Now I know what drives traffic – Taylor Swift!
Friday’s questions are here. The answers follow today’s Honor Roll.
- Ed Adrian, Monaghan Safar Ducham
- Matthew Anderson, Pratt Vreeland Kennelly Martin & White
- Alberto Bernabe, Professor of Law, The John Marshall Law School
- Robert Grundstein
- Anthony Iarrapino
- Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
- Marsicovtere & Levine
- Jordana Levine, Audrey Smith, Nikki South, Rachel Thompson
- Kane Smart, ANR, Office of General Counsel, Enforcement & Litigation Division
- Allison Wannop, Law Clerk, Vermont Superior Court
Question 1 – American Girl;
“Well she was an American girl
Raised on promises . . .”
Later, the American girl became a lawyer and is admitted to practice in Vermont. By rule, she has essentially promised:
- A. Not to disclose information related to the representation of her clients.
- B. Not to disclose information related to the representation of her clients, unless the information is a matter of public record.
- C. Not to disclose information related to the representation of her clients, unless the information falls outside the attorney-client privilege.
- D. Not to disclose her clients confidences and secrets.
For more on this, please see this blog post in which I discuss Rule 1.6 and its interplay with matters of privilege & matters in the public record.
Question 2 – Refugee
Lawyer represents Client in a civil matter. Trial is scheduled for next week. Most of Lawyer’s strategy sessions with Client have focused on Witness. Lawyer plans to have Witness testify and offer evidence in support of Client’s claim.
Yesterday, Client said to Lawyer:
- “We got somethin’, we both know it, we don’t talk too much about it
Ain’t no real big secret, all the same, somehow we get around it
Oh listen, it don’t really matter to me, baby
You believe what you wanna believe.”
Lawyer was somewhat confused, but, having thought about it, thinks that Client might have convinced Witness to offer false evidence. Which is most accurate?
- A. If Lawyer reasonably believes that Witness will offer false evidence, Lawyer may refuse to offer Witness’s testimony. See, V.R.Pr.C. 3.3(a)(3).
- B. Lawyer must offer Witness’s testimony.
- C. Lawyer must not offer Witness’s testimony.
- D. Lawyer must withdraw.
The key here is that Lawyer suspected, but did not know, that Client might have convinced Witness to offer false evidence. A prudent course here would be to remonstrate with client & to make clear to Client (1) that “C” would be correct if Lawyer “knows” Witness will offer false testimony; and, (2) that if Lawyer discovers after-the-fact that Witness provided false evidence, Lawyer has a duty to take reasonable remedial measures, up to and including disclosure to the court.
This is a different case than in Question 2.
Attorney informs Client that Attorney intends to file a motion to withdraw. Client responds:
- “Don’t do me like that
Don’t do me like that
Someday I might need you baby
Don’t do me like that!”
Attorney replies “the ethics rules require me to withdraw.” Client retorts:
- “You’re jammin’ me, you’re jammin’ me
Quit jammin’ me
Baby you can keep me painted in a corner
You can walk away but it’s not over.”
Assuming that Attorney is correct and that withdrawal is mandatory, which of the following will Attorney be most likely to cite in the motion?
- A. Client has failed substantially to comply with the terms of the fee agreement.
- B. Attorney has discovered a non-waivable conflict of interest with a former client.
- C. The representation has been rendered unreasonably difficult by Client.
- D. Client insists on taking a course of action that Attorney considers repugnant.
Rule 1.16(a)(1) mandates withdrawal when continued representation will result in a violation of the rules of professional conduct. Continuing despite a non-waivable conflict would cause Attorney to violate the rules. Thus, B is correct. Choices A, C, and D are instances in which withdrawal is permitted, but is not mandatory.
Question 4 – Runnin’ Down A Dream
Continuing the scenario from the previous question, Attorney filed the motion to withdraw. As it remained pending, stress & anxiety bedeviled Client. Then, the court granted the motion. Shortly thereafter, Client contacted the VBA’s Lawyer Referral Service and received a list of potential new lawyers. Uplifted, Client called Attorney to schedule an appointment to pick up the file. Client said:
- “I rolled on as the sky grew dark
I put the pedal down to make some time
There’s something good waitin’ down this road
I’m pickin’ up whatever’s mine.”
When Client arrives, Vermont’s rule specifically requires Attorney to:
- A. Keep a copy of Client’s file.
- B. Surrender Papers & Property to which Client is entitled.
- C. A, B, and refund any unearned fee.
- D. B and refund any unearned fee.
This is Rule 1.16(d). After complying with the rule by delivering the file, there is nothing in the rules of professional conduct that requires Attorney to keep a copy of the file. Most carriers, however, have language in their policies that require lawyers to keep copies of a closed files for X number of years.
Question 5 – Free Fallin’
Continuing the scenario . . . Client followed through on her statement that Attorney could walk away, but it’s not over. Before runnin’ down her dream elsewhere, Client posted a negative online review about Attorney, sued Attorney for malpractice, and filed a disciplinary complaint against Attorney.
Attorney intends to respond with:
- “She’s a good girl, loves her mama
Loves Jesus and America too
She’s a good girl, crazy ’bout Elvis
Loves horses and her boyfriend too
- It’s a long day livin’ in Reseda
There’s a freeway runnin’ through the yard
And I’m a bad boy, ’cause I don’t even miss her
I’m a bad boy for breakin’ her heart”
Assume the information in the response is true, but is not generally known. Attorney would likely violate the rules by:
- A. Posting the information online, in response to the negative review.
- B. Incorporating the response into the defense of the malpractice complaint.
- C. Incorporating the response into his answer to the disciplinary complaint.
- D. None of the above. No matter the forum, Client put the representation in issue.
Client is a “former client.” Rule 1.9(c)(2) prohibits disclosure of information relating to the representation of a former client unless the rules otherwise permit disclosure. Here, Rule 1.6(c)(3) permits B & C. The rule is often referred to as the “self-defense exception” to the general prohibition against disclosure. It is well-settled that the “self-defense exception” does not apply to negative online reviews. For more, see my post Negative Online Review? What NOT to do.