Record Year!

So it’s 5:14PM and I’m closing the stats on Fiscal Year 2016.

Final tally on inquiries of bar counsel: 1100. Previous record for a single year: 823 in FY 15.

That’s a 33.6% increase and, as Eric Church would say, a record year!

Thank you for your calls. Keep ’em coming in FY 17.

License Renewal

Many of you probably remember Martha Hicks-Robinson.  She left the State’s employ in May 2014. No  full-time replacement has been hired.  So, I’ve been assigned to cover. Not exactly the best use of bar counsel resources, but what do I know.

Anyhow, the relicensing deadline is upon us.  So far, the process has gone well.  Of approximately 1500 attorneys due to relicense this year, over 1300 already have.  By comparison, last year at this time fewer than 1200 had. We’ve made a concerted effort to get notice out and you’ve responded.  So, thank you!

But a few of you remain!  If you relicense this year, you will have received at least 7 reminders so far.  If you’ve yet to follow the instructions in those reminders, I’m pasting them in below.  Attorneys who fail to file a licensing statement and pay the licensing fee by tomorrow night will be administratively suspended on Tuesday.

Thank you.

Mike

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

Per Sections 1 and 5 of Supreme Court Administrative Order 41, on or before July 1, you must:

 

        •  File a licensing statement; and
        • Choose either “active” or “inactive” status for the period that runs thru July 1, 2018; and
        • Complete the CLE Compliance Form if you choose “active” status; and,
        • Pay the appropriate licensing fee.

 

If you intend to retire or resign your license, please email mailto: mailto:JUD.attylicensing@vermont.gov?subject=Retire/Resign  before stating the renewal process.

 

You will need your attorney license number in order to renew your license.  For security reasons, it is not in this email. Your attorney license number is printed on the card you received in the mail the last time you renewed your license. If you do not know your attorney license number, please email mailto:JUD.attylicensing@vermont.gov?subject=Need-License-Number

 

  1.  Renew & Pay Online

 

        •   The online process has been approved by the State Court Administrator for online renewal.

 

        •   Note: Make sure to choose the option that allows you to complete the CLE Compliance Form.

OR

  1.  Renew by Email or U.S. Mail

 

 

OR

Print and mail the completed forms and check to:

Office of the State Court Administrator

111 State Street, Suite 9B

Montpelier, VT 05609-0701

 

III.  Vermont Bar Foundation Opt-In

The Vermont Supreme Court has authorized an ‘opt-in’ for attorneys to donate to the Vermont Bar Foundation (‘VBF’) to support legal services for the disadvantaged.  By opting in, an attorney commits to making a donation, to the VBF.  Section IX of the Attorney Licensing Statement includes specific instruction for the opt-in.

 

If you do not file a licensing statement and the fee on or before July 1, 2016, you license will be administratively suspended.  Administrative Order 41, Section 6.

 

Please note:  renewing your membership with the Vermont Bar Association IS NOT THE SAME as renewing your law license that is issued by the Vermont Supreme Court.

 

Monday Morning Answers

The questions are HERE.

HONOR ROLL (* = Perfect Score)

 

Special Pop Culture Honors:  Emily Tredeau, Office of the Defender General

Question 1

Per one commentator, one of “[t]he most vexing problems in contemporary legal ethics” is how to treat the government lawyer.The commentator notes that the problem arises because for the government lawyer “there is no easily discernible client..”

Question 2

A Comment to the rules states that “[p]erhaps no professional shortcoming is more widely resented than ____________.”

  • A.    Procrastination, See, Rule 1.3, Comment [3] (Perhaps an unfair question. Friday, I was one of several presenters at a day-long CLE sponsored by the VBA and named “Procrastinators’ Day.”
  • B.    Lack of Communication
  • C.    Rudeness
  • D.    Inaccurate Billing

Question 3

Attorney called me with an inquiry. I listened.  Then, Attorney and I discussed the concept of “reasonable remedial measures.”

Attorney learned her client had lied or offered false evidence.  See, Rule 3.3.

Question 4

Most states, bar associations, and courts agree that, for the purposes of the rules of professional conduct, a government attorney’s role is most similar to the role of what type of private attorney?

Corporate/In-House, See Rule 1.13

Question 5

Imagine you’re arguing an appeal in a case in which the state attorney general was involved in a scheme to drive all the Johnsons out of Rock Ridge so that he could buy their land for cheap…..land that was along the proposed route for a new railroad.

It’s almost like you’re starring in a movie!

What movie?

BLAZING SADDLES

 

Five for Friday – Week 30 Update

Folks, calm down.  The “F -” is “F minus” as in “terrible grade.”  It’s not a profanity in a legal ethics blog.  But, thank you for letting me know.

Here’s the original post:

F- to the Celtics for last night’s draft.

Welcome to Week 30 of Five for Friday!  And, to those attending the National Association of Attorneys General summer meeting, welcome to Burlington!

You may use books, notes, search engines.  You may phone, email, text, or – gasp! – talk to friends.  Exception: #5.

Email answers to michael.kennedy@vermont.gov  Please forward this quiz to colleagues!

Question 1

Per one commentator, one of “[t]he most vexing problems in contemporary legal ethics” is how to treat the government lawyer.The commentator notes that the problem arises because for the government lawyer “there is no easily discernible _______.”

Question 2

A Comment to the rules states that “[p]erhaps no professional shortcoming is more widely resented than ____________.”

  • A.    Procrastination
  • B.    Lack of Communication
  • C.    Rudeness
  • D.    Inaccurate Billing

Question 3

Attorney called me with an inquiry. I listened.  Then, Attorney and I discussed the concept of “reasonable remedial measures.”

What prompted Attorney to call?

Question 4

Most states, bar associations, and courts agree that, for the purposes of the rules of professional conduct, a government attorney’s role is most similar to the role of what type of private attorney?

Question 5

Imagine you’re arguing an appeal in a case in which the state attorney general was involved in a scheme to drive all the Johnsons out of Rock Ridge so that he could buy their land for cheap…..land that was along the proposed route for a new railroad.

It’s almost like you’re starring in a movie!

What movie?

Five for Friday – Week #30

F- to the Celtics for last night’s draft.

Welcome to Week 30 of Five for Friday!  And, to those attending the National Association of Attorneys General summer meeting, welcome to Burlington!

You may use books, notes, search engines.  You may phone, email, text, or – gasp! – talk to friends.  Exception: #5.

Email answers to michael.kennedy@vermont.gov  Please forward this quiz to colleagues!

Question 1

Per one commentator, one of “[t]he most vexing problems in contemporary legal ethics” is how to treat the government lawyer.The commentator notes that the problem arises because for the government lawyer “there is no easily discernible _______.”

Question 2

A Comment to the rules states that “[p]erhaps no professional shortcoming is more widely resented than ____________.”

  • A.    Procrastination
  • B.    Lack of Communication
  • C.    Rudeness
  • D.    Inaccurate Billing

Question 3

Attorney called me with an inquiry. I listened.  Then, Attorney and I discussed the concept of “reasonable remedial measures.”

What prompted Attorney to call?

Question 4

Most states, bar associations, and courts agree that, for the purposes of the rules of professional conduct, a government attorney’s role is most similar to the role of what type of private attorney?

Question 5

Imagine you’re arguing an appeal in a case in which the state attorney general was involved in a scheme to drive all the Johnsons out of Rock Ridge so that he could buy their land for cheap…..land that was along the proposed route for a new railroad.

It’s almost like you’re starring in a movie!

What movie?

 

 

Nonlawyer Ownership: It’s Coming – UPDATED

(Updated at 4:32 PM on June 21)

Last month, I posted a series of blogs on whether Rule 5.4 should be amended to allow non-lawyer ownership of law firms (“Alternative Business Structures”).  The series did not generate much response.

I don’t think I can let the issue go without attention. So, as appropriate, I’ll call attention to it.

Joe Borstein of Above The Law has Legal Zoom co-founder Eddie Hartman’s thoughts on whether Alternative Business Structures are the solution to the “quiet crisis” in the legal profession.

Meanwhile, The American Lawyer posts on Big Accounting’s continued push into the legal market.

Finally, today’s ABA Journal reports that  Wal-Mart law firms are here.

In related news, the North Carolina state legislature passed a bill that redefines the “practice of law.”  The bill authorizes online services to provide blank legal documents, provided that the services register with the state bar, refer dissatisfied customers to the state bar, and that the forms include disclaimers warning that blank forms are not a substitute for legal advice.

Non-lawyer Ownership – It’s Coming

Last month, I posted a series of blogs on whether Rule 5.4 should be amended to allow non-lawyer ownership of law firms (“Alternative Business Structures”).  The series did not generate much response.

I don’t think I can let the issue go without attention. So, as appropriate, I’ll call attention to it.

Joe Borstein of Above The Law has Legal Zoom co-founder Eddie Hartman’s thoughts on whether Alternative Business Structures are the solution to the “quiet crisis” in the legal profession.

Meanwhile, The American Lawyer posts on Big Accounting’s continued push into the legal market.

Finally, while this story doesn’t involve non-lawyer ownership of law firms, it might be indicative of a step in that direction: Wal-Mart is leasing space in it stores to The Law Store.

Monday Morning Answers – Week 29

Only one thought for you NBA fans: Kyrie Irving didn’t play in last year’s finals.  Thank goodness. Otherwise the phrase “three-peat” would be all over the airwaves today.

Friday’s questions are HERE.

Honor Roll (*= perfect score)

  • Matt Anderson, Pratt Vreeland
  • Andrew Delaney, Martin Associates
  • Robert Grundstein*
  • Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
  • Team Liberty*, ACLU of Connecticut
  • Hal Miller*, First American
  • Ian Sullivan*, Rutland County State’s Attorney’s Office
  • Ben Traverse*, Downs Rachlin Martin

Answers

Question 1

As long-time readers know, the duty of competence includes tech competence.  With that in mind, what’s the most common basis for a court to issue a sanction for a discovery violation related to Electronically Stored Information?

  • A.  Failure to preserve.   In VT, V.R.C.P. 34 applies (as does F.R.C.P. 34).  For an analysis of an attorney’s dutie with respect to ESI, see this opinion from the Cal State Bar or this opinion from the San Diego County Bar Association. My general tip to lawyers is that the duty of competence includes a duty to understand how to request, review, and introduce ESI, as well as a duty to understand how and when to advise a client to preserve ESI.
  • B.  Failure to produce
  • C.  Failure to produce in usable format
  • D.  Overly broad requests for ESI

Question 2

At a seminar I did earlier this week, I explained that “the rule used to be that no matter what you called it, it had to go into trust until earned.  That rule has been somewhat relaxed.”

What is “it”?

I need a rather specific answer here.  “Client money” won’t cut it.

Fees paid in advance (or flat fees).  See new Rule 1.5(f).

Question 3

FILL IN THE BLANK

The ethical duty of competence also includes knowing how to introduce (or object to) evidence.  In a case it decided this year, the Vermont Supreme Court stated that:

  • Unlike a past recollection recorded, a declarant need not specifically avow to the reliability of an excited utterance in order for it to be admitted.Rather, the fact that the statement was caused by a “startling event” generally is sufficient.
    • State v. Kelley, 2016 VT 58, ¶27

Question 4

A former client posts a negative review of you online.  Which is most accurate?

  • A.   The rules prohibit you from replying or commenting
  • B.  You may reply or comment, but you may not do so in way that violates the rules.
  • C. The prohibition on the disclosure of information relating to  the representation no longer applies.  The client waived it.

This week’s “model answer” goes to Ian Sullivan from the Rutland County State’s Attorney’s office. Referring to option C (and rule 1.6(c)) Ian correctly pointed out that:

1.6(c) allows disclosure if there is a court case. The court of public opinion does not qualify. I suppose there may be a way to respond without disclosing confidential information. For example, “The Shangri-la Law Firm strives to provide high-quality legal representation that is tailored to our client’s goals. If your experience fell short of our firm’s standards, please contact our managing director G. Edward Percival, IV, Esq.

For more on online reputation management, see the cites that I’ve pasted in below the answer to Question 5.

Question 5

Speaking of technology and evidence, a trial that’s taking place in LA made the news this week.    The issue at trial is whether a band “stole” a rift from another writer’s song and used the rift in one of the most (over)played songs in classic rock history.  During his opening statement, the plaintiff’s attorney played a video that showed a musician playing the plaintiff’s song, then the defendant’s.   The video was not on the exhibit list. The trial continues, but by playing a video that wasn’t on the exhibit list, plaintiff’s attorney might cause a mistrial.

Name the band that’s on trial.

Led Zeppelin.  An account of the opening statement is HERE. Bonus to Hal Miller for knowing the song at issue is “Stairway to Heaven.”

ONLINE REPUTATION MANAGEMENT & RULE 1.6

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 – Week 29

I love June.  With the CLE deadline looming, I get the chance to get out and see people at seminars.  As always, I’m beyond impressed by how seriously Vermont lawyers take their professional obligations. It’s humbling and reminds me why I do what I do, and why I do it here.  And the best part?  I’ve still got 4 more county bar meetings this month, and 2 general admission CLEs.

Thank you all for making this a great job.

Now, if I had to do a CLE on the “rules for Five for Friday,” i’d be certified for .001 hours CLE credit.  Slide #1:  “there are no rules. It’s open book, open note, open search engine, call a friend, or even a foe.”

In a question for a logician, despite having no rules, there’s an exception: question #5 is closed book.  So where’s that leave us?  There are no rules, but there’s an exception. But if there’s an exception, that must mean that there’s a rule.  But if the rule is that there are no rules, is it still a rule?

It’s like being on that island where half the people never lie and the other half never tell the truth.

I’m getting dizzy. Time for the questions. Oh, email answers to michael.kennedy@vermont.gov    Team entries are allowed.

Question 1

As long-time readers know, the duty of competence includes tech competence.  With that in mind, what’s the most common basis for a court to issue a sanction for a discovery violation related to Electronically Stored Information?

  • A.  Failure to preserve
  • B.  Failure to produce
  • C.  Failure to produce in usable format
  • D.  Overly broad requests for ESI

Question 2

At a seminar I did earlier this week, I explained that “the rule used to be that no matter what you called it, it had to go into trust until earned.  That rule has been somewhat relaxed.”

What is “it”?

I need a rather specific answer here.  “Client money” won’t cut it.

Question 3

FILL IN THE BLANK

The ethical duty of competence also includes knowing how to introduce (or object to) evidence.  In a case it decided this year, the Vermont Supreme Court stated that:

  • Unlike a past recollection recorded, a declarant need not specifically avow to the reliability of an excited utterance in order for it to be admitted.Rather, the fact that the statement was caused by a “_______ _______” generally is sufficient.

Question 4

A former client posts a negative review of you online.  Which is most accurate?

  • A.   The rules prohibit you from replying or commenting
  • B.  You may reply or comment, but you may not do so in way that violates the rules.
  • C. The prohibition on the disclosure of information relating to  the representation no longer applies.  The client waived it.

Question 5

Speaking of technology and evidence, a trial that’s taking place in LA made the news this week.    The issue at trial is whether a band “stole” a rift from another writer’s song and used the rift in one of the most (over)played songs in classic rock history.  During his opening statement, the plaintiff’s attorney played a video that showed a musician playing the plaintiff’s song, then the defendant’s.   The video was not on the exhibit list. The trial continues, but by playing a video that wasn’t on the exhibit list, plaintiff’s attorney might cause a mistrial.

Name the band that’s on trial.