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


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


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.”


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),

• Cassandra Burke Robertson, Online Reputation Management in Attorney Regulation, Social Science Research Network (May 1, 2015), (forthcoming in the Georgetown J. of Legal Ethics)