Monday Morning Answers: #14

Happy Leap Day!

This week’s questions are HERE.

Spoiler alert: the answers immediately follow this week’s Honor Roll.

HONOR ROLL

PERFECT SCORES

  • Matt Anderson, Pratt Vreeland Kennelly Martin & White
  • Timothy Fair, Blodgett Watts & Volk
  • Robert Grundstein, Esq.
  • Matthew Little, Esq.
  • Alli Wannop, Esq.

HONORS

ANSWERS

Question 1

Attorney called me with an inquiry.  I listened, then said:

  • “here’s the deal: you can’t unilaterally resolve the dispute.  if the dispute involves a client & you, you’re supposed to suggest means for prompt resolution.  if it’s a dispute between your client and a third person, a comment to the rule indicates that you may consider filing an action asking a court to resolve the dispute.”

In that my response referred to the Rules of Professional Conduct, what is the most likely subject of the “dispute” that Attorney called to discuss?

CLIENT FUNDS. See, Rule 1.15(d), Comment 3

Question 2

Last month, Potential Client contacted Law Firm.  Potential Client discussed representation with Partner.  Partner took reasonable steps to avoid exposure to any more information than was necessary to determine whether to represent Potential Client. Partner decided that Law Firm would not represent Potential Client.

Last week, Opposing Party contacted Law Firm.  Opposing Party asked Law Firm for legal representation on the same matter that Potential Client discussed with Partner.

Potential Client shared with Partner information that could be significantly harmful to Potential Client.  Thus, Potential Client will not consent to Law Firm’s representation of Opposing Party.

Your answer is one of two choices.  If you choose A, you also must list the three things.

A. Under the Rules of Professional Conduct, Law Firm may represent Opposing Party if it does three things.  This is from Rule 1.18, the rule on “prospective clients.”

  • Timely Screens Partner from the matter;
  • Apportions Partner no part of the fee on the matter;
  • Provides prompt written notice to Potential Client

B. This a trick question and Law Firm may not represent Opposing Party.

Question 3

Lawyer called me with an inquiry. I listened, then said:  “the rule and its comments say that you’re supposed to raise all non-frivolous defenses against doing so.  Then, if the court orders you to do so, you may choose whether to comply with the court order.”

What was I referring to when I said “doing so” and “do so”?

DISCLOSE INFORMATION RELATED TO A REPRESENTATION (CLIENT CONFIDENCES). My recent blog on the issue is HERE.

Question 4

Which is most accurate under the Vermont Rules of Professional Conduct?

A lawyer having direct supervisory authority over another lawyer shall:

  • A. be responsible for the other lawyer’s violations of the Rules of Professional Conduct.
  • B. be responsible for the other lawyer’s violations of the Rules of Professional Conduct, but only those violations committed in the other lawyer’s capacity as an attorney.
  • C. make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct. See, Rule 5.1(d).
  • D.  not delegate signatory power over a trust account to the other lawyer.

Question 5

Speaking of the ethical responsibilities of partners, supervisors, and associates, name the movie in which attorney Mitch Martin meets a woman at a college party, only to find out the next day that she is his supervising partner’s daughter . . . . and a junior in high school.  OLD SCHOOL

Old School

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Five for Friday #14

Congratulations to the 31 applicants for admission who sat for this week’s bar exam. Those who gain admission will be the last to do so having answered essay questions drafted by Vermont lawyers volunteering on the Board of Bar Examiners.  Why?  The Supreme Court recently promulgated wholesale revisions to the Rules of Admission.  The revisions include include a move to the Uniform Bar Exam.

What better way to honor those who bravely sat for 2 MPT questions, 4 Vermont essay questions, and 200 MBE questions than to send me an email with your answers to 5 measly ethics questions?!?!

So, let the games begin!

Refresher:  you can use whatever resource you want to find answers to questions 1-4.  Let’s play #5 honestly.  Email your answers to michael.kennedy@vermont.gov    And, finally, forward this blog to your colleagues, coworkers, and cousins and coerce/coopt them to enter, or conspire to cooperate & collaborate on a single entry.

Question 1

Attorney called me with an inquiry.  I listened, then said:

  • “here’s the deal: you can’t unilaterally resolve the dispute.  if the dispute involves a client & you, you’re supposed to suggest means for prompt resolution.  if it’s a dispute between your client and a third person, a comment to the rule indicates that you may consider filing an action asking a court to resolve the dispute.”

In that my response referred to the Rules of Professional Conduct, what is the most likely subject of the “dispute” that Attorney called to discuss?

Question 2

Last month, Potential Client contacted Law Firm.  Potential Client discussed representation with Partner.  Partner took reasonable steps to avoid exposure to any more information than was necessary to determine whether to represent Potential Client. Partner decided that Law Firm would not represent Potential Client.

Last week, Opposing Party contacted Law Firm.  Opposing Party asked Law Firm for legal representation on the same matter that Potential Client discussed with Partner.

Potential Client shared with Partner information that could be significantly harmful to Potential Client.  Thus, Potential Client will not consent to Law Firm’s representation of Opposing Party.

Your answer is one of two choices.  If you choose A, you also must list the three things.

A. Under the Rules of Professional Conduct, Law Firm may represent Opposing Party if it does three things.  For one point each, what are they?

B. This a trick question and Law Firm may not represent Opposing Party.

Question 3

Lawyer called me with an inquiry. I listened, then said:  “the rule and its comments say that you’re supposed to raise all non-frivolous defenses against doing so.  Then, if the court orders you to do so, you may choose whether to comply with the court order.”

What was I referring to when I said “doing so” and “do so”?

Question 4

Which is most accurate under the Vermont Rules of Professional Conduct?

A lawyer having direct supervisory authority over another lawyer shall:

  • A. be responsible for the other lawyer’s violations of the Rules of Professional Conduct.
  • B. be responsible for the other lawyer’s violations of the Rules of Professional Conduct, but only those violations committed in the other lawyer’s capacity as an attorney.
  • C. make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.
  • D.  not delegate signatory power over a trust account to the other lawyer.

Question 5

Speaking of the ethical responsibilities of partners, supervisors, and associates, name the movie in which attorney Mitch Martin meets a woman at a college party, only to find out the next day that she is his supervising partner’s daughter . . . . and a junior in high school.

 

 

 

 

Your job: their might be an app for that

Kevin Ryan and I often talk tech at CLEs.  When we say that significant changes are coming, some audience members view us as boys crying wolf.

Here’s an update from Business Insider’s Tech blog: in Great Britain, “clients” are using an app to challenge parking tickets.

Now, maybe you’re telling yourself “self, a robot could never do my job. It’s too complicated”  Maybe.  Indeed, the blog about the parking ticket app quotes a few experts who indicate that if it happens, it’s many, many years away.

But, there’s also this bit from the post:

  • “He’s programming the bot to handle more complicated legal issues, too, including asylum for Syrian refugees. The language barrier is a coding challenge, since the robot needs to understand Arabic but produce a legal document in English. This bot will likely launch by summer — at no cost.

    ” ‘If it is one day possible for any citizen to get the same standard of legal representation as a billionaire,” Browder says, “how can that not be a good thing?’ “

One day it’s parking tickets, the next it’s asylum for non-English speakers.  Hmm.  What’s next?

For more on tech ethics, check out my primer on the topic.  Also, last fall, Vermont Commission on the Future of Legal Services issued a report & recommendation.  The report includes recommendations from the Technology Committee.  They begin on page 50.

 

Monday Morning Answers

Friday’s quiz was the last before the ultimate quiz: the bar exam begins tomorrow.  Many recent grads read this blog.  Good luck to all who are taking the exam!

Spoiler alert: the answers follow the Honor Roll. If you want to read the questions before you review the answers, go HERE.  Question 5 spurred quite a bit of discussion, even among people who didn’t enter the quiz.  Last minute hint: remember….this is an ethics blog.

HONOR ROLL

Perfect Score

Honors (4 out of 5)

  • Matt Anderson, Pratt Vreeland Kennelly Martin & White
  • Matt Little, Law Offices of Matthew Little
  • Lon McClintock, McClintock Law Office
  • Hal Miller, First American
  • Emily Tredeau, Office of the Defender General

ANSWERS

Question 1

Two years ago, Paralegal worked for Attorney.  Attorney represented Green in her divorce from Gold.  Paralegal did substantial work on the Green file.

Paralegal has a new job.  Now, Paralegal works for Lawyer.  Lawyer represents Gold.

A post-judgment issue has arisen between Green and Gold. Which is most accurate under the Vermont Rules of Professional Conduct?

  • A. Paralegal’s conflict is imputed to Lawyer.  Lawyer is disqualified, unless Green gives informed consent, confirmed in writing.
  • B. Paralegal’s conflict is not imputed to Lawyer, but Paralegal should be screened from the Green & Gold matter. See, Rule 1.10, Comment [4]
  • C. Nothing in the Rules of Professional Conduct addresses this situation.
  • D.  Go Cats Go!

Question 2

Lawyer knows that she has earned a portion of the funds that she is holding in her trust account.  She intends to reconcile the trust account & withdraw the earned fees as soon as she can get around to it.  Work is busy.

Although the word does not appear in the Rules of Professional Conduct, what is the common name used to describe Lawyer’s violation of the Rules?

COMMINGLING

Question 3

Rule 1.6(a) prohibits a lawyer from disclosing information relating to the representation of a client without the client’s informed consent or unless the disclosure is impliedly authorized to carry out the representation.  Rule 1.6(c), however, permits disclosure of otherwise protected information “to establish a claim or defense . . . in a controversy between the lawyer and the client [OR] to respond to allegations in any proceeding concerning the lawyer’s representation of the client.” Rule 1.9(c) operates to apply Rule 1.6 to former clients.

Former Client (“FC”) posted a negative online review of Lawyer on Yelp.  Lawyer intends to reply with a post that would include information covered by Rule 1.6(a).  Most courts and bar associations that have addressed the issue have concluded that:

  • A. FC’s post impliedly authorizes Lawyer’s reply;
  • B.  FC’s post is a “controversy”, thus Rule 1.6(c) authorizes Lawyer’s reply;
  • C.  Given the nature of social media, FC is deemed to have given informed consent to any potential reply;
  • D.  Lawyer’s reply would violate Rule 1.6(a). (I’ve pasted in an outline below the answer to question 5)

Question 4

Attorney calls me with an inquiry.  I listen, then reply: “the Comment to the rule is clear: your representation that you’re required to do so should be sufficient.  You shouldn’t have to say anything more.”

I’m looking for a rather specific answer here: what type of pleading did Attorney call to discuss?

MOTION TO WITHDRAW. See, Rule 1.16, Comment 3

Question 5

The week started with President’s Day, so I’ll finish with this:

Of all the lawyers who have argued cases before the United States Supreme Court, only seven (7) were either a past or future President of the United States.  Name the last lawyer who was either a past or future President to argue a case before the US Supreme Court.

RICHARD NIXON argued Time, Inc. v. Hill, 385 US 374 (1967)

Nixon

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

Here’s the outline I use for issues related to Online Reputation Management

Disciplinary Cases

In re the Matter of David J. Steele, Ind. Supreme Court No. 49S00-1509-DI-527 (Ind. 2015) (among other violations, Indiana lawyer disbarred for, by his own description, “actively manipulate[ing his] Avvo reviews by monetarily incentivizing positive reviews, and punishing clients who wr[o]te negative reviews by publicly exposing confidential information about them.” Responses to the negative reviews included numerous false statements)

• People v. James C. Underhill Jr., 2015 WL 4944102 (Colo. 2015) (Colorado lawyer suspended for 18 months for, among other violations, disclosing confidential information in response to internet complaints about his fees and services)

• In the Matter of Tsamis, Ill. Att’y Registration and Disciplinary Comm’n, Comm’n No. 2013PR00095 (Ill. 2014) (Chicago lawyer reprimanded for revealing confidential information when responding to a negative review on the legal information website Avvo)

• In the Matter of Margrett A. Skinner, 295 Ga. 217, 758 S.E.2d 788 (Ga. 2014) (Georgia lawyer publicly reprimanded for improper disclosures in response to negative online review)

• In re Petition for Disciplinary Action Against Allison Wiles Maxim Carlson, Supreme Court A13-1091 (Minn. 2013) (Minnesota lawyer reprimanded for falsely posing as a former client of opposing counsel and posting a negative review about opposing counsel on a website. See also Petition for Disciplinary Action)

• In re Quillian, 20 DB Rptr 288 (Or. 2006) (Oregon lawyer suspended for 90 days for publishing confidential information about former client in listserv post)

Ethics Opinions

• Wash. St. B. Ass’n, Advisory Op. 2014-02 (2014) (lawyer who claims information on a website listing becomes responsible for ensuring that info in the list conforms to the RPC; lawyer must delete false or misleading comments or endorsements attached to lawyer’s profile; and lawyer may endorse another lawyer only if the endorsement is accurate)

• B. Ass’n of San Francisco, Ethics Op. 2014-1 (2014) (stating that while lawyers may respond to an online review, the duty of confidentiality still prevents any disclosure of confidential information without the client’s consent)

• Pa. B. Ass’n, Formal Op. 2014-300 (2014) (lawyer may not give detailed response to on-line criticism of the lawyer by a client; lawyers also may just ignore the on-line criticism; the self-defense exception is not triggered by a negative on-line review)

• N.Y. St. B. Ass’n, Op. 1032 (2014) (lawyer may not disclose confidential client information solely to respond to former client’s criticism of the lawyer posted on a lawyer-rating website)

• Los Angeles County B. Ass’n, Ethics Op. No. 525 (2012) (lawyer may publicly respond to comments published by a former client if (1) no confidential information is disclosed, (2) the response does not injure the former client in any matter involving the prior representation, and (3) the response is proportionate and restrained)

• S.C. B, Ethics Advisory Op. 09-10 (2010) (once lawyer claims website listing, information contained therein are subject to rules governing communication and advertising; lawyer may invite peer reviews and comments but such comments are governed by the RPC and the lawyer is responsible for the content)

Other Sources

• Joseph A. Corsmeier, Colorado Lawyer Suspended for 18 Months for Disclosing Confidential Information in Response to Client Internet Criticism, LAWYER ETHICS ALERT BLOGS (Aug. 28, 2015 4:02 PM), https://jcorsmeier.wordpress.com/category/lawyer-revealing-client-confidential-information-on-internet/

• Cassandra Burke Robertson, Online Reputation Management in Attorney Regulation, Social Science Research Network (May 1, 2015), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2611326## (forthcoming in the Georgetown J. of Legal Ethics)

Five for Friday #13

This week included my thoughts on confidential settlement agreements and steps to consider in response to an attempt to compel disclosure of information relating to the representation of a client. Also, the Court promulgated new Rules of Admission.  The changes include adopting the Uniform Bar Exam, as well as replacing the clerkship with a CLE and mentorship program. See, New Rules of Admission, Rule 12.  The Board of Bar Examiners and the MCLE Board will need mentors.  If you’re interested, let me know.

On to Five for Friday!

  1.  It’s okay to look up the answers to questions 1-4: Google, the rules on the Court’s website, the rules on this blog, talking with a colleague.  Try NOT to use Google or a colleague’s mind for #5.
  2. Don’t post your answers in the Comments.  Please email them to michael.kennedy@vermont.gov
  3. Forward this to other lawyers – in AND out of Vermont.  The more the merrier.

Question 1

Two years ago, Paralegal worked for Attorney.  Attorney represented Green in her divorce from Gold.  Paralegal did substantial work on the Green file.

Paralegal has a new job.  Now, Paralegal works for Lawyer.  Lawyer represents Gold.

A post-judgment issue has arisen between Green and Gold. Which is most accurate under the Vermont Rules of Professional Conduct?

  • A. Paralegal’s conflict is imputed to Lawyer.  Lawyer is disqualified, unless Green gives informed consent, confirmed in writing.
  • B. Paralegal’s conflict is not imputed to Lawyer, but Paralegal should be screened from the Green & Gold matter.
  • C. Nothing in the Rules of Professional Conduct addresses this situation.
  • D.  Go Cats Go!

Question 2

Lawyer knows that she has earned a portion of the funds that she is holding in her trust account.  She intends to reconcile the trust account & withdraw the earned fees as soon as she can get around to it.  Work is busy.

Although the word does not appear in the Rules of Professional Conduct, what is the common name used to describe Lawyer’s violation of the Rules?

Question 3

Rule 1.6(a) prohibits a lawyer from disclosing information relating to the representation of a client without the client’s informed consent or unless the disclosure is impliedly authorized to carry out the representation.  Rule 1.6(c), however, permits disclosure of otherwise protected information “to establish a claim or defense . . . in a controversy between the lawyer and the client [OR] to respond to allegations in any proceeding concerning the lawyer’s representation of the client.” Rule 1.9(c) operates to apply Rule 1.6 to former clients.

Former Client (“FC”) posted a negative online review of Lawyer on Yelp.  Lawyer intends to reply with a post that would include information covered by Rule 1.6(a).  Most courts and bar associations that have addressed the issue have concluded that:

  • A. FC’s post impliedly authorizes Lawyer’s reply;
  • B.  FC’s post is a “controversy”, thus Rule 1.6(c) authorizes Lawyer’s reply;
  • C.  Given the nature of social media, FC is deemed to have given informed consent to any potential reply;
  • D.  Lawyer’s reply would violate Rule 1.6(a).

Question 4

Attorney calls me with an inquiry.  I listen, then reply: “the Comment to the rule is clear: your representation that you’re required to do so should be sufficient.  You shouldn’t have to say anything more.”

I’m looking for a rather specific answer here: what type of pleading did Attorney call to discuss?

Question 5

The week started with President’s Day, so I’ll finish with this:

Of all the lawyers who have argued cases before the United States Supreme Court, only seven (7) were either a past or future President of the United States.  Name the last lawyer who was either a past or future President to argue a case before the US Supreme Court.

 

 

 

 

 

Subpoena to Disclose Client Info?

It is not uncommon for lawyers to call me after receiving a subpoena to give testimony or produce evidence related to the representation of a client.

The applicable rule is Rule 1.6.  For a primer on the rule, check out this blog post from December 2015.

The general rule is that a lawyer may not disclose information relating to a representation, absent client consent or unless the disclosure is impliedly authorized to carry out the representation.  Remember: “information relating to a representation” is all information, whatever its source, and is much broader than information covered by the attorney-client privilege. See, Rule 1.6, Comment [3]

Rule 1.6(b) sets out the instances in which disclosure of otherwise protected information is mandatory.  “Responding to a subpoena” is not one of them.

Rule 1.6(c) sets out the instances in which disclosure of otherwise protected information is permissive.  For instance, a lawyer may reveal information if required to do so by court order.  A subpoena is not a court order.

So, what I’ve done is to suggest to lawyers that they consult with the client, raise all non-frivolous defenses to disclosure, then, if ordered to disclose, consult with the client on whether to appeal.  Then, the lawyer may choose to comply with the court order or to risk the contempt hit.  See, Comment [9].  (Again, Rule 1.6(c) is permissive . . . a lawyer “may” disclose in response to a court order.)  I’ve also suggested that a lawyer who chooses to disclose should limit the disclosure to the information necessary to respond to the request.  See, Comment [14] (“in any case, a disclosure adverse to the client’s interest should be no greater than the lawyer reasonably believes is necessary to accomplish the purpose.”)

Yesterday, the ABA issued a Formal Opinion 473: “Obligations Upon Receiving a Subpoena or Other Compulsory Process for Client Documents or Information.”  If you don’t have time to read the full opinion, here’s the synopsis:

  • “A lawyer receiving a subpoena or other compulsory process for documents or information relating to the representation of a client has several obligations. If the client is available,the lawyer must consult the client.If instructed by the client or if the client is unavailable,the lawyer must assert all reasonable claims against disclosure and seek to limit the subpoena or other initial demand on any reasonable ground.If ordered to disclose confidential or privileged information and the client is available,a lawyer must consult with the client about whether to produce the information or appeal.If the client and the lawyer disagree about how to respond to the initial demand or to an order requiring disclosure, the lawyer should consider withdrawing from the representation pursuant to Model Rule 1.16.If disclosure is ordered andthe client is unavailable for consultation, the lawyer is not ethically required to appeal. When disclosing documents and information —whether in response to an initial demand or to an order,and whether or not the client is available — the lawyer may reveal information only to the extent reasonably necessary. The lawyer should seek appropriate protective orders or other protective arrangements so that access to the information is limited to the court or other tribunal ordering its disclosure and to personshaving a need to know.”

Finally, the ABA opinion does not involve disclosure in response to a dispute between client and lawyer.  Thus, remember that Rule 1.6(c) permits disclosure

  • “to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.

I hope you come back tomorrow for Week 13 of Five for Friday!  To bone up, the old Five fro Fridays are HERE.

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Confidential Settlement Agreements: Ethical?

From time to time, I receive inquiries related to confidential settlement agreements.  My view is that nothing in the Rules of Professional Conduct prohibits such agreements.

In the latest on the topic, the South Carolina Bar Association agrees.

The SC Bar faced this question: “May a SC lawyer agree to a confidentiality clause in the settlement of claims against the proposing firm’s client?”

Short Answer:  Yes, provided that the settlement agreement (1) complies with the SC Rules of Civil Procedure; (2) is limited to prohibiting disclosure of the settlement & its terms; and (3) does not prohibit or limit the use of information gained in the course of the representation.

Takeaways:

  1. The Committee noted that settlement agreements must comply with South Carolina’s rules of civil procedure.   The Committee added that a lawyer who agrees to a settlement that does not comply with the rules of civil procedure violates the SC ethics rule that prohibits lawyers from knowingly disobeying an obligation under the rules of a tribunal.
  2. Vermont’s Rule 3.4(c) states that “a lawyer shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.”  So, a settlement agreement, confidential or not, must comply with court rules. (For example, See 14 V.S.A. § 1492(c))
  3. More interesting, from an ethics perspective, was the Committee’s conclusion that an attorney may not offer or accept a settlement agreement that limits the use of information acquired in the representation.
  • Accepting such a Term: The Committee drew a distinction between a settlement agreement that prohibits the disclosure of the agreement and its terms and one that prohibits the use of information gained during the representation.  As such, the Committee concluded that the latter violates the ethics rule that prohibits a lawyer from entering into an agreement or settlement that limits or restricts a lawyer’s right to practice.
  • Vermont has the same rule.  It’s Rule 5.6(b).  It’s not clear to me that Rule 5.6 was meant to apply to confidential settlement agreements like the one discussed in the South Carolina opinion.  However, under the SC analysis, a confidential settlement agreement that prohibits a lawyer from using information gained in the representation in a later representation would violate V.R.Pr.C. 5.6(b).
  • Offering such a Term:  The Committee concluded that not only is it unethical to accept an offer to enter into a confidential settlement agreement that prohibits use of information gained in the representation, it is unethical to make such an offer.  The theory: making the offer violates the rule that prohibits attorneys from acting “to assist or induce another” to violate the rules.
  • Again, Vermont has the same rule. It’s Rule 8.4(a).  Under the SC analysis, a lawyer violates Rule 8.4(a) by proposing a confidential settlement agreement that prohibits opposing counsel from using information gained during the representation in a later case.

The South Carolina opinion drew heavily from ABA Formal Opinion 00-417.  Also, the New Hampshire Bar Association reached a similar conclusion in 2009.  The NH opinion is HERE.

To be clear: I am not saying that an agreement with the terms at issue in the SC opinion does or does not violate Vermont’s Rules of Professional Conduct. I have no idea what disciplinary counsel would do if presented with such a scenario, nor do I have any idea how one of the PRB’s hearing panels or the Vermont Supreme Court would decide if faced with such a prosecution.  Rather, I simply bring the SC opinion to your attention.

 

Court Adopts Uniform Bar Exam

Earlier today, the Vermont Supreme Court signed an order promulgating amendments to the Rules of Admission to the Bar of the Vermont Supreme Court.  The amendments include adopting the Uniform Bar Exam. Vermont will administer the UBE beginning in July 2016.

The new Rules of Admission are HERE.  The Court’s order, with Justice Dooley’s dissent, is HERE.