Monday Morning Answers: Week 46

If you want to look at the questions before you see the answers, go HERE. If you missed this weekend’s post on what not to do in response to a negative online review, it’s HERE.

HONOR ROLL

perfect scores in ORANGE

• Matt Anderson, Pratt Vreeland Kennelly Martin & White
• Lisa Campion, Gale & McAllister
• Laura Gorsky, Law Office of David Sunshine
• Robert Grundstein
• Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
• Team Kruska & Lawrence, via Marsicovetere Law and Theriault & Joslin
• Beth Mann, Tepper Dardeck Levins & Mann
• Scott Mapes, Esq.
• Hal Miller, First American
• Scott Rowland, VLS Class of 2018
• Kane Smart, Downs Rachlin Martin

ANSWERS

Question 1

It’s Celebrate Pro Bono Week.  For opportunities to provide pro bono services, contact Mary Ashcroft or Angele Court. In the meantime, which rule or rules are relaxed if an attorney provides short-term legal under the auspices of a nonprofit or court and without any expectation by the client or lawyer that the representation will continue?

• A.   The trust accounting rules
• B.   The rule requiring competent representation
• C.   The conflicts rules.  See, Rule 6.5 (remember, they are not so relaxed as to excuse actual knowledge of a conflict)
• D.   The rule on record retention

Question 2

Prospective Client meets with Lawyer.  Lawyer is not competent in the area of law in which Client needs representation.  So, Lawyer refers Client to Attorney, a law school classmate who handles matters like Client’s.  Lawyer and Attorney do not work in the same firm.

Attorney offers to pay Lawyer a referral fee.  Assume that the conflicts rule would not have prohibited from Lawyer representing Client.  Under which scenario is a fee sharing agreement most likely to comply with Vermont’s Rules of Professional Conduct.

• A.  Total fee is reasonable, Client consents to the fee sharing arrangement, Lawyer & Attorney either assume joint responsibility for the representation or are paid in proportion to work actually performed.  See, Rule 1.5(e) and this blog post from last week.
• B.  Total fee is reasonable, Client consents to the fee sharing arrangement.
• C.  Total fee is reasonable, Lawyer & Attorney either assume joint responsibility for the representation or are paid in proportion to work actually performed.
• D.  Total fee is reasonable.

Question 3

How long must a lawyer keep records of funds held in trust?

• A.  There is no affirmative requirement to maintain such records past the termination of the representation.
• B.  6 years from the termination of the representation. See, Rule 1.15(a)(1).
• C.  7 years from the termination of the representation
• D.  The rules are silent, case law suggests at least 6 years from the termination of the representation.

Question 4

Oh, given the season, I’m reminded of this question.

Attorney and Client enter into a limited representation agreement pursuant to Rule 1.2(c).  The representation is limited to Attorney drafting a pleading for Client.  Both Attorney and Client understand that Client will file the pleading without disclosing to the Court or the adverse party that Client received assistance from Attorney.  What is the specific term used to describe Attorney’s act of drafting the pleading?

GHOSTWRITING.  You can review ABA Advisory Ethics Opinion 07-446 .  It sets out the arguments against providing undisclosed legal assistance, then rebuts each of them.  For those of us in the 2nd Circuit, see THIS DECISION.

Question 5

In August, I blogged on the ethics violations committed by the lawyers in HBO’s summer hit The Night Of.  Well, looks like Amazon is out to top HBO.  Earlier this month, Amazon rolled out a new show called Goliath.  The lead character is Billy McBride.  Billy is an lawyer, who, among other things:

• spends his day drinking at a bar;
• knows that his legal assistant moonlights as a prostitute;
• steals a client from another lawyer;
• sleeps with the client before doing any legal work for her;
• files a wrongful death suit on behalf of client;
• against a defendant that is represented by Cooperman McBride, a firm that he founded and that continues to bear his name; (oh, and his ex-wife still works there)
• spends a night in jail after fighting a police officer and, as a result, misses a hearing on defendant’s motion to dismiss;
• effectively bribes a court staffer to bring the case back to life even though the judge dismissed it after Billy failed to show for the motion hearing; and
• is held in contempt at the subsequent hearing.

And, so far, I’ve only watched Episode 1 and the first 10 minutes of Episode 2!

Your task: name the famous actor who plays Billy McBride.

BILLY BOB THORNTON

Negative Review? What NOT to do.

As online reviews of services increase, more & more service providers are grappling with how to respond to negative reviews.  Lawyers are no different.

I’ve blogged and taught on Online Reputation Management.  The general rule for lawyers is that it is okay to respond to a negative review, so long as the response does not disclose information relating to the representation.  The fact that the client posted the review does not invoke the “self-defense” exception in Rule 1.6(c)(3).

I’ve included a digest of cases and advisory ethics opinions at the end of this post. For now, here’s an example of what not to do in response to a negative online review.

Many companies will not scrub (“take down”) a negative online review absent a court order. So, if Customer posts a negative online review about Restaurant on Yelp, Yelp might not take it down unless Restaurant secures a court order directing Yelp to do so.  Seems simple so far, right?

Well, here’s what’s happening: plaintiffs are suing “stooge defendants” to obtain fraudulent orders.  What’s that mean? It means this: Mike Kennedy posts a negative online review about Lawyer on Site.  Lawyer files suit against Mike Kennedy asking for an order directing removal of the post (or hires a reputation management company that offers “lawsuit removal services.”)  Then, Lawyer finds someone who pretends to be Mike Kennedy, accepts service, and stipulates to the judgment.  Lawyer delivers the order to Site, and Site removes the post.

It seems this has come to light as a result of the fact that most sites notify the real reviewer that his or her post is being scrubbed in response to the court order.  The real reviewer’s response: “what court order? I haven’t heard anything about that.” For more on the scheme, go HERE.

Anyhow, for you lawyers, if someone posts a negative online review about you, don’t respond by filing a lawsuit against a stooge defendant.  Don’t do it for clients who are the subject of negative reviews either.

Frankly, I think any lawyer who knowingly files lawsuits of this type effectively applies for induction into the Was That Wrong Hall of Fame. 

DIGEST

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. 2014-200 (2014) (lawyer’s response to negative online must be proportional & constrained, and  must not reveal confidential information absent client consent. Negative review doesn’t trigger self-defense exception in Rule 1.6)

• 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)

• New Hampshire Bar Association Ethics Committee, NH Bar News, February 2014 (Lawyer may make limited response, but not so detailed as to divulge confidential information).

• 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 46

Yes, it’s cold & rainy, and it’s dark a lot.  But, we’re almost to the fingers on one hand in the countdown to the one-year anniversary  of Five for Friday.  If that doesn’t put a dose of warm sunshine in your day, well, then it’s likely you really do need to see a doctor.

Reminders:

• This quiz is open book, open search engine. You may discuss with friends & colleagues.
• Exception: Question #5
• All questions based on the Vermont Rules of Professional Conduct
• E-mail answers to michael.kennedy@vermont.gov
• Please share the quiz with friends and colleagues.

Question 1

It’s Celebrate Pro Bono Week.  For opportunities to provide pro bono services, contact Mary Ashcroft or Angele Court. In the meantime, which rule or rules are relaxed if an attorney provides short-term legal under the auspices of a nonprofit or court and without any expectation by the client or lawyer that the representation will continue?

• A.   The trust accounting rules
• B.   The rule requiring competent representation
• C.   The conflicts rules
• D.   The rule on record retention

Question 2

Prospective Client meets with Lawyer.  Lawyer is not competent in the area of law in which Client needs representation.  So, Lawyer refers Client to Attorney, a law school classmate who handles matters like Client’s.  Lawyer and Attorney do not work in the same firm.

Attorney offers to pay Lawyer a referral fee.  Assume that the conflicts rule would not have prohibited from Lawyer representing Client.  Under which scenario is a fee sharing agreement most likely to comply with Vermont’s Rules of Professional Conduct.

• A.  Total fee is reasonable, Client consents to the fee sharing arrangement, Lawyer & Attorney either assume joint responsibility for the representation or are paid in proportion to work actually performed.
• B.  Total fee is reasonable, Client consents to the fee sharing arrangement.
• C.  Total fee is reasonable, Lawyer & Attorney either assume joint responsibility for the representation or are paid in proportion to work actually performed.
• D.  Total fee is reasonable.

Question 3

How long must a lawyer keep records of funds held in trust?

• A.  There is no affirmative requirement to maintain such records past the termination of the representation.
• B.  6 years from the termination of the representation
• C.  7 years from the termination of the representation
• D.  The rules are silent, case law suggests at least 6 years from the termination of the representation.

Question 4

Oh, given the season, I’m reminded of this question.

Attorney and Client enter into a limited representation agreement pursuant to Rule 1.2(c).  The representation is limited to Attorney drafting a pleading for Client.  Both Attorney and Client understand that Client will file the pleading without disclosing to the Court or the adverse party that Client received assistance from Attorney.  What is the specific term used to describe Attorney’s act of drafting the pleading?

Question 5

In August, I blogged on the ethics violations committed by the lawyers in HBO’s summer hit The Night Of.  Well, looks like Amazon is out to top HBO.  Earlier this month, Amazon rolled out a new show called Goliath.  The lead character is Billy McBride.  Billy is an lawyer, who, among other things:

• spends his day drinking at a bar;
• knows that his legal assistant moonlights as a prostitute;
• steals a client from another lawyer;
• sleeps with the client before doing any legal work for her;
• files a wrongful death suit on behalf of client;
• against a defendant that is represented by Cooperman McBride, a firm that he founded and that continues to bear his name; (oh, and his ex-wife still works there)
• spends a night in jail after fighting a police officer and, as a result, misses a hearing on defendant’s motion to dismiss;
• effectively bribes a court staffer to bring the case back to life even though the judge dismissed it after Billy failed to show for the motion hearing; and
• is held in contempt at the subsequent hearing.

And, so far, I’ve only watched Episode 1 and the first 10 minutes of Episode 2!

Your task: name the famous actor who Billy McBride.

 

 

 

 

 

Pro Bono

It’s Celebrate Pro Bono Week.   Here in Vermont, the celebration included the Vermont Bar Foundation’s Pro Bono Conference.  One of the speakers was yours truly, discussing ethics and pro bono.  Here are some of my thoughts.

Per Rule 6.1,

• “Every lawyer has a professional responsibility to provide legal services to those unable to pay.  A lawyer should render at least 50 hours of pro bono publico legal services per year .  In fulfilling this responsibility, a lawyer should
  • (a) provide a substantial majority of the 50 hours without fee or expectation of fee to:
    • (1) persons of limited means; or
    • (2) charitable, religious, civic, community, governmental, and educational organizations in matters which are designed primarily to address the needs of people with limited means.” (emphasis added).

The remainder of the 50 hours can be satisfied in ways outlined in Rule 6.1(b).

• Who qualifies as a “person of limited means?”
  • See, Rule 6.1, Comment [3] (“Persons eligible for legal services under paragraphs (a)(1) and (2) are those who qualify for participation in programs funded by the Legal Services Corporation and those whose incomes and financial resources are slightly above the guidelines used by such organizations but nevertheless cannot afford counsel.”
  • Key points made at the CLE this morning included the point that there are plenty of people who make more than the guidelines but who cannot afford legal services.  Those people need help as well.
• My client didn’t pay, that’s pro bono.
  • Categorically false.  Rule 6.1(a) is clear:  a “lawyer should provide substantial majority of the 50 hours of legal services without fee or expectation of fee . . ..”
  • Comment [4] drives home the point:  “Because services must be provided without fee or expectation of fee, the intent of the lawyer to render free legal services is essential for the work performed to fall within the meaning of paragraphs (a)(1) and (2).  Accordingly, services rendered cannot be considered pro bono if an anticipated fee is uncollected . . . .”
  • Note, however that the Comment goes on to indicate that “. . . the award of statutory attorney’s fees in a case originally accepted as pro bono would not disqualify such services from inclusion under this section.  Lawyers who do receive fees in such cases are encouraged to contribute an appropriate portion of such fees to organizations or projects that benefit persons of limited means.”
• I’m a government attorney, so I don’t have to do pro bono.
  • False.  Rule 6.1 applies to every lawyer.  Comment[5], however, recognizes that government lawyers may not be able to satisfy the requirements of Rule 6.1(a) and, therefore, should be allowed to satisfy the pro bono requirement via provision of services set out in Rule 6.1(b).  Specifically, the Comment states
    • “Constitutional, statutory, or regulatory restrictions may prohibit or impede government or public sector lawyers and judges from performing the pro bono services outlined in paragraphs (a)(1) and (2).  According, where those restrictions apply, government and public sector lawyers and judges may fulfill their pro bono responsibility by performing services outlined in paragraph (b).
• So I’m doing pro bono work, what other rules apply?
  • All of them!  You must be competent & diligent.  You can’t communicate with a represented party on the subject of the representation without counsel’s consent.  You can’t lie.  In short, pro bono is not license to act unethically.
• What about the conflicts rules?
  • Rule 6.5 relaxes the conflicts rules IF a lawyer provides:
    • short term limited legal services
    • under the auspices of a program sponsored by a nonprofit organization or court
    • without expectation by the lawyer or the client that the lawyer will provide continuing representation in the matter.
  • If each of these is present, the conflicts rules apply only if the lawyer KNOWS of a conflict.  In other words, if the 3 conditions are met, a lawyer does not have to do a conflict check prior to commencing the representation.  See, Rule 6.5, Comment [1] (“Such programs are normally operated under circumstances in which it is not feasible for a lawyer to systematically screen for conflicts of interest as is generally required before undertaking a representation.”
  • Remember: a lawyer may provide pro bono services outside the auspices of program sponsored by a nonprofit or court.  However, if so, the lawyer must check for conflicts.

That’s all for now. I hope you celebrate pro bono week by providing some pro bono hours.  For opportunities to do so, contact Mary Ashcroft or Angele Court.

Referral Fee? Think twice.

Vermont’s Rules of Professional Conduct do not allow straight referral fees.

If you didn’t know that, don’t worry, you’re not alone.

About a year ago, I blogged on referral fees.  The post is HERE.  A quick summary:

• Scenario: Client asks Lawyer for help in an area that Lawyer doesn’t practice.  Lawyer refers Client to Attorney.  Lawyer and Attorney do not work in the same firm. Lawyer wants to be paid for the referral.  Under what circumstances, if any, can Attorney ethically pay Lawyer for the referral?
• Conclusion: Rule 1.5(e) is Vermont’s rule on dividing fees between lawyers who do not work together. The rule authorizes a division of fees Lawyer and Attorney if:
  1. the division is in proportion to the services performed by both Lawyer & Attorney, or, both Lawyer & Attorney assume joint responsibility for the representation;
  2. Client agrees to the arrangement, including the share that both Lawyer and Attorney will receive, and the agreement is confirmed in writing; and
  3. the total fee is reasonable.

The original post goes into much more detail.

The question that often arises is “what does joint responsibility for the representation mean?”  Comment [7] to Rule 1.5(e) makes it clear that lawyers can divide fees based on “the proportion of services they render or if each lawyer assumes responsibility for the representation as a whole.”  It goes on to indicate that “[j]oint responsibility for the representation entails financial and ethical responsibility for the representation as if the lawyers were associated in a partnership.” (emphasis added).

In April, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 474.  The opinion reaches the same conclusion as my original post. It also endeavors to shed some light on “joint responsibility for the representation.”  Finally, the ABA opinion reminds us that the referring lawyer is subject to the conflict rules and must avoid conflicts of interest as if representing the client.

The ABA Journal summarized Formal Opinion 474 here.

 

No Objection to “No, thank you.”

A few weeks ago, I was at a work-related function.  Someone asked if I wanted a drink. I said “no thanks.”  The person replied “what, do you have a marathon or something tomorrow?”

At the time, I laughed without thinking twice. No, I didn’t have a marathon the next day, I simply didn’t want a drink.

Yesterday, I read this.  Thank you at Brian Cuban and Above the Law.

I’ve written about the need for a Lawyer’s Assistance Program. Part 1 HERE and Part 2 is HERE.

The holiday season is approaching.  Even if it weren’t, let’s remember to accept “no thank you” as a perfectly legitimate answer when a colleague is asked if he or she wants a drink.

Monday Morning Answers (12 hours early)

The answers appear after the Honor Roll. If you’d like to review the questions first, go HERE.

HONOR ROLL

perfect scores in Gold

• Matthew Anderson, Pratt Vreeland Kennelly Martin & White
• Andrew Delaney, Matin & Associates
• Laura Gorsky, Law Office of David Sunshine
• Robert Grundstein
• Anthony Iarrapino, Iarrapino Law
• Elizabeth Kruska, Marsicovetere Law
• Ray Massucco, Massucco Law
• Hal Miller, First American
• Scott Rowland, Vermont Law School, Class of 2018
• Kane Smart, Downs Rachlin Martin
• Rusty Valsangiacomo, Valsangiacomo Detora McQuesten

ANSWERS

Question 1

Vermont’s version of this rule remains on the books.  However, many states have repealed the rule, choosing instead to prosecute the conduct it prohibits under other rules. Although it is NOT the standard in the rule, discussions of the rule often & mistakenly focus on whether a lawyer did something “solely” to gain an advantage. What is the something?

Threatening Criminal Prosecution.  See, Rule 4.5

Question 2

Lawyer called me with an inquiry.  I listened and responded “you’re on the hook if you ratified it or if you knew about it and failed to take actions to stop it or to mitigate its consequences.”

Most likely, Lawyer called to discuss:

• A.  A client’s misleading response to a discovery request
• B   A client’s false statement to a tribunal in a non-criminal case
• C.   A client’s crime or fraud in furtherance of which the client used the lawyer’s services
• D.  Actions by a subordinate lawyer or non-lawyer employee; See Rules 5.1 & 5.3

Question 3

Fill in the blank. The same word goes in each blank.

Attorney called me with an inquiry. Attorney outlined a proposed course of conduct, concluding with “yes, she’s represented, but she’s a not a party. So, I don’t think the rule applies.”

I replied, in my best Lee Corso voice, “not so fast my friend.  the rule applies to all represented ‘persons’ whether or not they’re parties.  If it concerns the matter, the rule applies to her.”

Again, the same word goes in each _______.  What is the word? Represented.  See, Rule 4.2. Remember, the rule also applies to any “matter.”  A matter can exist pre-charge and pre-filing.

Question 4

Lawyer called with an inquiry.  I listened and then responded “look, you can do what you want because the rule isn’t mandatory.  But, the rule makes it clear that this type of case doesn’t count.  The rule doesn’t apply when you expect a fee but the client never pays.”

What general topic did Lawyer call do discuss?

Pro Bono work.  See, Rule 6.1(a), and Comment [4]. And it’s not too late to sign up for Wednesday’s Pro Bono Conference.  I’m presenting at 9:15.

Question 5

Immigration is often in the news.

This week, the ABA Journal ran an article & podcast about an immigration case.  A couple had come to the US to search for the woman’s child.  The child had been abducted by the woman’s former husband.  The man who came with her was a musician and had previously been convicted in the United Kingdom of possession of cannabis resin.

For various reasons, President Nixon ordered the Justice Department to deport the couple. Thanks in large part to their lawyer, the couple prevailed in court and eventually secured green cards and permanent status.

The couple was quite famous, yet the lawyer they hired had never heard of them.  In addition, per the ABA Journal, the lawyer “didn’t know when accepting the case . . . that he and his clients were facing a five-year legal battle that would eventually expose corruption at the highest levels of the Nixon administration and change the U.S. immigration process forever.”

Who were the lawyer’s famous clients?

As a Stones fan, this one was tough for me to post.  The lawyer’s clients were John Lennon & Yoko Ono.  For more, go here.

 

Five for Friday: Week 45

Update at 3;49 PM.  I can’t believe I forgot to dedicate this week’s column to Pedro Martinez.  

Here we go:

• no rules, except #5 is one we try to play honest
• team entries are welcome
• please share the quiz with colleagues
• email answers to at michael.kennedy@vermont.gov
• i’ll post the answers on Monday.

Question 1

Vermont’s version of this rule remains on the books.  However, many states have repealed the rule, choosing instead to prosecute the conduct it prohibits under other rules. Although it is NOT the standard in the rule, discussions of the rule often & mistakenly focus on whether a lawyer did something “solely” to gain an advantage. What is the something?

Question 2

Lawyer called me with an inquiry.  I listened and responded “you’re on the hook if you ratified it or if you knew about it and failed to take actions to stop it or to mitigate its consequences.”

Most likely, Lawyer called to discuss:

• A.  A client’s misleading response to a discovery request
• B   A client’s false statement to a tribunal in a non-criminal case
• C.   A client’s crime or fraud in furtherance of which the client used the lawyer’s services
• D.  Actions by a subordinate lawyer or non-lawyer employee

Question 3

Fill in the blank. The same word goes in each blank.

Attorney called me with an inquiry. Attorney outlined a proposed course of conduct, concluding with “yes, she’s ________, but she’s a not a party. So, I don’t think the rule applies.”

I replied, in my best Lee Corso voice, “not so fast my friend.  the rule applies to all _______          ‘persons’ whether or not they’re parties.  If it concerns the matter, the rule applies to her.”

Again, the same word goes in each _______.  What is the word?

Question 4

Lawyer called with an inquiry.  I listened and then responded “look, you can do what you want because the rule isn’t mandatory.  But, the rule makes it clear that this type of case doesn’t count.  The rule doesn’t apply when you expect a fee but the client never pays.”

What general topic did Lawyer call do discuss?

Question 5

Immigration is often in the news.

This week, the ABA Journal ran an article & podcast about an immigration case.  A couple had come to the US to search for the woman’s child.  The child had been abducted by the woman’s former husband.  The man who came with her was a musician and had previously been convicted in the United Kingdom of possession of cannabis resin.

For various reasons, President Nixon ordered the Justice Department to deport the couple. Thanks in large part to their lawyer, the couple prevailed in court and eventually secured green cards and permanent status.

The couple was quite famous, yet the lawyer they hired had never heard of them.  In addition, per the ABA Journal, the lawyer “didn’t know when accepting the case . . . that he and his clients were facing a five-year legal battle that would eventually expose corruption at the highest levels of the Nixon administration and change the U.S. immigration process forever.”

Who were the lawyer’s famous clients?

 

 

Monday Morning Answers

Spoiler alert: the answers follow the Honor Roll. To review the questions, go HERE.

Honor Roll

Perfect Score in Red

• Matt Anderson, Pratt Vreeland Kennelly Martin & White
• Laura Gorsky, Law Office of David Sunshine
• Deborah Kirchwey, Law Office of Deborah Kirchwey
• Elizabeth Kruska, Marsicovetere Law
• Brian Martin, Consumer Financial Protection Bureau
• Ilerdon Mayer, Mayer & Mayer
• Hal Miller, First American
• Scott Rowland, Vermont Law School, Class of 2018
• Kane Smart, Downs Rachlin Martin
• Allison Wannop, Law Clerk, Vermont Superior Court

Answers

Question 1

Only one of the choices is correct.  What do Vermont’s rules require a lawyer to self-report disciplinary authorities?

• A.  Discipline imposed in another jurisdiction. See, Rule 20(A), Administrative Order 9
• B.  Criminal charges.
• C.  Criminal conviction.
• D.  Failure to file a federal income tax return.

Question 2

Attorney called me with an inquiry. I listened. I responded “well, the general idea is that if you’re reasonably certain that it will result in substantial injury or harm, or a violation of your client’s legal obligation, you’re supposed to go up the chain.”

It is most likely that:

• A.  Attorney represents an organization. See, Rule 1.13
• B.  Attorney is not a partner in his firm.
• C.  Attorney is being paid by someone other than Attorney’s client.
• D.  Attorney’s client expressed to Attorney an intent to violate a court order.

Question 3

Lawyer called me with an inquiry. I listened.  I responded “you’re supposed to do so as quietly as possible.  I often suggest citing nothing more than which ever of the rule’s specific provisions apply, then answering any questions that the court might have. When you answer, limit your responses to exactly what the court asks.”

In my response, what does “do so” in the phrase “you’re supposed to do so as quietly as possible” refer to?

Withdrawing from representation.  I caution against “noisy withdrawal.”  The applicable rule is Rule 1.16.

Question 4

Attorney called with an inquiry. I listened. I responded “a lot of people think the rule imposes a blanket prohibition. It doesn’t.  It only prohibits conduct that ‘will have a substantial likelihood of prejudicing’ a proceeding.”

In my response, “conduct” refers to:

• A.  Ex parte communications with a judge.
• B.  Ex parte communications with a juror.
• C.  Stating a personal opinion in an opening or closing argument.
• D.  Extrajudicial statements.  See, Rule 3.6.

Question 5

Bruiser Stone was an attorney who had some ethics issues. His practice was shut down after the FBI raided his offices as part of a racketeering investigation.  Bruiser’s new associate, Rudy, was left to fend for himself in the profession.

Undaunted, Rudy joined forces with Deck Shifflet, a less-than-scrupulous insurance agent who became a paralegal after failing the bar exam six times. The two represented a couple whose son had been denied coverage for medical treatment.  He would eventually die of leukemia.  Against all odds, Rudy won a huge verdict in a bad-faith claim against the couple’s insurance company.

During the med-mal case, Rudy fell for a woman who was a victim of domestic violence.  He convinced her to file for divorce and beat up her abuser with a baseball bat.

The Rainmaker.

Matt Damon starred as Rudy & Mickey Rourke was Bruiser Stone. Danny Devito played Deck Shifflet, whose misguided schemes foreshadowed Devito’s turn as Dennis & Sweet Dee’s dad in It’s Always Sunny in Philadelphia.   Claire Danes had yet to take a job with the CIA and played Rudy’s crush.  Andrew Shue, in what feels like it must have been his only role since Melrose Place, played the abuser who Rudy beat up.

Truth & Advertising?

From the ABA Journal, here’s an interesting story from Georgia.  At issue: television ads run by a plaintiffs firm.  The ads urge viewers to “spread the word” that in most “car crash cases, the person who caused the crash has insurance but the jury is never allowed to know.”

Per the story, the defense bar argues that the ads verge on jury tampering, improperly attempt to influence jurors, and constitute conduct intended to disrupt a tribunal. See, V.R.Pr.C. 3.5.  The plaintiffs firm responds that the ads are true and that any ban thereof would “violate our First Amendment right to free speech.”

Surely, a challenge to the ads would raise substantial questions for a court to consider.

Besides the issues mentioned in the article, Rule 3.5(a) states that “[a] lawyer shall not seek to influence a judge, juror, or prospective juror or other official by means prohibited by law.” (emphasis added).  I’d always assumed that a “prospective juror” was a person in the pool; that is, an individual summoned for duty, but not yet “picked” for a particular jury.  However, in a sense, we’re all “potential” jurors.  Could Rule 3.5(a) possibly extend that broadly?

And how might Rule 3.6(a) apply?  The rule prohibits a lawyer who is “participating or has participated in the investigation of a matter…..[from making] an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of  materially prejudicing an adjudicative proceeding in the matter.”   The answer, it seems, is that the rule doesn’t apply:  there’s no “matter.”  Rather, the ads provide general information on state law.

On that point, whether by television ad or at a public forum, is it impermissible for lawyers to inform the public what the law is?  I’m talking outside the context of a specific matter or case.  Would you look at this issue differently if, instead, it was a private criminal defense firm running ads “informing” the public about rape-shield statutes?

Food for thought. But, for now, please think about the issue (if at all) outside!  To paraphrase my man Kenny, the sun is too bright, the sky is too blue, and the foliage is too spectacular to be thinking about legal ethics.  Save ethics for a rainy day.