication

While I share the guidance in the context of Rule 1.4 and the duty to communicate, nowhere in the rule or its comments is it written “a lawyer shall provide clients with candid legal advice.”  As such, I’ve done a poor job communicating that my guidance is anything more than aspirational.  That ends now.  I post today to make clear that lawyers have a professional duty to render candid legal advice.

Rule 2.1 of the Vermont Rules of Professional Conduct is entitled “Advisor.”  The first line is:

  • “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.”

Comment [1] falls under the heading “Scope of Advice.” It makes my point better than I ever have:

  • “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.”

Lawyers: consider what you’d expect from your auto mechanic, doctor, dentist, financial advisor, or anyone else to whom you turn for advice.  Or from your lawyer if you ever need to hire one!  You’d expect candid advice.  It might not be what you hoped for or wanted, but it’s the advice you’re entitled to receive.  Your clients are entitled to the same.

Rendering candid legal advice is more than a tip from bar counsel.  It’s a lawyer’s professional obligation.

Related posts:

Monday Morning Honors #230

Welcome to Monday.

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

Honor Roll

  • Karen Allen, Karen Allen Law
  • Evan BarquistMontroll, Backus & Oettinger
  • Penny Benelli, Dakin & Benelli
  • Andrew DelaneyMartin, Delaney & Ricci Law Group
  • Glenn Jarrett, Jarrett & Luitjens
  • John Leddy, McNeil Leddy & Sheahan
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeff MessinaBergeron, Paradis, Fitzpatrick
  • Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
  • Herb Ogden, Esq.
  • Keith RobertsDarby Kolter & Nordle
  • Jim Runcie, Ouimette & Runcie
  • The Honorable John Valente, Vermont Superior Judge
  • Zachary York, Legal Assistant, Sheehey Furlong & Behm

 Answers

Questions 1 & 2

Everyone knows I often mention the 7 Cs of Legal Ethics.  Earlier this week, I spoke with student-clinicians at Vermont Law School’s South Royalton Legal Clinic.  Their quiz on the 7 Cs included this question:

  • “Let’s imagine that upon passing the bar you accept a job with a state agency. Your first assignment is familiar: it involves a matter you worked on while in the clinic.  Which 2 Cs of legal ethics jump to mind?”

The scenario is a variation of a scenario that can, and often does, confront any lawyer.  So, Friday readers have the same task: identify the 2 Cs of Legal Ethics implicated by the scenario.

Conflicts of Interest and Confidentiality

Question 3

 Your office employs Non-Lawyer.  In a new matter, Non-Lawyer has a conflict that, if Non-Lawyer were a lawyer, would prohibit Non-Lawyer from accepting the representation.  Which is most accurate?

  • A. Non-Lawyer’s conflict is imputed to all lawyers in the office and the office must decline the representation.
  • B. Non-Lawyer’s conflict is imputed, but only to any lawyer in the office who regularly supervises Non-Lawyer.
  • C. A comment to one of the rules indicates that while Non-Lawyer’s conflict is not imputed to any lawyer in the office, Non-Lawyer should be screened from involvement in the new matter.  See, V.R.Pr.C. 1.10, Cmt. [4]
  • D. Imputation depends on whether the matter is transactional or involves potential litigation.

Question 4

Last week, I presented to members of the Vermont Association for Justice.  My topic was professional responsibility and “The Golden Rule.”   What was the focus of the discussion?

  • The rule that prohibits unreasonable fees.
  • Trust Account Management/Bookkeeping
  • The advertising rules.
  • Closing arguments and the general prohibition on asking jurors to put themselves in the shoes of the victim or a witness.

Question 5

I often urge lawyers not to share any details of client matters, even if doing so doesn’t violate the prohibition on disclosing information relating to the representation of a client.

Reginald Haupt is a lawyer in Georgia.  In 1982, he was suspended from practice for 6 months for commingling.  In 2006, he was convicted of securities fraud and sentenced to 4 years in prison.

In the 1970’s, Haupt represented a client who owned a golf course that was frequented by members of the Chicago mafia.  Last month, Haupt made headlines by divulging to the media that, long ago, his former client told him that members of the Chicago mafia “delivered a package” to the golf course.  According to Haupt, the “package” was the dead body of a famous missing person who, to this day, remains buried on the course.

Whose body?

James Hoffa.    You can read the story at Golf Digest.

hoffa