Monday Morning Answers #115

Friday’s column about a kid from Barre is here.  The answers to the #fiveforfriday legal ethics quiz follow today’s honor roll.

Honor Roll

(hyperlinks when available.  lack of a link doesn’t reflect a lesser score or lower honors)

Answers

Question 1

Paralegal works for Firm.  Client asks Firm to represent Client in the matter Client v. Other.  

Paralegal has a relationship with Other that would preclude Paralegal from representing Client if Paralegal was a lawyer.

True or False? Under Vermont’s rules, Paralegal’s conflict is imputed to Firm and Firm cannot represent Client.

FALSE.  See, V.R.Pr.C. 1.10, Comment [4]Although, Paralegal “ordinarily must be screened from any personal participation in the matter” of Client v. Other.

Question 2

Lawyer called me with an inquiry. I listened, then said:

  • don’t state or imply that you’re disinterested;
  • do correct any misunderstanding about your role; and,
  • if the person’s interests conflict with your client’s, don’t give any legal advice other than the advice to seek counsel.

Given my response, Lawyer called to discuss the rule on:

  • A.  Candor to a Tribunal
  • B.  Communicating ex parte with a judge.
  • C.  Trial Publicity
  • D.  Dealing with an unrepresented person.  V.R.Pr.C. 4.3

Question 3

Attorney called with an inquiry. I listened, then said: “well, it’ll likely depend on whether you received information from Person that could be significantly harmful to Person.”

In this context, it’s most likely that Person is:

  • A.  A former client of Attorney’s
  • B.  A current client of Attorney’s
  • C.  A juror
  • D.  Someone who met with Attorney to discuss forming an attorney-client relationship, but who never formed such a relationship with Attorney See, V.R.Pr.C. 1.18. My comment comes straight from Rule 1.18(c).

Question 4

A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients.

  • A.   True.
  • B.   True, unless each client gives informed consent in a writing signed by the client.  V.R.Pr.C. 1.8(g).
  • C.   True, but only in civil cases.  The rules prohibit joint representation of criminal defendants.
  • D.   The rules are silent on this issue.

Question 5

The unauthorized practice of law is contempt of court and, if done by a lawyer, is a violation of Rule 5.5.  And, as long time readers know, I’m a big fan of Rule 1.1 and the duty to provide clients with competent representation.

So, speaking of Italy, UPL, and competent representation . . .

. . . Portia was not a lawyer.  However, dressed as a man, she pretended to be one and successfully kept Antonio from having to give a pound of flesh to Shylock.

Name the literary work.

The Merchant of Venice, William Shakespeare

Advertisements

Five for Friday #115: A kid from Barre

Welcome to Friday!

Long-time readers will appreciate this.  My mom just emailed a link to the Burlington Free Press sweepstakes to win tickets to see Taylor Swift.

Anyhow, that’s neither here nor there.  What is both here and there is that “115” posed a problem for me.  The number doesn’t remind me of anything and triggers no associations.  Well, I should say “triggers no interesting associations.”

As I struggled to come up with something for this intro, I thought “well, 115 is kind of like 1.15, and the trust accounting rules are rules 1.15, 1.15A, and 1.15B, so I’ll use the intro to write about trust accounts.”

Not.

Thankfully, I remembered that this is the #fiveforfriday column!  So, I bagged the idea of a sleep-inducing post on trust accounts.

But, what to post???

Desperate, I searched “what happened 115 years ago.”  I ended up on the Wikipedia page for 1903.  Nothing jumped out at me.

Then, scrolling through the year’s births, I noticed this:

Charles Poletti – American lawyer and politician.

I clicked.  I’m glad that I did.

I’m fascinated by the history of Vermont lawyers.  From now on, 115 will remind me of a boy from Barre who became a lawyer and made a difference in the world.

Charles Poletti was born in Barre on July 2, 1903.  Upon graduating from Spaulding High School, he intended to work as the manager of a bakery. Instead, Spaulding’s principal convinced him to go to college. So, off he went.

And not to just any old college.

Poletti went to Harvard, where he graduated Phi Beta Kappa.  A few years later, he graduated from Harvard Law and took a job at a firm in Manhattan.

In 1938, Poletti was elected Lieutenant Governor of New York.  In 1942, he lost his bid for re-election, but was appointed governor when the sitting-governor resigned.  His stint was short – only 29 days – but Poletti was the first Italian-American to serve as the governor of a state.

Poletti eventually joined the war effort. He played a key role in the Army’s work in Italy. He was honorably discharged in 1945 as a full colonel.

Poletti died in 2002.  When he did, the New York Times wrote an article about him.

You should read about him.  He served on the Board of the NAACP, advocated for the integration of both Major League Baseball and the U.S. Army, had a successful career as an arbitrator, promoted the 1964 World’s Fair, received an award from the Pope, and had a power plant in New York City named after him.

Not bad for a kid from Vermont.

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

Paralegal works for Firm.  Client asks Firm to represent Client in the matter Client v. Other.  

Paralegal has a relationship with Other that would preclude Paralegal from representing Client if Paralegal was a lawyer.

True or False? Under Vermont’s rules, Paralegal’s conflict is imputed to Firm and Firm cannot represent Client.

 

Question 2

Lawyer called me with an inquiry. I listened, then said:

  • don’t state or imply that you’re disinterested;
  • do correct any misunderstanding about your role; and,
  • if the person’s interests conflict with your client’s, don’t give any legal advice other than the advice to seek counsel.

Given my response, Lawyer called to discuss the rule on:

  • A.  Candor to a Tribunal
  • B.  Communicating ex parte with a judge.
  • C.  Trial Publicity
  • D.  Dealing with an unrepresented person.

Question 3

Attorney called with an inquiry. I listened, then said: “well, it’ll likely depend on whether you received information from Person that could be significantly harmful to Person.”

In this context, it’s most likely that Person is:

  • A.  A former client of Attorney’s
  • B.  A current client of Attorney’s
  • C.  A juror
  • D.  Someone who met with Attorney to discuss forming an attorney-client relationship, but who never formed such a relationship with Attorney.

 

Question 4

A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients.

  • A.   True.
  • B.   True, unless each client gives informed consent in a writing signed by the client.
  • C.   True, but only in civil cases.  The rules prohibit joint representation of criminal defendants.
  • D.   The rules are silent on this issue.

Question 5

The unauthorized practice of law is contempt of court and, if done by a lawyer, is a violation of Rule 5.5.  And, as long time readers know, I’m a big fan of Rule 1.1 and the duty to provide clients with competent representation.

So, speaking of Italy, UPL, and competent representation . . .

. . . Portia was not a lawyer.  However, dressed as a man, she pretended to be one and successfully kept Antonio from having to give a pound of flesh to Shylock.

Name the literary work.

the-quiz

Monday Morning Answers #114

Welcome to a beautiful Monday morning!  No need for California Dreamin’ on a day like this.

Image result for mama's and papa's monday monday

Friday’s questions are here.  Today’s answers follow the honor roll.

Honor Roll

  • Karen Allen
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, John Marshall Law School
  • Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labor
  • Cary DubeBergeron, Pardis, Fitzpatrick
  • Robert Grundstein
  • Anthony IarrapinoWilschek & Iarrapino
  • Aileen Lachs, Mickenberg Dunn Lachs &Smith
  • Kevin LumpkinSheehey, Furlong & Behm
  • Pam MarshMarsh & Wagner
  • Lon McClintockMcClintock Law Offices
  • Jack McCullough, Vermont Legal Aid, Mental Health Law Project
  • Hal Miller, First American
  • Herb Ogden
  • Jim Runcie, Ouimette & Runcie

Answers

Question 1

Attorney called with an inquiry.  I listened, then said:

  • “the first thing the rule says is that you’re supposed to try to maintain as a normal a client-relationship as possible.”

Given my response, it’s most like that Attorney called to discuss a client:

  • A.  who had filed a disciplinary complaint against Attorney.
  • B.  who informed Attorney that client will lie at trial.
  • C.  who informed Attorney that client is seeking a 2nd opinion.
  • D.  whose capacity to make adequately considered decisions in connection with the representation is diminished. See, Rule 1.14

Kind of a trick question given that the intro included a paragraph on Rule 1.14

Question 2

Which phrase doesn’t belong with the others?

  • A.  Former client.
  • B.  Same or Substantially Related.
  • C.  Materially Adverse.
  • D.  Information Related to the Representation.

A, B,  and C are phrases that appear in Rule 1.9, the rule on former client conflicts.  D is a phrase that appears in Rule 1.6, the rule on confidentiality.

Question 3

Under the Rules of Professional Conduct, which is treated differently than the others?

  • A.  whether to settle.
  • B.  whether to depose a particular witness.
  • C.  whether to file a motion to dismiss.
  • D.  Trick question. The rules treat each the same.

See, Rule 1.2(a).  A lawyer shall abide by a client’s decision whether to settle.  The means by which the objectives of a representation are pursued (B & C) are generally left to the lawyer, in consultation with the client.

Question 4

Lawyer called me with an inquiry. I listened, then said:

  • “Generally, it’s okay to advise a client to do it, as long as (1) it doesn’t rise to the level of spoliation, or otherwise impermissibly alter, conceal, or destroy evidence; and (2) you and client don’t deny it exists if asked to produce it in discovery.”

Given my response, it’s most likely that Lawyer called to inquire about advising a client:

  • A.  to “take down” or “scrub” social media posts.
  • B.  to surreptitiously record a conversation with a represented adversary.
  • C.  to move money from a bank account to an online service like PayPal or Venmo.
  • D.  to use a shared iCloud account to review a spouse’s text messages in a divorce.

Question 5

William Creighton Howard was both a doctor and lawyer.  From 1922-1939, he was legislative counsel to the American Medical Association.

In 1937, Howard and the AMA were staunchly opposed to proposed tax legislation. Among other things, the legislation required physicians and pharmacists to collect a tax on a product that they prescribed and sold.

Despite the efforts of Howard and the AMA, the legislation passed and President Roosevelt signed the ensuing Act into law.

After the bill passed, Howard complained that it had been drafted in secret and put to vote before opponents had time to read it & prepare their opposition.  (I guess some things never change.)  More importantly, he complained that Act used a deceiving title to disguise its true purpose. He also claimed that proponents of the Act had garnered support by misleading people into thinking that a particular product was prone to overuse and, when overused, caused users to become violent.

In 1965, counter-culture icon Timothy Leary was arrested and charged with violating the Tax Act.  In 1969, a unanimous U.S. Supreme Court declared the Act unconstitutional and overturned Leary’s conviction.

What product did the Act tax?   Marihuana (that’s how it was spelled)

Bonus: in Leary’s case, what part of the Constitution did the Supreme Court conclude that the Tax Act violated?   The Fifth Amendment’s privilege against self-incrimination.  The opinion is here, its wiki entry is here.

 

Five for Friday #114

Dude!  Welcome to the 4/20 Five for Friday!

So, whenever #113 falls on Friday the 13th, odds are pretty good that #114 will fall on Friday the 20th.  That it happens to have happened in April is an added bonus.

4/20. 114.  1.14.  14.

A theme connects them.

(If you don’t know what 420 refers to, for the purposes of this post, it’s marijuna. For the backstory, check out either of these pieces from the Huffington Post and Time. )

Now, the theme as it connects to 114, 1.14, and 14.

Well, 114 doesn’t remind of me anything. However, if you add a decimal, you get 1.14.  As in, Rule 1.14.

Rule 1.14  sets out a lawyer’s duties with respect to the client whose “capacity to make adequately considered decisions in connection with a representation is diminished.” Per the rule, it matters not what causes the diminished capacity.

What’s this got to do with anything?  Well, depending on your clientele, some of you might bump into the rule later today.  If you do, remember: you duty is to maintain, as far as reasonably possible, a normal client-lawyer relationship with the client.

Of course, there’s much more to cannabis and marijuana than dealing with the client who may have used to the point of impairment prior to showing up for court or a meeting with a lawyer.  That’s where 14 comes in.

As in, Comment [14] to Rule 1.2.

Rule 1.2 is the rule that prohibits lawyers from counseling or assisting a client to engage in conduct that is criminal.  The rule draws no distinction between conduct that is criminal under state law as opposed to federal law. Nor does it draw any distinction between federal crimes that are enforced more vigorously than others.

Cannabis is a Schedule I drug under the Controlled Substances Act.  As such, federal law prohibits its manufacture, possession, use, and sale. Vermont law is (and will be) much different.

So, what’s a lawyer to do? That is, if a Vermont client wants legal advice or assistance on a marijuana-related issue that is legal under Vermont law, would a lawyer who provides that advice & assistance violate Rule 1.2 by assisting the client to violate federal law?

Comment 14 states that a lawyer may:

  • advise a client on “the validity, scope, and meaning” of Vermont’s marijuana laws; and,
  • “may assist a client in conduct that the lawyer reasonably believes is permitted” by Vermont law, so long as the lawyer also
  • “advise[s] the client regarding the potential consequences of the client’s conduct under federal law.”  

Last January, the final prong took on added importance when Attorney General Sessions issued this memorandum.

Remember –  it’s not just Comment 14 to Rule 1.2: ALL of the other rules apply as well, including Rule 1.1 and the duty of competence.  For instance, a Vermont lawyer has a duty to provide competent advice to:

  • a business client who asks whether the law allows her to open an edibles bakery or a CBD extraction facility;
  • an employer who asks whether the law requires the employer to accommodate an employee who needs to use medical marijuana during work breaks;
  • an injured worker who wants to know whether the comp carrier has to pay for medical marijuana prescribed to treat the injury; and,
  • a landlord who asks whether a standard lease term prohibiting a tenant from doing anything illegal in the unit allows the landlord to evict a tenant who has 3 plants.

Finally,and less CLE-ish, I leave you with this.  As a lawyer, it’s a bad idea to try to frame an enemy by planting marijuana and other drugs in her car and then calling 9-1-1 to report her for erratic driving.

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

Attorney called with an inquiry.  I listened, then said:

  • “the first thing the rule says is that you’re supposed to try to maintain as a normal a client-relationship as possible.”

Given my response, it’s most like that Attorney called to discuss a client:

  • A.  who had filed a disciplinary complaint against Attorney.
  • B.  who informed Attorney that client will lie at trial.
  • C.  who informed Attorney that client is seeking a 2nd opinion.
  • D.  whose capacity to make adequately considered decisions in connection with the representation is diminished.

Question 2

Which phrase doesn’t belong with the others?

  • A.  Former client.
  • B.  Same or Substantially Related.
  • C.  Materially Adverse.
  • D.  Information Related to the Representation.

Question 3

Under the Rules of Professional Conduct, which is treated differently than the others?

  • A.  whether to settle.
  • B.  whether to depose a particular witness.
  • C.  whether to file a motion to dismiss.
  • D.  Trick question. The rules treat each the same.

Question 4

Lawyer called me with an inquiry. I listened, then said:

  • “Generally, it’s okay to advise a client to do it, as long as (1) it doesn’t rise to the level of spoliation, or otherwise impermissibly alter, conceal, or destroy evidence; and (2) you and client don’t deny it exists if asked to produce it in discovery.”

Given my response, it’s most likely that Lawyer called to inquire about advising a client:

  • A.  to “take down” or “scrub” social media posts.
  • B.  to surreptitiously record a conversation with a represented adversary.
  • C.  to move money from a bank account to an online service like PayPal or Venmo.
  • D.  to use a shared iCloud account to review a spouse’s text messages in a divorce.

Question 5

William Creighton Howard was both a doctor and lawyer.  From 1922-1939, he was legislative counsel to the American Medical Association.

In 1937, Howard and the AMA were staunchly opposed to proposed tax legislation. Among other things, the legislation required physicians and pharmacists to collect a tax on a product that they prescribed and sold.

Despite the efforts of Howard and the AMA, the legislation passed and President Roosevelt signed the ensuing Act into law.

After the bill passed, Howard complained that it had been drafted in secret and put to vote before opponents had time to read it & prepare their opposition.  (I guess some things never change.)  More importantly, he complained that Act used a deceiving title to disguise its true purpose. He also claimed that proponents of the Act had garnered support by misleading people into thinking that a particular product was prone to overuse and, when overused, caused users to become violent.

In 1965, counter-culture icon Timothy Leary was arrested and charged with violating the Tax Act.  In 1969, a unanimous U.S. Supreme Court declared the Act unconstitutional and overturned Leary’s conviction.

What product did the Act tax?

Bonus: in Leary’s case, what part of the Constitution did the Supreme Court conclude that the Tax Act violated?

the-quiz

 

 

 

 

 

 

 

ABA Addresses Duty to Inform Clients of Mistakes.

Two days ago, the ABA’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 481.  The opinion concludes that the rules “require a lawyer to inform a current client if the lawyer believes that he or she may have materially erred in the client’s representation.”  The ABA Journal reported the opinion.

Per the opinion, the duty to inform a current client of a material error is rooted in the duty to communicate.  Rule 1.4(b) requires a lawyer to “explain a matter to the extent reasonably necessary to permit the client to make an informed decisions regarding the representation.”

So, what’s a “material error?’

Agreeing with advisory ethics opinions issued by several state bar associations, the ABA opinion recognizes that errors occur “along a continuum.”  Some errors are so serious as to require disclosure in order for the client to decide what to do next, including whether to find a new lawyer.  Meanwhile, others “may be so minor or easily correctable with no risk of harm to the client” as not to require disclosure. Many errors fall in between and, as noted by the North Carolina State Bar, “may or may not materially prejudice the client’s interests.”

Again, what’s a “material error?”

Per the ABA Opinion, “an error is material if a disinterested lawyer would conclude that it is (a) reasonably likely to harm or prejudice a client; or (b) of such a nature that it would reasonably cause a client to consider terminating the representation even in the absence of harm or prejudice.”

If an error is material, the opinion indicates that the lawyer must promptly notify the client. The opinion suggests that some errors might be so grave as to require a lawyer to notify the client before the lawyer (a) attempts to correct the error; or (b) consults with counsel or the lawyer’s liability carrier.

Interestingly, the opinion limits the duty to disclose material errors to current clients.  The Committee concluded that, generally, the rules do not impose a duty to communicate with former clients.  As such, no “duty of disclosure exists under the Model Rules where the lawyer discovers after the termination of the attorney-client relationship that the lawyer made a material error in the former client’s representation.”

I only read the ABA opinion this morning. I’ve not yet had time to fully digest it or to think about the issues it addresses.  That being said, my gut reaction is that there are likely many scenarios in which a lawyer’s failure to disclose a material error to a former client might cause harm to that former client.

Indeed, I know that many readers ascribe to the theory that the rules are the floor, not the ceiling.  In that sense, there’s always a difference between doing something because the rules require you to and doing something because it’s the right thing to do.

 

See the source image

 

 

 

 

Reruns

Remember reruns?  In the age of streaming content, I don’t know if reruns are even a thing anymore.  If not, good riddance!!

Seriously, was there anything as disappointing as waiting all week for the next episode of your favorite show only to have it be a rerun?

Aside: yes, we used to have wait all week for the next episode of our favorite shows.

As much as I despised reruns as a viewer, I love them as a blogger.  They’re the perfect antidote to writer’s block. So, here goes.

The VBA’s Tech Day is next month.  The agenda is fantastic.  It includes seminars on several topics upon which I’ve blogged in my nauseating ongoing effort to remind lawyers that the duty of competence includes tech competence.

Missed my posts?  Thank goodness for reruns.

Last October, I posted Competence, ESI, and E-DiscoveryIt referenced several topics, including:

  • admitting social media posts into evidence;
  • an attorney’s duties related to a client “taking down” or “scrubbing” social media posts;
  • practical tips on preservation letters regarding ESI.

VBA Tech Day includes seminars on each.

Last September, I posted Protecting Data: Cybersecurity TipsI followed up in February with  ABA Journal Provides Cybersecurity TipsEach post refers back to my post on the electronic transmission & storage of client information: The Cloud: What are Reasonable Precautions? Indeed, I’ve often blogged on Encryption & The Evolving Duty to Safeguard Client Information.

VBA Tech day includes seminars on encryption, cybersecurity, & data security.

Finally, I’ve blogged on using technology to become more efficient.  My post Fees. Is there an App for that? refers to an ABA Journal post that discusses how technology can help lawyers bill more than 2.24 hours per day that, on average, they currently bill.  And, in Tech Competence: It includes more than you might think, I cautioned that a lawyer who isn’t competent in basic tech runs the risk of violating Rule 1.5 by over-billing clients.

VBA Tech Day includes seminars on using technology to become more efficient at billing.

I think the networks might have used reruns to build anticipation for the final few episodes of a show’s season.  Most of those episodes ran in May.

Well, I’ve posted some reruns here today. Hopefully they build anticipation for VBA Tech Day.  A terrific conference on tech-related issues that will take place in, you guessed it, May.

See the source image

 

Disciplinary Hearings & Sanctions: The Process.

Last summer, I posted this overview of the Vermont Professional Responsibility Program. Lately, more than a few folks have asked how the Court and the PRP’s hearing panels determine the sanction to impose in any particular case.  Here’s how the entire hearing process works.

1.  Disciplinary Counsel Initiates Formal Proceedings

As most of you know, I screen all complaints.  If the conduct at issue “appears to constitute misconduct that may require disciplinary sanctions,” I refer the complaint to disciplinary counsel for a formal investigation.

Upon concluding an investigation, the rules authorize disciplinary counsel to do one of three things:

  1. dismiss the complaint;
  2. initiate a formal disciplinary or disability proceeding ; or,
  3. refer the complaint to the non-disciplinary dispute resolution program.

Formal disciplinary proceedings can be initiated in two ways.

One way is for disciplinary counsel to file a “petition of misconduct.”  A petition of misconduct is the PRP’s version of a charging document.  By rule, disciplinary counsel cannot file a petition of misconduct without first requesting a hearing panel of the Professional Responsibility Board to review her decision to do so for probable cause.

If a petition is filed, the rules allow the respondent 20 days from service to file an answer. Then, the parties have 60 days to take depositions and respond to reasonable requests for production of non-privileged documents and evidence.  Other discovery methods are prohibited.

The other way to initiate formal disciplinary proceedings is for disciplinary counsel and the respondent to file a “stipulation of facts.”  Then, the parties can either join to recommend conclusions of law & a sanction, or, they can make their own recommendations on each.

There are some other wrinkles in the process, but this is the basic way in which formal disciplinary proceedings are initiated.  Which brings us to the next step: the panel’s decision.

2.  The Hearing Panel Makes a Decision

Once formal proceedings are initiated, the case is assigned to a “hearing panel.”  A hearing panel is the PRP’s equivalent of a trial court.  There are 9 standing panels throughout Vermont.  By rule, each must consist of 2 lawyers and 1 non-lawyer.

If formal proceedings are initiated by petition of misconduct, the hearing panel schedules a hearing.  Disciplinary counsel must prove a violation by “clear and convincing” evidence.  Upon request, the panel may bifurcate the hearing: one on whether the respondent violated the rules, a second (if necessary) on sanction.

If formal proceedings are initiated by stipulation, the hearing panel is not required to hold a hearing.  However, it’s usually only in cases where the parties join to recommend a particular sanction, and the panel agrees, that a panel will issue a decision without holding a hearing.

In any case, no matter how initiated, a hearing panel’s first task is to determine whether disciplinary counsel’s evidence or the stipulated facts clearly and convincingly establish a violation of the Rules of Professional Conduct.  In the trade, this is known as making “findings of fact and conclusions of law.”  If  a panel concludes that the facts clearly and convincing establish a violation of the rules, the panel must impose a sanction.

3.  The Hearing Panel Imposes a Sanction.

I’m not going to provide cites or rehash opinions.  For the purpose of this post, here’s what the Supreme Court has said about the sanction in an attorney discipline case.  The purpose:

  • is to protect the public from harm;
  • is to maintain public confidence in the bar;
  • is NOT to punish the lawyer.

By rule, a hearing panel has 4 options. They are:

  • Admonition: (does not identify the lawyer or impact the lawyer’s privilege to practice)
  • Reprimand: (identifies the lawyer, but doesn’t impact the lawyer’s privilege to practice)
  • Suspension: (identifies the lawyer and suspends the lawyer’s privilege to practice)
  • Disbarment: (identifies the lawyer and suspends the lawyer’s privilege to practice)

So, how does a panel choose?  I’m glad you asked.

Many years ago, the ABA’s Center for Professional Responsibility published Standards for Imposing Lawyer Sanctions.  The Vermont Supreme Court has indicated that the ABA Standards guide the sanction determination.

Initially, the ABA Standards require an analysis of 3 factors:

  1. the duty violated;
  2. the attorney’s mental state; and,
  3. the actual or potential injury caused by the misconduct.

This analysis results in a “presumptive sanction.”

For example, let’s imagine a lawyer violates the duty of candor to a client.  Here’s what the ABA Standards say, with the mental state in red and the injury in purple.

  • Disbarment is generally appropriate when a lawyer knowingly deceives a client with the intent to benefit the lawyer or another, and causes serious injury or potentially serious injury to a client.”
  • “Suspension is generally appropriate when a lawyer knowingly deceives a client, and causes injury or potential injury to the client.”
  • Reprimand is generally appropriate when a lawyer negligently fails to provide a client with accurate or complete information, and causes injury or potential injury to the client.”
  • Admonition is generally appropriate when a lawyer engages in an isolated instance of negligence in failing to provide a client with accurate or complete information, and causes little or no actual injury to the client.”

So, if a lawyer violates the duty of candor to a client, does so knowingly, and causes injury or potential injury, the presumptive sanction is a suspension.

Once a panel arrives at presumptive sanction, the panel weighs any aggravating and mitigating factors.

Aggravating factors include things like:

  • prior disciplinary violations;
  • a dishonest or selfish motive; and,
  • substantial experience in the practice of law.

Mitigating factors include things like:

  • no prior violations;
  • remorse;
  • a timely & good faith effort to rectify the consequences of the misconduct; and
  • inexperience in the practice of law.

The aggravating & mitigating factors can lead a panel to increase or decrease the severity of the presumptive sanction.  It’s similar to the sentencing process in federal criminal cases: there can be upward & downward departures.

Finally, the hearing panels often conduct what is known as a “proportionality analysis.”  That is, the sanction is compared to sanctions imposed in previous cases, usually those involving similar misconduct.

In the end, a sanction issues.

4.  There is an Appeal or the Supreme Court Orders Review.

Whenever a hearing panel issues a decision, both disciplinary counsel and the respondent have 30 days to appeal to the Vermont Supreme Court.  Even if neither appeals, the Court may order review on its own motion. The normal appellate rules apply.

The Court upholds a hearing panel’s findings of fact unless they are “clearly erroneous.”  A panel’s conclusions of law are upheld if “clearly & reasonably supported by the evidence.”  When it comes to sanction, however, while the Court affords deference to a panel’s decision, the Court makes its own determination as to the ultimate sanction.

5.  Oh yeah, a few other things.

There are two types of suspensions: short & long.

A “short” suspension is one that is fewer than 6 months.  By rule, short suspensions end of their own volition and the lawyer may immediately resume practice.

A “long” suspension is one that is that is at least 6 months. By rule, a long suspension cannot be longer than 3 years.  A lawyer suspended for 6 months or longer must petition for reinstatement.  At a reinstatement hearing, the lawyer bears the burden of proving such things as rehabilitation and that reinstatement would not be a danger to the public. The lawyer may not resume practicing until the reinstatement petition is granted.

Finally, like most other jurisdictions, Vermont does not have “permanent disbarment.”  By rule, disbarment is for 5 years.  After 5 years, a disbarred attorney may petition for reinstatement.

So, there you have it.  The hearing process, including the sanction determination, in a nutshell.

May this be the only time that you need to know any of this.

For more detail, please visit Supreme Court Administrative Order 9: Permanent Rules Governing Establishment and Operation of the Professional Responsibility Program.

See the source image

 

 

 

 

 

Five for Friday #113

Welcome to #113!

#113 on Friday the 13th?  Whoa.

Unlike Michael Scott, I’m not just a little stitious.  I am super stitious.

Take the quiz at your own peril!

Most of my superstitions involve sports or eating.  I’m not going to go into great detail about them.  I suppose I could simply tell you that, like birthday wishes, it’s bad luck to share superstitions.

Of course, that would be a lie.  It is not bad luck to share superstitions.  And one of my superstitions is that it’s bad luck to lie about superstitions.  So, I’ve no choice but to confess the true reason that I’m not going to go into great detail about my superstitions:

I don’t feel like blogging today.

(echoes of “hallelujah!” are reverberating throughout the Champlain Valley)

Suffice to say, the Red Sox likely wouldn’t have won the 2004 World Series had I not stood while they were in the field and sat while they batted during the final 3 gut-wrenching games of the ALCS against the Yankees.

Oh, and if you want to ensure the best possible meal when eating at a restaurant, keep the following in mind:

  • order last;
  • don’t tell anyone what you’re going to order;
  • have a few options, because it’s horrible luck to order the same thing as someone else with whom you’re eating.

Trust me.

These things are endearing when you first get to know me.  Not so much as our relationship evolves.  At least that’s what I’ve been told.

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

How about a 50/50 to start?

There’s a rule that “a lawyer shall not engage in undignified or discourteous conduct which is degrading or disruptive to a tribunal.”

Does the rule apply to depositions?

Yes or no.

Question 2

By rule, when must a lawyer provide a client or third person with a full accounting of funds or property that the lawyer held for the client or third person?

  • A.  upon request by the client or third person
  • B.  upon the termination of the representation
  • C.  monthly
  • D.  regularly

Question 3

True or false.

In an ex parte proceeding, a lawyer does not have a duty to inform the tribunal of material facts that are adverse to a client’s position.

Question 4

Lawyer works at Firm.  In addition, Lawyer often provides short-term legal services under the auspices of programs sponsored by nonprofits and a local court.  When providing such services, neither Lawyer nor clients have an expectation of continuing representation.

As such, while providing the short-term legal services,

  • A.  Lawyer’s duty of competence is relaxed.
  • B.  The trust accounting rules do not apply.
  • C.  Client’s statements to Lawyer are not confidential.
  • D.  The conflicts rules are relaxed.

Question 5

When you believe in things that you don’t understand, then you suffer.  Superstition ain’t the way.

Johanan Vigoda was a lawyer.  In 1971, Vigoda helped a client who was a musician to negotiate a contract with a record company.  Per the terms of the contract, the musician had to pay 6% in royalties to Vigoda indefinitely & forever, including to Vigoda’s heirs after Vigoda’s death.

Vigoda died in 2011.  In 2013, the musician learned that the record company was still making royalty payments to Vigoda’s widow.  The musician ordered the payments to stop.  The musician sued, seeking an order that he was not required to continue to pay royalties beyond Vigoda’s death.  The musician claimed that Vigoda had duped him into signing the contract, never telling him that it called for “forever” royalty payments.

Vigoda’s widow counter-claimed.  She claimed that Vigoda’s regular practice was to read the terms of any proposal, agreement, or contract to the musician. Thus, she alleged that the musician had agreed to and signed the contract after Vigoda read it to him.   She sought more than $7 million in royalty payments that had not been made between 2013 & 2015.  Last summer, the musician and Vigoda’s widow settled the dispute.

Name the musician.  (the writing should be on the wall.)

the-quiz

 

 

 

 

Got Tech Competence? The VBA Does.

Last week, the Professional Responsibility Board voted to recommend that the Vermont Supreme Court follow the lead of ABA and 31 other states and adopt a duty of tech competence.  Specifically, the Board voted to recommend that the Court amend Comment 6 to Rule 1.1 to read as follows:

  • “[6] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes to the law and its practice, including the benefits and risks associated with the technology relevant to the lawyer’s practice, engage in continuing study and education and comply with all legal education requirements to which the lawyer is subject.”

I’ve blogged a zillion times on tech competence.  Yes, a zillion.  Remember, puffery isn’t unethical.

I’ve also blogged that lawyers shouldn’t fear tech, but embrace it.  And here’s a chance to do exactly that!

Next month, the Vermont Bar Association is presenting its first ever Tech Day.  It looks like a fantastic event.  For more, go here.  Or, read the VBA announcement below.

Remember: amendment or not, Competence includes Tech Competence!

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

REGISTER HERE

VIEW FLYER HERE

If one of your goals this year is to learn all there is to know about using technology in your law practice, then this is the place to be! Whether it’s cloud computing, automating your law practice, emerging tech trends, security, office IT, e-discovery, encryption, social media evidence, billing or digital forensics and more, we’ve got you covered.

Our Tech Show CLE Seminars cover the topics you need to know to get your law firm up to speed with current legal technology tools. Technology can streamline your law practice and save you time and money on top of ensuring you are competent in your practice. As Bar Counsel Mike Kennedy often says, legal competence includes tech competence.

Of course, there’s much more to our Tech Show than the educational sessions. We have built in plenty of time to view demos, get personalized recommendations and network with our Sponsors and Exhibitors as well as to mingle with your colleagues at our luncheon and reception.

And last, by not least, you’ll find all the inspiration you need to streamline and prosper from our Keynote Speakers, Brian Kuhn of IBM Watson Legal and Edward Hartman, Co-Founder of Legal Zoom.

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

tech-ethics