Deliver the file.

Last November, 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 current 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.  To date, I’ve posted:

Today, I’m focusing on Hoffman’s Resolution #30:

  • “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.”

In other words, deliver the file.

Rule 1.16(d) is the modern equivalent of Resolution 30.  The rule requires a lawyer, upon the termination of a representation, to surrender papers & property to which the client is entitled. .

Of course, it’s not always that simple.  To what is a client entitled? In other words, what is “the file”?

Vermont’s rules don’t define “the file.”  In 1991, the VBA’s Professional Responsibility Committee issued Advisory Opinion 91-03.  The Committee declined to “define what property a client is entitled to have.” However, it noted with approval an informal ABA opinion that “determined that an attorney must return: (1) all of the property delivered to the attorney by the attorney’s client, (2) the ‘end product’ of the attorney’s work; and (3) all other material which is useful to the client in fully benefiting from the services of the attorney.”   The VBA opinion tacitly endorsed the ABA’s position that “an attorney need not deliver the attorney’s internal notes generated primarily for the attorney’s benefit in working on the client’s problem.”

In short, the VBA opinion suggests that Vermont is what bar counsel-types refer to as an “end-product” state.

In July 2015, the ABA issued Formal Opinion 471.  In it, the ABA reaffirmed its long-standing position that, at a minimum, a lawyer has a duty to deliver “end product,”  and that “end product” includes:

  • anything provided by the client;
  • legal documents filed with a tribunal – or those completed, ready to be filed, but not yet filed;
  •  executed instruments;
  • court orders;
  • correspondence to or from the lawyer in connection with the representation, including email and other electronic correspondence
    that has been retained;
  • discovery & exhibits, including interrogatories and their answers, deposition
    transcripts, expert witness reports and witness statements, and exhibits;
  • legal opinions issued at the client’s request; and,
  • reports, evaluations, or assessments paid for by the client.

By contrast, the ABA concluded that Rule 1.16(d) does not require a lawyer to provide a client with material like drafts, internal notes & memoranda, and notes of  (!!!) ethics consults.

Again, Vermont’s rules provide no guidance.  So, with that in mind, the Professional Responsibility Board is considering whether to recommend that the Court adopt a rule that defines the file.  I’ve asked the Board to work from a definition that was proposed last year in Massachusetts.

For now, there’s nothing wrong with erring on the safe side and delivering the “entire file” as opposed to “end product.” Indeed, New Hampshire is an “entire file” state.  Or, call me and we can chat about what to include when you deliver “the file.”

What’s most important is to pick an approach.  Rule 1.16(d) is not optional. It very clearly mandates delivery of the file upon termination of the representation.

Time consuming?  Maybe.  On that note, however, Hoffman was wise.  As time-consuming as he recognized file delivery might be, he also recognized that it was part of his professional duty.  It lives on as part of yours.

Deliver the file.

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Was That Wrong? Cannabis (In)competence

As I’ve blogged, in 2016, the Court adopted a comment to Rule 1.2 authorizing lawyers to advise clients on cannabis & marijuana issues that are legal under state law.  If you’re a Vermont lawyer who intends to do so, make sure you know what you’re talking about.

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.

costanza

Today’s lesson comes courtesy of an order from the Florida Supreme Court disbarring a lawyer who advised clients that it was legal under state law to cultivate, possess, and use marijuana for medical purposes.  It wasn’t. The Chicago Tribune and the Cannabist were among the outlets to cover the story.

Hint:  it’s never a good sign when a state supreme court’s disciplinary order includes: “The most prominent features of Respondent’s misconduct are incompetence and extremely serious harm to clients.”  Opinion, p. 5.

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:

  • Court:  We will get right to the point. It has come to our attention that you;
    • advised clients that it was legal to grow, possess, and use marijuana for medical purposes;
    • referred these clients to doctors who weren’t licensed to practice medicine in Florida and who provided your clients with meaningless “legal certifications” and “grow cards;”
    • told clients “not to worry” when they called to tell you that the police had stopped by to instruct them to dismantle grow operations; and,
    • did not refund fees to clients who, having relied upon your advice, were arrested, charged, convicted, fined, and lost almost everything including, in at least one case, a professional license; and,
    • continued to insist that your advice was correct even as your clients were prosecuted criminally.
  • Lawyer: Who said that?
  • Court: Your clients did.
  • 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 here that that sort of thing was frowned upon, you know, cause I’d only been admitted for 3 months when I started doing that.
  • Court: Disbarred.
  • Lawyer: Well you didn’t have to say it like that.

Again, Comment 14 to Rule 1.2(d) of the Vermont Rules of Professional Conduct authorizes lawyers to provide clients with advice on cannabis & marijuana issues that are legal under state law.  Nothing in the rules, however, relieves lawyers from doing so in a competent manner.

Monday Morning Answers: #103

Friday’s questions are here.  The answers follow today’s honor roll.

But first, one of my favorite things about this blog is using the intro to the #fiveforfriday quizzes to forge connections with readers  Here are a few reader responses to my post on Route 103, country stores, and corner markets:

  • 103 was Papa & Nanny’s P.O. Box their entire time in Bradford! (guess who sent that one)
  • I know the Vermont Country Store in Rockingham very well – in fact, my lovely and talented wife was employed there until giving birth to our first son.
  •  I know that 5 and 10 in Bradford (I think if just closed a year or 2 ago) – One of our favorite farms is just up the road called 4 Corners.

  • Yes, the Vermont country stores are awesome.  We visit the Warren store with some regularity on our way to or from Rochester, VT.  
  •  On 103 in Chester, in addition to a bunch of small stores, there is Lisai’s–a grocery store which somewhat fits your description of the Fruit Store, but without such a slope to its uneven wooden floor: low ceilings, narrow (but not constricted) aisles, one door in and one door out that seem reversed, a little bit of a lot of things, and great meat.  

Honor Roll

Answers

Question 1

At a seminar, you’re checking your phone when you hear me say “knowledge of the violation raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness.”

What rule am I discussing?

The rule on mandatory reporting.  Rule 8.3

Question 2

Which is associated with a different rule than the other 3?

  • A.  A single source for identification
  • B.  Records showing running account balances
  • C.  Timely reconciliation
  • D.  Lateral transfers

Per Rule 1.15(A)(a), each of A, B, C, must be part of your trust accounting system.  “Lateral transfers” involve conflicts of interest.

Question 3

The civil matter James v. Irving is pending in the Vermont Superior Court.  Attorney represents James.  Lawyer represents Irving.

Attorney filed a motion for summary judgment.  Lawyer reviewed the motion and realized that Attorney failed to cite to an opinion of the Vermont Supreme Court that supports Attorney’s argument.  Lawyer knows that the opinion is directly adverse to Irving’s position.

Lawyer explained Attorney’s oversight to Irving.  Irving instructed Lawyer not to cite to the Supreme Court opinion in their cross-motion for summary judgment.

Which is most accurate?

  • A.  Lawyer must report Attorney to disciplinary authorities
  • B.  Lawyer must abide by Irving’s instruction not to cite to the opinion
  • C.  It’s up to Lawyer whether to cite to the opinion
  • D. Lawyer must disclose the opinion to the trial court.  Rule 3.3(a)(1)

Question 4

A lawyer called me with an inquiry. I listened, then said “it seems that you qualify as ‘necessary.’  Therefore, you can’t do it unless (1) it’s about an uncontested issue; (2) it relates to the value of legal services you provided; or (3) disqualifying you would cause substantial hardship to your client.”

What is “it“?

Testifying during a trial in which the lawyer is also acting as an advocate.  Rule 3.7

Question 5

Velma Kelly is a celebrity showgirl who was charged with murdering her husband & sister.

Roxie Hart is a would-be celebrity who was charged with murdering a lover who falsely promised to have connections that would make her as big a star as Velma.

Billy Flynn is the media-loving lawyer who represented them both.  He did so despite the fact that, in exchange for leniency, Velma testified against Roxie.  Specifically, Velma read to the jury incriminating excerpts from Roxie’s diary.

That’s right: Billy represented a murder client in a case in which one of the witnesses against her was another of his murder clients.

Both Velma and Roxie were acquitted.  Mainly because Billy Flynn knowingly introduced false evidence that the prosecution had authored the incriminating diary entries.

In 2003, Catherine Zeta-Jones won the Academy Award for Best Actress for playing Velma.  Renee Zellweger and Queen Latifah also received Oscar nominations for their roles in the same movie.

I don’t know whether Billy Flynn was charged with an ethics violation.  If he had been, his defense might have been to ask the disciplinary prosecutors why they were bothering with “all that jazz.”

Name the movie.

See the source image

Conflicts: are there lessons in sports?

As most of you know, the vast majority of the inquiries that I receive involve conflicts of interests.  Conflicts (and potential conflicts) can be tricky to assess.  Last week, I urged lawyers to keep conflicts simple by trusting their guts. I also blogged on a Supreme Court opinion that reminds us that, in some cases, appearances matter.

Last night, I found myself considering conflicts & wondering whether professional sports might provide lessons, or useful analogies.  Here are a few of my thoughts.

Former Client Conflicts:  James Harrison

James Harrison is a professional football player.  He spent the bulk of his career playing for the Pittsburgh Steelers.  As a Steeler, he won 2 Super Bowls and was the 2008 NFL defensive player of the year.  He’s the Steelers’ all-time leader in quarterback sacks.

In December, the Steelers cut Harrison. A few days later, he signed with the New England Patriots.

The Patriots and Steelers are bitter rivals.  6 days before the Steelers cut Harrison, they lost to the Patriots in one of the most-controversial endings in recent memory.  Many experts and fans expected the Patriots and Steelers to meet again in the AFC Championship Game.  Instead, the Steelers lost their first playoff game and did not advance to the AFC Championship.

When Harrison signed with New England, Steeler fans felt betrayed. Anticipating the rematch that never came, many feared that Harrison would provide inside information to the Patriots that would help them defeat Pittsburgh again.  ESPN, NBC Sports, and ProFootballTalk covered the potential for Harrison to share Steeler secrets.

In a sense, that’s how your former clients might feel if you end up taking a case against them.

Here’s what I hear all the time:  “It was long ago, I haven’t looked at the file in years, and I don’t remember anything about the case.”  Fine.  But that’s not the rule.  Further, as a policy matter, the Supreme Court has said that Rule 1.9(a) is “prophylactic” and that we aren’t going to force clients to disclose confidences in order to protect them.

I get it: James Harrison is not a licensed professional who is bound by any sort of code of professional conduct.  Still, if you’re a sports fan, and if one of your team’s players has ever joined a rival, keep that in mind when considering whether to enter an appearance on behalf of a new client whose interests are adverse to those of a former client.

Appearances of a Conflict – Derek Jeter

Derek Jeter is a former professional baseball player.  He spent his entire career playing for the New York Yankees and is in the Hall of Fame.  I wouldn’t be surprised if the top 3  results for a word association game with “Derek Jeter” are “New York, “Yankees,” and “New York Yankees.”

Last September, Major League Baseball approved the sale of the Miami Marlins to an ownership group that includes Jeter.  Jeter owns a small stake in the franchise.  He is also the Chief Executive Officer of the Marlins.

When Jeter assumed his role as Marlins CEO, the team had a player named Giancarlo Stanton.  Last year, Stanton won the award as the Most Valuable Player in the National League.  He is 28 years old and is in the prime of his career. He has been, is, and will continue to be one of the best baseball players in the entire world.

Within months of taking over the Marlins, Jeter traded Stanton.

To the New York Yankees.

In exchange for 2 low-level prospects who might never make the majors.

Conflict?  I guess not.  MLB approved the trade and nothing in its rules or bylaws prohibits a former player from running a team different from the one he played for.

But it sure looks like one.  Business Insider might have said it best when it described the trade as “baffling.”

Again, I blogged last week that appearances matter.  My post included this statement:

  • “when talking about conflicts, it’s not uncommon for me to say two things:
  1. the rules prohibit actual conflicts, not the appearance of a conflict; and,
  2. even if you decide you don’t have a conflict, do you want to deal with the appearance? The other side will almost certainly file a motion to disqualify or a disciplinary complaint.  Either can be costly and aggravating.”

So, the Jeter lesson might be this: maybe you don’t have an impermissible conflict.  But it sure looks sketchy.  Do you want to deal with that?

Current Clients – Tom Brady & Jimmy Garoppolo

Rule 1.7 addresses concurrent conflicts of interest.  Section (a)(1) indicates that a concurrent conflict exists whenever representation of one client will be directly adverse to another client.

Tom Brady is the quarterback for the New England Patriots.  For many years, Jimmy Garoppolo was Brady’s back-up.  Earlier this season, the Patriots traded Garappolo to the San Franciso 49’ers. Brady and Garoppolo share the same agent.  The agent is a lawyer.

Michael McCann is a law professor. He founded the Sports & Entertainment Law Institute at UNH School of Law.  He is a legal analyst and writer for Sports Illustrated.  A few weeks ago, SI ran a piece by McCann:  Analysis: Brady and Garoppolo’s Sharing of an Agent Adds to Patriot Intrigue.

I find the post fascinating.  As most of you know, I love sports and I work in legal ethics. McCann’s piece is the only sports article I’ve read that not only cites to, but quotes, one of the rules of professional conduct.  Worlds colliding in such a way as to make music to my ears.   Give it a read.

Conclusion

This column might be of little help to you.  Arguably, it was nothing but a thinly-veiled excuse for me to write about sports.  Nevertheless, I’m going to continue to try to find different ways to visualize and present conflicts.

On a personal level, this picture best describes the conflict of interests that I encounter in athletics:

IMG_2090

 

 

Five for Friday #103

Welcome to #103!

As I spent the week thinking of how I’d work “103” into this column, I kept coming back to one thing: for whatever reason, I associate “103” with VT Route 103.

I don’t know that I’ve driven VT 103 more than 1.03 times in my entire life.  But, as I did a few years ago, I stumbled upon The Vermont Country Store in Rockingham.  I’d never even heard of the place.  Turns out, it’s one of the more successful and well-known country stores in the state.

The memory of my lone visit to the Vermont Country Store made me think of general stores. I love them.  Not just general stores, but country stores and corner markets.  I love ’em all.

When I was really young, my grandfather worked at Hill’s 5 & 10 in Bradford.

  • Aside: read the previous sentence again.  When you do, the voice in your head should NOT be saying “Hill’s 5 and 10.”  It’s “Hill’s five and dime.”  That’s how we talked back then.

Hill’s wasn’t exactly a country store/market.  It was more like a 70’s version of a Dollar General. But it was next to a little market called The Fruit Store.

I LOVED The Fruit Store.  I don’t know why it was called The Fruit Store.  It was a meat market that sold whatever other staples they felt like stocking on any given day.  Most of you can picture exactly how it felt:  newspapers on the porch, uneven wooden floors, no rhyme or reason to the merchandise or layout,  and aisles so tiny that some were, quite literally, one way.  With “one way” being “whichever way the first person into the aisle wants to go.”  If you’re second, move.  Even if it means walking backwards out of the aisle.

Have you ever been in one of those old markets where you lose about 7 feet of elevation walking from the front door to the meat counter in the back? That’s what I remember about The Fruit Store.

I’m nostalgic for the vibe I felt in old country stores & corner markets.  You know:

  • that pot is regular, we’ll brew one of decaf if you’d like
  • half & half is in the cooler, next to the night crawlers. if you use the last of the carton, we’ll open a new one.
  • faded pictures of teams from the local high school that won states 10, 20, 65 years ago.

There are some wonderful general stores and country markets all over Vermont.  My summer treks to the NEK usually include stops at Scampy’s in West Charleston.  The 100 on 100 isn’t complete without a stop at The Warren Store for, you know, carb loading. When you go to the ocean and forget to buy your mom some saltwater taffy,  the Route 4 Country Store in Quechee is a great place to pick some up on the way home.  The Steeple Market in Fairfax has some of best cuts of meat around and is one of two Official Markets of Ethical Grounds.  The other – Beaudry’s Market in Huntington, a gem operated by the Pecors for about the last 40 years.

Even Burlington used to be full of great little neighborhood markets.  I know a few readers of this blog whose families shopped religiously at Merola’s.

By the way, if you’re ever in Hendersonville, North Carolina, say hi to my dad and stop by Mast General Store.  I can’t stand shopping, but I easily spend an hour in Mast’s each time I visit. It’s got a huge section devoted to old school penny candy that makes you feel like you’ve travelled back in time.

Anyhow, musing on the number 103 resulted in a cascade of thoughts of general stores and corner markets.

Jiffy Marts, Jolly’s, and Maplefields are fine.  TV screens on the gas pumps, walk-in coolers with the latest craft beers, a dizzying choice of coffee flavors, and stainless steel canisters serving as endless reservoirs of half & half.  But, I will always have a special place in my heart for the good ol’ country store.

Onto the quiz!

Rules

  • None.  Open book, open search engine, text/phone/email-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
  • Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

At a seminar, you’re checking your phone when you hear me say “knowledge of the violation raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness.”

What rule am I discussing?

Question 2

Which is associated with a different rule than the other 3?

  • A.  A single source for identification
  • B.  Records showing running account balances
  • C.  Timely reconciliation
  • D.  Lateral transfers

Question 3

The civil matter James v. Irving is pending in the Vermont Superior Court.  Attorney represents James.  Lawyer represents Irving.

Attorney filed a motion for summary judgment.  Lawyer reviewed the motion and realized that Attorney failed to cite to an opinion of the Vermont Supreme Court that supports Attorney’s argument.  Lawyer knows that the opinion is directly adverse to Irving’s position.

Lawyer explained Attorney’s oversight to Irving.  Irving instructed Lawyer not to cite to the Supreme Court opinion in their cross-motion for summary judgment.

Which is most accurate?

  • A.  Lawyer must report Attorney to disciplinary authorities
  • B.  Lawyer must abide by Irving’s instruction not to cite to the opinion
  • C.  It’s up to Lawyer whether to cite to the opinion
  • D. Lawyer must disclose the opinion to the trial court

Question 4

A lawyer called me with an inquiry. I listened, then said “it seems that you qualify as ‘necessary.’  Therefore, you can’t do it unless (1) it’s about an uncontested issue; (2) it relates to the value of legal services you provided; or (3) disqualifying you would cause substantial hardship to your client.”

What is “it“?

Question 5

Velma Kelly is a celebrity showgirl who was charged with murdering her husband & sister.

Roxie Hart is a would-be celebrity who was charged with murdering a lover who falsely promised to have connections that would make her as big a star as Velma.

Billy Flynn is the media-loving lawyer who represented them both.  He did so despite the fact that, in exchange for leniency, Velma testified against Roxie.  Specifically, Velma read to the jury incriminating excerpts from Roxie’s diary.

That’s right: Billy represented a murder client in a case in which one of the witnesses against her was another of his murder clients.

Both Velma and Roxie were acquitted.  Mainly because Billy Flynn knowingly introduced false evidence that the prosecution had authored the incriminating diary entries.

In 2003, Catherine Zeta-Jones won the Academy Award for Best Actress for playing Velma.  Renee Zellweger and Queen Latifah also received Oscar nominations for their roles in the same movie.

I don’t know whether Billy Flynn was charged with an ethics violation.  If he had been, his defense might have been to ask the disciplinary prosecutors why they were bothering with “all that jazz.”

Name the movie.

the-quiz

 

Can a lawyer concede a client’s guilt over the client’s objection?

Updated on January 26, 2018

Question: in a criminal case, can a lawyer concede a client’s guilt over the client’s objection?

As reported by the ABA Journal, the question lies at the heart of an argument that the United States Supreme Court heard last week.  Outlets to report on the argument include The New York Times, Reuters, and USA Today.

The case is State of Louisiana v. Robert Lee McCoy.  In 2008, Mr. McCoy was charged with 3 counts of first degree murder.  In 2010, he hired a lawyer to replace the public defenders initially assigned.  Upon entering an appearance, the lawyer admitted that he was not certified to try death penalty cases, but that he expected to assemble a team of lawyers who were.  No such team was ever assembled.

In July 2011, two days before jury selection, the lawyer informed the court that Mr. McCoy wanted to fire him.  At a hearing, Mr. McCoy stated that he and his lawyer disagreed on trial strategy, with his lawyer insisting that he take a plea and not go to trial.  The court denied the motion as untimely.

Trial opened a month later.  During his opening statement, Mr. McCoy’s lawyer informed the jury “I’m telling you Mr. McCoy committed these crimes.”  He argued, however, that the evidence would show that his client suffered from such severe emotional issues that the jury ought to consider second degree murder.

Against the advice of counsel, Mr. McCoy testified.  Essentially, he testified that he had been framed.

The jury convicted Mr. McCoy of 3 counts of first degree murder.  Mr. McCoy was sentenced to death on each count.

Mr. McCoy appealed.  Among other things, he argued that he had been denied effective assistance of counsel and that his lawyer improperly conceded guilt over his objection. The Louisiana Supreme Court affirmed the convictions and death sentences.

In Vermont, Rule 1.2(a) of the Rules of Professional Conduct requires lawyers to “abide by a client’s decisions concerning the objectives of [the] representation.”  The rule goes on to state that “[i]n a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, and whether the client will testify.” Louisiana’s rule tracks Vermont’s.

To me, Mr. McCoy’s objective was to be found not guilty. His lawyer did not pursue that objective.  Indeed, the lawyer doesn’t dispute that. Here’s an excerpt from an affidavit that lawyer filed in one of the post-trial proceedings:

  • “I became convinced that the evidence against Robert McCoy was overwhelming ․ I know that Robert was completely opposed to me telling the jury that he was guilty of killing the three victims and telling the jury that he was crazy but I believed that this was the only way to save his life. I needed to maintain my credibility with the jury in the penalty phase and could not do that if I argued in the guilt phase that he was not in Louisiana at the time of the killings, as he insisted. I consulted with other counsel and was aware of the Haynes case and so I believed that I was entitled to concede Robert’s guilt of second degree murder even though he had expressly told me not to do so. I felt that as long as I was his attorney of record it was my ethical duty to do what I thought was best to save his life even though what he wanted me to do was to get him acquitted in the guilt phase. I believed the evidence to be overwhelming and that it was my job to act in what I believed to be my client’s best interests .”

Alberto Bernabe is a professor at John Marshall Law School.  Professor Bernabe teaches torts & professional responsibility. He’s also a regular on this blog’s #fiveforfriday Honor Roll.  Here’s a portion of a blog that Professor Bernabe posted last fall after SCOTUS granted cert in the McCoy case:

  • “In this case, the defendant, Robert Leroy McCoy, refused his lawyer’s suggestion to accept a plea deal, and objected when the lawyer informed him he planned to concede guilt.  He also protested at trial, after the lawyer conceded guilt during the opening statement.  According to an article in the ABA Journal, ‘the lawyer maintained the concession was necessary because he had an ethical duty to save McCoy’s life.’There is only one problem.  There is no such ethical duty.

    “The duty of the lawyer is to represent the client and this includes following the client’s instructions as to the goals of the representation.”

I tend to agree.

Per the ABA Journal, before the Supreme Court, the State of Louisiana “argued that lawyers should be able to ignore their client’s wishes in ‘a narrow class of death penalty cases’—when the client wants to pursue a strategy that is ‘a futile charade’ that defeats the objective of avoiding the death penalty.

Perhaps echoing Mr. McCoy’s argument, and as reported by The New York Times, Justice Kagan remarked “[t]here’s nothing wrong with what this lawyer did, if the goal is avoiding the death penalty.  The problem that this case presents is something different. It’s the lawyer’s substitution of his goal of avoiding the death penalty for the client’s goal.”

On the one hand, as a lawyer, it’s a dilemma I’d never want to face.  Indeed, “dilemma” is far too weak to describe the position in which the lawyer found himself.

On the other hand, should I ever be charged with a crime, I can’t imagine exercising my right to hold the government to its proof, only to have my own lawyer, against my express instruction, concede my guilt his opening statement.  It strikes me as the functional equivalent of my lawyer waiving my right to trial, waiving my right to testify, and pleading me out without my consent.  That’d be Kafka-esque.

Most media outlets that covered the argument reported that the Supreme Court appeared inclined to grant Mr. McCoy a new trial. However, as reported by Reuters,           “[t]he ruling could be a narrow one, with justices concerned about a broad decision that would limit the ability of lawyers to make strategic decisions during trials.”

I’m intrigued by one potential outcome: what if the Court holds that the lawyer reasonably, albeit erroneously, believed that the Constitution required him to concede his client’s guilt over the client’s objection? Is that an absolute defense to a 1.2(a) violation? Stated differently, wouldn’t we find it absurd for a lawyer to say something like “yeah, I know the Constitution required it, but it violates the ethics rules, so I didn’t do it.”

Or how about this – what if the lawyer’s gambit had worked?  Obviously doesn’t change the Rule 1.2(a) issue, but likely mitigates the sanction.  And, would the Court still be inclined to find ineffective assistance if Mr. McCoy had been convicted of 2nd degree murder and spared the death penalty?

I’ll revisit this matter when the Supreme Court issues an opinion.

 

Image result for images of us supreme court

 

Monday Morning Answers: Monday’s blue.

Friday’s questions are HERE.  The answers follow today’s honor roll.

HONOR ROLL

  • Karen AllenKaren Allen Law
  • Matthew AndersonPratt Vreeland Kennelly Martin & White
  • Alberto BernabeProfessor, John Marshall Law School
  • Bob FletcherStitzel Page & Fletcher
  • Bob Grundstein, Esq.
  • Anthony Iarrapino, Wilschek Iarrapino Law Office
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy, King Mum, JB Kennedy Associates
  • Aileen Lachs, Mickenberg Dunn Lachs & Smith
  • Shannon LambPratt Vreeland Kennelly Martin & White
  • Michael Lipson, Esq.
  • Kevin LumpkinSheehey Furlong & Behm
  • Pam MarshMarsh & Wagner
  • Lon McClintockMcClintock Law Offices
  • Jack McCullough, Project Director, Mental Health Law Project
  • Hal Miller, First American
  • Herb Ogden, Ogden Law
  • Robyn SweetCORE Registered Paralegal, Cleary Shahi  & Aicher

ANSWERS

Question 1

Which is doesn’t belong with the others?

  • A.   Substantially related matter
  • B.   Materially adverse interests
  • C.    Informed consent, confirmed in writing
  • D.  Whether to waive a jury trial, enter a plea, or testify

A, B, C are associated with Rule 1.9 and conflicts of interest involving former clients.  D, are the choices that Rule 1.2(a) leaves to the criminal defendant, not the defense lawyer.

As I mentioned, Rule 1.2(a) is at the core of a case that the U.S. Supreme Court heard last week. I will blog about it tomorrow.

Question 2

Lawyer represented Client.  Once the representation ended, Client gave Lawyer a gift.  Which is most accurate?

  • A.  Lawyer must not accept the gift
  • B.  Lawyer may accept the gift, but only if Lawyer handled the matter pro bono
  • C.  Lawyer may accept the gift, especially if it’s a simple gift such as a holiday present or token of the client’s appreciation.  See, Rule 1.8, Comment [6].
  • D.  Mike, objection.  The premise of this question is pure fantasy.

Question 3

Lawyer also works as a mediator.   Lawyer mediated a dispute between Brady & Bortles.  The mediation did not resolve the dispute. Now, Bortles wants to hire Lawyer in the matter.

True or False: even with Brady’s informed consent, the rules prohibit Lawyer from representing Bortles.

False.  To my surprise, see Rule 1.12(a).  I’d urge caution here.

Question 4

It is not uncommon for me to receive an inquiry in which a lawyer asks what can be included in a particular type of motion.  For example:  “Mike, I’m thinking of filing a motion __  _______________, but don’t want to disclose any confidences.”

Typically, I reply with something like: “I think it’s best to cite one of the reasons that appears in the rule, then, if asked for more by the court, answer, but only by providing the information necessary to respond to the court’s specific question. And, even then, the motion doesn’t give you license to start blabbing about the case.”

What type of motion?

A motion to withdraw.  See, Rule 1.16.

Question 5

For purposes of this column, #102 is sufficiently close to ’02, as in 2002.

This week, the United States Supreme Court heard an appeal of a criminal case in which defense counsel conceded a client’s guilt over the client’s objection.  Now, the client is on death row.  Although styled as a 6th Amendment, effective assistance case, it also involves ethics.  Rule 1.2(a) makes it very clear that the decision whether to plead guilty belongs to the client.  I intend to blog on the case, either tomorrow or next week.

In any event, in 2002, Halle Berry won the Academy Award for Best Actress for her role as the widow of a man who had been executed for his crime.  The movie also starred Billy Bob Thornton, Heath Ledger, Peter Boyle, Sean Combs, and Mos Def.

Yes, I realize that I just broke last week’s promise never again to reference Puffy.

Anyhow, name the movie.

See the source image

 

Five for Friday #102: It’s Friday I’m In Love

Welcome to #102!

You might recall that I used last week’s Mix Tape Edition to share a story about listening to DC101, an FM rock station in Washington D.C.  My post drew a surprising response.

You see, DC101 wasn’t the only station in town. It shared the airwaves with WHFS, an iconic progressive rock station.  And, my blog apparently attracts an inordinate number of readers who not only listened to D.C. FM rock in the 1990’s, but who preferred WHFS to DC101.

I heard from them.

Here’s an example: a Linkedin post in which a reader (who shall remain anonymous) shared last Friday’s quiz:

IMG_0859.jpg

I LOVE the share and certainly can’t quibble with the first half of the post.  (Worst case, it’s mere puffery.)  But “WHFS 102.3 was much better” is a clear violation of the attorney advertising rules!! It’s a qualitative comparison that can’t be substantiated.  See, Rule 7.2, Comment [3].

Alas, let’s not get into which station was better. In fact, I liked WHFS.  Not only that, it’s original spot on your FM dial is perfect fodder for the this week’s (#102) column.  Check it out:

 

Image result for whfs logo

Disclaimer: by the time I got to D.C., it had changed to 99.1.

In any event, as I said, I liked WHFS.  Really, it was my first exposure to alt/progressive rock.

By the way, in last Monday’s post, I mentioned HFStival. Check out the festival lineup over the years. Is there a more sneaky-underrated festival in history?  Some of those lineups are legit!

I’m curious – of the HFStivals, if you could only attend one, which would you choose? Personally, I’m having trouble picking between the shows that took place from 1998-2002.

See the source image

Anyhow, thinking about HFS made me realize one of the most glaring omissions in the history of this blog.

I’ve never referenced The Cure.

It’s an omission that, quite frankly, raises a substantial question as to my fitness as a blogger, not to mention one who uses a “fiveforfriday” to connect legal ethics to pop culture.

I’m not positive, but if I could borrow Bill & Ted’s phone booth (or Doc Brown’s flux capacitor) and travel back to the first time that I heard Friday, I’m in Love, I’d wager that young me would be listening to HFS.  It is somewhat embarrassing that the song has never been referenced in this column.

So, in honor of my HFS fans, I’ll end with this:

I don’t care if Monday’s blue
Tuesday’s gray and Wednesday too
Thursday I don’t care about you
It’s Friday I’m in love

Onto the quiz!

Rules

  • None.  Open book, open search engine, text/phone/email-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
  • Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

Which is doesn’t belong with the others?

  • A.   Substantially related matter
  • B.   Materially adverse interests
  • C.    Informed consent, confirmed in writing
  • D.  Whether to waive a jury trial, enter a plea, or testify

Question 2

Lawyer represented Client.  Once the representation ended, Client gave Lawyer a gift.  Which is most accurate?

  • A.  Lawyer must not accept the gift
  • B.  Lawyer may accept the gift, but only if Lawyer handled the matter pro bono
  • C.  Lawyer may accept the gift, especially if it’s a simple gift such as a holiday present or token of the client’s appreciation.
  • D.  Mike, objection.  The premise of this question is pure fantasy.

Question 3

Lawyer also works as a mediator.   Lawyer mediated a dispute between Brady & Bortles.  The mediation did not resolve the dispute. Now, Bortles wants to hire Lawyer in the matter.

True or False: even with Brady’s informed consent, the rules prohibit Lawyer from representing Bortles.

Question 4

It is not uncommon for me to receive an inquiry in which a lawyer asks what can be included in a particular type of motion.  For example:  “Mike, I’m thinking of filing a motion __  _______________, but don’t want to disclose any confidences.”

Typically, I reply with something like: “I think it’s best to cite one of the reasons that appears in the rule, then, if asked for more by the court, answer, but only by providing the information necessary to respond to the court’s specific question. And, even then, the motion doesn’t give you license to start blabbing about the case.”

What type of motion?

Question 5

For purposes of this column, #102 is sufficiently close to ’02, as in 2002.

This week, the United States Supreme Court heard an appeal of a criminal case in which defense counsel conceded a client’s guilt over the client’s objection.  Now, the client is on death row.  Although styled as a 6th Amendment, effective assistance case, it also involves ethics.  Rule 1.2(a) makes it very clear that the decision whether to plead guilty belongs to the client.  I intend to blog on the case, either tomorrow or next week.

In any event, in 2002, Halle Berry won the Academy Award for Best Actress for her role as the widow of a man who had been executed for his crime.  The movie also starred Billy Bob Thornton, Heath Ledger, Peter Boyle, Sean Combs, and Mos Def.

Yes, I realize that I just broke last week’s promise never again to reference Puffy.

Anyhow, name the movie.

 

Conflicts: In some cases, appearances matter.

Last week, the Vermont Supreme Court issued an opinion in which it addressed this question:

  • “whether a court may terminate parents’ parental rights following a hearing in which, over an objection, the State was represented by the same lawyer who had previously represented the children in the same matter.”

Short answer: no.  The opinion is here.

The Court’s opinion relies on an analysis of Rule 1.9 of the Vermont Rules of Professional Conduct.  As such, I think it’s a natural for this blog. That being said, as was the Court, I want to be crystal clear: I am not suggesting that the State’s lawyer should face a disciplinary sanction.

By way of background, of the inquiries I receive, no topic comes up more often than conflicts of interest.  I rarely, if ever, say “yes, you have a conflict” or “no, you don’t.” Rather, I cite lawyers to the relevant rules, comments, and opinions, then leave the decision to the lawyer.

Similarly, if a lawyer asks whether opposing counsel has a conflict, I never provide a definitive answer.  It’s impossible to do so without hearing from opposing counsel. Again, I cite the lawyer to the relevant rules, comments, and opinions. I also offer to discuss the matter with opposing counsel.

That being said, when talking about conflicts, it’s not uncommon for me to say two things:

  1. the rules prohibit actual conflicts, not the appearance of a conflict; and,
  2. even if you decide you don’t have a conflict, do you want to deal with the appearance? The other side will almost certainly file a motion to disqualify or a disciplinary complaint.  Either can be costly and aggravating.

Which gets me to the Court’s recent opinion: at least in TPR cases, appearances matter.

I don’t want to bore you or make this blog too long.  Plus, the Court writes better than I do anyway.  So, I suggest reading the opinion.

Still, here’s a synopsis:

  • throughout a CHINS proceeding, Lawyer represented 4 children;
  • then, Lawyer represented the State in the subsequent TPR;
  • a guardian ad litem consented to Lawyer representing the State;
  • citing Rule 1.9, Mother’s attorney notified the trial court of concerns about Lawyer’s appearance for the State;
  • Lawyer argued that there was no conflict due to the State & children both taking the position that termination was warranted and, further, that the guardian had waived any conflict;
  • the trial court had “no concern” given that the State and children had the same interest (termination) and that the guardian had consented to Lawyer appearing for the State;
  • parents’ rights were terminated with respect to 3 of the children; and,
  • parents appealed.

When a lawyer has formerly represented a client in a matter, Rule 1.9 prohibts the lawyer from representing anyone in the same or a substantially related matter whose interests are materially adverse to the former client’s.  Exception: the former client gives informed consent that is confirmed in writing.

On appeal, the Court “decline[d] to parse the State’s and children’s specific positions in this case to evaluate whether they are actually materially adverse.”  Rather, the Court noted that:

  • “given the myriad issues in play in juvenile proceedings, the potentially dynamic nature of the parties’ positions, and the difficulty in discerning the children’s interests, determining whether the parties’ interests are truly aligned is a potentially complex undertaking.”

Thus, the Court concluded:

  • “as a matter of law that the potential conflict inherent in representing different clients in the same matter should be treated as an actual conflict for the purposes of determining whether counsel in an abuse-and-neglect case should be disqualified from subsequent representation of a different party in that same matter.”

In essence, then, the Court established a bright-line rule regarding disqualification in abuse & neglect cases, but recognized that the bright-line rule “is broader than the strict requirements of the ethical rule as applied in disciplinary proceedings.”

Finally, the Court noted that a lawyer’s prosecution of a TPR after having represented the children in the same matter “undermines the integrity of the judicial process . . . creates an appearance of impropriety and may be inconsistent with the lawyer’s role as a representative of the State – factors that are particularly significant in the context of abuse-and-neglect proceedings.”

In short, for disqualification purposes in abuse & neglect cases, appearances matter.

Image result for appearances matter

 

 

Remember that time you didn’t know your wife had been disbarred?

Vermont is a great place to live & practice law.  But, with practicing in a small state comes lots of knowledge.

I mean, seriously.  There are places in the country where it’s tough to remember that your wife had been disbarred.

The ABA Journal has the story of an Illinois lawyer who was “censured for failing to keep disbarred wife out of his law office.”  I don’t want to get into the nitty gritty.  Suffice to say, it was a run of the mill case involving a lawyer whose lawyer/wife pled guilty to stealing $2.3 million from clients.

Apparently, the lawyer did not stop his wife from continuing to practice law after she was disbarred. So, the Illinois Attorney Regulation & Disciplinary Commission charged him with enabling her to do so, as well as with failing to supervise a non-lawyer assistant who enabled her to do so.

I guess the old “i tried, but my assistant let my wife in” defense didn’t work.

But I digress.

What makes me thankful to practice law in Vermont is the lawyer’s answer to the disciplinary charges.

Per the Legal Profession Blog, when initially charged by disciplinary authorities with letting his disbarred wife continue to work, the lawyer’s formal answer was:

  • “Admitted, subject to the qualification that [lawyer] lacks sufficient information to admit or deny when he learned that his wife . . . had been disbarred.”

Business must be good in the big cities when your wife can get disbarred and it doesn’t even register.

Archer