Was That Wrong?

It’s been a while.

Was That Wrong? is a semi-regular column in which I focus on 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.

For example, our most recent discussion of the the perils of representing BOTH plaintiff and defendant while sleeping with defendant.

Today, and as reported by the ABA Journal, The Indiana Lawyer, and NMI.com, we have the story of an Indiana prosecutor who has been suspended for 4 years for listening in on conversations between murder suspects and their lawyers.  The Indiana Supreme Court’s order is here.

Hint: it’s never a good sign for a lawyer when the Supreme Court’s very first statement in discussing the appropriate sanction is:

“There is, quite thankfully, scant precedent in our disciplinary annals for misconduct such as this.”

This 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.

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:

  • Supreme Court: We’re going to get right to the point. It has come to our attention that, as a criminal prosecutor, you used technology to listen in on privileged conversations between suspects and their lawyers.  Is that correct?
  • Lawyer:  Who said that?
  • Supreme Court:  You did.  So did police chief who tried to tell you it was wrong.
  • 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.
  • Supreme Court:  4 year suspension.
  • Lawyer:  Well you didn’t have to say it like that.

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

Here are the previous entries in Was That Wrong?

costanza

Five for Friday 94: Basketball & O.J.

Welcome to #94.

Before I get to 94, don’t forget 4.  As in, who are the 4 on your Mt. Rushmore of US Supreme Court justices?  Some great responses so far!

Back to 94.

I’m a basketball guy and, to me, 94 is a basketball number.  For one thing, a regulation court is 94 feet long.  For another, in my eternal quest to score 100 points in a single game, I usually ended up somewhere around 94.  With “somewhere around 94” meaning “points still to score to get to 100.”   Semantics.

Furthermore, most of you know that this blog focuses on the law, with doses of sports & pop culture. This is particularly true of the #fiveforfriday column.

I’m not sure there’s a year in which the intersection of the law, sports, and pop culture had a more profound impact on American society than 1994.

To the extent they’re remembered at all, the 1994 NBA Finals aren’t remembered for much to do with basketball.  No, I’d be willing to bet that they’re best remembered for one thing:

The OJ chase.

Game 5 of the 1994 NBA championship tipped off on June 17, 1994.  The New York Knicks hosted the Houston Rockets at Madison Square Garden. I’ll never forget it.  Earlier that day, my brother and I had driven to Bradford for our grandfather’s funeral.  We got back to South Burlington just in time to watch the game at the same place we watched every other big (and not so big) game back then: the bar at the Ground Round on Williston Road, just around the corner from where we’d grown up.

We didn’t watch the game.  Or maybe we watched a little bit of it, I don’t really recall.  I just remember that, at some point, the bar switched to coverage of the “chase.”  We stayed.  Enthralled.

I won’t even begin to try to describe the night. I can’t do it justice. To jog your memory, a simple Google search returns plenty of retrospectives of the event.  Suffice to say, I’ve watched a ton of basketball.  There are only 2 NBA games I remember exactly where I watched.  One is the OJ game.

For those of you too young to remember, I’m hard-pressed to imagine today’s equivalent of the chase. Here’s the best I can do.

In 1994, OJ was a celebrity.  He’d starred in commercials for years, and had made memorable appearances in movies. He was in the NFL Hall of Fame.  He was 25 years removed from being the #1 pick in the NFL draft after a decorated college career that included being named an All-American and winning the Heisman Trophy as the nation’s most outstanding player.

Today, Shaquille O’Neal is a celebrity. He’s starred in commercials for years, and has made memorable appearances in movies.  He’s in the NBA Hall of Fame.  He is 25 years removed from being the #1 pick in the NBA draft after a decorated college career that included being named an All-American and winning the Rupp Trophy as the nation’s most outstanding player.

So, imagine:

  • It’d be like watching last season’s New England-Atlanta Super Bowl, only to have the game interrupted by coverage of the police “chasing” Shaq to arrest him for a double-murder,
  • as a former teammate drove him around for hours,
  • while Shaq streamed the entire incident via Facebook Live,
  • as the rest of us stopped everything we were doing & caused the nation’s wireless networks to melt.

The chase eventually gave way to a trial, the impact of which continues to reverberate today.  Even ignoring the social impact – or maybe because of the social impact – I don’t know of a trial so fixed in our collective memory.

More than 20 years later, I’m guessing that a huge number of Americans over the age of 35 can still name most of the key players – the judge, the prosecutors, the defense team, and multiple witnesses – without even having to think very hard.  That never happens.  I mean, I don’t remember a single witness I called in my very first jury trial and it usually takes me a few minutes to remember whether Judge Meaker or Judge Jenkins presided!!  Also, is there a more widely known quote from any closing argument in history?

Finally, of the many pop culture aspects of the chase, one fascinates me: the events of the day introduced the world to the Kardashians.

Hours before the chase, and long before we’d meet his wife, kids, and his kids’ half-sisters, Attorney Robert Kardashian held a press conference.  It started shortly after his client, OJ, failed to surrender by an established deadline. Kardashian read aloud a letter from OJ.  Many interpreted it as OJ’s suicide note.  Talk about reality tv.

Actually, maybe the chase and subsequent trial qualify as the original reality tv.  Lives were taken, lost, ruined, destroyed, and forever altered.  And we watched it happen.

94.  A bizarre, surreal, and historic collision of law, sports, and pop culture.

If you’re interested, American Crime Story: The People v OJ Simpson dramatizes the entire case, including the chase. It won multiple Emmys and Golden Globes.

Dream Team

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

There is a rule that links an attorney’s duty of diligence to:

  • A.  Promptness
  • B.  Thoroughness
  • C.  Preparation
  • D.  Skill

Question 2

For the purposes of Vermont’s rules, which is different from the others:

  • A.  A check drawn on the IORTA of a realtor licensed in Vermont
  • B.  A check drawn on the IOLTA of a lawyer licensed in Vermont
  • C.  A check in the amount of $2,500 drawn on a client’s personal checking account
  • D.  A check in the amount of $500,001 issued by an insurance company that is licensed to do business in Vermont

Question 3

Attorney called me with an inquiry.  I listened, then replied:

“For it to be okay, 3 things have to happen.  (1) It has to be in proportion to services you render, or, if not, you have to agree to assume joint responsiblity for the representation; (2) the client has agree and confirm the agreement in writing; and, (3) the total has to be reasonable.”

What did Attorney call to discuss?

Question 4

There is a rule that prohibits a lawyer from stating a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused.  It applies:

  • A.   In trial
  • B.   Only during closing arguments
  • C.   Only during opening statements
  • D.   During closing arguments AND to statements made to the press

Question 5 – Two parts:

In real life, O.J.’s attorney, Johnny Cochran, argued “if it doesn’t fit, you must acquit.”  He was referring to the so-called “bloody gloves.”

Part 1:

Jackie Chiles is a fictional attorney who regularly appeared on Seinfeld.  The character is a parody of Johnnie Cochran.  In the episode “The Caddy,” Chiles represented Kramer in a suit against Sue Ellen Mischke.  Kramer alleged that Mischke’s attire, while walking down the street, so distracted him as to cause him to get into an accident.  Chiles’ skillful and eminently competent cross-examination of Jerry Seinfeld delivered Kramer to the brink of a courtroom victory, only to have Kramer ruin it.  Against Chiles’ advice, Kramer took his golf caddy’s advice and asked Mischke to try on the piece of clothing that, allegedly, had distracted Kramer and caused the accident.  She tried it on, and it didn’t fit.  So, Kramer lost.

What was the piece of clothing?

Part 2:

In an episode of South Park, Chef sued a record company for harassment.  The record company hired a cartoon version of Johnnie Cochran.  During his closing argument, cartoon Cochran inexplicably asked the jury to consider why a character from a famous series of movies would live on the planet Endor.  He argued: “ladies and gentlemen, it does not make sense! If _____________ lives on Endor, you must acquit!! The defense rests.”

The movie character is 8 feet tall and has a one-word name.  His co-pilot and other friends associated with the rebellion often use a shortened-version of the name. Fill in the blank with the movie character’s name.

 

 

TBT: Alternative Litigation Financing

In this week’s version of Throwback Thursday, I’m re-running this post on Alternative Litigation Financing.  From a rules perspective, I don’t have any particular interest in the topic. I’m reprinting it for 2 reasons.

First, the not-so-important reason.  Oddly, the post is this blog’s most-visited. Here’s a picture of my 2017 stats.  The most visited page is the home page – something you get to just by going to the blog, and a page that changes with each new post.  The post on Alternative Litigation Financing is the most-visited page that you actually have to seek out.

ALF 2017

Not surprisingly, the post wasn’t exactly an instant classic.  I posted it in December 2016. By and large, it went unread before it’s popularity inexplicably spiked in April.  It has remained popular ever since.  Here’s a picture of the post’s monthly visits:

ALF Monthly

The post isn’t tagged.  Yet, “ALF” must be a relatively common search term that drives visitors to this site.  I have a feeling they aren’t looking for legal ethics or a post about the tv show.

By the way, don’t worry – I can’t tell which posts you read.  I pay for the free version of WordPress, which means I can only determine whether some unidentified person or bot (dare we say ALF?) visited a post.

Here’s the other reason that the original post interests me.  An impetus behind the original post was to convey that we do not (and should not) have to evaluate every new thing for compliance with the rules.  What do I mean by that? Let me tell you.

It happens most often with technology.  As a profession, we went through the exercise EVERY SINGLE TIME technology provided a new means of transmitting and storing client information. Is it ok to communicate by fax machine? What about a car phone? Are cell phones ethical? Email must be a violation, right? Can I text clients? Is it okay to use cloud storage?

Fortunately, over the past few years, bar associations and regulators have recognized the folly in such an approach. A better approach is to establish the principle, then apply the principle to whatever’s next.  For example: lawyers have a duty to take reasonable precautions to prevent unauthorized access to, or inadvertent disclosure of, information related to the representation of a client.  Boom!  There it is.  Now, when whatever is next arrives, you’ll know.

Same thing with alternative litigation financing.  Yes, it’s new and different. However, for almost as long as lawyers have existed, they’ve taken cases in which payment is made by someone other than the client. We have a principle that applies in that situation: the payor cannot interfere with the lawyer’s independent judgment and is not entitled to information about the matter unless the client consents.  That principle applies when a parent is paying for kid’s DUI, as well as it applies when plaintiff’s attorney is using crowd-funding or another source of ALF to finance litigation.

The end.

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

Again, the post is here.  For the click averse, here’s the original post:

Yes, my columns often include references to sports, music, movies, and TV.

No, this column is not about this Alien Life Form and his tv show:

alf

Rather, this post is about Alternative Litigation Financing.

Earlier this year, I praised an advisory ethics opinion in which the Philadelphia Bar Association concluded that crowd funding litigation is not necessarily unethical.  Crowd funding is an alternative method of financing many things, including litigation.

Last week, the ABA’s Law Practice Today blog ran a piece on Why Alternative Litigation Financing is Poised to Disrupt Litigation.  It’s an interesting post that raises issues related to legal ethics, access to legal services, access to justice and, in a way, tech competence. It also gives me an excuse to use the word “champetry” for, perhaps, the first time since law school.

As I wrote in my post on the Philadelphia advisory opinion, the fact that something is new or different does not render it unethical.  As ALF platforms continue to grow in popularity, remember that it is not a platform or technology that poses an ethics risk – – it’s the lawyer who uses the platform or technology.  Indeed, the post in Law Practice Today quotes from a white paper that the ABA’s Commission on Ethics 20/20 issued in 2012:

  • “[this]Report should not be interpreted as suggesting alternative litigation finance raises novel professional responsibilities, since many of the same issues…arise whenever a third party has a financial interest in the outcome of the client’s litigation. A lawyer must always exercise independent professional judgment on behalf of a client… “

In other words, ALF is permissible as long a lawyer doesn’t violate any other rules while representing a client who uses ALF to pay for the lawyer’s services.

A few rules more likely to arise than others:

  • Rule 5.4(c) states that a “lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.”
  • Rule 1.8(f) prohibits a lawyer from accepting “compensation from one other than the client unless:
    • (1) the client gives informed consent;
    • (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and
    • (3) information relating to representation of a client is protected as required by Rule 1.6.

Also, I’d suggest that having read this post, Rule 1.1 might come into play.  The rule requires lawyers to provide competent representation to their clients.  Arguably, the duty of competence includes advising a client who lacks resources on alternative sources of litigation financing.  Is it a stretch to say that the failure to do so is unethical?  Yes.  But what would it hurt to keep a few of the ALF providers in mind?  The post on Law Practice Today lists and links to 4 of them.

In any event, I urge you not brand crowd funding and other forms of ALF as unethical for no other reason than “that’s not how we’ve done it in the past.” Is it new?  Yes. Is it different? Yes.

But, it’s not lost on me that one of the cases cited in the post on Law Practice Today involved a group of college students who turned to crowd funding to finance litigation that they otherwise could not have afforded.  You too, some of my loyal readers, were once on the cutting edge, doing things that left more senior lawyers fretting for their licenses: like using fax machines.

Attorney Stephen Embry authored the post that appears on Law Practice Today.  In it, he lays out some of the concerns with ALF, but then provides strong counter-arguments to those concerns.  Above all, his final paragraph bears keeping in mind:

  • “Balanced against the risks is the upside. In a world where over 60% of small businesses who experienced a legal event in the past two years report not hiring a lawyer (LegalShield Survey Report ), where 80% of the legal needs of the poor and middle class go unmet (See Legal Service Report)and where some 40% of law school graduates can’t find full time jobs (ABA 2015 Report) anything that tears down barriers to justice and allows an underserved population to be served may be worth the risk.”

WSYW: Rushmore of US Supreme Court Justices

I’m trying something new.

WSYW stands for “What say you Wednesday?”  This week’s question: who would be on your Mt. Rushmore of U.S. Supreme Court justices?

For those of you unclear on the question, it refers to Mt. Rushmore and its carvings of George Washington, Thomas Jefferson, Theodore Roosevelt, and Abraham Lincoln.  For years, the sports world has used the trope as a popular debate-starter.  For example, my “Mt. Rushmore of Boston sports” would be David Ortiz, Larry Bird, Bobby Orr, and Bill Russell.  Or, the Mt. Rushmore of my extended family would be me and 3 of my relatives. (Both sides).

Your limit is 4.  Why? Because that’s how many presidents are on Mt. Rushmore.  No ties! I get it – you’ll face some tough choices.  But such is life.  Do you think it was easy for to omit Pedro Martinez, Paul Pierce, Ted Williams, Ray Bourque, and Yaz from my Boston list? It was not. (Dad – I won’t get into omissions from the family Rushmore)

I bet some of my cousins are about to step up their gift game.

So, take some time, and, if you’d wish, submit your Mt. Rushmore of U.S. Supreme Court justices.  You may do so by comment or by email to michael.kennedy@vermont.gov  I’ll probably post the results on Saturday morning.  Seems like a good lawyerly-lite way to start the weekend.

And speaking of lawyerly-lite — don’t forget to send me pictures of lawyers doing non-lawyer things! That idea – which I’ve hashtagged #lawyerlight – is described in this column.

Again, today’s WSYW: who is on your Mt. Rushmore of U.S. Supreme Court justices?

Bill RussellBirdOrtizOrr

50 Resolutions: Don’t be a jerk.

Lawyers can provide competent & diligent representation without being jerks.

Don't Be a Jerk

Last week, I posted The 50 Original Rules.  It’s a post that briefly recaps the history of the conduct rules that apply to lawyers.  Best I can tell, the earliest record of guidelines for attorney conduct in the United States is David Hoffman’s 1836 publication of his Fifty Resolutions in Regard to Professional Deportment.  My post includes each of Hoffman’s 50 resolutions.

181 years later, it’s somewhat fascinating to me how many of Hoffman’s resolutions continue to resonate.  Many are embedded in the rules and our collective professional conscience.  Given my fascination, I’ve resolved to blog about the continued relevance of Hoffman’s resolutions, taking them one at a time.

I don’t know how long it’ll take me to get through all 50.  No matter, if even one of the resolutions resonates with but one of you, this endeavor will have been a success.

Here are my thoughts on Resolution #1.

Summary:  don’t be a jerk.

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Fifty Resolutions in Regard to Professional Deportment

DAVID C. HOFFMAN (1836)

1.    I will never permit professional zeal to carry me beyond the limits of sobriety and decorum, but bear in mind, with Sir Edward Coke, that “if a river swell beyond its banks, it loseth its own channel.”

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

Hoffman’s initial resolution not to “permit professional zeal to carry me beyond the limits of sobriety and decorum” remains a crucial concept.  Indeed, the notion that a lawyer’s duties to adversaries, the courts, and the profession limit the exercise of the lawyer’s duties to the client runs throughout the rules.  

Zeal does not trump decorum. 

Here is Section 1 Preamble to the Rules of Professional Conduct:

 

“[1] A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.”

Section 2 states that “[a]s advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.”

Section 9 of the Preamble recognizes that the basic principles of the rules “include the lawyer’s obligation zealously to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.”

As did Hoffman, the Preamble to the rules contemplates that lawyers as more than mere zealots for their clients.  Rather, there is a higher duty to the system, the manner in which it operates, and the manner in which lawyers operate within it.

This idea is reflected in the rules as well.  For example, Rule 1.3 requires lawyers to act with reasonable diligence. The final sentence to Comment [1] states that “[t]he lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved with courtesy and respect.”

Rule 3.5(d) mandates decorum before a tribunal.  I cited to Comment [4] in a disciplinary case in which I prosecuted a lawyer whose zeal exceeded the bounds of decorum:

“Comment [4] The advocate’s function is to present evidence and argument so that the cause may be decided according to law.  Refraining from abusive or obstreperous conduct is a corollary of the advocate’s right to speak on behalf of litigants. A lawyer may stand firm against abuse by a judge, but should avoid reciprocation; the judge’s default is no justification for similar dereliction by an advocate. An advocate can present the cause, protect the record for subsequent review and preserve integrity by patient firmness no less effectively than by belligerence or theatrics.”

Let me say it again:  a lawyer can advocate for the client “by patient firmness no less effectively than by belligerence of theatrics.”

Finally, maintaining decorum at the expense of zealotry is not a concept limited to the rules.  It’s a decision we’ve made as a profession.

In 1989, the Vermont Bar Association adopted Guidelines for Professional Courtesy.   I encourage you to read them.  Most, if not all, are rooted in today’s topic.  The last is my favorite:

  • “Effective advocacy does not require antagonistic or obnoxious behavior. Lawyers should adhere to the higher standard of conduct which judges, fellow attorneys, clients, and the public may rightfully expect.”

In other words, effective advocacy doesn’t require being a jerk.

181 years later, it remains abundantly clear that zeal does not trump civility. As did Hoffman, perhaps we can resolve never to permit zeal to carry us beyond the limits of sobriety and decorum.

****

Related post:  W.I.N. Your 3 Feet of Influence

 

Monday Morning Answers – My Cousin Vinny

You’ve spoken.  My Cousin Vinny is not only your favorite movie, it’s the most popular topic upon which I’ve ever blogged.

And if there’s one thing my readers know, it’s magic grits.

Friday’s questions are here.  Spoiler alert: the answers appear below today’s Honor Roll. However, before I get to the Honor Roll & answers, I’m trying something new that I hope turns into its own column.

For those of you who follow me on Twitter, you know that last night I posted this link to all my posts on the topic of Lawyers Helping Lawyers.  I posted at 5:30 PM in reaction to my realization that “whoa! it’s pitch dark and it’s only 5:30.”

Winter is long.  Darkness can be tough.  And, as the numbers show, we’re a profession that struggles to cope with stress, anxiety, substance abuse and mental health issues.  We must promote wellness and work-life balance, and we must encourage lawyers to make time for what matters.  In other words, let’s focus on ensuring that light shines in our personal & professional lives.

One way to let the light in is to do things that have nothing to do with the law. For example, yesterday, I ran a race with my mom.  She ran the 5K, I did the half marathon. One of us won her age division, I did not.  Here’s us post-race, pre-brunch.

IMG_2933

As we enter the months where the days arehort, it’s as important as ever to keep light in our lives.  To encourage that, send me your pictures of you doing something non-lawyerly.  It doesn’t have to be running a race.  It could skiing, playing with your kids or grandkids, reading, posing outside a show you’re about to attend.  If this catches on, each week, I’ll post the pictures, highlighting lawyers who, every now & then, go lawyerly-lite to keep the light on.

Honor Roll

Answers

Question 1

The rules include a special rule on conflicts for a certain type of lawyers.  What type?

Former & Current Government Officers & Employees.  Rule 1.11

Question 2

Pick the exact word or phrase that most accurately fills in the blank.

For the purposes of the confidentiality provisions of Rules 1.6 and 1.9(c), information that is a matter of public record is not necessarily __________:

  • A.   “Waived”
  • B.   “Privileged”
  • C.    “Confidential”
  • D.    “Generally known.”

Demonstrating my lack of competence, the original version of the quiz had two correct answers:  A – disclosable, and D – generally known.  Once I caught it, I edited the blog, but not before some people had answered and, anyway, it doesn’t edit the email that goes to people who have signed-up to follow the blog.

In the revised version, the answer is “generally known.”  See generally, Rule 1.9(c)(1).  I will blog on this issue later this week.

Question 3

Attorney called with an inquiry.  I listened, then responded “the rule doesn’t say ‘solely to obtain an advantage.’ It says ‘to obtain an advantage.’  We dropped ‘solely‘ back in 1999.”

What did Attorney call to discuss?

  • A.  Contacting an opposing party’s expert witness
  • B.  Contacting a prospective juror
  • C.  Threatening criminal charges in a civil matter.  See, Rule 4.5
  • D.  Interviewing an employee of a represented organization, without the permission of the organization’s lawyer

Question 4

Lawyer called me with an inquiry. I listened, then responded “Well, given the traditional limitation on permitting a non-lawyer to direct a lawyer’s judgment, if any the activities  will include the practice of law, you can’t do it.”

What did Lawyer call to discuss?

  • A.  Forming a partnership with a non-lawyer. See, Rule 5.4(b)
  • B.  Someone other than a client paying for Lawyer to represent that client
  • C.  Sharing a referral fee with an attorney in a different firm
  • D.  Implementing a cloud-based practice management system

Question 5

In the trial in My Cousin Vinny, one of the key moments is Vinny’s cross-examination of an eye-witness.  The witness testified that Vinny’s clients must have been in the Sac-O-Suds (the convenience store where the murder took place) for 5 minutes. On cross, Vinny asked:

“Well, I guess the laws of physics cease to exist on top of your stove. Were these ___________________? Did you buy them from the same guy who sold Jack his beanstalk beans?”

Fill in the blank. Hint: it’s 2 words

Magic Grits.   The scene is here and is worth re-watching.  It’s a fantastically competent cross-examination of an eye-witness. And it’s funny.  #lawyerlight 

Vinny

 

Five for Friday #93

Welcome to Week 93!

As most readers know, I often use the intro to the quiz to wax lyrical on something related to the week’s number, with that “something” usually related to sports, math, or pop culture.  Not this week.  This week I have a serious report.

1993 bore witness to some of the most notably unethical behavior that this blogger has ever witnessed.

As anyone who remembers 1993 has already figured out, I’m referring to the Academy’s decision to bestow but one measly award to My Cousin Vinny.

Not many pop culture references have been more important to this blog (and my CLE presentations) than My Cousin Vinny.  Positraction, Metallic Mint Green, Jerry Gallo.  Listing even a mere scintilla of the references would wear out this keyboard.

If you haven’t seen the movie, well, I shudder to think what your life must be like.  Per the ABA Journal, it’s the 3rd greatest legal movie, with Vincent Laguardia Gambini the 12th best fictional lawyer not named Atticus Finch.  (12th is preposterously low.)

Many great legal minds have mentioned the movie.  For proof, scroll down to the “critical reception” section of the film’s Wikipedia page.  There, alongside references to Justice Scalia and Judge Posner, you’ll see a quote from Alberto Bernabe.  A frequent member of this blog’s #fiveforfriday Honor Roll, Professor Bernabe is also the author of My Cousin Vinny: a story about legal education.  The post links to a fantastic post on Abnormal Use that honored the movie’s 20th Anniversary and that includes other great links to articles on the movie and the legal ethics issues raised in it.

Back to the point at hand.

The 65th Academy Awards took place on March 29, 1993.  In what I can only assume was the greatest fix in the history of awards, (or at least since my brother got “perfect attendance” in 1st grade even though he missed like 6 days) My Cousin Vinny only received one of the major awards.

“ONE” was not a typo.  Marisa Tomei was honored as Best Supporting Actress for her role as Mona Lisa Vito.  No other wins.  None.

Are you f’ing kidding me?????

Don’t get me wrong, I’m glad she won.  But, I have two utes. Oops, I meant to say that I have “two problems.”

The first is that Tomei’s was the movie’s only nomination for an award.  Not just the only victory, the only NOMINATION.  Scandalous!

The second is the category in which she won.  Doesn’t “supporting actress” mean that there was another actress in a more prominent role? She was the LEAD ACTRESS.  Why in the world didn’t she win “Best Actress?” As surely as positraction wasn’t available on a 64 Buick Skylark, Marisa was robbed!

And so was every writer, director, and cast member.  Here’s how any rational person would have voted:

  • Best Movie: My Cousin Vinny
  • Best Actor: Joe Pesci, My Cousin Vinny, as Vincent Laguardia Gambini
  • Best Supporting Actor: Hermann Munster, My Cousin Vinny, as Judge Chamberlain Haller
  • Best Actress:  see above
  • Best Supporting Actress:  My Cousin Vinny, the grandmotherly eye-witness who wasn’t wearing her glasses and couldn’t tell how many fingers Vinny was holding up.
  • Lifetime Achievement Award: Tie. From My Cousin Vinny, the sheriff, the prosecutor, and the witness who is critical to today’s Question 5.

1993: a year that will live in infamy, at least on this blog.

Utes

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

The rules include a special rule on conflicts for a certain type of lawyers.  What type?

Question 2

Pick the exact word or phrase that most accurately fills in the blank.

For the purposes of the confidentiality provisions of Rules 1.6 and 1.9(c), information that is a matter of public record is not necessarily __________:

  • A.   “Waived”
  • B.   “Privileged”
  • C.    “Confidential”
  • D.    “Generally known.”

Question 3

Attorney called with an inquiry.  I listened, then responded “the rule doesn’t say ‘solely to obtain an advantage.’ It says ‘to obtain an advantage.’  We dropped ‘solely‘ back in 1999.”

What did Attorney call to discuss?

  • A.  Contacting an opposing party’s expert witness
  • B.  Contacting a prospective juror
  • C.  Threatening criminal charges in a civil matter
  • D.  Interviewing an employee of a represented organization, without the permission of the organization’s lawyer

Question 4

Lawyer called me with an inquiry. I listened, then responded “Well, given the traditional limitation on permitting a non-lawyer to direct a lawyer’s judgment, if any the activities  will include the practice of law, you can’t do it.”

What did Lawyer call to discuss?

  • A.  Forming a partnership with a non-lawyer
  • B.  Someone other than a client paying for Lawyer to represent that client
  • C.  Sharing a referral fee with an attorney in a different firm
  • D.  Implementing a cloud-based practice management system

Question 5

In the trial in My Cousin Vinny, one of the key moments is Vinny’s cross-examination of an eye-witness.  The witness testified that Vinny’s clients must have been in the Sac-O-Suds (the convenience store where the murder took place) for 5 minutes. On cross, Vinny asked:

“Well, I guess the laws of physics cease to exist on top of your stove. Were these ___________________? Did you buy them from the same guy who sold Jack his beanstalk beans?”

Fill in the blank. Hint: it’s 2 words

Vinny

 

 

The 50 Original Rules

I’m presenting soon at a seminar entitled “Everything You Always Wanted To Know About The Rules But Were Too Afraid To Ask.”  Trying to anticipate questions that lawyers might be too afraid to ask, I thought of this one:  “who thought up these rules in the first place?”

So, I did a little research.  Like a title search, I’ll work backwards.

  • In 1999, Vermont adopted the Rules of Professional Conduct.
  • Vermont’s rules are based on the ABA Model Rules of Professional Conduct.
  • The ABA House of Delegates adopted the Model Rules in 1983.
  • The Commission that drafted the Model Rules was formed in 1977, in part as a result of the many lawyers involved in the Watergate scandal.
  • The Model Rules replaced the 1969 Model Code of Professional Conduct.
  • The Model Code restated the 1908 Canons of Ethics. (which, by 1969, had been adopted by most states)
  • The 1908 Canons were based on The Alabama Code of 1887.
  • The Alabama Code was the first codified set of rules for attorney conduct..
  • There is general agreement that the first record of guidelines for attorney conduct in the United States is David Hoffman’s 1836 publication of his Fifty Resolutions in Regard to Professional Deportment.

Hoffman was an attorney in Maryland.  To me, it’s fascinating that 181 years later, our rules are replete with vestiges of his resolutions. I’ve pasted in Hoffman’s 50 Resolutions below.

PLEAS DO NOT CONTACT ME TO COMPLAIN THAT THEY’RE TOO LONG TO READ.  I AM NOT FORCING YOU TO READ THEM.

Also, this is a blog.  It will still be here later if you don’t want to read all the rules now.  You could read 1 a day for the next 50 days. Or none at all. Or all of them on a snow day in January.  It’s totally up to you.

Anyway, for those of you too afraid to ask who thought up these rules in the first place, here you go:

Original

Fifty Resolutions in Regard to Professional Deportment

DAVID C. HOFFMAN (1836)

1.    I will never permit professional zeal to carry me beyond the limits of sobriety and decorum, but bear in mind, with Sir Edward Coke, that “if a river swell beyond its banks, it loseth its own channel.”

2.    I will espouse no man’s cause out of envy, hatred, or malice toward his antagonist.

3.    To all judges, when in court, I will ever be respectful. They are the law’s vicegerents; and whatever may be their character and deportment the individual should be lost in the majesty of the office.

4.    Should judges, while on the bench, forget that, as an officer of their court, I have rights, and treat me even with disrespect, I shall value myself too highly to deal with them in like manner. A firm and temperate remonstrance is all that I will ever allow myself.

5.    In all intercourse with my professional brethren, I will always be courteous. No man’s passion shall intimidate me from asserting fully my own or my client’s rights, and no man’s ignorance or folly shall induce me to take any advantage of him. I shall deal with them all as honorable men, ministering at our common altar. But an act of unequivocal meanness or dishonesty, though it shall wholly sever any personal relation that may subsist between us, shall produce no change in my deportment when brought in professional connection with them. My client’s rights, and not my own feelings, are then alone to be consulted.

6.    To the various officers of the court I will be studiously respectful, and specially regardful of their rights and privileges.

7.    As a general rule, I will not allow myself to be engaged in a cause to the exclusion of, or even in participation with, the counsel previously engaged, unless at his own special instance, in union with his client’s wishes; and it must, indeed, be a strong case of gross neglect or of fatal inability in the counsel, that shall induce me to take the cause to myself.

8.    If I have ever had any connection with a cause, I will never permit myself (when that connection is from any reason severed) to be engaged on the side of my former antagonist. Nor shall any change in the formal aspect of the cause induce me to regard it as a ground of exception. It is a poor apology for being found on the opposite side, that the present is but the ghost of the former cause.

9.    Any promise or pledge made by me to the adverse counsel shall be strictly adhered to by me; nor shall the subsequent instructions of my client induce me to depart from it, unless I am well satisfied it was made in error, or that the rights of my client would be materially impaired by its performance.

10.    Should my client be disposed to insist on captious requisitions, or frivolous and vexatious defenses, they shall be neither enforced nor countenanced by me. And if still adhered to by him from a hope of pressing the other party into an unjust compromise, or with any other motive, he shall have the option to select other counsel.

11.    If, after duly examining a case, I am persuaded that my client’s claim or defense (as the case may be), cannot, or rather ought not to, be sustained, I will promptly advise him to abandon it. To press it further in such a case, with the hope of gleaning some advantage by an extorted compromise would be lending myself to a dishonorable use of legal means in order to gain a portion of that, the whole of which I have reason to believe would be denied to him both by law and justice.

12.    I will never plead the statute of limitations when based on the mere efflux of time; for if my client is conscious he owes the debt, and has no other defense than the legal bar, he shall never make me a partner in his knavery.

13.    I will never plead or otherwise avail myself of the bar of infancy against an honest demand. If my client possesses the ability to pay, and has no other legal or moral defense than that it was contracted by him when under the age of twenty-one years, he must seek for other counsel to sustain him in such a defense. And although in this, as well as in that of limitation, the law has given the defense, and contemplates, in the one case, to induce claimants to a timely prosecution of their rights, and in the other designs to protect a class of persons, who by reason of tender age are peculiarly liable to be imposed on, yet, in both cases, I shall claim to be the sole judge (the pleas not being compulsory) of the occasions proper for their use.

14.    My client’s conscience and my own are distinct entities; and though my vocation may sometimes justify my maintaining as facts or principles, in doubtful cases, what may be neither one nor the other, I shall ever claim the privilege of solely judging to what extent to go. In civil cases, if I am satisfied from the evidence that the fact is against my client, he must excuse me if I do not see as he does, and do not press it; and should the principle also be wholly at variance with sound law, it would be dishonorable folly in me to endeavor to incorporate it into the jurisprudence of the country, when, if successful, it would be a gangrene that might bring death to my cause of the succeeding day.

15.    When employed to defend those charged with crimes of the deepest dye, and the evidence against them, whether legal or moral, be such as to leave no just doubt of their guilt, I shall not hold myself privileged, much less obliged, to use my endeavors to arrest or to impede the course of justice, by special resorts to ingenuity, to the artifices of eloquence, to appeals to the morbid and fleeting sympathies of weak juries, or of temporizing courts, to my own personal weight of character–nor finally, to any of the overweening influences I may possess from popular manners, eminent talents, exalted learning, etc. Persons of atrocious character, who have violated the laws of God and man, are entitled to no such special exertions from any member of our pure and honorable profession; and, indeed, to no intervention beyond securing to them a fair and dispassionate investigation of the facts of their cause, and the due application of the law. All that goes beyond this, either in manner or substance, is unprofessional, and proceeds, either from a mistaken view of the relation of client and counsel, or from some unworthy and selfish motive which sets a higher value on professional display and success than on truth and justice, and the substantial interests of the community. Such an inordinate ambition I shall ever regard as a most dangerous perversion of talents, and a shameful abuse of an exalted station. The parricide, the gratuitous murderer, or their perpetrator of like revolting crimes, has surely no such claim on the commanding talents of a profession whose object and pride should be the suppression of all vice by the vindication and enforcement of the laws. Those, therefore, who wrest their proud knowledge from its legitimate purposes to pollute the streams of justice and to screen such foul offenders from merited penalties, should be regarded by all (and certainly shall by me) as ministers at a holy altar full of high pretension and apparent sanctity, but inwardly base, unworthy, and hypocritical–dangerous in the precise ratio of their commanding talents and exalted learning.

16.    Whatever personal influence I may be so fortunate as to possess shall be used by me only as the most valuable of my possessions, and not be cheapened or rendered questionable by a too frequent appeal to its influence. There is nothing more fatal to weight of character than its common use; and especially that unworthy one, often indulged in by eminent counsel, of solemn assurances to eke out a sickly and doubtful cause. If the case be a good one, it needs no such appliance; and if bad, the artifice ought to be too shallow to mislead any one. Whether one or the other, such personal pledges should be very sparingly used and only on occasions which obviously demand them; for if more liberally resorted to, they beget doubts where none may have existed or strengthen those which before were only feebly felt.

17.    Should I attain that eminent standing at the bar which gives authority to my opinions, I shall endeavor, in my intercourse with my junior brethren, to avoid the least display of it to their prejudice. I will strive never to forget the days of my youth, when I too was feeble in the law, and without standing. I will remember my then ambitious aspirations (though timid and modest) nearly blighted by the inconsiderate or rude and arrogant deportment of some of my seniors; and I will further remember that the vital spark of my early ambition might have been wholly extinguished, and my hopes forever ruined, had not my own resolutions, and a few generous acts of some others of my seniors, raised me from my depression. To my juniors, therefore, I shall ever be kind and encouraging; and never too proud to recognize distinctly that, on many occasions, it is quite probable their knowledge may be more accurate than my own, and that they, with their limited reading and experience, have seen the matter more soundly than I, with my much reading and long experience.

18.    To my clients I will be faithful; and in their cause zealous and industrious. Those who can afford to compensate me, must do so; but I shall never close my ear or heart because my client’s means are low. Those who have none, and who have just causes are, of all others, the best entitled to sue, or be defended; and they shall receive a due portion of my services, cheerfully given.

19.    Should my client be disposed to compromise, or to settle his claim, or defense, and especially if he be content with a verdict or judgment, that has been rendered, or, having no opinion of his own, relies with confidence on mine, I will in all such cases greatly respect his wishes and real interests. The further prosecution, therefore, of the claim or defense (as the case may be), will be recommended by me only when, after mature deliberation, I am satisfied that the chances are decidedly in his favor; and I will never forget that the pride of professional opinion on my part, or the spirit of submission, or of controversy (as the case may be), on that of my client, may easily mislead the judgment of both, and cannot justify me in sanctioning, and certainly not in recommending, the further prosecution of what ought to be regarded as a hopeless cause. To keep up the ball (as the phrase goes) at my client’s expense, and to my own profit, must be dishonorable; and however willing my client may be to pursue a phantom, and to rely implicitly on my opinion, I will terminate the controversy as conscientiously for him as I would were the cause my own.

20.    Should I not understand my client’s cause, after due means to comprehend it, I will retain it no longer, but honestly confess it, and advise him to consult others, whose knowledge of the particular case may probably be better than my own.

21.    The wealthy and the powerful shall have no privilege against my client that does not equally appertain to others. None shall be so great as to rise, even for a moment, above the just requisitions of the law.

22.    When my client’s reputation is involved in the controversy, it shall be, if possible, judicially passed on. Such cases do not admit of compromise; and no man’s elevated standing shall induce me to consent to such a mode of settling the matter: the amend from the great and wealthy to the ignoble and poor should be free, full and open.

23.    In all small cases in which I may be engaged I will as conscientiously discharge my duty as in those of magnitude; always recollecting that ‘small’ and ‘large’ are to clients relative terms, the former being to a poor man what the latter is to a rich one; and, as a young practitioner, not forgetting that large ones, which we have not, will never come, if the small ones, which we have, are neglected.

24.    I will never be tempted by any pecuniary advantage, however great, nor be persuaded by any appeal to my feelings, however strong, to purchase, in whole or in part, my client’s cause. Should his wants be pressing, it will be an act of humanity to relieve them myself, if I am able, and if I am not then to induce others to do so. But in no case will I permit either my benevolence or avarice, his wants or his ignorance, to seduce me into any participation of his pending claim or defense. Cases may arise in which it would be mutually advantageous thus to bargain, but the experiment is too dangerous, and my rule too sacred, to admit of any exception, persuaded as I am that the relation of client and counsel, to be preserved in absolute purity, must admit of no such privilege, however guarded it may be by circumstances; and should the special case alluded to arise, better would it be that my client should suffer, and I lose a great and honest advantage, than that any discretion should exist in a matter so extremely liable to abuse, and so dangerous in precedent.

And though I have thus strongly worded my resolution, I do not thereby mean to repudiate, as wholly inadmissible, the taking of contingent fees. On the contrary, they are sometimes perfectly proper and are called for by public policy, no less than by humanity. The distinction is very clear. A claim or defense may be perfectly good in law, and in justice, and yet the expenses of litigation would be much beyond the means of the claimant or defendant–and equally so to counsel, who, if not thus contingently compensated in the ratio of the risk, might not be compensated at all. A contingent fee looks to professional compensation only on the final result of the matter in favor of the client. None other is offered or is attainable. The claim or defense never can be made without such arrangement. It is voluntarily tendered, and necessarily accepted or rejected, before the institution of any proceedings.

It (i.e., a contingent fee arrangement) flows not from the influence of counsel over client. Both parties have the option to be off. No expenses have been incurred. No moneys have been paid by the counsel to the client. The relation of borrower and lender, of vendor and vendee, does not subsist between them; but it is an independent contract for the services of counsel to be rendered for the contingent avails of the matter to be litigated. Were this denied to the poor man, he could neither prosecute nor be defended. All of this differs essentially from the object of my resolution, which is against purchasing, in whole or in part, my client’s rights, after the relation of client and counsel, in respect to it, has been fully established, after the strength of his case has become known to me, after his total pecuniary inability is equally known, after expenses have been incurred which he is unable to meet, after he stands to me in the relation of a debtor, and after he desires money from me in exchange for his pending rights. With this explanation I renew my resolution never so to purchase my client’s cause, in whole or in part, but still reserve to myself, on proper occasions, and with proper guards, the professional privilege (denied by no law among us) of agreeing to receive a contingent compensation freely offered for service wholly to be rendered, and when it is the only means by which the matter can either be prosecuted or defended. Under all other circumstances, I shall regard contingent fees as obnoxious to the present resolution.

25.    I will retain no client’s funds beyond the period in which I can, with safety and ease, put him in possession of them.

26.    I will on no occasion blend with my own my client’s money. If kept distinctly as his it will be less liable to be considered as my own.

27.    I will charge for my services what my judgment and conscience inform me is my due, and nothing more. If that be withheld it will be no fit matter for arbitration; for no one but myself can adequately judge of such services, and after they are successfully rendered, they are apt to be ungratefully forgotten. I will then receive what the client offers, or the laws of the country may award; but in either case he must never hope to be again my client.

28.    As a general rule I will carefully avoid what is called the “taking of half fees.” And though no one can be so competent as myself to judge what may be a just compensation for my services, yet when the quiddam honorarium has been established by usage or law, I shall regard as eminently dishonorable all underbidding of my professional brethren. On such a subject, however, no inflexible rule can be given to myself, except to be invariably guided by a lively recollection that I belong to an honorable profession.

29.    Having received a retainer for contemplated services, which circumstances have prevented me from rendering, I shall hold myself bound to refund the same, as having paid to me on a consideration which has failed, and, as such, subject to restitution on every principle of law, and of good morals, and this shall be repaid not merely at the instance of my client, but ex mero motu.

30.    After a cause is finally disposed of, and all relation of client and counsel seems to be forever closed, I will not forget that it once existed, and will not be inattentive to his just request that all of his papers may be careful arranged by me, and handed over to him. The execution of such demands, though sometimes troublesome, and inopportunely or too urgently made, still remains a part of my professional duty, for which I shall consider myself already compensated.

31.    All opinions for clients, verbal or written, shall be my opinions, deliberately and sincerely given, and never venal and flattering offerings to their wishes or their vanity. And though clients sometimes have the folly to be better pleased with having their views confirmed by an erroneous opinion than their wishes or hopes thwarted by a sound one, yet such assentation is dishonest and unprofessional. Counsel, in giving opinions, whether they perceive this weakness in their clients or not, should act as judges, responsible to God and man, as also especially to their employers, to advise them soberly, discreetly, and honestly, to the best of their ability, though the certain consequence be the loss of large prospective gains.

32.    If my client consents to endeavors for a compromise of his claim or defense, and for that purpose I am to commune with the opposing counsel or others, I will never permit myself to enter upon a system of tactics, to ascertain who shall overreach the other by the most nicely balanced artifices of disingenuousness, by mystery, silence, obscurity, suspicion, vigilance to the letter, and all of the other machinery used by this class of tacticians to the vulgar surprise of clients, and the admiration of a few ill-judging lawyers. On the contrary, my resolution in such a case is to examine with great care, previously to the interview, the matter of compromise; to form a judgment as to what I will offer or accept; and promptly, frankly, and firmly to communicate my views to the adverse counsel. In so doing no lights shall be withheld that may terminate the matter as speedily and as nearly in accordance with the rights of my client as possible; although a more dilatory, exacting and wary policy might finally extract something more than my own or even my client’s hopes. Reputation gained for this species of skill is sure to be followed by more than an equivalent loss of character; shrewdness is too often allied to unfairness, caution to severity, silence to disingenuousness, wariness to exaction to make me covet a reputation based on such qualities.

33.    What is wrong is not the less so from being common. And though few dare to be singular, even in a right cause, I am resolved to make my own, and not the conscience of others, my sole guide. What is morally wrong cannot be professionally right, however it may be sanctioned by time or custom. It is better to be right with a few, or even none, than wrong, though with a multitude. If, therefore, there be among my brethren any traditional moral errors of practice, they shall be studiously avoided by me, though in so doing I unhappily come in collision with what is (erroneously, I think) too often denominated the policy of the profession. Such cases, fortunately, occur but seldom; but, when they do, I shall trust to that moral firmness of purpose which shrinks from no consequences, and which can be intimidated by no authority, however ancient or respectable.

34.    Law is a deep science. Its boundaries, like space, seem to recede as we advance; and though there be as much of certainty in it as in any other science, it is fit we should be modest in our opinions, and ever willing to be further instructed. Its acquisition is more than the labor of a life, and after all can be with none the subject of an unshaken confidence. In the language, then of a late beautiful writer, I am resolved to “consider my own acquired knowledge but as a torch flung into an abyss, making the darkness visible, and showing me the extent of my own ignorance.” (Jameson)

35.    I will never be voluntarily called as a witness in any cause in which I am counsel. Should my testimony, however, be so material that without it my client’s cause may be greatly prejudiced, he must at once use his option to cancel the tie between us in the cause, and dispense with my further services or with my evidence. Such a dilemma would be anxiously avoided by every delicate mind, the union of counsel and witness being usually resorted to only as a forlorn hope in the agonies of a cause, and becomes particularly offensive when its object be to prove an admission made to such counsel by the opposite litigant. Nor will I ever recognize any distinction in this respect between my knowledge of facts acquired before and since the institution of the suit, for in no case will I consent to sustain by my testimony any of the matters which my interest and professional duty render me anxious to support. This resolution, however, has no application whatever to facts contemporaneous with and relating merely to the prosecution or defense of the cause itself, such as evidence relating to the contents of a paper unfortunately lost by myself or others, and such like matters, which do not respect the original merits of the controversy, and which, in truth, adds nothing to the once existing testimony, but relates merely to matters respecting the conduct of the suit, or to the recovery of lost evidence; nor does it apply to the case of gratuitous counsel–that is, to those who have expressly given their services voluntarily.

36.    Every letter or note that is addressed to me shall receive a suitable response, and in proper time. Nor shall it matter from whom it comes, what it seeks, or what may be the terms in which it is penned. Silence can be justified in no case; and though the information sought cannot or ought not to be given, still decorum would require from me a courteous recognition of the request, though accompanied with a firm withholding of what has been asked. There can be no surer indication of vulgar education than neglect of letters and notes. It manifests a total want of that tact and amenity which intercourse with good society never fails to confer. But that dogged silence (worse than a rude reply) in which some of our profession indulge on receiving letters offensive to their dignity, or when dictated by ignorant importunity, I am resolved never to imitate, but will answer every letter and note with as much civility as may be due, and in as good time as may be practicable.

37.    Should a professional brother, by his industry, learning, and zeal, or even by some happy chance, become eminently successful in causes which give him large pecuniary emoluments, I will neither envy him the fruits of his toils or good fortune, nor endeavor by any indirection to lessen them, but rather strive to emulate his worth, than enviously to brood over his meritorious success, and my own more tardy career.

38.    Should it be my happy lot to rank with or take precedence of my seniors, who formerly endeavored to impede my ownward course, I am firmly resolved to give them no cause to suppose that I remember the one, or am conscious of the other. When age and infirmities have overtaken them, my kindness will teach them the loveliness of forgiveness. Those, again, who aided me when young in the profession shall find my gratitude increase in proportion as I become the better able to sustain myself.

39.    A forensic contest is often no very sure test of the comparative strength of the combatants, nor should defeat be regarded as a just cause of boast in the victor, or of mortification in the vanquished. When the controversy has been judicially settled against me, in all court, I will not “fight the battle o’er again,” coram non judice; nor endeavor to persuade others, as is too often done, that the courts were prejudiced, or the jury desperately ignorant, or the witnesses perjured, or that the victorious counsel were unprofessional and disingenuous. In such cases, Credat Judaeus Apella!

40.    Ardor in debate is often the soul of eloquence, and the greatest charm of oratory. When spontaneous and suited to the occasion, it becomes powerful. A sure test of this is when it so alarms a cold, calculating and disingenuous opponent, as to induce him to resort to numerous vexatious means of neutralizing its force, when ridicule and sarcasm take the place of argument, when the poor device is resorted to of endeavoring to cast the speaker from his well-guarded pivot, by repeated interruptions, or by impressing on the court and jury that his just and well-tempered zeal is but passion, and his earnestness but the exacerbation of constitutional infirmity, when the opponent assumes a patronizing air, and imparts lessons of wisdom and of instruction! Such opponents I am resolved to disappoint, and on no account will I ever imitate their example. The warm current of my feelings shall be permitted to flow on; the influences of my nature shall receive no check; the ardor and fullness of my words shall not be abated–for this would be to gratify the unjust wishes of my adversary, and would lessen my usefulness to my client’s cause.

41.    In reading to the court or to the jury authorities, records, documents, or other papers, I shall always consider myself as executing a trust, and as such bound to execute it faithfully and honorably. I am resolved, therefore, carefully to abstain from all false or deceptious readings, and from all uncandid omissions of any qualifications of the doctrines maintained by me, which may be contained in the text or in the notes; and I shall ever hold that the obligation extends not only to words, syllables, and letters, but also to the modus legendi. All intentional false emphasis and even intonations in any degree calculated to mislead, are petty impositions on the confidence reposed, and whilst avoided by myself, shall ever be regarded by me in others as feeble devices of an impoverished mind, or as pregnant evidences of a disregard for truth, which justly subjects them to be closely watched in more important matters.

42.    In the examination of witnesses, I shall not forget that perhaps circumstances and not choice have placed them somewhat in my power. Whether so or not, I shall never esteem it my privilege to disregard their feelings, or to extort from their evidence what, in moments free from embarrassment, they would not testify. Nor will I conclude that they have no regard for truth and even the sanctity of an oath, because they use the privilege accorded to others, of changing their language and of explaining their previous declarations. Such captious dealing with the words and syllables of a witness ought to produce in the mind of an intelligent jury only a reverse effect from that designed by those who practice such poor devices.

43.    I will never enter into any conversation with my opponent’s client, relative to his claim or defense, except with the consent and in the presence of his counsel.

44.    Should the party just mentioned have no counsel, and my client’s interest demand that I should still commune with him, it shall be done in writing only, and no verbal response will be received. And if such person be unable to commune in writing, I will either delay the matter until he employs counsel, or take down in writing his reply in the presence of others; so that if occasion should make it essential to avail myself of his answer, it may be done through the testimony of others, and not by mine. Even such cases should be regarded as the result of unavoidable necessity, and are to be resorted to only to guard against great risk, the artifices of fraud, or with the hope of obviating litigation.

45.    Success in any profession will be much promoted by good address. Even the most cautious and discriminating minds are not exempt from its influence: the wisest judges, the most dispassionate juries, and the most wary opponents being made thereby, at least, more willing auditors–and this, of itself, is a valuable end. But whilst address is deservedly prized, and merits the highest cultivation, I fully concur in sentiment with a high authority, that we should be “respectful without meanness, easy without too much familiarity, genteel without affectation, and insinuating without any art or design.”

46.    Nothing is more unfriendly to the art of pleasing than morbid timidity (bashfulness – mauvaise honte). All life teems with examples of its prejudicial influence, showing that the art of rising in life has no greater enemy than this nervous and senseless defect of education. Self-possession, calmness, steady assurance, intrepidity–are all perfectly consistent with the most amiable modesty, and none but vulgar and illiterate minds are prone to attribute to presumptuous assurance the apparently cool and unconcerned exertions of young men at the bar. A great connoisseur in such matters says that “what is done under concern and embarrassment is sure to be ill done”; and the judge (I have known some) who can scowl on the early endeavors of the youthful advocate who has fortified himself with resolution, must be a man poor in the knowledge of human character, and, perhaps still more so in good feelings. Whilst, therefore, I shall ever cherish these opinions, I hold myself bound to distinguish the arrogant, noisy, shallow, and dictatorial impudence of some, from the gentle, though firm and manly, confidence of others–they who bear the white banner of modesty, fringed with resolution.

47.    All reasoning should be regarded as a philosophical process–its object being conviction by certain known and legitimate means. No one ought to be expected to be convinced by loud words, dogmatic assertions, assumption of superior knowledge, sarcasm, invective; but by gentleness, sound ideas, cautiously expressed by sincerity, by ardor without extravasation. The minds and hearts of those we address are apt to be closed when the lungs are appealed to, instead of logic; when assertion is relied on more than proof; and when sarcasm and invective supply the place of deliberate reasoning. My resolution, therefore, is to respect courts, juries, and counsel as assailable only through the medium of logical and just reasoning; and by such appeals to the sympathies of our common nature as are worthy, legitimate, well-timed, and in good taste.

48.    The ill success of many at the bar is owing to the fact that their business is not their pleasure. Nothing can be more unfortunate than this state of mind. The world is too full of penetration not to perceive it, and much of our discourteous manner to clients, to courts, to juries, and counsel, has its source in this defect. I am, therefore, resolved to cultivate a passion for my profession, or, after a reasonable exertion therein, without success, to abandon it. But I will previously bear in mind, that he who abandons any profession will scarcely find another to suit him. The defect is in himself. He has not performed his duty, and has failed in resolutions, perhaps often made, to retrieve lost time. The want of firmness can give no promise of success in any vocation.

49.    Avarice is one of the most dangerous and disgusting of vices. Fortunately its presence is oftener found in age than in youth; for if it be seen as an early feature in our character it is sure, in the course of a long life, to work a great mass of oppression, and to end in both intellectual and moral desolation. Avarice gradually originates every species of indirection. Its offspring is meanness; and it contaminates every pure and honorable principle. It cannot consist with honesty scarce a moment without gaining the victory. Should the young practitioner, therefore, on the receipt of the first fruits of his exertions, perceive the slightest manifestations of this vice, let him view it as his most insidious and deadly enemy. Unless he can then heartily and thoroughly eradicate it, he will find himself, perhaps slowly, but surely, capable of unprofessional, means, and, finally, dishonest acts which, as they cannot be long concealed, will render him conscious of the loss of character; make him callous to all the nicer feelings; and ultimately so degrade him, that he consents to live upon arts, from which his talents, acquirements, and original integrity would certainly have rescued him, had he, at the very commencement, fortified himself with the resolution to reject all gains save those acquired by the most strictly honorable and professional means. I am, therefore, firmly resolved never to receive from any one a compensation not justly and honorably my due, and if fairly received, to place on it no undue value, to entertain no affection for money, further than as a means of obtaining the goods of life; the art of using money being quite as important for the avoidance of avarice, and the preservation of a pure character, as that of acquiring it.

With the aid of the foregoing resolutions, and the faithful adherence to the following and last one, I hope to attain eminence in my profession, and to leave this world with the merited reputation of having lived an honest lawyer.

50.    Last resolution: I will read the foregoing forty-nine resolutions twice every year during my professional life.

 

Got Plans?

Recently, a lawyer let me know that she’d updated her succession plan after reading a question in the #fiveforfriday quiz.  I don’t have kids, but if I did, the lawyer’s note made me feel like I imagine I would after my kid scored his or her first basket. It was a proud moment for bar counsel.

Speaking of first baskets, one of the first baskets I ever scored came as a 5th grader playing for the Warriors in the SB Rec League.  Much like current Golden State Warriors Steph Curry & Kevin Durant, I too wore sneakers when I played basketball.  Unlike them, I scored the aforementioned basket in the wrong hoop.  That’s right.  In the first game of the season, I grabbed the opening tip, sped down the court, and banked it in with perfect form — only to give the other team a 2-0 lead.  At the end of the first quarter, we’d cut it to 2-1 as a result of foul shot I made in the correct basket.  As my Dad loves to tell anyone who may or may not care, “At the quarter, Michael had all the points!”

My coach had not successfully planned for what to do if the ball bounced to me off the opening tip.  Proof positive that no detail is too unimportant.

Which gets me back to succession plans.

Rule 1.3 requires lawyers to provide clients with diligent representation.  I used the question that eventually prompted the lawyer to update her succession plan to call attention to Comment [5] to Rule 1.3.   

  • “To prevent neglect of client matters in the event of a sole practitioner’s death or disability, the duty of diligence may require that each sole practitioner prepare a plan . . . that designates another competent lawyer to review client files, notify each client of the lawyer’s death or disability, and determine whether there is a need for immediate protective action.”

I’m not positive, but I think the language in the Comment can be traced back to ABA Formal Opinion 92-369.  The opinion, which is here, outlines the duty to prepare a succession plan, as well as the duties of the successor lawyer.

For those of you interested in creating a succession plan, one of the best resources I’ve found is the Washington State Bar Association’s handbook Planning Ahead: A Guide to Protecting Your Clients’ Interests In The Event of Your Disability Or Death.  Check it out.

And, here are some practical tips, based on situations I’ve encountered as both disciplinary and bar counsel:

  • After creating a succession plan, make sure someone knows where it is.
  • Update it if the successor lawyer dies, retires, or moves.
  • Include directions for someone to find a list of the passwords for your computers, devices, electronic calendaring system, e-mail, and voice mail.
  • Update the list as you change your passwords.
  • Meet with your financial institution to discuss who will be authorized to make trust account disbursements.

My 5th grade coach’s failure to make sure I knew which basket to shoot at was excusable.  A lawyer’s failure to plan to protect clients’ interests in the event of the lawyer’s unexpected unavailability is not.

Lawyers often advise clients to plan.  We need to take our own advice.

Remember, planning to plan is not a plan.

Got Plans