Five for Friday #87: The Constitution

Welcome to the 87th #fiveforfriday legal ethics quiz!

It’s fitting that #fiveforfriday87 falls during Constitution Week.  Why? Funny you should ask!

The Constitution was signed on September 17, 1787.  Indeed, it reminds me of a song that I sang as a kid:

  • “in 1787 I’m told our founding fathers diiiid agree, to write a list of principles FOR keepin’ people freeee. The U.S.A. was just startin’ out a whole brand new countreeee. And so our leaders spelled it out, the things that we should bee-EEE.”

(if you’re interested in hearing me sing more, read THIS)

On a more serious note, here’s a startling statement on the Constitution and civics.  According to a recent poll, nearly 40% of Americans cannot name a single protection listed in the 1st Amendment.

Think about that.

Are you trying to come up with a few?

Hint: there are SIX things about which “Congress shall make no law.” 4 in 10 people cannot name 1.

Worse, per the same poll, only 1 in 4 Americans can name all 3 branches of government!

If 3 out of 4 don’t know the branches, how are we to impress upon the executive & legislative branches the importance of an independent & fully funded judicial branch?

Here’s a simple way to help: contact the Vermont Bar Association at info@vtbar.org  Ask for a pocket constitution.  Give the pocket constitution to a kid, or to a teacher, or to a client who is a school board member.

Or, do what a number of Vermont lawyers have been doing around the state: volunteering their time to visit schools and civic organizations to talk about the Constitution and civics.  It might sound like a small step.  It is.  But small steps often lead in the right direction.

Again contact info@vtbar.org and ask for some pocket Constitutions.

Onto the quiz!

And what better way to mark Constitution Week than with a Constitution-themed quiz.

Rules

  • None.  Open book, open search engine, text-a-friend.
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday
  • Amendment 1:  Mike shall make no law abridging a quiz taker’s right to an open book, open search engine, phone-a-friend quiz.  Yet, in the spirit of civics, give this week’s quiz a shot without exercising the rights conferred by this Amendment.
  • Amendment 2: Notwithstanding Amendment 1, Question 5 is closed book, closed search engine, no contacting friends.
  • Amendment 21.  I agree!

Question 1

The 1st Amendment to the United States Constitution lists 6 things about which “Congress shall make no law.”   1 point for each you can name.

Question 2

On May 1, 2017, the ABA marked “Law Day” by celebrating an amendment that it called “a mini-constitution for modern times.”   The amendment is the longest, and per the ABA, “arguably the most important.”  Name the amendment.

Question 3

Which is different from the others?

  • A.  right to be secure from unreasonable searches & seizures
  • B.  right not to be compelled to self-incriminate in a criminal matter
  • C.  right not to be deprived of life, liberty, or property without due process of law
  • D.  right not to have private property taken for public use without just compensation

Question 4

The “Great Compromise” reached at the Constitutional Convention likely saved the Constitution and, by extension, the fledging Union.

What are the two things that the “Great Compromise” called for?

Question 5

In 1792, a boy was born in Danville, Vermont.  Later, he attended Burlington College at UVM, but transferred to Dartmouth after the federal government took over UVM during The War of 1812.  After graduating from Dartmouth, he became a lawyer and was admitted to the Pennsylvania Bar.  For many years, he had very successful practice in Gettysburg.

This Vermont-born lawyer eventually was elected to the United States Congress as a “radical republican” from Pennsylvania.  During the Civil War, he served as the chair of the House Ways & Means Committee.  His work as chair was key to the Union’s efforts to fund the war.

A staunch abolitionist, this Vermont-born lawyer played a critical role in the passage of the 13th and 14th Amendments to the United States Constitution.  In response to the House vote to authorize the 13th Amendment, he said:

  • “I will be satisfied if my epitaph shall be written thus, ‘Here lies one who never rose to any eminence, and who only courted the low ambition to have it said that he had striven to ameliorate the condition of the poor, the lowly, the downtrodden of every race and language and color.’ ”

In 2013, Tommy Lee Jones received an Oscar nomination for Best Supporting Actor for his portrayal of this Vermont-born lawyer in the movie Lincoln.

Name the lawyer.

Constitution

 

 

 

 

 

 

 

Protecting Client Data

Next week, the Professional Responsibility Board will review several proposed amendments to the Vermont Rules of Professional Conduct, including proposals to change the rules that relate to the duty to act competently to protect client data.

I’ve blogged often on this issue.  Nevertheless, it bears re-visiting.

Rule 1.1 requires a lawyer to provide a client with competent representation.  I’ve asked the Board to recommend that the Court follow the ABA’s and add the underlined & bolded language to Comment [6]:

  • [6] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

Per Robert Ambrogi’s Law Sites Blog, 28 states have adopted a duty of tech competence.

Rule 1.6 prohibits the disclosure of information relating to the representation of a client.  A few years ago, the ABA amended Model Rule 1.6 to include the following language:

  • “A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”

I’ve asked the Board to recommend that the Court do the same.

I view Rules 1.1 and 1.6 as creating an affirmative duty to act competently to safeguard client information, including client information that is transmitted or stored electronically.

Now, if the proposals are adopted, will a lawyer need to know how to create an encryption key? Of course not.  Just like, right now, a lawyer does not have duty to know how to build a lock, a file cabinet, or a fob that opens & closes a keyless door.  But, a lawyer probably has a duty to understand the risks and benefits associated with leaving client files in a box that’s in a shared hallway, as opposed to in a locked file cabinet that’s in a room behind a keyless door to which only 2 firm employees have fobs.

Similarly, will a hack or data breach automatically lead to a disciplinary sanction? No. Again, if a lawyer has taken reasonable precautions to protect client data, whether by encrypting e-mail or exercising due diligence in choosing a cloud vendor, the fact of a breach likely is not a violation.

However, I believe we’re rapidly approaching, if we haven’t passed, the day when it will no longer be considered reasonable not to have encrypted email.  Further, if you’re considering a move to the cloud, while you don’t know how to build your own cloud server, the duty of tech competence includes a duty to know what you don’t know.

For example, let’s say you ask a potential cloud vendor whether your clients’ data will be encrypted.  The vendor replies “yes, we use a BTTF flux capacitor to encrypt data at rest.  For data in transmission, we guarantee it will make the Kessel Run in 12 parsecs or less.”

What’s your response?

To read more about a BTTF flux capacitor click HERE.  An update on the Kessel Run and parsecs (which are units of distance, not time) is HERE.

Finally, if adopted, my hope is that the new language in Rules 1.1 & 1.6 leads us away from re-evaluating the ethical duty with each technological advance that gives us a new method of transmitting and storing data.

As I’ve written, today’s cloud-based practice management systems are not much different than the businesses that lease storage units on the outskirts of damn near every town.  Before storing client information on or at either, a lawyer must review whether each affords reasonable precautions against unauthorized access and disclosure.

No, the question should not be “is this new way of storing information ethical?”  Nor should it be “is it okay to use smoke signals to communicate with my client?”  Rather, whenever the next big thing comes along, the question should be “does this means of transmitting and storing client information provide reasonable precautions and safeguards against unauthorized access and disclosure.”

For related posts:

cyber-security

 

Constitution Day & Karaoke

I know you’re only reading because you saw the word “karaoke.”  It’s okay, I understand. I’ll get to karaoking in a bit.  For now, Constitution Day.

Sunday was Constitution Day.  To mark the occasion, the Vermont Judiciary and the Vermont Bar Association have teamed to present the 2nd Annual Constitution Day Forum.  This year’s event is scheduled for Wednesday, September 20.  It will begin at 5:00 PM and will take place at the Vermont Supreme Court.

My column on last year’s forum is here.  This year’s forum will focus on the 14th Amendment. (Earlier this year, the ABA made the 14th Amendment the focus of Law Day.)

The Judiciary and the VBA have assembled a fantastic line-up of speakers.  In order of appearance:

  • Judge Robert Mello: Overview of the Constitution & Origins of the 14th Amendment
  • Associate Justice Harold Eaton: Procedural Due Process
  • Associate Justice Karen Carroll: Equal Protection Clause
  • Judge Timothy Tomasi: Substantive Due Process
  • Judge Mary Miles Teachout: The Relevance of the 14th Amendment Today

The event is free and open to the public.  Plus, everyone who attends will receive a free pocket Constitution! Hope to see you there.

Now, karaoke.

As I’ve mentioned at a few seminars, my initial exposure to the U.S. Constitution was during the Saturday morning cartoons I watched as a kid.  Courtesy of the folks at Schoolhouse Rock!, that’s when, where, and how I first learned about the origins of the Constitution and the words to The Preamble.

Of course, if people are not able to access the legal services that they need to protect their rights, the Constitution might mean little to them.  So, in honor of Constitution Day, if an attorney or firm donates $1,000 to the Vermont Bar Foundation’s Access to Justice Campaign by Friday, September 29, I’ll karaoke the Schoolhouse Rock! version of The Preamble at the VBA’s upcoming annual meeting.

Last year’s Five for Friday quiz on the Constitution is here.  The answers are here.

We the People

Five for Friday #86

Welcome to the 86th #fiveforfriday!

Before I get to my 86-related story, I have a question: have you seen the weekend’s weather report??  Folks, I’ve blogged often on issues related to lawyer assistance and lawyers helping lawyers.  This weekend, help yourself.  Get outside!!  Yesterday I drove 302 from Barre to Wells River.  The early foliage is fantastic!  Not to mention, there is a TON of stuff going on around Vermont this weekend, literally something for everyone. For instance:

Find something!

Now, back to the Quiz #86.

86 is the end of a trilogy that includes 75, 78, me, my dad, and the Boston Red Sox.

I’m superstitious.  Especially when it comes to sports.  When the Steelers play a big game, I sit when they’re on offense and I stand when they’re on defense.  Same with the Sox: chair when they’re up, pacing when they’re in the field.  Just last year I brought to Goodwill a bunch of perfectly good Steelers gear that I’d worn during a game that they lost.  Big playoff win for one of my favorite teams? On the day of the next playoff game I’ll eat the exact same food as I had on the day of the win.

So many rules, many of them much more detached from reality complicated than the ones I’ve admitted too.

But my simplest rule is “don’t call Dad until the game is over.”

Flashback: October 25, 1986.  Game 6. Boston Red Sox at New York Mets.  Red Sox up 3 games to 2.

The game was tied 3-3 after 9.   In the top of the 10th, Dave Henderson hit a solo home run and Marty Barret doubled to drive in Wade Boggs.  Going into the bottom of the inning, the Sox led 5-3 and their Win Probability was 92%.  In other words, throughout the history of baseball, teams in the Sox’ position – up by 2 going into the bottom of the last – had gone on to win 92% of the time.

I was a sophomore at BC, a young, dumb, and broke (college) kid.  During the commercial break after the top of the 10th, I called my dad. He was watching back in South Burlington.  I said “Dad, we’re going to win the World Series!!!”

Boston’s Win Probability rose to 99% after Calvin Schiraldi retired the first 2 Mets.  Then,  a bunch of bad stuff happened, including this.  The Red Sox lost the game and, two nights later, lost the World Series.

It was my fault.  Because I called my dad. I truly believe – and maybe only sports fans will understand – that my call to my Dad affected the mojo.   It wasn’t until 2004 that I felt some sense of relief.  Still, the call haunts me.  So much so that I nearly passed out when, just a few weeks ago, my dad texted “looks good” to my brother and I DURING a Sox-Yankees game.

Dad, if you’re reading, remember the rule!

Onto the quiz!

Rules

  • None.  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

With respect to legal ethics, which involves a different set of rules than the others?

  • A.  Net dividends
  • B.  Screening
  • C.  Overdraft Notification
  • D.  Three-Way Reconciliation

Question 2

If an attorney calls me with an inquiry and my response includes use of the word “imputed,” what did the attorney most likely call to discuss?

  • A.   The advertising rules
  • B.   Trust account management
  • C.   A potential conflict of interest
  • D.  A client unable to make informed decisions due to an impairment

Question 3

With respect to legal ethics, which of the following is most often associated with the provision of “unbundled” legal services?

  • A.   Limited representation agreements
  • B.   Reasonable precautions in the electronic storage & transmission of client data
  • C.   Trust account management
  • D.  The rule prohibiting communication with a represented party

Question 4

Today I’m presenting a CLE at a conference in North Conway, NH.  The topic is “legal ethics in the tripartite relationship.”  The audience will consist of lawyers who practice:

  • A.   Family law
  • B.   Real Estate Law
  • C.   Tax Law
  • D.   Insurance Defense

Question 5

Regular readers know that I’m big on Rule 1.1: the rule that requires lawyers to provide competent representation.  So, today, Question 5 involves competence.

Today’s answer is a color. Your mission, should you choose to accept it, is to identify the color.  Here’s the clue.

  • I am a color.
  • In one of the most competent witness examinations of all-time, Attorney Vincent Gambino asked witness Mona Lisa Vito about me.
  • Specifically, noting that both the 1963 Pontiac Tempest and 1964 Buick Sklyark were made by GM, Gambino asked Ms. Vito whether both models were available in me.
  • Ms. Vito testified “They were!”

WHAT COLOR AM I?

the-quiz

 

Monday Morning Answers #85

Friday’s questions are HERE.  Today’s answers follow the Honor Roll.

I’d be remiss, though, if I went straight to the answers without recognizing the day.

When I was a kid, I remember my mom telling my brother and me that she’d always remember where she was when she learend the JFK had been assasinated.  Similarly, so many of us will never forget where we were on September 11.

It’d be a disservice to get into my personal memories of the day.  Especially with so many in Texas, Florida, and the Gulf states having a new reason never to forget to the date.

That being said, one thing I’ll always remember about September 11 is that so many so selflessly ran towards danger to help.  And, lately, we’ve seen stories of people doing the same in the wake of Harvey and Irma.

So, maybe one way to remember the day is to help, however we can.  Whether by winning your 3 feet of influence or answering a legal question.   An act of helping is never too small.  Even the smallest act makes a difference.

Honor Roll

Answers

Question 1

By rule, and at a minimum, an attorney’s trust accounting system must have 4 features.  Three of the required features are:

  • a system showing all receipts & disbursements from the account;
  • records showing all receipts & disbursements for each client;
  • records documenting timely notice to clients of all receipts & disbursements.

What’s the 4th?

  • A.  A list of authorized signatories on the account
  • B.  Records documenting timely reconciliation of the account.   V.R.Pr.C. 1.15A(a)(4).  The rule defines “timely” as no less than monthly.
  • C.  Records documenting three-way reconciliation of the account
  • D. An approved credit card processing system

Question 2

Complete this analogy

By rule, Lawyer is to a representation’s means, as Client is to a representation’s ___________.

I guess it would’ve looked like this on the SAT:

Lawyer: Means ::  Client: objectives.  V.R.Pr.C. 1.2(a).  Answers like “ends” or “goals” counted as well.  

Question 3

Lawyer is an associate at Firm. Tomorrow, Lawyer intends to provide short-term limited legal services to clients at a walk-in clinic sponsored by a nonprofit organization.  Neither Lawyer nor her walk-in clients will expect Lawyer or Firm to provide continuing representation to the clients.  By rule, which set of rules will be (somewhat) relaxed, insofar as they relate to Lawyer’s work at the walk-in clinic?   The rules on:

  • A.  Conflicts of Interest.  V.R.Pr.C 6.5.  Conflict-checks aren’t required at the clinic.  But, a lawyer remains prohibited from providing advice to a walk-in with whom the lawyer KNOWS there’s a conflict.
  • B.  Malpractice Insurance
  • C.  Diligence & Competence
  • D.  Client Confidences

Question 4

In a dispute between Plaintiff and Organization, Plaintiff’s counsel has actual knowledge that Attorney represents Organization.  Without providing notice to Attorney or asking permission, Plaintiff’s counsel interviews a former employee of Organziation about the matter that is the subject of the dispute.

Which is most accurate under Vermont’s Rules of Professional Conduct:

  • A. Plaintiff’s counsel did not violate the rules.  I get this phone call about once a month and it seems to be a misunderstood rule  See Comment 7 to Rule 4.2 (“Consent of the organization’s lawyer is not required for communication with a former constitutent.”)
  • B. Plaintiff’s counsel violated the rules.
  • C. Whether Plaintiff’s counsel violated the rules turns on whether the former employee was in “the control group.”
  • D. Whether Plaintiff’s counsel violated the rules depends on whether Plaintiff has filed and served a lawsuit in which Attorney has entered an appearance.

Question 5

Hint: even if you didn’t see this in the news, you can figure this one out by paying close attention to the question.

Earlier this week, a federal appellate court rejected a proposed settlement in a class action lawsuit.  In so doing, the court noted that a “class action that seeks only worthless benefits for the class and yields only fees for class counsel is no better than a racket and should be dismissed out of hand.”

I have no idea whether the class’s attorneys violated Rule 1.5.  However, I do know that the proposed settlement called for:

  • each of the 10 lead class members to receive $500 and a promise that, going forward, the defendant’s restaurants’ buns would be at least 12 inches long; and,
  • the attorney representing the class to receive $525,000.

Name the defendant.  The ABA Journal has the story here.

Subway

Five for Friday: #85

Welcome to Week 85!

I’ve used this pre-quiz space to talk about sports, music, ethics, math, and lots of other things that most readers skip of which the week’s number reminds me.

So, what does 85 remind me of?  Well, I’m kind of preoccupied with 1985.

Why?

Hair and Bowling For Soup.

First, hair.

You see, in 85, I graduated from high school. And oh how do I miss those curls.

IMG_2557

Bowling For Soup is, of course, the band that brought us 1985.  For those of you hoping for a music reference to 1985, you obviously haven’t been paying attention.  I made a veiled reference to the year in this post on the legal ethics of social media.

To paraphrase, back in my high school days, it was Springsteen, Madonna, (and) way before Nirvana. There was U2, and Blondie, and music still on MTV. I don’t have kids, not to mention 2 kids in high school, but, if i did, I’m sure they’d tell me I’m uncool for being so preoccupied with .  . . 19 . . . 19 . . . 1985.

Onto the quiz!

Rules

  • None.  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

By rule, and at a minimum, an attorney’s trust accounting system must have 4 features.  Three of the required features are:

  • a system showing all receipts & disbursements from the account;
  • records showing all receipts & disbursements for each client;
  • records documenting timely notice to clients of all receipts & disbursements.

What’s the 4th?

  • A.  A list of authorized signatories on the account
  • B.  Records documenting timely reconciliation of the account
  • C.  Records documenting three-way reconciliation of the account
  • D. An approved credit card processing system

Question 2

Complete this analogy

By rule, Lawyer is to a representation’s means, as Client is to a representation’s _____________.

I guess it would’ve looked like this on the SAT:

Lawyer: Means ::  Client: ___________

Question 3

Lawyer is an associate at Firm. Tomorrow, Lawyer intends to provide short-term limited legal services to clients at a walk-in clinic sponsored by a nonprofit organization.  Neither Lawyer nor her walk-in clients will expect Lawyer or Firm to provide continuing representation to the clients.  By rule, which set of rules will be (somewhat) relaxed, insofar as they relate to Lawyer’s work at the walk-in clinic?   The rules on:

  • A.  Conflicts of Interest
  • B.  Malpractice Insurance
  • C.  Diligence & Competence
  • D.  Client Confidences

 

Question 4

In a dispute between Plaintiff and Organization, Plaintiff’s counsel has actual knowledge that Attorney represents Organization.  Without providing notice to Attorney or asking permission, Plaintiff’s counsel interviews a former employee of Organziation about the matter that is the subject of the dispute.

Which is most accurate under Vermont’s Rules of Professional Conduct:

  • A. Plaintiff’s counsel did not violate the rules.
  • B. Plaintiff’s counsel violated the rules.
  • C. Whether Plaintiff’s counsel violated the rules turns on whether the former employee was in “the control group.”
  • D. Whether Plaintiff’s counsel violated the rules depends on whether Plaintiff has filed and served a lawsuit in which Attorney has entered an appearance.

Question 5

Hint: even if you didn’t see this in the news, you can figure this one out by paying close attention to the question.

Earlier this week, a federal appellate court rejected a proposed settlement in a class action lawsuit.  In so doing, the court noted that a “class action that seeks only worthless benefits for the class and yields only fees for class counsel is no better than a racket and should be dismissed out of hand.”

I have no idea whether the class’s attorneys violated Rule 1.5.  However, I do know that the proposed settlement called for:

  • each of the 10 lead class members to receive $500 and a promise that, going forward, the defendant’s restaurants’ buns would be at least 12 inches long; and,
  • the attorney representing the class to receive $525,000.

Name the defendant.

the-quiz

 

 

Harvey & Irma: Pro Bono Opportunties

Last year, Vermont joined 40 other states in the ABA’s “Free Legal Answers” program.   Vermont’s program allows low-income Vermonters to login to vtfreelegalanswers, post a question, and wait for an answer from a volunteer attorney admitted to practice in Vermont.

Like Vermont, Texas and Florida are among the states that have joined the ABA’s Free Legal Answers program.

In the aftermath of Hurricane Harvey, the Texas Supreme Court issued an order allowing non-Texas attorneys to provide limited legal services to victims of the storm.  As a result, the ABA modified ABA/Texas Free Legal Answers so that out-of-state lawyers could enroll and answer Harvey-related questions.  Anticipating that Irma might lead to the need for pro bono disaster legal services in Florida, the ABA is looking into doing the same with ABA/Florida Free Legal Answers.

For more information on how to volunteer to answer (civil) legal questions from Texans impacted by Hurricane Harvey, please review this flyer from the ABA.

To learn more about Vermont Free Legal Answers, click HERE.  To register, click HERE.

vt free legal answers

 

 

Was That Wrong?

It’s been a while.

Was That Wrong? is a semi-regular column on Ethical Grounds. The column features stories of the absurd & outrageous from the world of legal ethics and attorney discipline. My aim is to highlight misconduct that I hope you’ll instinctively avoid without needing me to convene a continuing legal education seminar that cautions you to do so.

The column is inspired by the “Red Dot” episode of Seinfeld. In the episode, George Costanza has sex in his office with a character known only as “the cleaning woman.”  His boss finds out.  Here’s their ensuing exchange :

(Scene) In the boss’ office.

  • Boss: I’m going to get right to the point. It has come to my attention that you and the cleaning woman have engaged in sexual intercourse on the desk in your office. Is that correct?
  • George: Who said that?
  • Boss: She did.
  • George: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know, cause I’ve worked in a lot of offices and I tell you people do that all the time.
  • Boss: You’re fired.
  • George: Well you didn’t have to say it like that.

The full script is HERE.  The scene is HERE.

Today’s column involves a 2013 order suspending a North Carolina lawyer’s license for 5 years. I learned about it after reading on the Legal Profession Blog and in The Charlotte Observer that the lawyer has petitioned for reinstatement.

Someday I hope to launch a YouTube channel tied to this blog.  When I do, I’ll adapt Was That Wrong entries to the screen.  Here’s how I envision scripting today’s:

  • Disciplinary Commission:  We’re going to get right to the point.  It’s come to our attention that you sued Defendant on behalf of Plaintiff.  Then, without telling Plaintiff, you started representing Defendant in other, unrelated matters. And, finally, while continuing to represent both Plaintiff & Defendant, you had a sexual relationship with Defendant.
  • Lawyer:  Who said that?
  • Disciplinary Commission:  Plaintiff and Defendant.
  • Lawyer: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started practicing that that sort of thing was frowned upon, you know, cause I’ve worked in a lot of offices and I tell you people do that all the time.
  • Disciplinary Commission:  5 year suspension.
  • Lawyer:  Well you didn’t have to say it like that.

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

Here are the previous entries in Was That Wrong?

costanza

Avoid Complaints by Managing Expectations

With the start of another school year, I thought I’d take time to go back to basics.  And here’s a basic truth: a lawyer never has to respond to a disciplinary complaint that isn’t filed.

What’s the best way for a lawyer to avoid a disciplinary complaint?  Set clear & reasonable expectations at the outset of the attorney-client relationship and never stop managing those expectations.

I’ve blogged on this issue before.  One way to think about the issue is to remember both Charles Dickens and Cool Hand Luke.

Dickens wrote Great Expectations.  Probably because nobody would’ve read a book called Reasonable Expectations.  Indeed, I’ve yet to read about the client whose reasonable expectations were met. Yet, as I’ve blogged, left untempered by the lawyer, a client’s great expecations often provide me with reading material — with “reading material” being a disciplinary complaint..

Similarly, nobody would’ve remembered (or paid to see) a movie about succesful communication between prison guards and inmates.   But, “what we’ve got here is failure to communicate” is one of the enduring lines in movie history.  As I pointed out in Client Communication & Cool Hand Luke, it’s also the perfect approach for an attorney to ensure that a client files a disciplinary complaint.

Lesson: a great way to minimize the chances that a client files a disciplinary complaint is for a lawyer (1) to set clear & reasonable expectations at the outset of the attorney-client relationship; and (2) to manage those expectations by providing the client with clear & candid communication throughout the representation.

Back to Basics