WSYW: Attorney-Client Sex

What Say You Wednesday.

I blogged on the issue of lawyer-client sexual relationships HERE.

Long story short, Vermont’s Rules of Professional Conduct do no include a specific ban on lawyer-client sexual relationships.  In 2009, the Civil Rules Committee amended the Rules to incorporate several changes to the ABA Model Rules.  The ABA Model Rules include a specific ban on lawyer-client sexual relationships.

The Committee intentionally omitted the ABA’s specific ban on lawyer-client sex from the amendments it adopted.  According to the Reporter’s Notes, the omission was “based on the grounds that an absolute prohibition on lawyer-client sexual relationships is both an invasion of privacy and a duplication of the effects of other rules requiring loyal and competent representation .  . .”  For further explanation, see Comment 17 to Rule 1.8.

The Professional Responsibility Board feels strongly that Vermont should join the 31 other states that have specific bans.  Thus, last year, the PRB recommended that the Court adopt a specific ban.  I supported the recommendation, as did current disciplinary counsel.  Each of us has more than 10 years of experience prosecuting disciplinary cases and understands the difficulty of shoe-horning a prosecution of lawyer-client sex into a violation of the conflicts rules.  A bright-line rule would be easy to follow and easy to prosecute.

The Court referred the proposal to the Civil Rules Committee.  The Committee rejected the PRB’s proposal.   As such, the proposal was not formally considered by the Court or published for notice & comment by the bar.  It remains unclear to the PRB how a recommendation from the very body that the Supreme Court has charged with administering the disciplinary system can be rejected by another committee without formal review by the court.

Again, 31 states have rules that specifically ban lawyer-client sexual relationships.  Most have an exception for relationships that pre-date the attorney-client (professional) relationship. The PRB’s proposal included just such an an exception.

The PRB’s proposal is HERE.  An excellent, reasoned argument for the opposition is HERE.

A chart of the states is HERE.

So, what say you?  Should the PRB propose the ban again?

You can answer today’s poll question  HERE.

Monday Morning Answers

If you want to try the quiz before reading the answers, go HERE.

HONOR ROLL

Perfect Score:  

• Hal Miller, First American

Honors:  

• Robert Grundstein, Esq.
• Samantha Lednicky, Downs Rachlin Martin
• Matt Little, Law Offices of Matt Little

ANSWERS

Question 1:

This one has come up a few times this month.  Attorney called me with an inquiry. I listened, then responded “If it’s about a fee or an uncontested issue, you can handle the trial.  If not, you can’t, but the rules do not categorically prohibit another lawyer in your firm from  handling the case.”

Attorney called me because she is likely to be a NECESSARY WITNESS.  See, Rule 3.7.

Question 2:

There’s a rule that prohibits lawyers from “engaging in conduct that is disruptive or degrading to a tribunal.”  The rule applies:

• A.  By rule, only to hearings before the tribunal
• B.  By case law, to hearings and “all activity within the umbrella of the court room . . . and the courthouse hallway is within that umbrella.”
• C.  Per a comment to the rule, to any proceeding of the tribunal, including depositions. See, Rule 3.5, Comment [5].
• D.  Per a comment to the rule, to hearings and any ancillary in which a judge or third-party neutral (eg: a mediator) is present, but not to depositions.

Question 3:

There’s a rule that prohibits a lawyer from making false statements of material fact or law to third persons while representing a client.  As I’ve blogged, what constitutes a “material fact” depends on the circumstances.  Indeed, some ethics gurus interpret a Comment to the rule as suggesting that the rule might be less stringent in:

• A.   criminal cases
• B.   negotiations – For more, see blog posts HERE and HERE
• C.   the advertising context

Question 4:

Earlier this month, the Vermont Supreme Court approved the Professional Responsibility Board’s recommendation to amend the rules so as to authorize lawyers to:

• A.   Deposit fees paid in advance into an operating account instead of a trust account;  A few weeks ago, I blogged about this HERE
• B.   Have paralegals appear on behalf of tenants at hearings on motions to pay rent into court;
• C.  Have paralegals appear on behalf of divorce clients at case manager conferences.
• D.  share profits and managerial responsibilities with nonlawyers.

Question 5:

College basketball seems to be in the news this week.  As such, a famous college basketball coach led his college team to multiple national championships, led the USA to an Olympic gold medal, and often landed in hot water with NCAA enforcement authorities.  He once skipped an NCAA-mandated ethics seminar, stating:

“I would have rather listened to Saddam Hussein speak on civil rights than to have listened to some of the people who have spoken on ethics to this point.”

Who is the coach?

BOBBY KNIGHT

 

 

Chili!

As I’ve mentioned, the very first rule in the RPCs mandates competence.  When it comes to making chili, nobody is more competent than my brother.

So, for those of you in the Burlington area today, get down to Nectar’s for the 4th Annual Queen City Chili Cook Off.  When there, be sure to check out Dealer.Com’s own Patrick Kennedy, captain & chief chef of Team No Beans.

How’s this related to ethics? I’m glad you asked.

Rule 1.1 mandates competence.  Patrick has won multiple chili contests (but never this one) so he’s beyond competent.

Rule 1.3 mandates diligence.  Patrick and the other members of Team No Beans have been working for days to perfect this entry.

Rule 1.5 prohibits unreasonable fees.  The contest costs only $5, and includes a little cup o’ chili from from each entrant.

Your bracket is busted and it’s too early to mow your lawn.  So you’re out of excuses!

And, unlike the silly advertising rules, I think I can say that there’s no better chili than Team No Beans chili.   And that’s not puffery my friends.

Don’t Do This: Atoms for Peace

So, you judges and aspiring judges, here’s a tip: don’t preside over a case to which you are  party.

Sounds obvious, right?

Well, apparently not to everyone.  Check out THIS post in the ABA Journal.

PS: still plenty of time to enter this week’s Five for Friday ethics quiz

Bonus points to anyone who can tell me what the title of this blog post – “Atoms for Peace” – has to do with the subject of the post.

Five for Friday #17.2

ONE ENTRY last week!  Now, granted, I was in Chicago for a conference.  So maybe some of you felt a wrinkle in the force and didn’t want to try your hand at an ethics quiz without me within the jurisdiction.

Well, like Jack and Britney, I’m back.

So let’s try this again:

1. Rules:  there aren’t any.  You can look up answers or ask friends for help. 
2. Exception:  Question 5
3. Please email answers to michael.kennedy@vermont.gov
4. Please share with as many friends and colleages as you can and encourage them to try
5. I’ll post the answers on Monday

Question 1:

This one has come up a few times this month.  Attorney called me with an inquiry. I listened, then responded “If it’s about a fee or an uncontested issue, you can handle the trial.  If not, you can’t, but the rules do not categorically prohibit another lawyer in your firm from  handling the case.”

Attorney called me because she is likely to be a _________________.

Question 2:

There’s a rule that prohibits lawyers from “engaging in conduct that is disruptive or degrading to a tribunal.”  The rule applies:

• A.  By rule, only to hearings before the tribunal
• B.  By case law, to hearings and “all activity within the umbrella of the court room . . . and the courthouse hallway is within that umbrella.”
• C.  Per a comment to the rule, to any proceeding of the tribunal, including depositions.
• D.  Per a comment to the rule, to hearings and any ancillary in which a judge or third-party neutral (eg: a mediator) is present, but not to depositions.

Question 3:

There’s a rule that prohibits a lawyer from making false statements of material fact or law to third persons while representing a client.  As I’ve blogged, what constitutes a “material fact” depends on the circumstances.  Indeed, some ethics gurus interpret a Comment to the rule as suggesting that the rule might be less stringent in:

• A.   criminal cases
• B.   negotiations
• C.   the advertising context

Question 4:

Earlier this month, the Vermont Supreme Court approved the Professional Responsibility Board’s recommendation to amend the rules so as to authorize lawyers to:

• A.   Deposit fees paid in advance into an operating account instead of a trust account;
• B.   Have paralegals appear on behalf of tenants at hearings on motions to pay rent into court;
• C.  Have paralegals appear on behalf of divorce clients at case manager conferences.
• D.  share profits and managerial responsibilities with nonlawyers.

Question 5:

College basketball seems to be in the news this week.  As such, a famous college basketball coach led his college team to multiple national championships, led the USA to an Olympic gold medal, and often landed in hot water with NCAA enforcement authorities.  He once skipped an NCAA-mandated ethics seminar, stating:

“I would have rather listened to Saddam Hussein speak on civil rights than to have listened to some of the people who have spoken on ethics to this point.”

Who is the coach?

 

Conflict Checks

In Vermont, the failure to check for conflicts is a violation of the Rules of Professional Conduct.  See PRB Decision 123 and PRB Decision 160.

Last month, the New York State Bar Association’s Committee on Professional Ethics issued an advisory opinion on conflict checks.  It’s Opinion 1085 and is HERE.

The question presented to the Committee concerned conflict checks run by a law school’s legal clinic.  The clinic sought to represent a client in a post-conviction relief matter that involved issues  related to human trafficking.

Many of you don’t handle PCRs. Even more of you don’t handle cases involving human trafficking.  And even more of you don’t work at a law school’s legal clinic.

Still, don’t get lost in the facts specific to the advisory opinion.  The opinion includes several helpful tips on conflict checks in general.

For those of you who get lost in the facts, I’ve always wanted a street name.

Mentors Needed

The Supreme Court recently promulgated wholesale revisions to the Rules of Admission. The changes take effect on April 18, 2016.  Much of the talk about the changes has focused on the Court’s decision to adopt the Uniform Bar Exam.  Yes, that’s a big change.  But, it’s not why I’m writing.

A less publicized but equally significant change was the Court’s decision to adopt the recommendation to replace the 3-month “clerkship” with a requirement that includes CLE and mentorship components. In short, the new rules require new lawyers admitted by examination to complete (a) 15 hours of CLE; and (b) a mentorship.  New lawyers have 1 year from the date of admission to complete the mentorship.  Failure to do so results in an administrative suspension, similar to failing to comply with the CLE/relicensing rules.  See, Rule 12 of the Rules of Admission (effective April 18, 2016).  

The BBE and the Continuing Legal Education Board need mentors.  I hope that new attorneys will find mentors on their own, but I expect that many will need referrals.  Therefore, my office will maintain a list of judges & lawyers willing to serve as mentors. When contacted, we’ll put new attorneys in touch with mentors.

Earlier this month, the CLE Board proposed an amendment to the CLE rules that would allow mentors to claim up to 5 hours of CLE credit per reporting period.  Also, here’s what the Rules of Admission require of mentors: a new lawyer must

•  “(A) meet regularly with the supervising judge or attorney, no less than 10 times, to discuss the Applicant’s practice and issues relevant to Vermont practice and procedure.”

If you’re interested in serving as mentor, please email brandy.sickles@vermont.gov or Victoria.cutone@vermont.gov and we’ll add you to the list of those willing to serve.  If you have questions  about what would be expected of you as a mentor, please contact Judge Hoar or Keith Kasper.  Judge Hoar chairs the CLE board.  Keith is on both the BBE and the CLE board and he led the joint committee that drafted the mentorship rule and the checklist.

Updated Poll – with working links

I’m trying something new this week.  It’s a simple poll, but with a name. And who doesn’t like catchy (or not so catchy) names?

I call it “WSYW”, which stands for “What Say You Wednesday.”

I’ll give you the facts, I’ll give you some law, and I’ll let you vote.   A poll will appear at the end of the blog.

This one came to my attention via Samson Habte at Bloomberg ABA/BNA Lawyers’ Manual on Professional Conduct.

Facts

• Lawyer is admitted to practice law in Vermont
• Lawyer represents Plaintiff in civil suit
• Plaintiff resided at Property owned by Defendant
• Plaintiff’s civil suit alleges that Defendant’s negligent management of Property caused Plaintiff to suffer injury due to toxic mold poisoning

• In April 2015, mediation was scheduled for August 22, 2015
• In July 2015, Plaintiff died of cancer
• On August 21, 2015, mediator called Lawyer to discuss mediation. By then, Lawyer knew Plaintiff had died
• Lawyer told mediator
  • Plaintiff has been sick with cancer
  • Plaintiff will not be at mediation
• Mediator asked Lawyer if Lawyer would be able to contact Plaintiff if an acceptable offer was made
• Lawyer replied “maybe”

• Mediation commenced on August 22
• Mediator, Lawyer, Defendant, and Defendant’s Attorney were present
• Mediator spoken, then sent parties/lawyers to separate rooms
• Mediator went to speak with Lawyer
• Lawyer disclosed that Plaintiff had died
• Lawyer admitted that he had not informed Defendant’s Attorney that Plaintiff had died

HERE’S SOME LAW

Rules

• Rule 1.6 – confidentiality of information relating to the representation
• Rule 3.3 – candor toward the tribunal
• Rule 4.1 – truthfulness in statements to others
• Rule 8.4(c) – it is professional misconduct to engage in conduct involving fraud, deceit, dishonesty & misrepresentation**
• Rule 8.4(d) – professional misconduct to engage in conduct that is prejudicial to the administration of justice.

Case

• ** The VT Supreme Court has indicated that not “every white lie” violates Rule 8.4(c).  Rather, a violation must be dishonesty/deceipt/misrepresentation that reflects on the attorney’s fitness to practice.

So, what say you?

1. Did Lawyer violate Rule 1.6?  Answer HERE
2. Did Lawyer violate Rule 3.3?  Answer HERE
3. Did Lawyer violate Rule 4.1? Answer HERE
4. Did Lawyer violate Rule 8.4(c)?  Answer HERE
5. Did Lawyer violate Rule 8.4(d)?  Answer HERE

OBC

Happy Birthday Wendy Collins!

Wendy was Vermont’s “OG“….the first bar counsel in the role as currently constituted.

Wendy, as ours say: as you slide down the bannister of life, may the splinters never point in the wrong direction.

Happy birthday and Go Sox!

Five for Friday #17

Going to try to sneak this post in after all…..I can’t handle anymore emails expressing disappointment!

1. Rules:  there aren’t any.  You can look up answers or ask friends for help. 
2. Exception:  Question 5
3. Please email answers to michael.kennedy@vermont.gov
4. I’ll post the answers on Monday

Question 1:

This one has come up a few times this month.  Attorney called me with an inquiry. I listened, then responded “If it’s about a fee or an uncontested issue, you can handle the trial.  If not, you can’t, but the rules do not categorically prohibit another lawyer in your firm from  handling the case.”

Attorney called me because she is likely to be a _________________.

 

Question 2:

There’s a rule that prohibits lawyers from “engaging in conduct that is disruptive or degrading to a tribunal.”  The rule applies:

• A.  By rule, only to hearings before the tribunal
• B.  By case law, to hearings and “all activity within the umbrella of the court room . . . and the courthouse hallway is within that umbrella.”
• C.  Per a comment to the rule, to any proceeding of the tribunal, including depositions.
• D.  Per a comment to the rule, to hearings and any ancillary in which a judge or third-party neutral (eg: a mediator) is present, but not to depositions.

Question 3:

There’s a rule that prohibits a lawyer from making false statements of material fact or law to third persons while representing a client.  As I’ve blogged, what constitutes a “material fact” depends on the circumstances.  Indeed, some ethics gurus interpret a Comment to the rule as suggesting that the rule might be less stringent in:

• A.   criminal cases
• B.   negotiations
• C.   the advertising context

Question 4:

Earlier this week, the Vermont Supreme Court approved the Professional Responsibility Board’s recommendation to amend the rules so as to authorize lawyers to:

• A.   Deposit fees paid in advance into an operating account instead of a trust account;
• B.   Have paralegals appear on behalf of tenants at hearings on motions to pay rent into court;
• C.  Have paralegals appear on behalf of divorce clients at case manager conferences.
• D.  share profits and managerial responsibilities with nonlawyers.

Question 5:

College basketball seems to be in the news this week.  As such, a famous college basketball coach led his college team to multiple national championships, led the USA to an Olympic gold medal, and often landed in hot water with NCAA enforcement authorities.  He once skipped an NCAA-mandated ethics seminar, stating:

“I would have rather listened to Saddam Hussein speak on civil rights than to have listened to some of the people who have spoken on ethics to this point.”

Who is the coach?