Month: March 2018

Five for Friday #111

Michael 4 Comments

Welcome to #111!

111 is probably how much my Dad’s blood pressure rose during the Sox game yesterday.  As they say, hope springs eternal, or at least until your bullpen blows its first game.

But it’s nothing that ice cream can’t cure! And that’s what 111 reminds me of – ice cream.

Wait, when I said it’s nothing that ice cream can’t cure, I meant the Red Sox part, not the high blood pressure part.  Dad! Stick to your pills! I repeat: do not treat high blood pressure with ice cream!

When my brother and I were kids, we basically had 4 channels.  Channel 3, Channel 5, and Channel 22 were the local network affiliates. And then there was our favorite: WPIX.  Channel 11 out of New York City.

I don’t really remember exactly what we watched on Channel 11.  Definitely Batman and Magic Garden (yes, THAT Magic Garden).  And cartoons.  I specifically remember Mighty Mouse, Felix the Cat, and Tom & Jerry.   Also, both of us are positive that Channel 11 was our source for half-hour upon half-hour upon countless half-hours of syndicated sit-coms.  Indeed, last night, as we tried to remember which shows we watched there, we mentioned several:  Brady Bunch, Gilligan’s Island, I Dream of Jeannie, Hogan’s Heroes, and The Odd Couple.  Was each on WPIX? Probably not.  But in our minds, if it’s a good show, it was once in syndication on Channel 11.

I do remember this: we watched Channel 11 all the time. Thank god for parents who went to work and didn’t get sitters in the summer.  Those were the days.

So what’s this got to do with ice cream?

The commercials.  Does anyone remember Carvel Ice Cream?

I’m pretty sure that 11 out of every 10 commercials on WPIX were for Carvel. And let me tell you, they worked.  I spent years craving, craving, and craving an ice cream sheet cake or, even better, a Lollapalooza.  But NYC was so far away.  And the Yankees played there.

Then it happened.

A Carvel’s franchise opened out on North Avenue.  Alas, we lived by the airport, so we rarely went. I mean, it had to be at least 5.5 miles from home.  Meanwhile, Al’s was a half-mile away, Hojo’s not much further. Damn gas prices in the 70’s.

But we went a few times! I definitely got my Lollapalooza. And I’m pretty sure that an ice cream cake loaded with sprinkles appeared at a birthday party or two.

Yet, it’s not a sheet cake or Lollapalooza that remains etched in my brain.  It’s the memory of the taste of a Carvel’s orange creamsicle.  You might say I haven’t lived, but, to young me, no better food had ever been invented. And WPIX 11 was the only reason I ever ended up tasting it.

WPIX.  Commercials.  The memory of an orange creamsicle.   That’s why 111 makes me think of ice cream.

P.S: speaking of Magic Garden, my brother reminded me that Carole graduated from UVM.

Onto the quiz!

Rules

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Even question 5!
  • 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

What’s Vermont’s rule?  A lawyer shall:

  • A.  Charge a reasonable fee.
  • B.   Not charge an unreasonable fee.
  • C.   Not charge or collect an unreasonable fee.
  • D.   Not make an agreement for, charge, or collect an unreasonable fee.

Question 2

Fill in the blank.

The third comment to a particular rule defines __________ ___________ as involving “the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representationw would materially advance the client’s position in the subsequent matter.”

It’s the definition of:

  • A.  when matters are “substantially related”
  • B.   what type of information qualifies as a “client confidence”
  • C.   a concurrent conflict of interest
  • D.  a non-waivable conflict of interest

Question 3

Which is different from the others?

  • A.  Friending an adverse & represented party.
  • B.  Reviewing a potential juror’s Twitter account.
  • C.  Advising a client to “take down” social media posts.
  • D.  Crowdfunding litigation.

Question 4

Isaiah meets with Lawyer to discuss a potential claim against Lonzo.  Isaiah mentions that Attorney represents Lonzo   Attorney and Lawyer are married to each other.

Which is most accurate in Vermont?

  • A.   Lawyer is prohibited from representing Isaiah.
  • B.   Lawyer is prohibited from representing Isaiah unless Isaiah provides informed consent that is confirmed in writing.
  • C.  Lawyer is prohibited from representing Isaiah and the conflict is imputed throughout Lawyer’s firm.
  • D.  Both Isaiah & Lonzo are entitled to know of the Attorney/Lawyer marriage and, ordinarily, Attorney & Lawyer may not continue unless each client gives informed consent.

Question 5

A woman named Linda passed away earlier this week.  She was 76 and grew up in Topeka, Kansas.  I don’t know whether anyone who reads this blog ever met her.  But, I’m positive that nearly every single person who reads this blog & who went to law school read about her in class.

What was Linda’s last name?

See the source image

 

 

Can a lawyer be sanctioned for revealing information that’s a matter of public record?

Michael 2 Comments

Today’s question: does the 1st Amendment prohibit the Supreme Court from sanctioning a lawyer who reveals client information that is public record?

Here’s how the issue would arise.

Rule 1.6 prohibits lawyers from revealing information relating to the representation of a client.  There are some exceptions.  They are:

  • disclosure is impliedly authorized to carry out the representation;
  • the client consents to disclosure;
  • disclosure is required by Rule 1.6(b); or,
  • disclosure is permitted by Rule 1.6(c).

As you see, “it’s public record” is not one of the exceptions.

Rule 1.6 applies to current clients.

With respect to former clients, Rule 1.9(c)(2) prohibits a lawyer from “revealing information relating to the representation as these rules would permit or require with respect to a client.”  Basically, the rule refers back to Rule 1.6 and does not include an exception for information that is “public record.”

Similarly, Rule 1.9(c)(1) prohibits a lawyer from using “information relating to the representation to the disadvantage of the former client except as these rules would permit or require, or when the information has become generally known.” (emphasis added).  As I’ve blogged several times recently, the ABA’s Standing Committee on Ethics and Professional Responsibility has opined that information that is in the public record is not necessarily “generally known.”  Here are the blog posts:

The October post includes cites to several cases that stand for the notion that the prohibition against disclosing information relating to a representation is not lessened by the fact that the information is public record.  Or, for a more detailed explanation how broad the confidentialy rules are, the ABA’s Litigation News ran this article by Edward Feldman.

But there’s an important case that holds otherwise.  The case is Hunter v. Virginia State Bar.

Attorney Hunter blogged.  His posts caught the attention of the Virginia State Bar and resulted in a disciplinary prosecution.  The  VSB charged Attorney Hunter with violating the advertising rules.  Those charges aren’t relevant here.

What is relevant is that the VSB also charged Attorney Hunger with violating Rule 1.6 “by revealing information that could embarrass or likely be detrimental to his former clients by discussing their cases on his blog without their consent.”

At a disciplinary hearing, the VSB put on evidence that Hunter’s former clients “believe that the information posted was embarrassing or detrimental to [them], despite the fact that all such information had been previously revealed in court.”

Hunter was publicly admonished following a conclusion that he had violated both the advertising rules and Rule 1.6.

In an intermediate-level appeal, a circuit court upheld the advertising violations, but dismissed the 1.6 charge on the grounds that the rule, as applied, violated the 1st Amendment. An appeal to the Virginia Supreme Court followed.

On appeal, the VSB conceded that the blog posts were about former clients, contained information that was public, and would have been protected speech if disseminated by the news media or anyone other than Hunter.

The Supreme Court noted that it had been “called upon to answer whether the state may prohibit an attorney from discussing information about a client or former client that is not protected by attorney-client privilege without express consent from that client.”

The Court’s answer:  no.  Specifically,

  • “To the extent that the information is aired in a public forum, privacy considerations must yield to First Amendment protections. In that respect, a lawyer is no more prohibited than any other citizen from reporting what transpired in the courtroom.”

The issue has gained some traction lately, largely in response to the ABA’s most recent formal advisory opinion.  Here’s an excerpt from a blog I posted last week.  It refers to criticism of the ABA’s opinion that “public record” is not necessarily “generally known.”

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

“On that point, the opinion is not without criticism.  Check out the post from Above The Law.   Among other things, the author, Robert Ambrogi, writes:

  • “So a lawyer may not ‘reveal’ information that is contained in a public record. But how can someone reveal something that is already public? To reveal is to make something public that was secret.”

Interesting point.  I don’t necessarily disagree. However, on the flip side, what if you went through a messy divorce 10 years ago?

Imagine that it went to trial.  At trial, details emerged that remain embarrassing today.  Yes, the trial was public, but, really, in label only. Nobody went, certainly not the press.  The details are not, by any stretch of the imagination, generally known. The only way anyone could access the details would be by going to the great length of ordering a transcript.  Public? Yes.  Generally known? No.

How would you feel if your lawyer blogged the details tomorrow?”

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

Josh King is Chief Legal Officer at Avvo.  He commented on my post:

“Having hired lots of lawyers over the last 20+ years, of course I wouldn’t want them blabbing about my matters without my consent.

But there’s a difference between a best practice and what the law can prohibit. I’m quite sure that Rule 1.6 can’t constitutionally be applied to discipline a lawyer for stating something that is in the public record.”

Josh runs a blog called Socially Awkward.  He posted a much more detailed response there. You can read it here.

Keith Lee has a blog at Associate’s Mind.  In response to Josh’s post, Keith tweeted a quote from the Hunter decision:

 

f Lee Tweet

Michael Cicchini is a lawyer in Wisconsin.  In 2015, the Vermont Law Review published his article On The Absurdity Of Rule 1.9.  Here’s an excerpt:

“Rule 1.9 is an absurdly broad rule that perpetually bans attorney speech  for all purposes and with regard to all information, including information in the public domain. The rule has no rational, underlying policy, and is not even rooted in clients’ actual expectations regarding confidentiality . . . Instead, Rule 1.9 should be interpreted to permit an attorney to discuss, write about, or otherwise disclose publicly-available information relating to a former client’s case, provided the attorney does not contradict the former client’s position in that case.”

I don’t know that I have a position, mainly because I’ve never had to think about it.  I know that most bar counsel types believe in the idea that “public record” is not “generally known” and, therefore, is not an exception to the general prohibition against disclosure stated in Rules 1.6 & 1.9.  More practically, I simply believe that it’s a good idea not to talk about a former client’s matter, even if the matter received widespread media coverage.  Also, for lack of a better word, it makes me squeamish to think of a lawyer disclosing information about a former client that, while public, almost nobody else knows.

Still, I’m sensitive to the First Amendment argument. And, despite my personal opinion that one should take advantage of every single opportunity to keep one’s mouth shut, I feel like the pendulum has started to swing swung back towards the debate’s equilibrium.

So, what say you? I’m a piece of clay.  Mold me.  Again, here’s the scenario:

  • You went through a messy divorce 10 years ago.  Mike represented you. The divorce went to trial.  At trial, details emerged that remain embarrassing today.  Yes, the trial was public, but, really, in label only. Nobody went, certainly not the press.  The details are not, by any stretch of the imagination, generally known. The only way anyone could access the details would be by going to the great length of ordering a transcript.  Public? Yes.  Generally known? No.  Yesterday, Mike blogged about them.

Should Mike be sanctioned? Discuss in the comment section, but keep it civil.  Or, take this poll.

Be Quiet

 

 

 

 

Client communication in a social age: it’s still important to manage expectations.

Michael 3 Comments

I’ve worked in the Professional Responsibility Program since 1998.  I’ve reviewed approximately 4,000 disciplinary complaints.

There’s a common misconception that most complaints are rooted in “my lawyer doesn’t return my calls or e-mails.” Sure, we get some of those.

It’s more common, however, to receive complaints whose genesis is a lawyer’s failure to set reasonable expectations at the outset of the professional relationship.  The failure can take many forms, but four types arise more often than others:

  1.  failure to set a reasonable expectation as to the outcome;
  2.  failure to set a reasonable expectation as to how long it will take to reach an outcome;
  3. failure to set a reasonable expectation as to how much it will cost the client to reach an outcome; and,
  4. failure to set a reasonable expectation as to how often the lawyer will communicate with the client.

When expectations aren’t met, clients complain.  A complaint does not mean that a lawyer violated the rules.  Still, it’s good to avoid complaints.  One way to avoid complaints is to set & manage expectations.

I’ve blogged often on this topic:

The lesson I’ve tried to impart is no different in the digital age.

Last week, I spoke at a CLE for new attorneys.  I asked how many communicate via text with clients.  Many hands went up.

That’s fine.  Texting with clients is perfectly okay. But here’s what I told the lawyers at the CLE:  be careful.  Texting makes you incredibly available.  Before you agree to text with a client, consider how available you want to make yourself.

Which brings me to a recent post on the fantastic blog Associates Mind.

Keith Lee runs the blog.  A few days ago, Keith posted How Do Lawyers Want To Communicate With Their Clients?  In the post, Keith referred to a debate that emerged on another of his sites, LawyerSmack.  

The debate?  How do lawyers prefer to communicate with their clients? Keith tweeted the results:

  • E-mail  62%
  • phone  26%
  • Text/SMS Messaging 5%
  • Indifferent: 7%

Again, the blog, which includes the results, is here.

I like what Keith wrote about lawyers who text their clients.  He started with:

  • “Most lawyers were really down on texting. But many consumer-facing lawyers (particularly PI) were in favor of it. Which is unsurprising. It might seem odd to older folks but I have a newsflash for you: email is the medium of business and olds.”

Then, he pointed out:

  • “Younger people don’t rely on email that much. They prefer texting or messaging      apps for communication. Which is undoubtedly why Consumer facing lawyers that  cater to this demographic were in favor of texting with their clients.”

Keith went on to list the advantages that texting provides, but also noted something similar to what I mentioned during last week’s CLE for new lawyers:

  • “But texting also has the downside of folks thinking you’re constantly available. I have friends who are divorce lawyers who will never text with their clients, even if the clients want to. Why? They used to text with their clients. But after repeatedly getting texts at 2am on a Saturday inquiring about the status of their divorce, they switched back to phone calls.”

He’s right.  Whether in our work or personal lives, when we text, we’re constantly available. So, think about that before agreeing to text with a client. The rules require you to provide a client with competent & diligent representation, to respond to reasonable requests for information, and to keep a client reasonably informed about the status of a matter.  The rules do not require you to be available 24/7.

(Of course, as Keith points out, communicating by text is almost the norm.  So, there might be business reasons for a lawyer to decide to text with a client.)

Finally, I’d caution against deciding to text a client for no other reason than it’s easier than having to talk to the client on the phone.  Why?

There’s a regular reader of this blog who is also a frequent member of the #fiveforfriday Honor Roll.  She’s exceedingly adept at texting me with what appears to be a legit question, only to call within a nanosecond of my reply.  In other words, her texts are but a pretext to ascertain whether my phone is in my hand, leaving me no choice but to answer.

Back to Keith’s blog – here’s the next to the last paragraph:

  • “What really matters is regular communication with clients. Clients frequently mistake lack of news about their case as indifference or neglect. Poor attorney-client communications is the most frequent complaint Bar Grievance boards receive.”

And there’s the last:

  • “Having a plan, managing client expectations, and delivering on your communications will satisfy clients and make them feel like you are on top of their case.”

Great advice.

Image result for communication

Monday Morning Answers #110

Michael 1 Comment

Welcome to Monday!  Especially all of you who picked Loyola to go to the Final Four!

By the way, the Kansas v. Duke game was the best of the tournament.  As my buddy Gary texted with about 3 minute remaining in regulation, “I feel like I’m watching the title game.”  I agree.  We’ll see.

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

Honor Roll

Answers

Question 1

Rule 1.9(c) permits a lawyer to use information to a former client’s disadvantage if the information is “generally known.”

True or False: information that is “public record” is considered to be “generally known.”

False.  See, this post, and, this post.  However, the tide is turning (and has been for several years.) I’ll blog more on this issue later this week.  The post will focus on a decision from the Virginia Supreme Court: Hunter v. Virginia State Bar.

Here’s a preview.  This weekend, Josh King, Avvo’ chief legal officer, posted this comment to my most recent blog post on the “generally known” v. “public record” debate:

“Having hired lots of lawyers over the last 20+ years, of course I wouldn’t want them blabbing about my matters without my consent. But there’s a difference between a best practice and what the law can prohibit. I’m quite sure that Rule 1.6 can’t constitutionally be applied to discipline a lawyer for stating something that is in the public record.”

Question 2

For the purposes of the Rules of Professional Conduct, which is different from the others?

  • A.  Client files disciplinary complaint against lawyer
  • B.  Client leaves negative online review for lawyer
  • C.  Client sues lawyer for malpractice
  • D.  Client files petition for post-conviction relief that makes allegations about the lawyer’s representation of client.

Question 3

Referring back to question 2, provide a short-explanation.  That is, what makes your choice different?

A, B, and D fall under Rule 1.6(c)‘s “self-defense” exception to the general rule against disclosing information related to the representation of the client absent the client’s consent.  Rule 1.6(c) permits a lawyer to disclose otherwise protected info “to establish a claim or defense . . . in a controversy between the lawyer and the client, to establish a defense to a criminal or civil claim against the lawyer based upon conduct in which the client was involved, or to respond allegations in any proceeding concerning the lawyer’ representation of the client.”  A negative online review does not invoke the exception.  I’ve blogged on this issue here. (scroll to the bottom for a list of decisions and opinions).

Question 4

A client asks whether you use “cold storage” or a “hot wallet.”

What is it that the client is asking how you hold?

Most likely, cryptocurrency.  For example, bitcoin. Here’s an advisory opinion from Nebraska on cryptocurrency.  Coindesk ran this story on the advisory opinion.

Question 5

Fill in the blank.  It’s the same word for each blank.

THE DEFENSE IS WRONG!!

Witness: “The car that made these two, equal-length tire marks had POSITRACTION.  You can’t make those marks without POSITRACTION, which was not available on the ‘64 Buick Skylark!”

Lawyer:    “And why not?  What is POSITRACTION?”

The scene is here.

And, courtesy of Hal Miller, here’s the pic for today’s post:

IMG_2449

Five for Friday #110

Michael 1 Comment

Welcome to Friday! May your brackets not be busted.  If they are, welcome to my club!

The past few days I’ve been busy with the Vermont Bar Association’s Midyear Meeting, so I’m going to say something that’ll make 110% of you 110% happier than you normally are with this column:

No intro!  Instead, straight to the quiz!

Rules

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Even question 5!
  • 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

Rule 1.9(c) permits a lawyer to use information to a former client’s disadvantage if the information is “generally known.”

True or False: information that is “public record” is considered to be “generally known.”

Question 2

For the purposes of the Rules of Professional Conduct, which is different from the others?

  • A.  Client files disciplinary complaint against lawyer
  • B.  Client leaves negative online review for lawyer
  • C.  Client sues lawyer for malpractice
  • D.  Client files petition for post-conviction relief that makes allegations about the lawyer’s representation of client.

Question 3

Referring back to question 2, provide a short-explanation.  That is, what makes your choice different?

Question 4

A client asks whether you use “cold storage” or a “hot wallet.”

What is it that the client is asking how you hold?

Question 5

Fill in the blank.  It’s the same word for each blank.

Witness: “The car that made these two, equal-length tire marks had ________.  You can’t make those marks without _______, which was not available on the ‘64 Buick Skylark!”

Lawyer:    “And why not?  What is ___________?”

the-quiz

 

 

 

 

 

 

 

Workplace Happiness

Michael

As I mentioned earlier this week, the plenary session at today’s Midyear Meeting of the Vermont Bar Association introduced the Vermont Commission on the Well-Being of the Legal Profession.  The Supreme Court formed the Commission in response to last summer’s report from the National Task Force on Lawyer Well-Being.  I blogged about the report here.

The report makes recommendations to various stakeholder groups within the profession.  In short, each stakeholder group is encouraged to ensure that the profession prioritizes lawyer well-being.

One of the stakeholder groups is “Legal Employers.”  Laura Wilson and Ian Carleton co-chair the Legal Employers sub-committee of the Vermont Commission. This morning, each made an important point: lawyer wellness is much more than substance abuse and depression.  It includes creating a positive environment within the workplace.  As Laura and Ian articulated, every single lawyer is either an employer, an employee, or both.

A positive environment within the workplace.  In other words, a place where people are happy to work.

With that in mind, it’s ironic that minutes after hearing Laura and Ian speak, I came across James Goodnow’s post at Above The Law: Blinded By The Benjamins. Give it a read.

While it might be aimed at BigLaw, I think Goodnow’s post is valuable to legal employers & employees in firms of ANY size. Simply, is your firm a place that values Career, Cause, Community?  If not, what changes are you going to make so that it does?

Again, for a great explanation of why the 3 C’s are so important, check out Blinded By The Benjamins.

Sadly, this post caused me to break a promise I made a few months ago when I said this blog would never again mention Puffy.  But, low-hanging fruit is too easy to pick.  And, as Goodnow’s post makes clear, when it comes to the lawyer well-being, It’s (Not) All About the Benjamins.

Plus, it’s got Biggie in it. And while I’m a West Coast guy, Biggie is Biggie.

ABA & Client Confidences: It’s Deja Vu All Over Again.

Michael 4 Comments

Last December, I blogged on ABA Formal Opinion 479.  It’s an advisory opinion in which the ABA’s Standing Committee on Ethics and Professional Responsibility stressed that lawyers should not assume that they are free to disclose client information merely because the information is in a public record.

That’s a point that I made in my post Hey Lawyers! STFU!

To bring you up to speed, here’s the analysis with respect to current and former clients:

Current Clients

  • Rule 1.6(a) states that a lawyer “shall not reveal” information relating to the representation of a client unless (1) disclosure is impliedly necessary to carry out the representation; (2) the client consents to disclosure; or (3) one of the exceptions in paragraphs (b) & (c) is met.
  • Notably, “it’s public record” is not one of the exceptions in paragraphs (b) & (c).

Former Clients

  • Rule 1.9(c)(1) prohibits a lawyer from using information relating to the representation of a former client to the former client’s disadvantage unless the information is generally known.  The fact that something is public record does not mean that it is generally known.
  • Rule 1.9(c)(2) states that a lawyer “shall not thereafter reveal” information relating to the representation of a former client except as the rules otherwise authorize or permit. Nothing in the rules authorizes a lawyer to reveal information merely because the information is in a public record.

On March 6, the ABA released advisory opinion 480.  The opinion purports to address the duty of confidentiality as it applies to lawyers who blog.  The ABA Journal and Above The Law reported on the opinion.   In addition, Trisha Rich and Allison Martin Rhodes, law partners at Holland & Knight, blogged on the opinion here.

The opinion strikes me as a bit odd.

First, for an opinion that purports to address lawyers who blog, it really doesn’t.  Indeed, parts of the opinion come off as, how shall I say it, “less than tech savvy.”  For example, the opinion refers to Twitter accounts as a “microblogs . . . that ‘followers’ (people who subscribe to a writer’s online musings) read.”

Twitter is more than a place to read online musings.  Per the Pew Research Center’s latest numbers, 24% of U.S. adults use Twitter, and 46% of those who do visit Twitter every day.  Speaking only for myself, Twitter is where I get my news. I don’t go for “musings.”  I doubt so many Americans do either.

Next, as Attorneys Rich and Rhodes point out,

  • “The unusual thing about the latest opinion, though, is that it breaks very little new ground. The main point of the opinion is simply to reinforce to lawyers that their obligations of confidentiality always apply, even where a lawyer is communicating electronically.”

Indeed, the opinion makes me wonder why someone asked for it.  I mean, really.

As many of you know, whether by following this blog or attending my CLE presentations, I often urge lawyers not to fear tech.  Tech doesn’t require new rules. It’s simply a new forum in which the same old rules apply.  For example, many of the questions you should ask a potential cloud storage vendor are remarkably similar to the questions you’d want answered before renting a unit at the Store-All facility out on the Old County Road.

More specifically, would you have needed an advisory opinion to tell you not to reveal client confidences in op-ed pieces for your local paper? I doubt it.  Then why would you need an advisory opinion on whether it’s okay to reveal client confidences in a blog post?

Again, as Rules 1.6 and 1.9 make clear, unless one of the exceptions is met, IT IS NEVER OK TO REVEAL CLIENT CONFIDENCES.

Anyhow, the opinion isn’t entirely a restatement of the obvious. It includes a helpful tip on a pet peeve of mine.

At many of my seminars, lawyers pose “hypotheticals.”  Some are so detailed that I’d guess that half the audience knows who the lawyer is talking about.

Remember, “but I was at a CLE & said it was a ‘hypo’!” is not one of the exceptions listed in Rule 1.6.  Indeed, as the most recent ABA opinion reminds us:

  • “A violation of Rule 1.6(a) is not avoided by describing public commentary as a
    ‘hypothetical’ if there is a reasonable likelihood that a third party may ascertain the identity or situation of the client from the facts set forth in the hypothetical. Hence, if a lawyer uses a hypothetical when offering public commentary, the hypothetical should be constructed so that there is no such likelihood.”

Finally, as I alluded to above, the opinion reinforces the notion that “it’s public record” is not license to reveal information. On that point, the opinion is not without criticism.  Check out the post from Above The Law.   Among other things, the author, Robert Ambrogi, writes:

  • “So a lawyer may not ‘reveal’ information that is contained in a public record. But how can someone reveal something that is already public? To reveal is to make something public that was secret.”

Interesting point.  I don’t necessarily disagree. However, on the flip side, what if you went through a messy divorce 10 years ago?

Imagine that it went to trial.  At trial, details emerged that remain embarrassing today.  Yes, the trial was public, but, really, in label only. Nobody went, certainly not the press.  The details are not, by any stretch of the imagination, generally known. The only way anyone could access the details would be by going to the great length of ordering a transcript.  Public? Yes.  Generally known? No.

How would you feel if your lawyer blogged the details tomorrow?

In any event, from a practical standpoint, in law & life, I think it’s often best to heed the words of Thomas Edison:

“You will have many opportunities
to keep your mouth shut.
You should take advantage
of every one of them.”

 

Be Quiet

Lawyer Well-Being

Michael

The Vermont Bar Association’s 61st Midyear Meeting is set for this Thursday and Friday. Jennifer and Laura have a fantastic program in place.  It includes seminars on:

  • ESI and admitting electronically stored info into evidence; (TECH COMPETENCE!!)
  • legal ethics;
  • free speech in the workplace;
  • DACA and other hot topics in immigration law;
  • a primer on the new tax law;
  • legal issues related to sexual harassment & the #metoo movement; and
  • issues related to post-adoption contracts (PACA).

The meeting will also include several seminars on lawyer well-being, with Friday’s plenary session scheduled as the public introduction of the Vermont Commission on Well-Being in the Legal Profession.  For more info on the VBA meeting, please click here.

Given the meeting’s focus on well-being and mindfulness, I thought I’d re-post some prior blogs on the topic.  Here’s one that originally ran on Friday, March 2, as the introduction to the 108th #fiveforfriday legal ethics quiz.

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108

Warning: today’s post isn’t as light-hearted as some of the #fiveforfriday intros.

The Substance Abuse and Mental Health Services Administration is a branch of the U.S. Department of Health & Human Services.  In 2015, SAMHSA conducted a national survey on drug use and health.  The survey found that approximately 4% of Vermonters had experienced serious thoughts of suicide over the previous year.  The Vermont results are here.

There are approximately 2,700 lawyers with active licenses in Vermont.  If lawyers suffer at the same rate as other Vermonters, 108 Vermont lawyers have had serious thoughts of suicide over the past year.

108.

Okay, I know the math might not be accurate.  However, consider the following:

In 2016, the ABA’s Commission on Lawyer Assistance Programs and the Hazelden Betty Ford Clinic released a study on lawyers’ behavioral health.  The ABA announced the study’s results here.

Per the announcement, the study revealed “substantial and widespread levels of problem drinking and other behavioral health problems in the U.S. legal profession.”  In addition, the study “determined that lawyers experience alcohol use disorders at a far higher rate than other professional populations, as well as mental health distress that is more significant.”

So, given that lawyers suffer at higher rates than other professionals, 4% might not be too far off.

Fact: in the past 3.5 years, 5 Vermont attorneys have committed suicide.

Fact: 2 of those 5 took their lives in 2018.

Fact: since September 2016, as many lawyers have had their licenses transferred to disability inactive status due to mental health or substance abuse issues as did in the previous 16 years.

There’s a problem.

Fortunately, the profession has started to address it.

In response to the ABA/Hazelden Study, three groups spurred creation of a National Task Force on Lawyer Well-Being.  The groups:

Last summer, the National Task Force published “The Path to Lawyer Well-Being: Practical Recommendations for Positive Change.”  The report makes a series of recommendations to the legal profession’s various stakeholders and urges state supreme courts to form committees to review the recommendations.

On January 2, 2018, the Vermont Supreme Court issued a charge & designation creating theVermont Commission on the Well-Being of the Legal Profession.  The Commission includes a representative from each of the stakeholder group mentioned in the National Task Force’s Practical Recommendation for Positive Change.   Each Commission member has formed a sub-committee to review the recommendations for that particular stakeholder group.

For example, I’m on the Commission as the representative from the “attorney regulators” stakeholder group.  My sub-committee includes one representative from each of the following: the Professional Responsibility Board, the Board of Continuing Legal Education, the Board of Bar Examiners, the Character & Fitness Committee, and the Judicial Conduct Board. I also appointed a lawyer who has long represented lawyers and judges in professional conduct investigations and prosecutions.  My sub-committee will review and report on recommendations that the Court’s various regulatory bodies ensure that lawyer health & wellness is prioritized throughout the licensing/regulatory scheme.

The Commission’s work will be the subject of the plenary session at the Vermont Bar Association’s upcoming midwinter meeting.  For more information, including how to register, please visit this site.

As I’ve blogged, the report from the National Task Force is a call to action.  In my view, we have duty to keep this issue on the front burner.

Why?

Because 108.  That number is far too high.

Other posts on this topic: