Monday Morning Answers #105

I’m not positive, but methinks this week’s is the largest Honor Roll ever!

Friday’s questions are HERE.  Thanks to all who sent in responses.   I especially enjoyed hearing & reading so many wonderful stories of grandmothers & grandfathers who sound so similar to mine.  Today’s answers follow the honor roll.

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Honor Roll

Answers

Question 1

Each of the following words is in the name of its own rule. Three of the rules involve the same type of ethics issue.   Which is associated with a different ethics issue than the other three?

  • A.  Prospective
  • B.  Meritorious
  • C.  Current
  • D.  Former

Rule 3.1 governs meritorious claims.  Prospective, Current, and Former are types of clients for the purposes of the conflicts rules.

Question 2

Attorney called me with an inquiry.  She said “Mike, I have some questions about mental impressions, as well as internal notes and memoranda.”  Most likely, what issue did Attorney call to discuss?

  • A.  The duty to report a client’s fraud
  • B.  The duty to act competently to safeguard client data stored in the cloud
  • C.   Duties to a client who suffers from a diminished capacity
  • D   File delivery & the question of “what is the file?”

I might have phrased this one poorly.  Option “A” certainly could happen, as a lawyer’s mental impressions and notes might include information that must be revealed pursuant to Rule 1.6(b).   However, here, I was getting at whether an attorney’s notes and mental impressions are part of “the file.”  For more on this topic, including a link to an ABA Formal Advisory Opinion, see this post.

Question 3

Fill in the blank. (two words)

Lawyer called with an inquiry.  Lawyer said “client said she’s fine with it, so do you think that I have ________  ___________?”

I replied “Well, ‘she’s fine with it’ isn’t exactly the definition of _________   _________.  Per the rules, it’s an agreement to a proposed course of conduct after you’ve adequately communicated & explained the material risks, and reasonably available alternatives to, the proposed course of conduct.”

Informed Consent, Rule 1.0(e).

Question 4

Attorney called me with an inquiry.  Attorney was concerned that her she and her firm had been “pwned.”  What did we discuss?

Whether Attorney & Firm had:

  • A.   suffered a breach of electronically stored client data.
  • B.   fallen for a trust account scam.
  • C.   violated the rules while responding to a negative online review.
  • D.  been duped by an adversary who intentionally posted “fake evidence” on a social media platform.

Hello gamers! I wasn’t familiar with the term “pwned” until I read the ABA Journal’s cybersecurity tips.

Question 5

 

Five for Friday #105

Welcome to # 105!

Today I’m going to write about Eddie Bonneau.   Eddie was my grandfather, my mom’s dad.  I called him “Papa.”

How am I tying this to #105?  Good question.

My grandfather isn’t 105.  His birthday was February 1 and, if still alive today, he’d have just turned 102. It only feels like 105 years since I’ve seen him.  So there’s that.

Plus, using a prop to which I frequently resort in this column, the final digit in 105 is, well, 5.  And VT Route 5 runs through Bradford, which is where my grandfather lived for the final 50 (or so) years of his life.

Good enough for me.

I’m going to share two stories about Papa.  But, first, some background.

Eddie Bonneau was born in Chicago.  Somehow, his family ended up in Lebanon, New Hampshire.  Papa dropped out of Lebanon High School after his sophomore year.  Like many of French-Canadian descent, he went to work in a woolen mill.

When he was 21, he married my grandmother.  She was 17 and had recently graduated from high school.  She was the bread-winner: Nanny made $7 per week, Papa $5.

Within 10 years, they’d had 4 kids and moved across the river & up the valley to Bradford, Vermont.  My grandfather opened a grocery store.

The grocery store lasted only until the early 1950’s.  My grandfather was deep in debt. His creditors took over.  Papa decided against bankruptcy, concluding that it was morally and ethically wrong.

Over the next few years, he and my grandmother had 2 more kids.  For the rest of his life, my grandfather worked here and there: some jobs as a door-to-door salesman, one as a butcher, another as a clerk at the 5 & Dime.

I remember him as being the smartest guy I knew. He didn’t talk much, but when he did, you listened. What he didn’t have in school smarts, he had 100 times over in common sense.  He was a voracious reader & keen follower of current events.

Papa loved cribbage.  And cards.  He dutifully played endless rounds of pinochle with my grandmother and various family & friends, even though my grandmother usually whupped him, no matter their respective partners.

Papa wasn’t active.  I don’t think I ever saw him in anything but dark pants and a button-up white shirt.  That’s how he dressed even when he & my grandmother took us to Lake Winnipesaukee, where he’d sit on a bench reading a newspaper while we swam.  Actually, once he wore his clothes off the bench & into a boat.  We were at Niquette Bay on Lake Champlain.  He helped me catch my first fish.  A little pumpkinseed.

Besides not being active, Papa smoked.  He was an equal opportunity smoker.  He smoked for breakfast, he smoked for lunch, and he smoked for dinner.  He smoked on the bench at the beach.  I vividly recall mornings at his breakfast table, where we’d pretend not to hear his daily coughing fits that he thought the wafer-thin bathroom walls muffled.

Emphysema eventually killed him in 1994.

Before it did, my brother and I have an enduring memory of visiting our grandparents for a family event, only to have Papa disappear. We went to find him.  He had wheeled his oxygen tank to the barn to sneak a cigarette.  By then we were in our late teens, maybe 20’s.  We didn’t feel compelled to make a mandatory report to our grandmother, mom, or aunts.

You see, one thing Papa loved, but lacked, was quiet.  My mom has 4 sisters and a brother. Unlike my grandfather, one might accurately describe my grandmother and her 6 children as the sharing type.  As in, they’ve always shared pretty much every thought that ever entered their heads.  So if Papa wanted a smoke in the quiet of the barn, who were my brother and I to stop him?

Now, the stories.

First, like I said, my grandfather was super smart.  And he was proud.  Not vain, but proud. I visited my grandparents during the holiday break of my first year in law school. Once we sat down, he said, after a long drag, “so Mister, tell me a law.”

I had no ready answer. He wasn’t impressed.

Next, for special occasions, my grandmother would send me, my brother, and our cousins checks.  Sometimes $3, sometimes $5.  She’d include a card with a note to “buy yourself an ice cream!”  Once, in law school, I lost one of my $3 checks. I was too afraid to tell her, so I let the Irish side of me take over.  Meaning, I just ignored it, figuring that ignoring it would make the issue go away.

Epic fail.  Eventually, my mother called to ask why I hadn’t cashed Nanny’s check. I had to fess up.  Again, Papa wasn’t impressed with someone who cared so little about $3 as to lose a check.

A few months later, Nanny & Papa gave me $300 as gift for my graduation from law school.  For people like them, it was an astonishingly staggering amount.  Think about it: it’s 25 times as much as their combined weekly income as newlyweds. I cashed the check immediately.

About a month later, I was back in Vermont and went to visit my grandparents. First words out of Papa’s mouth: “guess you didn’t lose that one.”

I don’t how to end this post.  I’m not sure how it ties to 105, other than it doesn’t.  I just felt like writing about my grandfather.  I miss him.  He was a good man. He had nothing, but made sure that his kids had something, which, besides my parents, is one of the main reasons that I have anything.

Thanks for indulging me.

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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

Each of the following words is in the name of its own rule. Three of the rules involve the same type of ethics issue.   Which is associated with a different ethics issue than the other three?

  • A.  Prospective
  • B.  Meritorious
  • C.  Current
  • D.  Former

Question 2

Attorney called me with an inquiry.  She said “Mike, I have some questions about mental impressions, as well as internal notes and memoranda.”  Most likely, what issue did Attorney call to discuss?

  • A.  The duty to report a client’s fraud
  • B.  The duty to act competently to safeguard client data stored in the cloud
  • C.   Duties to a client who suffers from a diminished capacity
  • D   File delivery & the question of “what is the file?”

Question 3

Fill in the blank. (two words)

Lawyer called with an inquiry.  Lawyer said “client said she’s fine with it, so do you think that I have ________  ___________?”

I replied “Well, ‘she’s fine with it’ isn’t exactly the definition of _________   _________.  Per the rules, it’s an agreement to a proposed course of conduct after you’ve adequately communicated & explained the material risks, and reasonably available alternatives to, the proposed course of condcut.”

Question 4

Attorney called me with an inquiry.  Attorney was concerned that her she and her firm had been “pwned.”  What did we discuss?

Whether Attorney & Firm had:

  • A.   suffered a breach of electronically stored client data.
  • B.   fallen for a trust account scam.
  • C.   violated the rules while responding to a negative online review.
  • D.  been duped by an adversary who intentionally posted “fake evidence” on a social media platform.

Question 5

 

the-quiz

 

ABA Journal Provides Cybersecurity Tips

Rules 1.1 and 1.6 operate to impose a duty to act competently to safeguard information relating to the representation of a client.  The duty includes taking reasonable steps to protect against the unauthorized or inadvertent disclosure of (or access to) electronically stored client data.

In 2018, the ABA Journal will publish a year-long series on cybersecurity.  Last month, and as part of the series, the ABA Journal posted 5 cybersecurity steps you should already be taking.  I recommend it.  A quick summary:

  1. Check to see if you’ve been pwned.
  2. Consider a password manager.
  3. Improve the strength of your passwords.
  4. Use 2-factor (or multi-factor) authentication.
  5. Encrypt your devices.

Again, read the post.  It’s not long, and the tips are as simple as they are valuable.

Finally, don’t forget that the Vermont Bar Association is offering its first ever Tech Day on May 16.  It’s shaping up to be a fantastic CLE.

cyber-security

Concerns over Client Confidences Spur ABA to Oppose Bill in Senate Judiciary

Later today, the Senate Judiciary Committee will hold a hearing related to S.1454, the True Incorporation Transparency for Law Enforcement (“TITLE”) Act.  TITLE is an anti-money laundering bill.  Per the text, the Act’s purpose is:

  • “to ensure that persons who form corporations in the United States disclose the beneficial owners of those corporations, in order to prevent the formation of corporations with hidden owners, stop the misuse of United States corporations by wrongdoers, and assist law enforcement in detecting, preventing, and punishing terrorism, money laundering, tax evasion, and other criminal and civil misconduct involving United States corporations, and for other purposes.”

Last week, the ABA issued a press release announcing that ABA President Hilarie Bass sent a letter to the Senate Judiciary Committee in which she expressed concerns over provisions in the proposed legislation.

The letter is here.  The ABA Journal has the full story here.

Initially, President Bass expressed concern that TITLE “would improperly subject many lawyers and law firms to the anti-money laundering (AML) and suspicious activity reporting (SAR) requirements of the” Bank Secrecy Act.”  She argued that “[t]his would undermine the attorney-client privilege, the confidential lawyer-client relationship, and traditional state court regulation of the legal profession.”

Citing Rule 1.6 of the ABA Model Rules of Professional Conduct, and equivalent state rules, President Bass submitted that:

  • “Such aggressive reporting requirements may be appropriate for banks or certain other financial institutions, but requiring lawyers to report confidential client information to the government—under penalty of harsh civil and criminal sanctions—is plainly inconsistent with their ethical duties and obligations established by the state supreme courts that license, regulate, and discipline
    lawyers. These requirements would also seriously undermine the attorney-client privilege, the confidential lawyer-client relationship, and the right to effective legal representation by discouraging full and candid communications between clients and their lawyers.”

President Bass went on to cite other concerns, including “costly, and unworkable new regulatory burdens on small businesses, their agents who help them form corporations or LLCs, and the states.”

Might be something to keep an eye on to the extent that your practice includes business formation and advice to business entities.

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Service via Instagram

It has been over two years since I first blogged on tech competence.  As regular readers know, my opinion is that competence includes tech competence.

Here’s the latest:  Above The Law and Canadian Lawyer have the story of a Toronto lawyer who received permission to serve an adversary via direct message on Instagram. The lawyer made the request after unsuccessful attempts to serve the defendant in person and by e-mail.

Remember: as I’ve often said, the rules don’t require lawyers to have or to use social media platforms.  However, my position is that Rule 1.1’s duty of competence includes providing clients with competent advice as to the impact (or not) that their social media platforms will have on any particular matter.  This includes the impact of information that clients make available on social media, and, as today’s story illustrates, the impact of merely having a social media account through which messages can be delivered.  For instance, imagine a client’s claim never being brought for no other reason than you didn’t think to check whether the defendant could be “found” on social media.

@vtbarcounsel

See the source image

Five for Friday #104: Finally.

Welcome to #104!

No, I’m not going to write about Phineas & Ferb’s summer vacation.  Even if it’d be hilarious to inexplicably devote a second column to Bowling for Soup. Also, no Super Bowl comments, except “Go Eagles.”  Any other sentiment is like rooting for the Galactic Empire and its Death Star to squash Luke, Leia, and the Rebel Alliance.

You see, today, the 1 doesn’t matter.  It’s the 04.

This post will be the final on my life as a Red Sox fan.

Like 75, 78, and 86,  I associate 04 with the Sox.  And, oddly, I associate what should have been the happiest moment of my Sox fandom with the end of any real joy in rooting for them.

The setting: October 2004, Boston Red Sox v. New York Yankees in a best-of-7 American League Championship Series. New York won the first 3 games, with the third a shellacking that prompted The Boston Globe’s venerable Bob Ryan to write of the Sox:  “They are down, 3–0, after last night’s 19–8 rout, and, in this sport, that is an official death sentence. Soon it will be over, and we will spend another dreary winter lamenting this and lamenting that.”

I felt the same.  I mean, we were only a year removed from Grady Little’s disastrous decision to let Pedro Martinez pitch the 8th inning of Game 7 of the 2003 ALCS – a game (and series) that the Sox lost in typically gut-wrenching fashion. In fact, in ’04, I so strongly agreed with Ryan’s post-Game 3 assessment that, initially, I opted against accompanying my brother to Boston for Game 4.  I wanted no part of an inevitable series-clinching win by the Yankees.

But I also suffer from Irish-Catholic guilt.  And, the only thing worse than witnessing a New York win would be the wrath of my mother for leaving my little brother to make the drive to & from Boston all by himself.  Even though he was 35.   So, I went.

Believe it or not, we didn’t have tickets.  Back then, there was a bar at Fenway called the Crown Royal Club. The main entrance was on the street, and you could enter without having a game ticket, but the bar was part of Fenway.  My brother knew a woman who worked there.  She told him she’d get us into the game.

Yeah, right.  I fully expected we’d end up watching on tv from the bar.

Wrong.

After milling about the Crown Royal Club for a bit, some guy appeared and signaled us to follow him.  He escorted us thru the kitchen to a nondescript door.   As we entered, I hoped it opened back to Landsdowne Street and not to a jail cell.  Shockingly, it opened into Fenway Park.  We were in! Not having tickets, Patrick and I watched from spots we staked out in the Standing Room Only section.

The rest is history.  I won’t bore you with the details.  Suffice to say, Boston tied the game in the bottom of the 9th in what is my favorite sequence in sports history. I simply cannot describe the noise or the unbridled joy that rocked the stadium as Dave Roberts slid safely home.

At that moment, I don’t know if we expected the Sox to win.  My guess is that most of Red Sox Nation thought it nothing more than a cruel prelude to another heart-break.  But, for a fleeting moment, we’d landed a punch square to the mighty Yankees’ collective nose.  And we were going to let it soak in before they recovered to knock us out.

But they didn’t.  Boston won.  Not only the game, but, miraculously, the next 3 games, and the World Series that followed.  The curse had officially ended.  They’d win the World Series again in 2007 and 2013.  (Notably, my brother went on to be one of the final 25 candidates for President of Red Sox Nation.)

Am I happy about the 3 titles?  Of course.  But, for whatever reason, I miss the fan that I was that day in ’04 when the First Brother and I drove to Fenway without tickets.

Back then, as Sox fans, all we had was hope.  Of course, it was a hope tempered by a dread born of experience.  Not unlike Charlie Brown steadfastly trusting Lucy not to yank the ball away, we annually invested nearly all of our emotional energy in a baseball team that, as it had since 1918, regularly found new & innovative ways to devastate its fans.

Occasionaly there were  moments of pure joy on the road to devastation.  That was the Dave Roberts moment.  The utter glee at landing a punch that staggered the bully before he knocked you into oblivion.

I miss those moments.

My good friend JJ is Hand Of Bar Counsel, this blog’s official King in the East, and Lord Protector of House Badger.  He’s also a huge Sox fan.  As he told me yesterday, now, it’s house money, not our hearts & souls.  Not only that, in a way, we’ve become the Yankees.

He’s right.  Sure 3 championships in 10 years is great.  But, this year, I didn’t even take the afternoon off to watch the Red Sox playoff games on TV.  Try to explain that to the me who cried in 75, 78, and 86, and who drove to Boston in ’04, without tickets, to watch a game we’d surely lose.

For me, as a Sox fan, it’ll never be better than that day in ’04 when we didn’t have titles or a massive payroll, but we had the pure joy of momentarily staggering the Yankees before they knocked us out yet again.

Only they didn’t.  And, in a bizarre way, I wonder if I’d be happier if they had.

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

Under the rules, which is treated differently from the others?

  • A.   Client intends to commit a criminal act that Lawyer reasonably believes is likely to result in the death of someone other than Client;
  • B.   Client intends to use Lawyer’s services to commit a criminal act that is reasonably certain to result in substantial injury to the financial interests of another;
  • C.   Client intends to commit a criminal act that Lawyer reasonably believes is likely to result in substantial bodily harm to Client.
  • D.  Trick question.  The rule treats them all the same.

Question 2

Fill in the blank.  (2 words)

”                             are not prohibited in domestic relations matters which involve the collection of (i) spousal maintenance or property division due after a final judgment is entered; or (ii) child support and maintenance supplement arrearages due after final judgment, provided that court approves . . .”

Question 3

Lawyer called me with an inquiry. I listened, then said “yes, for the sole purpose of paying service charges or fees on the account, and only in an amount necessary for that purpose.”

What did Lawyer call to ask?

Question 4

Lawyer represents Client and, in order to act, needs Client’s “informed consent, confirmed in writing.”

Lawyer calls Client.  Client gives informed consent over the phone, but does not provide it in writing.  Lawyer promptly transmits to Client a writing that confirms Client’s spoken informed consent.

For the purposes of the rules, has Client provided “informed consent, confirmed in writing?”

Question 5

A timely question.

Okay campers, rise & shine, and don’t forget your booties cuz it’s coolllllddd out there today!

You’re an attorney who has been assigned to represent Phil Connors.  Phil is a weatherman who has been charged with simple assault.  He allegedly punched Ned Ryerson in the face.

Phil tells you that he doesn’t remember much about Ryerson, but that the two went to high school together.  The State’s discovery reflects that Ryerson, or “Needlenose Ned,” did the whistling-belly-button trick at the senior talent show, and even dated Phil’s sister until Phil told him not to.  Bing!

Phil tells you that he hasn’t seen Ryerson in years.  However, lately, they’ve run into each other often on the street.

As a competent and diligent lawyer, you argue to the prosecutor that your client isn’t a criminal, but a Renaissance man!  After all, he’s very recently learned how to speak French, play piano, and carve ice sculptures.

What movie are you in?

Bonus: what song does your client wake to every morning?

the-quiz

 

 

 

 

 

 

File Retention: How long?

Yesterday, I urged lawyers to resolve to deliver the file.  The post links to ABA Formal Opinion 471, an opinion that addresses the question “what is the file?”

A Twitter follower noted that natural follow-up to yesterday’s blog is one that addresses file retention.  How long must a lawyer keep a closed file?

It’s a common question.  To paraphrase another Irish guy, it’s not uncommon for me to hear a frustrated lawyer say something like:

  • I can’t believe the files in here.  I can’t close my eyes and make them disappear!  How long? How long must I sing this song? How long? How lonnnnnnnggggg……?

I’ll cut to the chase: I don’t have a good answer for you.  I’ll do my best.  But, I won’t be offended if you finish this post frustrated that you still haven’t found what you’re looking for.

Again, as I stressed yesterday, Rule 1.16(d) makes it clear that the duty to deliver the file kicks in upon the termination of the representation.  Delivering it moots the question of how long to keep it.  Of course, you’d be well-served to keep a copy for yourself, if only to defend against a potential disciplinary complaint or malpractice claim.

Once delivered, the only retention requirement in the rules appears in Rule 1.15(a)(1): records of funds & property must be maintained for 6 years from the termination of a representation.  The file is client property.  Thus, some jurisdictions have interpreted the rule to require lawyers to maintain a record of what happened to client files.  Even if not affirmatively required by the rule, keeping a disposition log is a good idea.

Now the hard part: what about the file that, for whatever reason, isn’t delivered upon the termination of the representation?

That’s a question that we haven’t answered.

Twenty years ago, the VBA’s Professional Responsibility Committee issued advisory opinion 97-08.  Here’s the synopsis:

  • “A lawyer must exercise discretion in determining the necessary length of time for the subsequent retention or disposition of a client’s file. The contents of certain files may indicate the need for a longer retention period than do the contents of files of similar age based on their relevance and materiality to situations which may foreseeably arise. Moreover, in disposing of a client’s files, a lawyer should protect the confidentiality of its contents. If possible, notice may be given the client as to the date of disposition, affording the client the opportunity to take possession of all
    or part of the material in the file.”

The VBA Opinion is consistent with the general consensus that “it depends.”  Three years ago, the Kentucky Bar Association’s Legal Ethics Opinion 15-01,  noted that the prevailing view is that a reasonable period to retain a file is between 5 and 10 years.

I understand that one-size doesn’t fit all and that, with closed client files, “it depends.”  Still, I’d like to provide relief to lawyers who’ve run out of physical & electronic storage space, or who simply can’t afford to maintain it any longer.

As I mentioned yesterday, I’ve asked the Professional Responsibility Board to consider a rule that would define “the file.”  The same rule would authorize lawyers to destroy files after 6 years, subject to certain exceptions.  The rule that the Board is considering is quite similar to this rule that was proposed last year in Massachusetts.

Until then, here are two things that I think are critical:

  1. If you haven’t already done so, build a retention policy into your standard representation agreement; and,
  2. Check with your carrier before destroying or disposing of a closed file.

Aside: real estate lawyers, #2 includes checking with your title insurer.

Finally, and as critical as the two thoughts expressed above, whether you pick a 6, 7, or 10-year retention policy, remember that there are some things that should never be destroyed, or that should be retained beyond your standard retention period.  Some (non-exhaustive) examples:

  • documents provided by the client;
  • anything that it’s reasonable to conclude the client might need;
  • files with original wills, deeds, trust documents, and estate planning documents;
  • criminal files;
  • files with pre-nups,
  • files for clients who had young children when support & custody were finalized;
  • files for which the statute of limitations on malpractice has yet to run;
  • files in which the client was a minor, and will remain a minor beyond the expiration of your file retention period;
  • adoption files;
  • Corporate books & records.

This list goes on.

I don’t want to make this blog too long.  If you have questions about file retention, call me.  If you want me to come meet with you and others at your firm, I will.  Until then, a few closing thoughts:

  • generally, it’s okay to store closed files electronically;
  • when disposing of or destroying files, do so in a manner that competently maintains the confidentiality of the client’s information.

Some other resources:

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