CC, BCC, and a lawyer’s duty of competence.

I can hear you now.

  • “Mike, what the heck do CC & BCC have to do with my duty of competence?”

Thank you!! The fact that you know you have a duty of competence is music to my ears!

Now, back to your question.

In my view, the duty of competence includes a duty to have a basic understanding of the benefits and risks of using technology while representing a client.  For example, understanding the risks of “CC-ing” or “BCC-ing” a client on an e-mail to opposing counsel.

So, to bcc or not to bcc?  That is the question.  It’s a question worth considering, if only not to suffer the slings and arrows of angry clients & frustrated opposing counsel.

I’ve blogged on this issue before:

The posts reference advisory opinions from North Carolina and New York.  The opinions list the reasons not to “cc” clients, “bcc” clients, or “reply-all” to an email in which opposing counsel “cc’d” a client.   Any or all can lead a lawyer right into the danger zone.

Seriously Lana, call Kenny Loggins.

Last month, the Alaska Bar Association issued Ethics Opinion 2018-01: E-Mail Correspondence with Opposing Counsel While Sending a Copy to the Client.  The opinion is consistent with those issued by the North Carolina and New York bars.

Here’s a summary of the Alaska Bar’s opinion:

  • A lawyer has a duty to act competently to protect a client’s confidences.
  • A lawyer has a duty not to communicate with a represented party on the subject of the representation.
  • Lawyers are encouraged not to “cc” or “bcc” their clients on electronic communications to opposing counsel.
  • A more prudent practice is to forward the client a copy of a sent e-mail.
  • At the outset of any matter, lawyers should agree on a “cc” and “reply-all” protocol.
  • Absent a protocol, s lawyer has a duty to inquire whether opposing counsel’s “cc” to opposing counsel’s client is permission to “reply-all.”

Good recommendations.

Stay safe out there.  And, remember: competence includes tech competence.

Image result for hamlet to be or not to be

 

 

 

 

 

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Monday Morning Answers #106

Welcome to Monday!

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

My team had a busy weekend.  We won our quarterfinal game Friday night.  Then, Saturday afternoon, the guys held off Edmunds, 25-23, in a semi-final thriller. That proved to be the end of the line, however, as Albert D. Lawton steam-rolled us in Saturday night’s championship.  Despite the loss, I’m super proud of the players.  They’ve grown so much since November and, even though defeat was apparent by halftime, they competed their tails off until the final buzzer.

And, yes, I already miss them and their questions.

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Honor Roll

  • Karen AllenKaren Allen Law
  • Matthew AndersonPratt Vreeland Kennelly & White
  • Alberto Bernabe, Professor, John Marshall Law School
  • Andrew Delaney, Martin & Associates
  • Robert Grundstein
  • Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
  • Jeanne Kennedy, My MomJB Kennedy Associates
  • Deb KirchweyLaw Office of Deborah Kirchwey
  • Shannon LambPratt Vreeland Kennelly Martin & White
  • Kevin LumpkinSheehey Furlong & Behm
  • Lon McClintockMcClintock Law Offices
  • Jack McCullough, Project Director, Mental Health Law Project
  • Jeffrey MessinaBergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Herb Ogden
  • Jim Runcie, Runice & Ouimette
  • Robert Tyler, Associate General Counsel, University of Virginia
  • Thomas Wilkinson, Jr., Cozen O’Connor

 

Answers

Question 1

There’s a rule that applies only to a specific type of lawyer.  Per a comment to the rule, it’s a type of lawyer who “has the responsibility of a minister of justice and not simply that of an advocate.”

What type of lawyer?

Prosecutor in a criminal case.  Rule 3.8.

Question 2

(this one keeps happening, so I’m going to keep asking)

Attorney called me with an inquiry.  Attorney said “Mike, I represent a witness.  The defendant’s attorney keeps contacting my client directly. I asked him to stop.  He said he doesn’t need my permission because my client is only a witness, not a party.  Is he right?”

What was my response?

  • A.   Yes, he’s right.
  • B.   The rule is unclear.
  • C.   The rule is unclear, but, by case law, no, he’s wrong.
  • D.  He’s wrong. The rule applies to any person represented in a matter.  

Rule 4.2 applies whenever a lawyer knows that a person, party or not, is represented in a matter.

Question 3

How long do the rules require lawyers to keep copies of advertisements?

  • A.   2 years
  • B.   6 years.
  • C.   Wait, what? We have to keep copies of advertisements?
  • D.  They don’t.  The 2-year retention requirement was repealed in 2009.

Question 4

True or false.

If a lawyer sells her practice, the rules require her to cease the private practice of law in the geographic area in which she practiced.

True.  I don’t know that I understand the rationale, but it’s in the rule.  It’s Rule 1.17(a).

Question 5

Monday is Presidents’ Day.

25 U.S. Presidents have been lawyers.

Name the most recent U.S. President to have argued a case before the United States Supreme Court prior to becoming president.

Richard Nixon.  In 1966, Nixon argued on behalf of the Hill family in Time, Inc. v. Hill.

See the source image

Five for Friday #106

Welcome to 106!

So, some of you know that I used to coach high school basketball.  I retired after the 2013-14 season, having spent 15 seasons coaching the varsity at my alma mater, South Burlington High School.

This year, I got back into it.  I took the job as the coach of the “B” team at Frederick H. Tuttle Middle School.

By the way, you know a sure sign of age?  When you coach at a school that is named after someone who worked in the system when you attended it.  Back when I was a student at South Burlington Middle School, Mr. Tuttle was the district’s superintendent.

Anyhow, back to 106.

I’ve noticed lots of differences between coaching varsity and middle school.  Lots.  One that stands out: the questions.  I love the guys, but, wow!  Can they ask questions!! Sometimes I feel like it’s 106 questions per day.

Often, the questions have nothing to do with what we’re doing. For instance, during yesterday’s practice, I reviewed a drill before we started it.  When I was done, I asked “any questions?”  A few hands went up.

(Middle schoolers still raise their hands.  It’s awesome.  High schoolers weren’t exactly into raising their hands.)

I called on a player.  He said “coach, do we have to wear a tie to our game on Saturday?”

Nothing to do with the drill.  You get the idea.

We had a lot of fun this year.  We worked hard, improved, and, using basketball as vehicle, focused on 3 keys to life: be on time, be prepared, be respectful. We even won a few games in the process, finishing 10-4 in advance of this weekend’s season ending tournament.

Last night was our final practice.  Over the course of the season, I realized that I didn’t miss coaching too much.  I likely won’t coach again next year. But, last night, I also realized that, once the season ends, I’ll miss the players.  Over a season, a routine develops.  Relationships develop.  I’ll miss those.

And, as I thought about it, I’ll miss the 106 daily questions.  The questions represent an innocence, almost a naivete, that won’t last as the players transition from tweens to teens.  As proud as I am of how they’ve grown as individuals and a team, there’s a certain melancholy that comes from knowing that, soon, they’ll no longer raise their hands, no longer ask the beautifully simple questions.  And for whatever reason, I find that somewhat sad.

I’ll end with my favorite question.

In middle school, the “A” and “B” teams play back-to-back.  At our first home game, I gathered the “B” players in the locker room as the final few minutes of the “A” game ticked off the clock.  I went over the 3 goals we had for the game.  When I finished, I said “any questions?”

Now, when a varsity coach asks “any questions,” the response, if any, tends to be something to do with the game plan.  For example, “coach, did you say we’re trapping ball screens or not?” So, when a hand went up, I assumed it’d be a question along those lines.

Wrong.

I called on the player.  He said “coach, when we go out to the court, should we turn the lights off in the locker room?” I paused, thinking he must be joking. Given my varsity experience, I expected another player to tell him to be quiet, albeit not in those terms.

But then I realized that 12 sets of eyes were intently focused on me, waiting for the answer.

I responded “why would we turn the lights off?”

“Coach, it would save energy.”   Several nods of agreement around the locker room.

Again, I paused.  Finally, I said “good question, but we don’t have to turn the lights off.  As soon as we go out to the court, the ‘A’ team guys are coming back into the locker room, so let’s leave the lights on for them.”

The player who had asked looked me straight in the eyes, pointed at me, and said “Coach, that’s why you’re the coach!”  Then, the team bounded out of the locker room eager to take on that day’s opponent.

Never discourage questions. Especially from kids.  Someday you’ll miss the 106 that drove you crazy yesterday.

Onto the quiz!

Rules

  • None.  Open book, open search engine, text/phone/email-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
  • Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

There’s a rule that applies only to a specific type of lawyer.  Per a comment to the rule, it’s a type of lawyer who “has the responsibility of a minister of justice and not simply that of an advocate.”

What type of lawyer?

Question 2

(this one keeps happening, so I’m going to keep asking)

Attorney called me with an inquiry.  Attorney said “Mike, I represent a witness.  The defendant’s attorney keeps contacting my client directly. I asked him to stop.  He said he doesn’t need my permission because my client is only a witness, not a party.  Is he right?”

What was my response?

  • A.   Yes, he’s right.
  • B.   The rule is unclear.
  • C.   The rule is unclear, but, by case law, no, he’s wrong.
  • D.  He’s wrong. The rule applies to any person represented in a matter.

Question 3

How long do the rules require lawyers to keep copies of advertisements?

  • A.   2 years
  • B.   6 years.
  • C.   Wait, what? We have to keep copies of advertisements?
  • D.  They don’t.  The 2-year retention requirement was repealed in 2009.

Question 4

True or false.

If a lawyer sells her practice, the rules require her to cease the private practice of law in the geographic area in which she practiced.

Question 5

Monday is Presidents’ Day.

25 U.S. Presidents have been lawyers.

Name the most recent U.S. President to have argued a case before the United States Supreme Court prior to becoming president.

the-quiz

 

 

 

 

Competent Advice & Privacy Settings

Rule 1.1 requires lawyers to provide clients with competent representation.  As nearly everyone who has read my blog twice knows, my position is that competence includes tech competence.

It’s also my position that a lawyer has a duty to provide a client with competent advice as to the impact, if any, that the client’s social media will have on a matter.

Let me be clear.

I often hear “but, Mike, I don’t want to have a Facebook account.”  I am not saying that you are required to.  Rather, I’m saying that you should know that your clients most likely do and, further, that information posted to a client’s Facebook account might impact the matter in which you are representing the client.

Here’s the latest.

Per the ABA Journal, a New York court ruled that the defense may discover photos that a personal injury plaintiff posted to Facebook and set as “private.”  The opinion is here.

The upshot:  it’s likely not competent to advise clients “don’t worry, as long as you keep it private, the other side won’t be able to access it.”

The case is one in which the plaintiff fell from a horse.  She sued, alleging that the defendant’s defective mounting of the stirrups caused the fall.  Among other things, plaintiff contends that her injuries prohibit her from many activities that she used to enjoy.

During her deposition, plaintiff testified that, prior to her fall, she had regularly posted photos to Facebook.  The defense requested access to the photos, which plaintiff had set to “private.”  Plaintiff declined to provide access.

The defense moved to compel production of the photos.  The defense argued that the photos bore on the credibility of plaintiff’s assertion that she had previously engaged in the activities that, now, she claimed she could not.

Plaintiff’s attorney countered that the single public photo on plaintiff’s Facebook account did not contradict her deposition testimony.  As such, the argument went, the defense had not established that access to the private portion of the account was likely to lead to the discovery of relevant information.

The trial court compelled production.  An appellate court modified the order to compel, limiting it only to photos that plaintiff intended to introduce at trial.  In the end, the New York Court of Appeals reinstated the trial court’s order. In so doing, the Court set out the various factors that a trial court should consider in response to a motion to compel production of information stored electronically on a social media platform.

I won’t go into the court’s decision in length.  Here are two key takeaways:

  1. As I’ve often said, electronically stored information is no different from any other information.  Or, in this case, photographs posted to Facebook are no different than photos that grandma slid behind plastic in that old, musty, album.
  2. A quote from the NY Court’s opinion (citations deleted):
    • “Plaintiff suggests that disclosure of social media materials necessarily constitutes an unjustified invasion of privacy. We assume for purposes of resolving the narrow issue before us that some materials on a Facebook account may fairly be characterized as private.But even private materials may be subject to discovery if they are relevant. For example, medical records enjoy protection in many contexts under the physician-patient
      privilege  But when a party commences an action, affirmatively placing
      a mental or physical condition in issue, certain privacy interests relating to relevant medical records – including the physician-patient privilege – are waived. For purposes of disclosure, the threshold inquiry is not whether the materials sought are private but whether they are reasonably calculated to contain relevant information.”

Remember: competence includes tech competence.

Social Media

To: the prosecution. With love, the Defendant’s lawyer.

89 years ago today, almost to the minute, seven men were murdered in Chicago’s Lincoln Park neighborhood.  The incident became known as the Saint Valentine’s Day Massacre. Al Capone is widely regarded as the criminal mastermind behind the killings.

As bar counsel, I’m intrigued by one aspect of the events that led to Capone’s conviction and incarceration.  My intrigue lies in the so-called Mattingly Letter.  It’s a letter that Capone’s tax lawyer provided to treasury agents and that was eventually used against Capone at trial.

Douglas Linder is a professor at the University of Missouri-Kansas City School of Law. He has a website dedicated to Famous Trials.  Among others, Professor Linder has written on the trial of Al Capone.

Per Professor Linder, as of 1929, Capone had never filed a federal income tax return.  So, the Department of Treasury launched an investigation into whether Capone had committed income tax evasion.

Lawrence Mattingly was Capone’s tax lawyer. In April 1930, Mattingly agreed to let “revenue agents” interview Capone.  The transcript of the interview is here.  Here’s an excerpt of what would become a key segment:

  • Revenue Agent RALPH HERRICK: I think it is only fair to say that any statements which are made here, which could be used against you, probably would be used.
  • LAWRENCE MATTINGLY, Capone’s tax lawyer: Insofar as Mr. Capone can answer any questions without admitting his liability to criminal action, he is here to cooperate with you and work with you.
  • HERRICK: What records have you of your income, Mr. Capone-do you keep any records?
  • CAPONE: No, I never did,
  • HERRICK: Any checking accounts?
  • CAPONE: No, sir.
  • HERRICK: How long, Mr. Capone, have you enjoyed a large income?
  • CAPONE: I never had much of an income.
  • HERRICK: I will state it a little differently-an income that might be taxable?
  • CAPONE: I would rather let my lawyer answer that question.
  • MATTINGLY: Well, I’ll tell you. Prior to 1926, John Torrio, who happens to be a client of mine, was the employer of Mr. Capone, and up to that point it is my impression that Mr. Capone’s income wasn’t there. He was in the position of an employee, pure and simple. That is the information I get from Mr. Torrio and Mr. Capone.

A few months later, Mattingly met again with federal agents.  As the meeting ended, he provided the agents with this letter.  Mattingly opened the letter by stating:

  • “The following statement is made without prejudice to the rights of the above-mentioned taxpayer in any proceedings that may be instituted against him. The facts stated are upon information and belief only.”

He closed by conceding:

  • “I am of the opinion that his taxable income for the years 1925 and 1926 might fairly be fixed at not to exceed $26,000 and $40,000 respectively and for the years 1928 and 1929 not to exceed $100,000 per year.”

Several months later, a grand jury indicted Capone.

Eventually, Capone and the government reached a plea agreement under which Capone would’ve served 2.5 years.  A judge rejected the plea, stating:

  • “The parties to a criminal case may not stipulate as to the judgment to be entered. It is time for somebody to impress upon the defendant that it is utterly impossible to bargain with a Federal Court.”

As trial neared, the government obtained information establishing that Capone had likely bribed a significant portion of the jury pool.  The prosecution team notified the judge. Per Professor Linder, here’s what happened next:

  • “Judge Wilkerson took his seat at the bench and looked out over the packed courtroom. He called the bailiff to the bench. ‘Judge Edwards has another trial commencing today,’ he told the bailiff. ‘Go to his courtroom and bring me his entire panel of jurors; take my entire panel to Judge Edwards.'”

At trial, the government sought to introduce the Mattingly Letter through the agent to whom Attorney Mattingly had delivered it.  The defense objected.  The court admitted the letter as proof that Capone had made certain statements, albeit not as proof of those statements.  (yeah, right.)  A transcript of the testimony surrounding the letter’s admission is here.

The prosecution referred to the letter during its closing argument.  That portion of the summation, which I found enthralling, is here.  Here’s my favorite part:

Referring to Attorney Mattingly, the prosecutor argued:

  • “He had tried to get the revenue agents to say that the admission would not be used against his client; now, in the letter, Mattingly is saying it himself. The letter says, “‘his statement is made without prejudice to the taxpayer in any criminal action that may be instituted against him.'”

The prosecutor continued:

  •  “Suppose a speeder, when stopped by an officer, should say; ‘I am telling you this without prejudice, officer; I don’t want it used against me; but I was going 50 miles an hour.’ Suppose a gambler could tack a little sign on a roulette, ‘This device is not to be used as evidence against me.’ Suppose a murderer could put a sign on his gun, “This weapon is not to be used as evidence against me.’ What a refuge for criminals that would be! And yet, that is what we have here, ‘I am telling you this, but it is not to be used against me.’ “

In the end, Capone was convicted and sentenced to 11 years in prison.  Admissions from his own tax attorney appear to have played a significant role in the conviction.

Competence.  Client confidences.  You be the judge.

Valentine

An intriguing aside: one of the government’s key informants in the Capone investigation was Eddie O’Hare.  O’Hare held the patent for the mechanical rabbit that lures greyhounds around a race track. He also ran dog tracks for Capone.  Eddie was murdered shortly before Capone was released from prison.

The intriguing aside?  Eddie’s son, Edward, was a naval pilot. He was the Navy’s first “flying ace” and the first member of the Navy to receive the Medal of Honor in World War II. He was shot down in combat in 1943 and never found.  Chicago’s O’Hare Airport is named for him.

 

Monday Morning Answers #105

I’m not positive, but methinks this week’s is the largest Honor Roll ever!

Friday’s questions are HERE.  Thanks to all who sent in responses.   I especially enjoyed hearing & reading so many wonderful stories of grandmothers & grandfathers who sound so similar to mine.  Today’s answers follow the honor roll.

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Honor Roll

Answers

Question 1

Each of the following words is in the name of its own rule. Three of the rules involve the same type of ethics issue.   Which is associated with a different ethics issue than the other three?

  • A.  Prospective
  • B.  Meritorious
  • C.  Current
  • D.  Former

Rule 3.1 governs meritorious claims.  Prospective, Current, and Former are types of clients for the purposes of the conflicts rules.

Question 2

Attorney called me with an inquiry.  She said “Mike, I have some questions about mental impressions, as well as internal notes and memoranda.”  Most likely, what issue did Attorney call to discuss?

  • A.  The duty to report a client’s fraud
  • B.  The duty to act competently to safeguard client data stored in the cloud
  • C.   Duties to a client who suffers from a diminished capacity
  • D   File delivery & the question of “what is the file?”

I might have phrased this one poorly.  Option “A” certainly could happen, as a lawyer’s mental impressions and notes might include information that must be revealed pursuant to Rule 1.6(b).   However, here, I was getting at whether an attorney’s notes and mental impressions are part of “the file.”  For more on this topic, including a link to an ABA Formal Advisory Opinion, see this post.

Question 3

Fill in the blank. (two words)

Lawyer called with an inquiry.  Lawyer said “client said she’s fine with it, so do you think that I have ________  ___________?”

I replied “Well, ‘she’s fine with it’ isn’t exactly the definition of _________   _________.  Per the rules, it’s an agreement to a proposed course of conduct after you’ve adequately communicated & explained the material risks, and reasonably available alternatives to, the proposed course of conduct.”

Informed Consent, Rule 1.0(e).

Question 4

Attorney called me with an inquiry.  Attorney was concerned that her she and her firm had been “pwned.”  What did we discuss?

Whether Attorney & Firm had:

  • A.   suffered a breach of electronically stored client data.
  • B.   fallen for a trust account scam.
  • C.   violated the rules while responding to a negative online review.
  • D.  been duped by an adversary who intentionally posted “fake evidence” on a social media platform.

Hello gamers! I wasn’t familiar with the term “pwned” until I read the ABA Journal’s cybersecurity tips.

Question 5

Hint: in honor of my grandfather’s Chicago roots, and in anticipation of a blog I intend to post next week . . .

Lawrence Mattingly practiced law in Illinois.  Once, he arranged a meeting between a client and federal agents/prosecutors who were trying to build a tax evasion case against the client.  During the meeting, the client claimed “I’ve never had much of an income.”

Later, Attorney Mattingly provided Treasury agents with a letter in which he conceded that his client had, in fact, earned a substantial income over the previous 4 years. The “Mattingly Letter” was admitted at trial and used as evidence against the client.  The client was convicted and sent to prison.

Who was the client?

Al Capone

Five for Friday #105

Welcome to # 105!

Today I’m going to write Eddie Bonneau.   Eddie was my grandfather, my mom’s dad.  I called him “Papa.”

How am I tying this to #105?  Good question.

My grandfather isn’t 105.  His birthday was February 1 and, if still alive today, he’d have just turned 102. It only feels like 105 years since I’ve seen him.  So there’s that.

Plus, using a prop to which I frequently resort in this column, the final digit in 105 is, well, 5.  And VT Route 5 runs through Bradford, which is where my grandfather lived for the final 50 (or so) years of his life.

Good enough for me.

I’m going to share two stories about Papa.  But, first, some background.

Eddie Bonneau was born in Chicago.  Somehow, his family ended up in Lebanon, New Hampshire.  Papa dropped out of Lebanon High School after his sophomore year.  Like many of French-Canadian descent, he went to work in a woolen mill.

When he was 21, he married my grandmother.  She was 17 and had recently graduated from high school.  She was the bread-winner: Nanny made $7 per week, Papa $5.

Within 10 years, they’d had 4 kids and moved across the river & up the valley to Bradford, Vermont.  My grandfather opened a grocery store.

The grocery store lasted only until the early 1950’s.  My grandfather was deep in debt. His creditors took over.  Papa decided against bankruptcy, concluding that it was morally and ethically wrong.

Over the next few years, he and my grandmother had 2 more kids.  For the rest of his life, my grandfather worked here and there: some jobs as a door-to-door salesman, one as a butcher, another as a clerk at the 5 & Dime.

I remember him as being the smartest guy I knew. He didn’t talk much, but when he did, you listened. What he didn’t have in school smarts, he had 100 times over in common sense.  He was a voracious reader & keen follower of current events.

Papa loved cribbage.  And cards.  He dutifully played endless rounds of pinochle with my grandmother and various family & friends, even though my grandmother usually whupped him, no matter their respective partners.

Papa wasn’t active.  I don’t think I ever saw him in anything but dark pants and a button-up white shirt.  That’s how he dressed even when he & my grandmother took us to Lake Winnipesaukee, where he’d sit on a bench reading a newspaper while we swam.  Actually, once he wore his clothes off the bench & into a boat.  We were at Niquette Bay on Lake Champlain.  He helped me catch my first fish.  A little pumpkinseed.

Besides not being active, Papa smoked.  He was an equal opportunity smoker.  He smoked for breakfast, he smoked for lunch, and he smoked for dinner.  He smoked on the bench at the beach.  I vividly recall mornings at his breakfast table, where we’d pretend not to hear his daily coughing fits that he thought the wafer-thin bathroom walls muffled.

Emphysema eventually killed him in 1994.

Before it did, my brother and I have an enduring memory of visiting our grandparents for a family event, only to have Papa disappear. We went to find him.  He had wheeled his oxygen tank to the barn to sneak a cigarette.  By then we were in our late teens, maybe 20’s.  We didn’t feel compelled to make a mandatory report to our grandmother, mom, or aunts.

You see, one thing Papa loved, but lacked, was quiet.  My mom has 4 sisters and a brother. Unlike my grandfather, one might accurately describe my grandmother and her 6 children as the sharing type.  As in, they’ve always shared pretty much every thought that ever entered their heads.  So if Papa wanted a smoke in the quiet of the barn, who were my brother and I to stop him?

Now, the stories.

First, like I said, my grandfather was super smart.  And he was proud.  Not vain, but proud. I visited my grandparents during the holiday break of my first year in law school. Once we sat down, he said, after a long drag, “so Mister, tell me a law.”

I had no ready answer. He wasn’t impressed.

Next, for special occasions, my grandmother would send me, my brother, and our cousins checks.  Sometimes $3, sometimes $5.  She’d include a card with a note to “buy yourself an ice cream!”  Once, in law school, I lost one of my $3 checks. I was too afraid to tell her, so I let the Irish side of me take over.  Meaning, I just ignored it, figuring that ignoring it would make the issue go away.

Epic fail.  Eventually, my mother called to ask why I hadn’t cashed Nanny’s check. I had to fess up.  Again, Papa wasn’t impressed with someone who cared so little about $3 as to lose a check.

A few months later, Nanny & Papa gave me $300 as gift for my graduation from law school.  For people like them, it was an astonishingly staggering amount.  Think about it: it’s 25 times as much as their combined weekly income as newlyweds. I cashed the check immediately.

About a month later, I was back in Vermont and went to visit my grandparents. First words out of Papa’s mouth: “guess you didn’t lose that one.”

I don’t how to end this post.  I’m not sure how it ties to 105, other than it doesn’t.  I just felt like writing about my grandfather.  I miss him.  He was a good man. He had nothing, but made sure that his kids had something, which, besides my parents, is one of the main reasons that I have anything.

Thanks for indulging me.

67FCDEE4-4A0B-4B58-9AB7-151422E4069A

Onto the quiz!

Rules

  • None.  Open book, open search engine, text/phone/email-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
  • Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

Each of the following words is in the name of its own rule. Three of the rules involve the same type of ethics issue.   Which is associated with a different ethics issue than the other three?

  • A.  Prospective
  • B.  Meritorious
  • C.  Current
  • D.  Former

Question 2

Attorney called me with an inquiry.  She said “Mike, I have some questions about mental impressions, as well as internal notes and memoranda.”  Most likely, what issue did Attorney call to discuss?

  • A.  The duty to report a client’s fraud
  • B.  The duty to act competently to safeguard client data stored in the cloud
  • C.   Duties to a client who suffers from a diminished capacity
  • D   File delivery & the question of “what is the file?”

Question 3

Fill in the blank. (two words)

Lawyer called with an inquiry.  Lawyer said “client said she’s fine with it, so do you think that I have ________  ___________?”

I replied “Well, ‘she’s fine with it’ isn’t exactly the definition of _________   _________.  Per the rules, it’s an agreement to a proposed course of conduct after you’ve adequately communicated & explained the material risks, and reasonably available alternatives to, the proposed course of condcut.”

Question 4

Attorney called me with an inquiry.  Attorney was concerned that her she and her firm had been “pwned.”  What did we discuss?

Whether Attorney & Firm had:

  • A.   suffered a breach of electronically stored client data.
  • B.   fallen for a trust account scam.
  • C.   violated the rules while responding to a negative online review.
  • D.  been duped by an adversary who intentionally posted “fake evidence” on a social media platform.

Question 5

Hint: in honor of my grandfather’s Chicago roots, and in anticipation of a blog I intend to post next week . . .

Lawrence Mattingly practiced law in Illinois.  Once, he arranged a meeting between a client and federal agents/prosecutors who were trying to build a tax evasion case against the client.  During the meeting, the client claimed “I’ve never had much of an income.”

Later, Attorney Mattingly provided Treasury agents with a letter in which he conceded that his client had, in fact, earned a substantial income over the previous 4 years. The “Mattingly Letter” was admitted at trial and used as evidence against the client.  The client was convicted and sent to prison.

Who was the client?

the-quiz

 

ABA Journal Provides Cybersecurity Tips

Rules 1.1 and 1.6 operate to impose a duty to act competently to safeguard information relating to the representation of a client.  The duty includes taking reasonable steps to protect against the unauthorized or inadvertent disclosure of (or access to) electronically stored client data.

In 2018, the ABA Journal will publish a year-long series on cybersecurity.  Last month, and as part of the series, the ABA Journal posted 5 cybersecurity steps you should already be taking.  I recommend it.  A quick summary:

  1. Check to see if you’ve been pwned.
  2. Consider a password manager.
  3. Improve the strength of your passwords.
  4. Use 2-factor (or multi-factor) authentication.
  5. Encrypt your devices.

Again, read the post.  It’s not long, and the tips are as simple as they are valuable.

Finally, don’t forget that the Vermont Bar Association is offering its first ever Tech Day on May 16.  It’s shaping up to be a fantastic CLE.

cyber-security

Concerns over Client Confidences Spur ABA to Oppose Bill in Senate Judiciary

Later today, the Senate Judiciary Committee will hold a hearing related to S.1454, the True Incorporation Transparency for Law Enforcement (“TITLE”) Act.  TITLE is an anti-money laundering bill.  Per the text, the Act’s purpose is:

  • “to ensure that persons who form corporations in the United States disclose the beneficial owners of those corporations, in order to prevent the formation of corporations with hidden owners, stop the misuse of United States corporations by wrongdoers, and assist law enforcement in detecting, preventing, and punishing terrorism, money laundering, tax evasion, and other criminal and civil misconduct involving United States corporations, and for other purposes.”

Last week, the ABA issued a press release announcing that ABA President Hilarie Bass sent a letter to the Senate Judiciary Committee in which she expressed concerns over provisions in the proposed legislation.

The letter is here.  The ABA Journal has the full story here.

Initially, President Bass expressed concern that TITLE “would improperly subject many lawyers and law firms to the anti-money laundering (AML) and suspicious activity reporting (SAR) requirements of the” Bank Secrecy Act.”  She argued that “[t]his would undermine the attorney-client privilege, the confidential lawyer-client relationship, and traditional state court regulation of the legal profession.”

Citing Rule 1.6 of the ABA Model Rules of Professional Conduct, and equivalent state rules, President Bass submitted that:

  • “Such aggressive reporting requirements may be appropriate for banks or certain other financial institutions, but requiring lawyers to report confidential client information to the government—under penalty of harsh civil and criminal sanctions—is plainly inconsistent with their ethical duties and obligations established by the state supreme courts that license, regulate, and discipline
    lawyers. These requirements would also seriously undermine the attorney-client privilege, the confidential lawyer-client relationship, and the right to effective legal representation by discouraging full and candid communications between clients and their lawyers.”

President Bass went on to cite other concerns, including “costly, and unworkable new regulatory burdens on small businesses, their agents who help them form corporations or LLCs, and the states.”

Might be something to keep an eye on to the extent that your practice includes business formation and advice to business entities.

Image result for senate judiciary committee

 

Service via Instagram

It has been over two years since I first blogged on tech competence.  As regular readers know, my opinion is that competence includes tech competence.

Here’s the latest:  Above The Law and Canadian Lawyer have the story of a Toronto lawyer who received permission to serve an adversary via direct message on Instagram. The lawyer made the request after unsuccessful attempts to serve the defendant in person and by e-mail.

Remember: as I’ve often said, the rules don’t require lawyers to have or to use social media platforms.  However, my position is that Rule 1.1’s duty of competence includes providing clients with competent advice as to the impact (or not) that their social media platforms will have on any particular matter.  This includes the impact of information that clients make available on social media, and, as today’s story illustrates, the impact of merely having a social media account through which messages can be delivered.  For instance, imagine a client’s claim never being brought for no other reason than you didn’t think to check whether the defendant could be “found” on social media.

@vtbarcounsel

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