Answers: Holiday FiveforFriday

Excellent participation in the holiday version of #FiveforFriday!

The questions are HERE.

Spoiler alert – the answers are listed below this week’s honor roll.


6 for 6

5 for 6

  • Aimee Griffin – Chittenden County State’s Attorney’s Office
  • Brian Martin – Vermont Board of Bar Examiners
  • Hal Miller – First American
  • Brendan Scherer – 3rd year, Vermont Law School

4 for 6


ANSWER 1:  Marijuanukah & Medical Chron-ukah

ANSWER 2: The “George” who sought advice is George Costanza. His father challenged him to a fight during FESTIVUS.

ANSWER 3:  Lawyer’s client is THE GRINCH.

ANSWER 4:  MIRACLE ON 34th STREET is the movie in which the trial full of questionable legal ethics abounded took place.

ANSWER 5:  The company that charges higher rates on New Year’s Eve, and whose business model holds significant implications for the future of the practice of law is UBER. For a take on why lawyers ignore the uberization of legal services at their peril, read THIS.

Five for Friday – Holiday Version

Yes, I know it’s only Thursday.

I also know that this will probably get lost in the shuffle. However, I don’t want even one email asking why there was no FiveForFriday this week.  So, here it is!

Happy holidays to all!

email your answers to

Question 1

My posts on legal ethics & marijuana are here and here .  In two of the four versions of his famed Chanukah Song, Adam Sandler makes references to cannabis.  For one point each, what are the words he uses to refer to cannabis?

Clarification: Sandler did not use the same reference in each version of the song. In one, he used a single word, in the other, it’s two words.

Question 2

You represent George.  He is concerned that his elderly father has been acting irrational and has come to you for advice.  George informs you that he’s been worried for months, but that the last straw was when his father challenged him to a fight during the “feats of strength” aspect of the family’s recent holiday celebration.  What holiday were George and his father celebrating?

Question 3

Lawyer practices criminal defense.  Lawyer’s client pled guilty to multiple counts of burglary.  At a sentencing hearing, Lawyer argued for leniency.  Lawyer presented evidence that Client was born with a heart two sizes too small, had returned everything he’d stolen even before being charged, and was the only caretaker for his loyal dog Max.  In addition, a girl named Cindy Lou informed the court that she and the other victims not only accepted Client’s apology, but had invited him to carve the roast beef at the town’s Christmas dinner.

Who is Lawyer’s client?

Question 4   (thank you Bridget Asay!)

Questionable legal ethics abound in a trial to determine whether Kris should be involuntarily committed.

First, the prosecutor puts on barely any evidence, his entire case resting on an admission from Kris.  Then, Kris’s attorney subpoenas the prosecutor’s young son and elicits a hearsay statement made by – – the prosecutor!  Next, Kris’s attorney participates in a scheme to influence the judge by having the post office deliver a huge number of “dead letters” to the court.  Finally, seemingly prepared to rule in favor of the prosecution, the judge changes his mind after an ex parte conversation in which a local politician tells the judge that his career will be over if he commits Kris, then justifies his conclusion with a questionable decision to take judicial notice of the existence of a particular person.

Name the holiday movie in which this trial took place.

Question 5

Not legal ethics, but business ethics.  Attorney represents a company.  Over the past few New Year’s Eves, the company has charged users significantly higher rates than usual.  Some consumer groups allege that the higher rates border on illegal “price gouging.”  Attorney responds that “surge pricing” merely reflects market demand, that the company was very clear with customers that fees would be higher  in the wee hours that follow New Year’s revelry, and that there is nothing illegal about charging more on New Year’s Eve than on any other day of the year.

Name the company that Attorney represents.  Its business model is one that many leading legal commentators argue will lead to significant changes in the practice of law and access to legal services.






Cannabis: when you can’t “just say no”

My post on the ethical issues associated with marijuana is HERE.  A quick summary: the key ethical concern is whether lawyers violate Rule 1.2(d) by providing clients with advice and assistance on a matter that is legal under state law but illegal under federal law.

Many lawyers are too quick to write off the issue as not impacting their practicing or clients. They say:  “Mike, ‘no’, I don’t need to worry about the ethics of marijuana. It could never impact my practice.”  Oh really?

For example, labor lawyers – imagine this:

  • Employee, a quadriplegic, has a prescription for medical marijuana;
  • he uses it at home, off the clock, to treat debilitating muscle spasms;
  • state law prohibits employers from firing employees for engaging in lawful activities off the job;
  • during a routine drug test, Employee tested positive for cannabis;
  • Employer immediately terminated Employee

Employee goes to Lawyer for advice.  Employer goes to Attorney for advice.  Put yourself in the shoes of either, what say ye?

Here’s what the Colorado Supreme Court said. If you’d rather not the read the entire opinion, the ABA Journal summarized it HERE.  In short, the Colorado court concluded that because marijuana is illegal under federal law, its use isn’t lawful and is a valid basis for termination.

The ABA article raises several other scenarios in which lawyers find themselves struggling to give competent advice on issues related to marijuana, and confused as to how to do so without violating the ethics rules.  Here are a few more:

  • does an attorney assist a client to violate federal law by representing the client in connection with an application for a state-issued license/permit to operate a medical marijuana dispensary?
  • if the client receives a permit, does a real estate attorney assist the client to violate federal law by representing the client in connection with purchase of land upon which to build the dispensary? what about the attorney who represents the dispensary before the local zoning board?
  • you represent a bank. are you familiar with the Department of Treasury’s Financial Crime Reporting Network’s memorandum that provides guidance on the Bank Secrecy Act and expectations regarding marijuana related businesses?
  • A criminal defense client’s conditions of release prohibit her from violating the law.  She has a prescription for medical marijuana.  She asks for advice as to whether she will violate her conditions by using the medical marijuana.
  • Family law practitioners: client asks you to file a motion to modify a parent child contact order.  Client’s ex has a prescription for medical marijuana, but Client doesn’t want “the kids around marijuana because it’s illegal!” Have you thought about what advice you’d give in this situation?

So, yes Virginia, this is an issue that might impact you.

I have collected a power point presentation that refers to ethics opinions issued in several other states.  If you would me to send it to you, please let me know. Also, we will discuss these issues on January 15 at the YLD Thaw.

Tomorrow, Thursday, I will try to post an early, holiday-themed version of Five For Friday.

This Ain’t No Lawyer Joke

Stop me if you’ve heard this one before: a lawyer walks into a deposition with pepper spray and a flashlight that doubles as a stun gun…..

No joke, i’m not joking.

I can’t do the story justice.  The ABA Journal has it HERE.

I don’t think we need a 1 hour CLE to cover this one: it’s best not to threaten opposing counsel with pepper spray and a stun gun.

So far, no word on whether the lawyer has raised the “Costzana defense” with California’s disciplinary authorities.

Leading horses to water….

313 unique visitors since I posted FiveforFriday #6.  Not bad.

11 people submitted answers.  That’s the fewest number of entrants yet.

Some people are too busy, I get it.  Others, though, have told me that they hesitate to answer, fearing that they won’t do well.  As I’ve said, it’s not public, it won’t bother me if you’re 0-5, and you’re bound to remember the ones that you get wrong. Better to get them wrong here, and learn, than to get them wrong in real life!

With that being said, this week’s answers and honor roll.


There is a rule that applies to any “extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication.”  The rule:

  • C.  Applies to any matter that involves an adjudicative proceeding. Rule 3.6

QUESTION 2: (fill in the blank)

  • In a growing number of jurisdictions, there is a tension between state and federal law that has caused bar associations and disciplinary authorities to examine whether a lawyer violates the ethics rules by providing clients with otherwise candid & competent legal advice on issues related to MARIJUANA.  For more, see this post on the topic.


Lawyer called me with an inquiry. I listened, then I said “there’s an old VBA advisory ethics opinion, but no guidance in the rules themselves.  But, your carrier probably has some sort of requirement in your policy, so check with them.”

What did Lawyer ask me?

Looking back, this question was a bit too obscure.  The answer, though, is that the Lawyer asked me how long the rules require attorneys to maintain closed files. In fact, Rule 1.16(d) requires a lawyer to surrender papers and property to which the client is entitled UPON THE TERMINATION OF THE REPRESENTATION.  

Question 4:

Earlier today, and it was a beautiful day, Client met with Lawyer.  They agreed that Lawyer would represent Client for a flat fee of $2,000.  Lawyer told Client: “I won’t begin working on your case until January 2. I’m on vacation until December 31 and all is quiet on New Year’s Day.”  Client replied ” fine,  all i want is you to take my case” and gave Lawyer a personal check for $2,000. Client and Lawyer did not reduce the representation agreement to writing.

Under the Vermont Rules of Professional Conduct, which is most accurate?

  • C.  Lawyer must deposit the check into her trust account. This is Rule 1.15(c).  According to the comment, the rule applies to fees paid in advance, “no matter how designated.” Note, though, that the PRB has proposed an amendment that would allow flat fees and fees paid in advance to be deposited in the operating account on receipt.  The proposal is HERE.

Question 5:

The first person to win four consecutive Prime Time Emmy Awards did so playing an ethically challenged prosecutor.

Answer:  John Larroquette, playing Dan Fielding in Night Court.


5 for 5:  

3 out of 4 in ethics (* = also got “Night Court”)

Emily also gets credit for being the only reader to mention my Salt ‘N Pepa reference in last Thursday’s post.




Five For Friday: #6

This week, I’ve covered sex and drugs.   So, it’s time to rock ‘n roll into the weekend with another version of Five For Friday.  Speaking of which, by the end of this post, many of you will recognize the band I’m honoring in the “rock ‘n roll” portion of this week’s blog posts. And for those of you who scowl at the references, too bad, because ethics rock.

A few reminders:

  1.  No rules – this is open book, open search engine.
  2. Except for Question 5.
  3. Email your answers to
  4. For those of you who struggle with statutory construction, Rule #3 means “send your answers via email to Mike Kennedy at the address that he provided.”  There is no possible interpretation of #3 that would lead a reasonable person to post his or her answers in the comment section.  In fact, that would be bad. Remember, competence includes tech competence.

Last week, we had a record number of entrants and a record number of lawyers who made the honor roll, thereby earning silver and gold.  Please continue to enter & to share this with your colleagues.  For those of you whose pride makes you reluctant enter, we’ll survive with or without you.  But, why not enter and live on the edge?!?  Or, read THIS.


There is a rule that applies to any “extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication.”  The rule:

  • A.  Applies only in criminal cases.
  • B.  Applies only in cases with the potential for jury trials
  • C.  Applies to any matter that involves an adjudicative proceeding.
  • D. No longer applies, the Vermont Supreme Court having recently deemed the rule an unconstitutional restriction on speech.

QUESTION 2: (fill in the blank)

In a growing number of jurisdictions, there is a tension between state and federal law that has caused bar associations and disciplinary authorities to examine whether a lawyer violates the ethics rules by providing clients with otherwise candid & competent legal advice on issues related to ________________.


Lawyer called me with an inquiry. I listened, then I said “there’s an old VBA advisory ethics opinion, but no guidance in the rules themselves.  But, your carrier probably has some sort of requirement in your policy, so check with them.”

What did Lawyer ask me?

Question 4:

Earlier today, and it was a beautiful day, Client met with Lawyer.  They agreed that Lawyer would represent Client for a flat fee of $2,000.  Lawyer told Client: “I won’t begin working on your case until January 2. I’m on vacation until December 31 and all is quiet on New Year’s Day.”  Client replied ” fine,  all i want is you to take my case” and gave Lawyer a personal check for $2,000. Client and Lawyer did not reduce the representation agreement to writing.

Under the Vermont Rules of Professional Conduct, which is most accurate?

  • A.  Lawyer’s failure to reduce the representation agreement to writing before January 2, 2016, will violate the ethics rules, unless he agrees to represent Client pro bono.
  • B.  Lawyer may deposit the check into her operating account.
  • C.  Lawyer must deposit the check into her trust account.
  • D.  If Lawyer deposits the check into her trust account, Lawyer may disburse funds against the deposit without waiting for the check to clear and constitute “collected funds.”


Question 5:

The first person to win four consecutive Prime Time Emmy Awards did so playing an ethically challenged prosecutor.  Since it’s the holiday season, I’ll give you one full point if you name either (a) the person; OR (b) the character; OR (c) the show.

HINT: the Emmys were in the “outstanding supporting” actor/actress category.

Again, please email your answers to

Also, please consider sharing this post with colleagues, as well as sharing with me your thoughts on whether the PRB should continue to argue for a rule that specifically bans client-lawyer sexual relationships. I outlined the issue HERE, but I still haven’t found what I’m looking for when it comes to responses.



ps: seriously, in a week that included a post entitled Marijuana & Ethics, was there any doubt that I’d hide a reference to Mary J Blige?






Attorney-Client Sex: Do we need a rule?

I watched a lot of MTV during law school.  So, with those halcyon days in mind, let’s talk about sex.

The ABA has adopted Model Rules of Professional Conduct.  For the most part, Vermont’s rules track 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
  • protects lawyers who enter into consensual relationships from false claims that the relationship was coerced.

Some of the arguments against a specific ban:

  • the existing rules work;
  • unnecessary invasion of privacy;
  • jilted clients will file frivoulous 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.

Ohio has  a specific ban and the Ohio Supreme Court recently imposed a two-year suspension on a lawyer who violated the rule.

I’m curious.  What do you think?  If you’d like, email me your thoughts. I won’t share them with anyone. But, I’d like to get a sense: does the bar think the PRB should continue to push for the adoption of a rule that specifically prohibits client-lawyer sexual relationships that do not pre-date the representation?





Marijuana & Ethics

In September, I was on a CLE panel with Michelle Childs, Jake Perkinson, and Dave Mickenburg.  We discussed the legal ethics of advising clients on issues related to marijuana. In particular, the ethics of advising clients on issues that are legal under Vermont law, but illegal under federal law.

Jake and I will be joined by Chittenden County State’s Attorney T.J. Donovan on a panel that will discuss the issue in Montreal during the YLD Thaw.

In a nutshell, the issue is this:  Rule 1.2(d) of the Vermont Rules of Professional Conduct prohibits lawyers from counseling a client to engage, or assisting a client to engage, “in conduct that the lawyer knows is criminal . . ..”

Like Vermont, several states have decriminalized the possession of marijuana and have authorized the medicinal use of marijuana.  However, the possession, use, manufacture, and distribution of marijuana remains illegal under federal law.  As such, lawyers in those states have expressed concern that providing advice to clients on something that is legal under state law — medicinal use of marijuana – might nevertheless violate Rule 1.2(d) to the extent it might be considered to be assisting the client to do something this illegal under federal law.   Their concern is that, as written, Rule 1.2(d) draws no distinction between state and federal law, or between federal laws that are enforced and those that are not.

I have a power point presentation that goes into much more detail.  If you would like me to send it to you, please email me at

In the meantime, the Professional Responsibility Board recently voted to recommend that the Vermont Supreme Court adopt the following comment to Rule 1.2(d). This is the approach that most states with medicinal marijuana laws have taken.

  • Proposed Comment to Rule 1.2 of the Vermont Rules of Professional Conduct:
  • “[14] With respect to paragraph (d), a lawyer may counsel a client regarding the validity, scope and meaning of Title 18, Chapters 84, 84A, and 86 of the Vermont Statutes Annotated and may assist a client in conduct that the lawyer reasonably believes is permitted by theses statutes and the rules, regulations, orders and other state and local provisions implementing the statutes. In these circumstances, the lawyer shall also advise the client regarding the potential consequences of the client’s conduct under related federal law and policy.”

The proposal has not yet been forwarded to the Supreme Court, but will be soon.

Here’s a cautionary tale from Colorado.

Many banks do not accept funds from marijuana-related businesses, even if those businesses are legal under state law.   In Colorado, a general counsel for medical marijuana dispensary opened an account for the dispensary.  He deposited funds from the business into the account. He did so despite having actual knowledge that the bank did not allow medical marijuana dispensaries to open accounts.  The lawyer admitted that his conduct violated Colorado’s ethics rule that prohibits dishonest conduct.

The lawyer was publicly reprimanded by the Colorado Supreme Court.  The decision is HERE.




Update – Email: To encrypt or not to encrypt

This post didn’t get many views.  However, it generated several phone calls.  So, given the ratio of calls to views, I thought I’d update it an run it again. I was happy to hear from a few different lawyers who knew about, and are using, end-to-end encryption.

Side note: the post includes an obvious reference to the Sound of Music. It also includes 3 references to a literary work, one to one of the longest running tv shows that still airs, and another to a movie.  Email me those references and I’ll give you a special shout-out later this week.


As bar counsel, it has not been my experience that conscience makes cowards of us all as lawyers.  Au contraire, mon frere.  Rather, I’ve found that Vermont lawyers’ collective conscience drives the bar to do the right thing.

Lately, lawyers seem particularly driven to learn how to protect client information that is stored and transmitted electronically, in particular whether there is a duty to encrypt email.  This proves timely and coincides with my ongoing discussion of Rule 1.6 and information relating to the representation. This post could easily include a discussion of cloud storage, but it’s already too long, so I’ll try to stick to email and electronic communications.  For more on cloud storage, check out this VBA advisory ethics opinion.

As Maria said, the beginning is a very good place to start.  My discussion of Rule 1.6 began last week and is HERE.  If you haven’t read it, you might want to start there.

With respect to encrypting email, let’s move to Comment 16.  It says

  • “A lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’ supervision.” (emphasis added).

So, that’s step 1 – Rules 1.1 and 1.6 work together to require lawyers to act competently to safeguard client information.

Next, Comment 17 informs us that

  • “[w]hen transmitting a communication that includes information relating to the representation, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients.”

I’d add this suggestion:  be as cognizant of the eyes and ears of unintended recipients as you are of their hands.

Moving on, here’s where encryption starts to come into play.  Comment 17 continues:

  • “This duty, however, does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy.”

Of course, no self-respecting lawyer would draft a statute, rule, or comment without hedging, so remember that:

  • “Special circumstances, however, may warrant special precautions. Factors to be considered in determining the reasonableness of the lawyer’s expectation of confidentiality include the sensitivity of the the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement.”  V.R.Pr.C. 1.6, Comment [17].

One might conclude that encryption is a “special security measure” and, therefore, is not required. Maybe, but that’s not the standard.  The Comment 17 makes it clear that special security measures are not required “if the method of communication affords a reasonable expectation of privacy.”

Does communicating via email afford a reasonable expectation of privacy?

In Advisory Opinion 97-05, the Vermont Bar Association’s Professional Responsibility Committee concluded that an attorney does not violate the ethics rules by communicating with clients via unencrypted email because:

  1. there is no less of an expectation of privacy in e-mail than with an ordinary phone call; and,
  2. Intercepting an email is against the law.

About a year later, the ABA’s Standing Committee on Ethics & Professional Responsibility issued formal opinion 99-413 in which it reached essentially the same conclusion as the VBA advisory opinion.

Does the VBA opinion’s rationale still hold up?

I’m not going to get into an academic, legal discussion of whether there’s a reasonable expectation of privacy in e-mail.  If such a discussion interests you, you can find plenty of articles online.

I’ll say this, though, if you’re a family practitioner, do you e-mail your clients?  If so, and before you hit “send”, do you ask a client whether her spouse has access to her email account?

To wit: I don’t practice family law but I have a family.  My dad and his wife share an email account.  So, when I need birthday advice, I don’t e-mail my dad’s wife for her take on the things I’m thinking about getting my dad for his birthday.  I call her.

I submit that if spouses share an email account, there’s a significant risk that one will gain access to a substantive communication intended for the other.

Or, what about clients who email you from work?   Have you reviewed their  employee handbooks and discussed the pros and cons of communicating via email from an employer provided computer, tablet, or mobile devices?

These questions are fleshed out in ABA Formal Advisory Opinion 11-459.  Here’s an excerpt from the summary:

  • “A lawyer sending or receiving substantive communications with a client via e-mail or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access.”

Recognizing a growing awareness that email is inherently unsecure, the ABA opinion stated that:

  • “Whenever a lawyer communicates with a client by e-mail, the lawyer must first consider whether, given the client’s situation, there is a significant risk that third parties will have access to the communications. If so, the lawyer must take reasonable care to protect the confidentiality of the communications by giving appropriately tailored advice to the client.”

Well, Mike, that’s great, but what about encryption?

I don’t know.  At the turn of the century, few considered encryption to be a requirement.  It was burdensome, expensive, and there was a reasonable expectation of privacy in unencrypted email.  Encryption is no longer burdensome or expensive, and there is significant debate as to the reasonableness of an expectation of privacy in email.

Here’s an excerpt from the California State Bar’s Formal Opinion 2010-179:

  • “encrypting email may be a reasonable step for an attorney to take in an effort to ensure the confidentiality of such communications remain so when the circumstances call for it, particularly if the information at issue is highly sensitive and the use of encryption is not onerous.”

The full text of the opinion is HERE.

As this article from the State Bar of Wisconsin points out:

  • “Encryption is increasingly required in areas like banking and health care and by state data-protection laws. As these requirements continue to increase, it will become more and more difficult for attorneys to justify not using encryption.”

So, let me turn the question back to you: what’s your answer going to be when someone, perhaps a disciplinary prosecutor, asks “why didn’t you think that encrypting that email would be a reasonable precaution?”

(as an aside, if you have clients in the banking and health care industries, are you able to give the competent advice on encrypting data?)

Indeed, some commentators are suggesting that lawyers move away from email and towards systems in which clients use portals to access information relating to the representation.  One of the most helpful posts that I’ve seen on email vs. client portals is this article from Law Technology Today, a publication of the ABA Legal Technology Resource Center.

I’m not trying to keep you up at night. I want you to be able to sleep and even, perchance, dream.  But, as I mentioned above, Rule 1.6 requires lawyers to act competently to safeguard client information, including information that is transmitted electronically.  Rule 1.1’s duty of competence includes a duty to stay “abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”  ABA Model Rule 1.1, Comment 8.  At least one bar association has put the onus of assessing the risks of communicating via electronic means squarely on the lawyer.

In the opinion that I referenced above, the Cal State Bar concluded that the question of whether an attorney violates duty of confidentiality will depend on the particular circumstances, including the lawyer’s ability to assess and advise upon the “level of security attendant to” the particular device or technology.  The opinion went on to state that the attorney should be able to understand:

  1. how each technology differs from others;
  2. what precautions can, or cannot, be taken with each technology;
  3. the likelihood of third parties accessing information stored or transmitted using a particular technology.

This suggests to me that “but how I was supposed to know it wasn’t safe to communicate this way” might not a defense to an allegation that you violated Rule 1.6.  Again, competence includes tech competence.

So there you have it.  My sense is that we will soon reach, if we haven’t already reached, a day upon which it will not be considered reasonable to transmit client information via unencrypted email.  Encryption is not as difficult or expensive as it used to be and more secure alternatives are readily available.

At the very least, lawyers have a duty to warn clients about the risks associated with unencrypted email.  But let’s end on this – the final sentence of Comment 17, heretofore not revealed in this post:

  • “A client may require the lawyer to implement special security measures not required by this rule or may give informed consent to the use of a means of communication that would otherwise be prohibited by this rule.” (emphasis added).

Maybe that’s your hook – if you’re not going encrypt email, get informed consent from the client.  If you go that route, remember that “informed consent” is defined as “an agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”  V.R.Pr.C 1.0(e).  

So, even if informed consent to unencrypted email is your answer, and I’m not certain that it is, it still requires you to provide an adequate explanation about the risks of unencrypted email and the reasonable alternatives thereto.  Again, it always comes back to the fact that the duty of competence includes a duty to understand technology.

Please come back tomorrow for Five For Friday!




#FiveForFriday Honor Roll Record!

Several new entrants this week and a record 15 lawyers on the weekly Honor Roll! I appreciate the interest and enthusiasm.  Please continue to share with friends and colleagues.

The answers:

Question 1:  By rule, a lawyer may use information relating to the representation of a former client to that client’s disadvantage if ___________.

  • A. Required to do so to provide competent representation to a current client.
  • B. The information has become generally known.  This is rule 1.9(c)(1).  Kevin Ryan and I did an entire CLE on how “generally known” differs significantly from “in the public record.”
  • C. The information is in the public record
  • D. This is a trick question.  A lawyer many never use information relating to a representation to a former client’s disadvantage.

Question 2:  Lawyer was concerned that the area of law in which she practices seems to involve a lot of conflicts. So, she called me.  I shared some thoughts and then I emailed her links to articles on the nature of the “Tripartite Relationship.”

  • What type of law does Lawyer practice?  Insurance Defense.  A slide show on the issue is HERE.

Question 3:  Lawyer called me with an inquiry. He told me that he recently came into possession of something.  I listened, then said “most states say that you can keep it briefly to review it, examine it, or test it, but then you’ve got to turn it over. And if testing it will alter or destroy it, you can’t test it.”

  • What came into Lawyer’s possession? (I’m looking for a fairly specific answer here. For instance, “evidence” would be a bit too general.) The lawyer came into possession of evidence of a client’s crime (or of a crime with which client has been charged). As this article from the ABA Journal indicates, there are no easy answers.

Question 4:  You represent a defendant that is an organization. Plaintiff’s counsel has actual knowledge that you represent the organization in a matter.  You learn that plaintiff’s counsel, without your permission, discussed the matter with a former employee of the organization. Which is most accurate under Vermont’s Rules of Professional Conduct:

  • A. Plaintiff’s counsel did not violate the rules. This is straight from Comment 7 to Rule 4.2.
  • B. Plaintiff’s counsel violated the rules.
  • C. Whether plaintiff’s counsel violated the rules turns on whether the former employee was in “the control group.”
  • D. Whether plaintiff’s counsel violated the rules turns on whether plaintiff has filed suit.

Question 5:  In an episode of The Office, Michael Scott ran over a co-worker in the company parking lot. He was driving a company car. When asked by an HR rep whether the accident happened on company property, Michael replied: “On company property, with company property.” Then, citing a legal theory that applies in criminal cases, Michael added “so, we’re fine.”

What legal theory did Michael mistakenly think rendered him and the company “fine?”  Double Jeopardy.  (see the :48 second mark)


5 for 5

4 for 4 on Ethics – but missed #5

  • Hal Miller – First American
  • Sarah North
  • Emily Tredeau – Prisoners’ Rights

3 for 4 on Ethics ( * = also got question 5)