Competence & Legal Analytics

Rule 1.1 requires lawyers to provide clients with competent representation.  Per the rule, “[c]ompetent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”

Comment [5] indicates that competence “includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners.  It also includes adequate preparation.”

Last December, citing Moneyball, I wondered whether Rule 1.1 soon will require lawyers to scout judges.  The post references Ravel Law’s “Court Analytics,” a tool that, among other things, enables lawyers to research the cases & authorities that a particular judge finds most persuasive and cites to most often.

The use of a data-driven legal analytics continues to grow.

This morning, I came across Above The Law’s Profiles in Innovation: An Interview with Owen Byrd of Lex Machina.

Lex Machina recently launched a platform that brings legal analytics to federal commercial litigation.  Here’s an excerpt from Byrd’s interview with Above The Law:

  • We now have a system that captures every federal case with a breach of contract claim, a business tort claim, or both. 

    This lets us give commercial litigators incredible insights about those cases — for example, how often a certain judge decides contract breach cases, how she tends to resolve them, how long such cases typically take from filing to resolution, and which law firms and lawyers have appeared — and prevailed — most frequently before that judge.”

Would having this information sound like “adequate preparation” that is “reasonably necessary for the representation?  Let me ask it another way: if you don’t have the information, what will your response be when a client complains that you didn’t?

As I mentioned, for now, Lex Machina is focused on federal commercial litigation. However, as you’ll see in the interview, it won’t be long until similar analytics are available on a state-law level and in a wide range of practice areas.

As technology evolves, so does a lawyer’s duty of competence.

Legal Analytics

 

 

 

Monday Morning Answers – #77

As June’s final week dawns, we welcome two first-timers to the #fiveforfriday Honor Roll.  Congrats (and welcome) to Lindsay Cabreros and Mike Donofrio.  Bonus points to Mike for slipping in a Here Come The Warm Jets reference in his response to Question 2. And special recognition to Nicole Killoran for being the only entrant to comment on the lyrical reference to “Psycho Killer” by the Talking Heads.  

Friday’s questions are here.  Spoiler alert: the answers follow today’s Honor Roll.

Honor Roll

  • Karen Allen, Karen Allen Law
  • Matt Anderson, Pratt Vreeland Kennelly Martin & White
  • Penny Benelli, Dakin & Benelli
  • Lindsay Cabreros, Graduate Intern, First American
  • Beth DeBernardi, ALJ, Vermont Department of Labor
  • Andrew DelaneyMartin & Associates
  • Mike Donofrio, Stris & Maher
  • Robert Grundstein
  • Anthony Iarrapino
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Patrick Kennedy, First Brother, Dealer.Com
  • Nicole Killoran, Vermont Law School, Professor, JD Externship Program
  • Ray MassuccoMassucco Law Offices
  • Hal Miller, First American, Oceanside Division
  • Herb Ogden, Law Office of Herb Ogden

Answers

Question 1

Two weeks ago, Andrew Manitsky, Tad Powers, and I presented a CLE that included a discussion of the ethics of puffing.  What was the topic of the CLE?

  • A.   Candor in Negotiations.  See, Puffing: The Ethics of Negotiations
  • B.   Candor in Opening & Closing Statements
  • C.   Lawyer Advertising & Social Media Marketing
  • D.   Advising Clients on Vermont’s (then proposed) Marijuana Laws

Question 2

In the matter of Byrne v. Eno, Attorney represents Byrne.  Lawyer represents Eno.

Eno e-mails a settlement offer directly to Attorney and does not copy Lawyer.

If Attorney calls me with an inquiry, it’s most likely that I’ll respond:

  • A.   You may reply directly to Eno on the substance of the offer.
  • B.   You may reply directly to Eno, but should limit the response to asking whether Eno is still represented by Lawyer
  • C.   Go through Lawyer.  The so-call “no-contact” rule still applies even though Eno initiated the communication.  See, Rule 4.2, Comment [3]
  • D.   “A,” but the comment suggests “B” is a better approach

Question 3

The phrase “single source” appears in the rules.  Last week, I spent several minutes discussing “single source” and its meaning at a CLE.

What was the topic of the CLE?

Trust Account Management.  See, Rule 1.15A(a)(4).  See also, PRB Decision 175, (Attorney Admonished for failing to have single source identifying all trust accounts)

Question 4

I get a lot of calls & e-mails on this topic.

Lawyer called me with an inquiry.  I listened, then told the Lawyer that the 50 states fall into two camps:  “end-product” states, and “work-product” states.  I added that, in my view, we’re an “end-product” state.

What did Lawyer call to discuss? Hint – the general topic is something that is required by the Rules of Professional Conduct and that 98% of you have had to deal with, no matter your practice area.

File Delivery Upon the Termination of a Representation.  For general guidance, see ABA Formal Opinion 471

Question 5

Rule 1.6(b) sets out the situations in which a lawyer must disclose a client’s intent to commit a crime.

More specifically, Rule 1.6(b)(1) requires a lawyer to reveal information related to the representation to the extent necessary to prevent the client or another person from committing a criminal act that the lawyer believes is reasonably likely to result in the death of a person other than the person committing the act.

If the rule had existed back then, it seems clear that Attorney Tom Hagen violated it as he watched Tessio driven away.

Name the movie.

Robert Duvall played Attorney Tom Hagen.  Abe Vigoda played Tessio.   Hagen failed to act to prevent Fish from sleeping with the fishes in The Godfather.

The Godfather

 

 

 

Was That Wrong? Tax Judge Sentenced for…..Tax Fraud

Remember when I wrote about the defense lawyer whose pants caught on fire during his closing argument in an arson case?  Well, get ready for another to which you can only say “you can’t make this stuff up”

Was That Wrong is a semi-regular column on Ethical Grounds. The column features stories of the absurd & outrageous from the world of legal ethics and attorney discipline. My aim is to highlight misconduct that I hope you’ll instinctively avoid without needing me to convene a CLE that cautions you to do so.

The column is inspired by the “Red Dot” episode of Seinfeld. In the episode, George Costanza has sex in his office with a character known only as “the cleaning woman.”  His boss finds out.  Here’s their ensuing exchange :

(Scene) In the boss’ office.

  • Boss: I’m going to get right to the point. It has come to my attention that you and the cleaning woman have engaged in sexual intercourse on the desk in your office. Is that correct?
  • George: Who said that?
  • Boss: She did.
  • George: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know, cause I’ve worked in a lot of offices and I tell you people do that all the time.
  • Boss: You’re fired.
  • George: Well you didn’t have to say it like that.

The full script is HERE.  The scene is HERE.

Today’s version comes from us from Minnesota, the Land of 10,000 Lakes.  (Sidenote: nice basketball connection here. Not many people know why the Los Angeles Lakers are called “the Lakers.”  It’s because they used to be in Minneapolis.)

Anyhow, per Paul Caron at the TaxProf Blog, a former U.S. Tax Court judge was sentenced to 34 months in federal prison for tax fraud committed while sitting on the tax court.  The Minnesota Lawyer has additional details.

Someday I hope to launch a YouTube channel tied to this blog.  When I do, here’s how I imagine scripting today’s entry when I adapt Was That Wrong to the screen.

  • Sentencing Court:  We’re going to get right to the point. It’s come to our attention that, over about 10 years, you and your husband fraudulently deducted approximately $500,000 of personal expenses as business expenses, fraudulently claimed around another $440,000 in deductions that, in fact, had been reimbursed, intentionally understated your income, made a series of false claims on your tax returns, and, when audited, intentionally submitted false documents to the auditors.  And, that for the entire time, you were a sitting judge on the U.S. Tax Court.
  • Defendant:  Who said that?
  • Sentencing Court:  You admitted it.
  • Defendant: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know, cause I’ve seen a lot of cases and I tell you people do that all the time.
  • Sentencing Court:  34 months.
  • Defendant:  Well you didn’t have to say it like that.

The previous entries in Was That Wrong?

costanza

Five for Friday #77

Welcome to #fiveforfriday #77!

Speaking of 77, I’m a fair quiz master, not some sort of psycho killer.  Thus, this quiz isn’t one from which it’s fa fa fa far better to run run run run run away.  Give it a shot!

Rules

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

Question 1

Two weeks ago, Andrew Manitsky, Tad Powers, and I presented a CLE that included a discussion of the ethics of puffing.  What was the topic of the CLE?

  • A.   Candor in Negotiations
  • B.   Candor in Opening & Closing Statements
  • C.   Lawyer Advertising & Social Media Marketing
  • D.   Advising Clients on Vermont’s (then proposed) Marijuana Laws

Question 2

In the matter of Byrne v. Eno, Attorney represents Byrne.  Lawyer represents Eno.

Eno e-mails a settlement offer directly to Attorney and does not copy Lawyer.

If Attorney calls me with an inquiry, it’s most likely that I’ll respond:

  • A.   You may reply directly to Eno on the substance of the offer.
  • B.   You may reply directly to Eno, but should limit the response to asking whether Eno is still represented by Lawyer
  • C.   Go through Lawyer.  The so-call “no-contact” rule still applies even though Eno initiated the communication.
  • D.   “A,” but the comment suggests “B” is a better approach

Question 3

The phrase “single source” appears in the rules.  Last week, I spent several minutes discussing “single source” and its meaning at a CLE.

What was the topic of the CLE?

Question 4

I get a lot of calls & e-mails on this topic.

Lawyer called me with an inquiry.  I listened, then told the Lawyer that the 50 states fall into two camps:  “end-product” states, and “work-product” states.  I added that, in my view, we’re an “end-product” state.

What did Lawyer call to discuss? Hint – the general topic is something that is required by the Rules of Professional Conduct and that 98% of you have had to deal with, no matter your practice area.

Question 5

Rule 1.6(b) sets out the situations in which a lawyer must disclose a client’s intent to commit a crime.

More specifically, Rule 1.6(b)(1) requires a lawyer to reveal information related to the representation to the extent necessary to prevent the client or another person from committing a criminal act that the lawyer believes is reaonably likely to result in the death of a person other than the person committing the act.

If the rule had existed back then, it seems clear that Attorney Tom Hagen violated it as he watched Tessio driven away.

Name the movie.

the-quiz

 

 

Confused by Conflicts? Think “Tug of War”

I coached varsity basketball for 15 years.  One thing I learned is that different players have different learning styles.

For example, I’d wager that the play I ran most often in my career was one we called “Texas.”  We had various ways to start “Texas,” but the critical action always came from the same set.

Texas

 

There are different ways to teach kids a play. For some, drawing it on a whiteboard (above) was sufficient.  Others needed to watch it demonstrated on the court.  Still others had to learn by doing; that is, walk through the play on the court in order to learn it.  We’d use each method.

I don’t want you to have to walk through a disciplinary investigation in order to learn what a conflict of interest is.  However, to help you avoid conflicts, I’m not going to make you read a blog clogged with cites to Rules 1.7, 1.81.9, and 1.10.  For all I know, that wouldn’t help anyone learn anything.  Instead, I’m going to try a visual.  And that’s where “Tug of War” comes in.

Unfortunately, this is the best visual I could find.

Tug of War

Most of you should be familiar with the rules of Tug of War.  If not, look at the picture.

There are 3 white lines in the dirt.

  • Line 1 is at the feet of the guy who is at the front of the team that is closest to us.
  • Line 2 is in the middle.  The ref is standing on it.
  • Line 3 is at the feet of the team farthest from us.

There’s piece of red tape in the middle of the rope.  At the start of the match, the piece of red tape is positioned over Line 2.  The team that pulls the piece of red tape over Line 1 or Line 3 wins.

Turning to conflicts, as a lawyer, you’re the piece of red tape.  (No pun intended).

Now, let’s pretend the team at the top of the picture is your client.  If there is nobody down here at the bottom pulling you towards Line 1, it’s likely that you’re conflict-free.

But, picture this: someone or something is tugging you towards Line 1.  Who or what? Could be anything.  For purposes of this blog, I want you to imagine that the tug is a duty that you owe to someone other than your client (the team at the top of the picture). For instance:

  • duties to another client;
  • duties to a former client;
  • duties to a third person; or,
  • a personal interest of yours

That tug – someone or something pulling you away from your client – probably has interests that conflict with your client’s.  Stated differently, do the interests of the two teams in the picture align? No, they don’t.  They conflict.

Your client isn’t required to tug you towards Line 3.  Rather, your client is entitled to representation free of any conflicting interests tugging you towards Line 1.

Feeling tugged?  You might have a conflict.  You’ll need to consider whether to decline representation or, if representation has commenced, whether to withdraw.

Oh, “Texas” was a damn good play.

 

 

 

 

Data Shows Significant Drop in Top LSAT Takers Applying to Law School

Paul Caron is the Dean of Pepperdine University’s School of Law.  He’s the editor of the popular TaxProf Blog.

Last week, Dean Caron blogged on new data that shows a significant decrease in the proportion of law school applications filed by those who score the highest on the LSAT.  Both the ABA Journal and Above The Law have more on Dean Caron’s post.

The key takeaway from the blog:

                                                              Percentage of Applications to Law School

LSAT Score                                          2010                                       2017

160 or >                                               40.8%                                    26.4%

150-159                                                45%                                        38.7%

< 150                                                     14.2%                                    34.9%     

 

These stories come on the heels of the ABA Journal’s post on a study in which two Pepperdine law professors linked low scores on the bar exam with disciplinary action.   The study is here.

I’ve been with the Professional Responsibility Program since 1998, and was the chief disciplinary prosecutor from 2000-2012.  We never once asked for an attorney’s bar exam score while investigating or prosecuting the attorney.  I wonder if the PRP and BBE will soon be asked to release the bar exam scores of attorneys who are (or have been) disciplined.

LSAT.jpg

 

 

Monday Morning Answers: #76

Delayed post this morning.  As a Celtics fan, I got caught up reading blogs trying to figure out if this weekend’s trade makes any sense.  I’m on board with Tatum at #3.  I’m luke warm on anything involving Jimmy Butler, and not at all interested in renting Paul George for a year.

Anyhow, I digress.  Friday’s questions are here.  Spoiler alert: the answers follow the honor roll.

Honor Roll

 

Answers

Question 1

Attorney represents an organization in a matter.  Opposing Counsel knows that Attorney represent the organization in the matter.  Without Attorney’s permission, Opposing Counsel discusses the matter with a former employee of the organization.  Which is most accurate?

  • A.  Opposing Counsel violated the rules.
  • B.  Opposing Counsel did not violate the rules.  Rule 4.2, Comment [7], (“Consent of the organization’s lawyer is not required for communication with a former constituent.”)
  • C.  Attorney violated the rules.

Question 2

Lawyer called me with an inquiry.  I listened, then asked:

“has the clerk certified that the term of service is complete?”

What did Lawyer ask me if it would be okay to do?

Lawyer asked if it would be permissible to communicate with a juror.  See, Rule 3.5(b) & (c).

Question 3

Lawyer has actual knowledge that Client is going to commit a fraud.  The fraud is reasonably certain to result in substantial injury to the financial interests or property of another.  Which most accurate states Lawyer’s duty:

A.  Lawyer must disclose Client’s intent.

B.   Lawyer may disclose Clientt’s intent.

C.  Lawyer must disclose Cient’s intent if Client used Lawyer’s services in furtherance of the fraud.  Rule 1.6(b)(3).

D.  Lawyer must not disclose Client’s intent – disclosure is required only if a client’s crime or fraud will result in the  death of, or substantial physical harm to, someone other than the client.

Question 4

By rule, in contingent fee cases:

  • A.    The fee must be calculated before expenses are deducted
  • B.    The fee must be calculated after expenses are deducted
  • C.    The rule is silent as to whether the fee is to be calculated before or after expenses are deducted
  • D    The fee agreement must specify whether the fee will be calculated before or after expenses are deducted.  Rule 1.5(c).

Question 5

Barry Zuckerkorn is the Bluth family’s inept & incompetent lawyer on the Emmy Award winning show Arrested Development. Whatever his fee, it was probably unreasonable.

In one episode, Zuckerkorn literally jumped over a shark that was lying dead on a pier.  The scene was scripted in homage to a popular 1970’s-80’s TV show that starred the actor who plays Zuckerkorn.

  • Name the actor and the 1970’s show in which he starred.

Henry Winkler.  Happy Days.  The hint: the origin of the phrase “jumped the shark” is the episode in which Fonzie jumped a shark on water skis .

 

Five for Friday #76

No time to waste this week.  Buckle up, because here we go.  Huge, massive, incredibly kind hint in #5 this week.

Rules

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

Question 1

Attorney represents an organization in a matter.  Opposing Counsel knows that Attorney represent the organization in the matter.  Without Attorney’s permission, Opposing Counsel discusses the matter with a former employee of the organization.  Which is most accurate?

  • A.  Opposing Counsel violated the rules.
  • B.  Opposing Counsel did not violate the rules.
  • C.  Attorney violated the rules.

Question 2

Lawyer called me with an inquiry.  I listened, then asked:▪

“has the clerk certified that the term of service is complete?”

What did Lawyer ask me if it would be okay to do?

Question 3

Lawyer has actual knowledge that Client is going to commit a fraud.  The fraud is reasonably certain to result in substantial injury to the financial interests or property of another.  Which most accurate states Lawyer’s duty:

A.  Lawyer must disclose Client’s intent.

B.   Lawyer may disclose Clientt’s intent.

C.  Lawyer must disclose Cient’s intent if Client used Lawyer’s services in furtherance of the fraud.

D.  Lawyer must not disclose Client’s intent – disclosure is required only if a client’s crime or fraud will result in the  death of, or substantial physical harm to, someone other than the client.

Question 4

By rule, in contingent fee cases:

  • A.    The fee must be calculated before expenses are deducted
  • B.    The fee must be calculated after expenses are deducted
  • C.    The rule is silent as to whether the fee is to be calculated before or after expenses are deducted
  • D    The fee agreement must specify whether the fee will be calculated before or after expenses are deducted.

Question 5

Barry Zuckerkorn is the Bluth family’s inept & incompetent lawyer on the Emmy Award winning show Arrested Development. Whatever his fee, it was probably unreasonable.

In one episode, Zuckerkorn literally jumped over a shark that was lying dead on a pier.  The scene was scripted in homage to a popular 1970’s-80’s TV show that starred the actor who plays Zuckerkorn.

  • Name the actor and the 1970’s show in which he starred.

the-quiz

 

 

 

Tech Competence, Legal Research, and Color-Coded Citations

I’ve often referred readers to Robert Ambrogi’s LawSites blog.  It’s a fantastic resource on issues that lie at the intersection of law & technology.

Today, Ambrogi posted a blog entited Judicata Brings A New Dimension to Legal Research: Color.  The post refers to Judicata’s announcement of a new tool that uses color as an aid in legal research.  The tool’s name: Color.  

I find Color fascinating.   I recommend taking 5 minutes or so to read both Judicata’s annoucment & Ambrogi’s blog post.

Here are a few screen shots.

An excerpt from a Color-coded opinion:

Text

Now, the “code.”

Color Code

Enjoy.

Attorney-Client Sex: It’s Time for a Rule

It’s time to raise this issue.  Again.

On July 10, the Professional Responsibility Board’s duties will expand to include reviewing and recommending changes to the Rules of Professional Conduct.  For many years, proposed amendments to the RPCs have flowed through the Advisory Committee on Civil Rules.

I expect that one of the Board’s first recommendations will be to propose a rule that bans attorney-client sexual relationships that do not pre-date the representation.

The Board has long felt that Vermont should join the 31 other states that have specific bans.  In January 2015, the Board recommended that the Court adopt a specific ban.  I supported the recommendation, as did then disciplinary counsel.  At the time, each of us had more than 13 years of experience prosecuting disciplinary cases, and first-hand experience with the challenges posed by the lack of a bright-line rule when prosecuting a lawyer who exploits the attorney-client relationship.

Please take the time to answer this poll question: should the PRB propose a rule that specifically bans lawyer client sexual relationships?  You can vote HERE.

Need information before you vote?  I blogged on the issue HERE and HERE.   For the click-averse, I’m pasting in the blog that I posted in December 2015.  It recounts the history of the Board’s efforts to pass a “bright-line” rule and includes some of the arguments for & against an affirmative ban.

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

The ABA has adopted Model Rules of Professional Conduct.  For the most part, Vermont’s rulestrack the model rules.  When it comes to sexual relationships between lawyers and their clients, Vermont’s rules do not track the model rule.

The model rules include a specific ban on client-lawyer sexual relationships.  It’s in Model Rule 1.8(j).  It reads:

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

Thirty-one states have followed the ABA’s lead and adopted specific bans on client-lawyer sexual relationships.  Vermont has not.

While not specifically prohibited by rule, Comment [17] to V.R.Pr.C. 1.8 addresses the “Client-Lawyer Sexual Relationship.”  It’s wordy, but important. It says:

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

(Okay, although this is a serious topic, lawyers don’t need to be so serious all the time. So, an aside: the very first “caution” against sexual relationships with clients was that such relationships might give rise to claims of incompetence.  The unintentional comedy is hilarious.)

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

In 2009, the Civil Rules Committee amended some of Vermont’s ethics rules so as to conform with the ABA Model Rules.  The Committee intentionally omitted Mode Rule 1.8(j).  According to the Reporter’s Notes to the 2009 Amendments, the

  • “omission [was] based on the grounds that an absolute prohibition of lawyer-client sexual relations is both an invasion of privacy and a duplication of the effect of other rules requiring loyal and competent representation, as noted in the revised text of Comment [17].

Earlier this year, the Professional Responsibility Board (“PRB”) recommended a series of amendments to the Rules of Professional Conduct.  The recommendation included a proposal that the Supreme Court amend V.R.Pr.C. 1.8 to include the following language:

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

The full text of the recommendation with respect to Rule 1.8 is HERE.

The Court forwarded the PRB’s recommendations to the Civil Rules Committee.

With one exception, the Civil Rules Committee voted to send the  PRB’s recommendations out for notice, comment, and possible adoption.  The exception:  the proposal to amend Rule 1.8 so as to include a specific ban on client-lawyer sexual relationships.

As I understand it, the Committee’s position is the same as it was in 2009, and that is outlined in the Reporter’s Notes to the 2009 Amendments to Rule 1.8.  That is, there is no need for specific ban, that client-lawyer sexual relationships can be prosecuted under other rules.

The upshot: the PRB’s recommendation that the Court adopt a per se ban on client-lawyer sexual relationships was rejected and not published for notice & comment. (note: the Committee voted to publish other proposals from the PRB for notice & comment. Those proposals are HERE).

The debate over whether the ethics rules should include a specific ban on client-lawyer sexual relationships is not new or limited to Vermont.  In 1993, the New Hampshire Bar Association’s Ethics Committee weighed in.  The debate raged in Texas in 2010, with bar eventually rejecting a proposal to enact a specific ban.  Commenting on the Texas debate, this blog post raises various arguments in favor of a per se ban, while this advisory opinion from Virginia, although not calling for a per se ban, sets out “the host of ethical problems” that arise when lawyers and clients have sexual relationships.

To summarize, some of the arguments for a specific ban:

  • protects vulnerable clients from exploitation, coercion, undue influence;
  • keeps lawyers  from providing advice based on clouded judgment;
  • treats lawyers the same as most other licensed professions;
  • it’s clear, not complicated, leaves no wiggle room; and

Some of the arguments against a specific ban:

  • the existing rules work;
  • unnecessary invasion of privacy;
  • jilted clients will file frivolous malpractice/ethics complaints;
  • what about situations in which there’s no danger of a conflict or any other violation?  For example, corporate counsel and CEO, or a lawyer and a sophisticated transactional client.

Question_mark