Opening Day & Monday Morning Answers

Yes, it’s Monday.

But, the sun is shining, most of the snow has melted, and it’s Opening Day at Fenway.  I’m curious: are any of you Sox fans mildly surprised that Porcello gets the start over Sale?

Two more housekeeping matters before I get to the Honor Roll & Answers.  First, in case you missed it Saturday morning, here’s my post on the new rule in North Carolina that extends the duty to disclose exculpatory information to all lawyers.  Second, if you want to read Friday’s questions before you see the answers, they’re here.

Oh – a third thing.  In the bracket-style pool that I entered, I have Gonzaga defeating North Carolina in the title game. Unfortunately, the other two teams I had in the Final Four were Lousiville & Wisconsin.


Question 1

The Vermont Supreme Court has described a particular rule as “prophylactic.”  The Court used the word, in part, due to what it termed as the “Hobson’s Choice” that would arise if:

  • A. A client had to disclose a confidence in order to protect it
  • B. A criminal defendant had to take a plea to avoid going to trial with ineffective& incompetent counsel
  • C. A client had to pay an unreasonable fee in order for disciplinary counsel to have grounds to prosecute the lawyer for charging  an unreasonable fee

In the context of former-client conflicts that arise under Rule 1.9, lawyers often say “but I don’t remember anything about the case.” It doesn’t matter. If the old case is the same as or substantially related to the new case, the Court will presume that confidences were shared. Otherwise, former clients will face of Hobson’s Choice of having to disclose confidences in order to protect them.

Question 2

Lawyer represents Client. Lawyer reasonably believes that Client will offer false testimony. However, the rules prohibits Lawyer from refusing to offer the evidence.

Question 3

What do these rules have in common?

  • A. The rule requiring zealous representation
  • B. The rule requiring lawyers to maintain copies of ads for 2 years
  • C. The rule prohibiting the appearance of impropriety
  • D. The rule prohibiting conduct that adversely reflects on a lawyer’s fitness to practice law

They no longer exist.  Each has been repealed or replaced.

Question 4

The “self-defense” exception to Rule 1.6 is often discussed with respect to:

  • A.    Disclosing a client’s intent to commit a crime
  • B.    Disclosing a misrepresentation that a client made to the court
  • C.    Responding to a client’s negative online review
  • D.    Withdrawing upon discovery of a conflict that was not apparent at the outset of the representation

The so-called “self-defense” exception is Rule 1.6(c)(3). It allows a lawyer to disclose otherwise protected information:

  • to establish a claim or defense in a controversy between the lawyer & client; or
  • to establish a defense to a criminal charge or civil claim regarding the lawyer’s conduct in which the client was involved; or
  • to respond to allegations in any proceeding involving the lawyer’s representation of the client.

Numerous authorities have held that the exception DOES NOT apply to negative online reviews.  

  • 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)

Question 5

Name the iconic musician/songwriter whose lyrics are cited more often in U.S. judicial opinions than any other musician.  Chief Justice Roberts and former Justice Scalia are among the scores of judges who have cited to the songwriter.

I never got into him, but found it to be an interesting bit of trivia. The answer is Bob Dylan.  The ABA Journal has it in this post.

Red Sox