Five for Friday #129

21 years ago today I went to Albany (NY) to visit Todd Sinkins, one of my law school roommates.  I remember that I went with Erin, a woman I was dating at the time, but I don’t recall why we went.

So, why do I recall it at all?

Because I remember having just exited interstate 87 onto Western Avenue when we heard that Princess Diana had died.

For some odd reason, I’m fascinated by events that are seared into the memories of an entire generation.  For example, both of my parents know exactly where they were when they learned that JFK had been assassinated.  And each has a clear memory of being at my grandparents’ house in Bradford on the day of the first moon landing.

Actually, it’s not necessarily the events that fascinate me.  It’s whatever “it” is that causes an entire generation to remember an event forever.  Sadly, tragedy & grief appear to be the tie that binds us all.  For example, I’m guessing that most in my grandparents’ generation have vivid memories of where they were & what they were doing when they learned that Pearl Harbor had been attacked.  And, for people my age, I’m fairly certain that 9/11 is “that” event.

Last night, I wondered whether Diana’s death qualifies as well.  So, I thought I’d throw the question to my readers – what are the events seared into the memories of your generation or, as I suppose is the case with 9/11, multiple generations?

Feel free to share.  The aspect of this Friday column that I like the most – in fact that I love – are the stories you send in response.  Last week’s stories of memories of fairs, endless summers, and young crushes were amazing.  Indeed, the column sparked more stories from my readers than any other, moving ahead of your superstitions and your respective stances in the Beatles v. Stones debate.

Now, a ground rule.  I’m not referring to something that just you will always remember.  For instance, I’ve shared my indelible memory of costing the Red Sox the 1986 World Series. Or, I have a reader who will never forget where he was when he learned that Frank Sinatra had died.  (I see you Uncle Drew!) For this exercise, neither would count.  I’m looking for collective memories.

I look forward to hearing from you.  In the meantime, I hope you have a fantastic long weekend, one that includes lots of things that have nothing to do with work.

Oh, and for you persnickety readers who prefer every Friday column to be tied to the week’s number, fear not!  Diana was born and married in July.  Respectively, on the 1st and 29th.  So, there you have it: 129.

Onto the quiz!

RULES

• None.  Open book, open search engine, text/phone/email-a-friend.
• Exception – but one that is loosely enforced – #5 (“loosely” = “aspirational”)
• 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

Lawyer called me with an inquiry.  My response included the following words and phrases:  “knowledge,” “violation,”  “substantial question,”  and “honesty, trustworthiness, fitness.”

What did Lawyer call to discuss?

• A.  Informing a court that a client had testified falsely in a civil matter.
• B.  Informing a court that a criminal defense client had testified falsely.
• C.  Reporting another lawyer’s misconduct.
• D.  Whether reciprocal discipline would be imposed in Vermont as a result of Lawyer being sanctioned in another state.

Question 2

The conflicts rules are NOT relaxed for:

• A.  Lawyers who transfer from one private firm to another.
• B.  Lawyers who move from government practice to private practice.
• C.  Lawyers who provide short-term pro bono services under the auspices of a program sponsored by a nonprofit or court.
• D.  All of the above.

Question 3

You’re at a CLE.   You hear me say:  “yes, it’s okay as long as  (1) your client gives informed consent; (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and (3) information relating to the representation of your client is protected as required by Rule 1.6.”

What did someone ask if it was okay to do?

• A.  Accept compensation for representing a client from someone other than the client.
• B.  Request that guardian be appointed for the client.
• C.  Represent co-defendants in a criminal matter.
• D.  Talk to the media in a client’s case.

Question 4

Client provides Lawyer with an advance payment of $2,000.  Lawyer has yet to do any work for Client.

Which is most accurate?

• A.  The fee agreement must be confirmed in writing.
• B.  The fee agreement must be confirmed in a writing that is signed by Client.
• C.  The $2,000 must go into Lawyer’s pooled interest-bearing trust account (“IOLTA”).
• D.  Lawyer may treat the money as Lawyer’s own if Lawyer confirms in writing (i) that the fee is not refundable; and (ii) the scope of availability or services that Client will receive.

Question 5

Speaking of the JFK assassination . .  .

. . . Jules Mayer was a lawyer in Dallas.  In 1950, Mayer drew up a will for a client.  The will named Mayer as the executor the client’s estate.

The client died in 1967.  A dispute quickly arose, as the client’s family contended that the client had changed his will on his deathbed to remove Mayer as executor.  Mayer refused to make the change and kept the original will.

In 1991, after a lengthy legal battle, a probate court granted the family’s petition to remove Mayer as executor after concluding that he had mismanaged the estate.

Central to the dispute was gun associated with the JFK assassination.  Mayer’s client bought the gun for $62.50.   After winning their legal battle with Mayer, the client’s family sold the gun for $220,000.  Fortunately for the family, Mayer had safeguarded the gun, holding it in trust for 24 years.

Two-part question:

1. Who was Mayer’s famous client?
2. Who was the most famous victim of the client’s gun?

 

 

 

Social Clients

Earlier this month, the ABA Journal posted a blog in its “ethics” section: Celebrity attorneys face challenges, ethical pitfalls.   I enjoyed it as much from the pop culture slant as I did from the “it’s my job” slant.

However, speaking of the “it’s my job” slant, I want to mention three things.

First, over the past year, the news has been filled with lawyers making public statements about their clients and former clients.  So much so that several times I’ve been asked what I think about it.

Regular readers know what I think it.  I’m a big believer in two concepts:

1. Hey Lawyers! STFU!!!
2. Can’t Keep Quiet? Try Harder.  

As Thomas Edison said:

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

(aside: choosing not to blog is probably one of the opportunities of which I should take advantage.)

Second, despite my big belief that silence is a virtue, I was intrigued by two arguments in the ABA Journal’s post.  Specifically, the arguments that (1) at times, the duties of competence & diligence require a lawyer to speak out in a client’s defense;  and (2) the rules prohibiting such conduct run afoul of the First Amendment.  Alas, I can count on 2 fingers the number of Rule 3.6 complaints we’ve received in the past 15 years.  So, I am not so intrigued to do more than mention my intrigue.

Finally, there’s a little nugget in the article that, in my view, is great advice not just for lawyers who represent celebrities, but for lawyers who represent, well, clients.

Referring to lawyers who represent famous people, the article says:

• “Client and entourage use of social media can compromise a defense. Ethically, attorneys have to make sure their clients and their team understand ground rules and place limitations on social media use related to the case.”

Trust me, I understand that very few of my readers represent the Vinny Chases of the world.  Nonetheless, I think the second sentence is critically important even for lawyers whose clients don’t have their own versions of E, Turtle, and Johnny Drama.

Why?

Because these days, entourage or not, what client isn’t on social media???  And that’s where the very next paragraph in the ABA Journal post comes in.  Quoting Ann Murphy, a professor at Gonzaga University School of Law, the post notes:

• ” ‘Attorneys, as part of their ethical duties, must now counsel their clients on the use of social media,’ Murphy says. ‘Once it is out there, it is out there. Even if someone deletes a Facebook post—it likely has been saved as a screenshot and is of course subject to discovery,’ she adds. ‘Personally, I think the best advice is tell the client that any posts about his or her case must be viewed in advance by the attorney.’ “

That’s a fantastic tip.  Professor Murphy – if perchance you find this blog, In Few I Trust. Go Zags! 2019 national champs!

Now, I can hear some of you now – “mike, am I supposed to know what my client puts on social media?”

Well, opposing counsel will.  So unless you’re comfortable finding out about that damning tweet or post at deposition or in mediation, then my response is:

At the very least – and by “very least” I mean “barest of bare minimums” – I think lawyers have a duty to communicate to their clients the risks associated with posting info to a public forum.

Hmm…I guess this is where I can finally reference Hall & Oates.  When it comes to advising clients on the risks of posting too much to social media, it might be this:

• Private eyes, they’re watching you.  They see your every move.  And they definitely see what you put out there to be seen.

Anyhow, while the ABA Journal article focuses on the risks associated with representing famous clients, it includes a tidbit that applies to any lawyer who has a client on social media: what happens on social media rarely stays on social media.

Tech competence.  It’s a thing.

By the way, among my friends, I’m definitely E.  My brother is almost definitely Drama.  Alas, while we have several candidates for Turtle, not many for Vinny.   And at risk of offending my friends, the “many” in that previous sentence?  It’s pronounced with a silent “m.”

Hint: this post doesn’t mention Ari Gold.  Which means his name might be of utmost importance later in the week.

 

 

Cybersecurity for Lawyers: learn from other professions

I’ve blogged often on tech competence and the duty to safeguard client data.  In short, lawyers have a duty to take reasonable precautions against the inadvertent disclosure of or unauthorized access to confidential client information.

So, people often ask “what are reasonable precautions?”

It depends.

Nobody likes that answer.  But it’s correct.

For instance, do you mean “what are reasonable precautions when it comes to cloud storage?”  Or, are you asking whether a lawyer has a duty to encrypt e-mail? Wait, maybe you’re talking about your duties when crossing the border? No, no, I get it now:  you’re asking if a lawyer has a duty to disable auto-complete. Oh my gosh, no – you’re referring to the hallmarks of trust account scams.

No matter the mode of communication, no matter the place that information is stored, a lawyer must safeguard client information. And, as I explained here, it makes perfect sense not to get into the habit of re-evaulating a lawyer’s duty with every new technology.  Whatever the next new thing is, a lawyer’s duty will remain the same: to take reasonable precautions against the inadvertent disclosure of or unauthorized access to client information.

But, as this post in the ABA Journal points out, lawyers and law firms aren’t sailing into uncharted waters.  There are lessons to be drawn from other professions.  Per the post, those lessons include:

• Encryption is important.  I’d even venture to opine that if it isn’t already, we aren’t long for the day when the failure to encrypt is tantamount to a failure to take reasonable precautions.
• Partners and more senior lawyers have to follow the same rules as everyone else. “I don’t do tech” isn’t reasonable. It’s no different from saying “I don’t do ‘protecting client information.’ “
• Employees and 3rd party vendors need to be trained on the importance of data security.

There’s a great quote in the article. It’s from Michael Mason, chief of security for Verizon Communications: law firms should foster, grow, and ” ‘develop a culture of security.’ ”

A culture premised on “we hope it doesn’t happen to us” is not a culture of security.

With “it” being a breach, the dreaded “it” has happened not just to lawyers and law firms, but to many other professions.  As the ABA Journal suggests, lawyers would be wise to take heed of the lessons learned by those other professions.

Monday Morning Answers #128

It makes her think of me.

Friday’s reflection on fairs gone by is here.  The answers follow today’s honor roll.

But first, I spent some time in the NEK this weekend, running both around Island Pond and along Lake Willoughby. I’ve been up there often, but have never come over Bald Mountain from Island Pond to Willoughby.  The views from Sentinel Rock State Park are phenomenal!  I imagine the area is prime leaf peeping territory.

Sadly, don’t wait too long!  The northern side of the mountain already has several patches of red . . .in AUGUST! I assume the early color is due to the dry summer. Alas, Willoughby itself was warm and as crystal clear as ever.  If you get a chance, it’d be a great spot to beat the heat the week!

Honor Roll

• Karen Allen, Esq.
• Evan Barquist, Montroll, Backus & Oettinger
• Penny Benelli, Dakin & Benelli
• Alberto Bernabe, Professor, John Marshall Law School
• William V. Cristman, Jr.
• Robert Grundstein
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Pam Loginsky, Washington Association of Prosecuting Attorneys
• Andrew Manitsky, Lynn Lynn Blackman & Manitsky
• Jeff Messina, Bergeron Paradis Fitzpatrick
• Hal Miller, First American
• Herb Ogden
• Herb Ogden
• Kane Smart, ANR, Office of General Counsel, Enforcement & Litigation
• Jay Spitzen
• Robyn Sweet, CORE Registered Paralegal, Cleary Shahi  & Aicher
• Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

Which belongs somewhere else than with the others?

A lawyer shall:

• A.   keep the client reasonably informed about the status of the matter.
• B.   explain the matter to the extent reasonably necessary to permit the client to make informed decisions.
• C.  in an ex parte proceeding, inform the court of all material facts known to the lawyer which will enable the court to make an informed decision
• D.   Trick question. All 3 are in separate rules.

C is in Rule 3.3(d), and is an aspect of the larger duty of candor to a court.  A & B are parts of Rule 1.4 and the duty to communicate with a client.

Question 2

True or false.

There’s a rule that specifically requires a lawyer to make reasonable efforts to expedite litigation, consistent with the interests of the client.

TRUE – Rule 3.2

Question 3

By rule, a lawyer shall not act as an advocate in a trial in which:

• A.  the lawyer is likely to be a “necessary witness”
• B.  another lawyer in the lawyer’s firm is a party
• C.  another lawyer in the lawyer’s firm is a witness
• D.  All of the above.

This is the language from Rule 3.7 and disqualifies the lawyer who is likely to be a necessary witness from acting as an advocate at trial.  The situations in B & C are not absolute bans, but only DQ the lawyer if the relationships otherwise create a conflict.

Question 4

A client’s failure to abide by the terms of a fee agreement:

• A.   is not grounds for a lawyer to move to withdraw
• B.   mandates that the lawyer move to withdraw
• C.   permits the lawyer to move to withdraw.  Rule 1.16(b)(5); See also Comment [8]
• D.  is not covered by the rules of professional conduct

Question 5

Inspired by a recent text from one of the first people ever to follow this blog.

Bob Loblaw is the Bluth family lawyer on Arrested Development.  His advertising slogan is “You don’t need double talk, you need Bob Loblaw!”  Also, as do all great lawyers, he blogs.  His blog is the “Bob Loblaw Law Blog.”  The Bluth family hired Bob to replace the incompetent Barry Zuckerkorn.

In real life, the actors who play Loblaw and Zuckerkorn also played characters in a sitcom that debuted 30 years before Arrested Development.

Name the sitcom.

First, if you didn’t pick up on the joke, Bob Loblaw is named as such in order to sound like “blah blah blah.”  His blog is “blah, blah, blah, blah, blah.” 

Scott Baio plays Loblaw and Henry Winkler plays Zuckerkorn.   An eternity ago, the two played Chachi & Arthur Fonzarelli (Fonzie) in Happy Days.

Five for Friday #128

She kept the hotel key.

Welcome to #128!  Vermont Route 128 is, of course, how I get to the Steeple Market, which is the official market of this blog.  And, of course, Route 128 ends in Essex, home of the Champlain Valley Fair.  Where, tonight, the gang and I are going to the Old Dominion concert.

I love the fair.  ALways have.  I’m not positive, but I think my parents used it as a baby-sitting tool when I was a kid.

Michael, take your brother to the fair.”

“Mom, it’s like 7AM.”

“Now!  And stay all day.”

“That’s what we did yesterday.”

“Michael!!!”

Latchkey kids are the best.  But, I digress.

Oddly, for liking the fair so much, I do not like rides.  Not one single bit. Mainly because I’m a big ole chicken.  I have vivid memories of paralyzing fear gripping me – – as I stood in line for a ride!  The ride itself?  Awful. Like, on a scale of 1-10, it was infinity level of awful.  I’d close my eyes and pray for the entire ride.  I think my stomach might clutch tonight if I even happen to glance at the Pirate Ship.

No, for me, it’s the food.  And the people watching.  But mostly the food.  Fried dough.  Al’s French Frys.  The magical building where every single food item is maple. I mean, seriously, how awesome is that?  EVERY SINGLE THING HAS MAPLE!  Maple!  Nature’s best condiment!  (well, after peanut butter).

But the best of them all?  Mr. Sausage.

Back in the day, I worked at a gas station on Shelburne Road.  My buddy Skip’s dad owned it.  Skip knew Stan Gumieny, aka Mr. Sausage, and we both knew Stan’s daughters, Julie & Jill. For 2 summers, I took a week off from working at the gas station so I could work for Stan, grilling sausages at the Fair.

Sweet Italian sausage.  Hot and spicy sausage.  Grilled peppers & onions, the greasier the better.  So much mustard that the health department might arrest you on the spot.

I don’t remember many details.  I remember it was hard work.  Hot, and busy.  And I was kind of lazy – Stan often had to yell at me not to serve sausages that were only half-cooked.  Health regulations or something silly like that.  But I had a crush on Jill, so I was more than willing to work double shifts.

And the smell.  I always loved the smell of the food at the Fair.   I know you all know what I mean.  Drop me in blindfolded and tell me to guess where I am, it’d take a millisecond. And, to this very day, even though I rarely eat it, I love the smell of sausage being grilled.

Mostly, I recall it as being fun.  Hanging out with my friends, acting like we were real restraunteurs, cranking the tunes & drinking beers as we cleaned the grills each night after closing.  Endless, in our minds. Looking back, it’s one of those things that you do, having no idea how good you have it at the time.

It was the best summer job I ever had.

Alas, as it does, life intervened.  Summers end.

I haven’t seen Skip, Jill, or Julie in forever. I don’t even know where they are.  But, I know this: tonight, whether or not he still works the grill, Stan’s Mr. Sausage stand will be at the fair, serving up fully cooked, fantastically tasty sausages.

And I’m going to have one.

Onto the quiz!

Rules

• None.  Open book, open search engine, text/phone/email-a-friend.
• Exception: if you must, open book for Question 5 . But, we try to play that one straight.
• Unless stated otherwise, the Vermont Rules of Professional Conduct apply
• Team entries welcome, creative team names even more welcome.
• E-mail answers to michael.kennedy@vermont.gov
• I’ll post the answers & Honor Roll on Monday
• Please don’t use the “comment” feature to post your answers
• Please consider sharing the quiz with friends & colleagues
• Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

Which belongs somewhere else than with the others?

A lawyer shall:

• A.   keep the client reasonably informed about the status of the matter.
• B.   explain the matter to the extent reasonably necessary to permit the client to make informed decisions.
• C.  in an ex parte proceeding, inform the court of all material facts known to the lawyer which will enable the court to make an informed decision
• D.   Trick question. All 3 are in separate rules.

Question 2

True or false.

There’s a rule that specifically requires a lawyer to make reasonable efforts to expedite litigation, consistent with the interests of the client.

Question 3

By rule, a lawyer shall not act as an advocate in a trial in which:

• A.  the lawyer is likely to be a “necessary witness”
• B.  another lawyer in the lawyer’s firm is a party
• C.  another lawyer in the lawyer’s firm is a witness
• D.  All of the above.

Question 4

A client’s failure to abide by the terms of a fee agreement:

• A.   is not grounds for a lawyer to move to withdraw
• B.   mandates that the lawyer move to withdraw
• C.   permits the lawyer to move to withdraw
• D.  is not covered by the rules of professional conduct

Question 5

Inspired by a recent text from one of the first people ever to follow this blog.

Bob Loblaw is the Bluth family lawyer on Arrested Development.  His advertising slogan is “You don’t need double talk, you need Bob Loblaw!”  Also, as do all great lawyers, he blogs.  His blog is the “Bob Loblaw Law Blog.”  The Bluth family hired Bob to replace the incompetent Barry Zuckerkorn.

In real life, the actors who play Loblaw and Zuckerkorn also played characters in a sitcom that debuted 30 years before Arrested Development.

Name the sitcom.

A Competent Cease & Desist Letter. (And Beer!)

Regular readers know that I preach the duty of competence.  They also know that I’m a big believer in lawyer wellness.  In my view, competence includes being well enough to practice, and wellness includes maintaining a sense of humor whenever possible.  It’s also my view that lawyers can use levity & humor without necessarily sacrificing competence.

Case in point: this story in the ABA Journal about the cease & desist letter that In-N-Out Burger sent to Seven Stills Brewery & Distillery.

The story speaks for itself.  But let me back up.

Local readers might not know it, but In-N-Out Burger is FANTASTIC!  I’d never been to one until 2016.  That February, I went to San Diego for the mid-year meeting of the National Organization of Bar Counsel.  One of my best friends, Pat Camp, lives in Temecula, a town about 50 miles from San Diego.  Once the conference ended, I spent a night with Pat and his wife.

The next day, Pat drove me from Temecula to Huntington Beach for a marathon I’d entered.  On the way, he took me to an In-N-Out Burger, telling me that I HAD to try it.  I kind of rolled my eyes. (sorry Patrick).  But, he was absolutely right.  IMHO, In-N-Out is the best fast food burger joint in the land.  #animalstyle

Anyhow, back to our story.

Seven Stills recently announced a new product: In-N-Out Stout.  Per the ABA Journal post, it’s a self-described “Neapolitan milkshake stout.”  The brewery promoted the stout on Instagram and tagged In-N-Out Burger. The promotion didn’t go unnoticed.  In-N-Out’s general counsel responded with this cease & desist letter.

I think the letter is funny.  The use of “ales” reminds me of my UVM days.  And, I think the letter is proof that humor isn’t inconsistent with an attorney’s duty of competence.

The only thing that would have made it better?  Well, given the brewery’s name, I think it’d have been awesome if the cease & desist letter had opened with “Seven Stills: For What It’s Worth, Stop!“

By the way, Neapolitan Milkshake Stout?  No thank you.  I’m not opposed to becoming more efficient.  In the abtract, then, I understand the merit of combining dessert and a post-dinner drink into a single step.  Sounds like something Kramer would’ve conceived.  But a dessert flavored beer?  I’ll pass.  However, as huge fan of session IPA’s, you can sign me up for Son of Hop 8 days a week!

Of Counsel: Conflicts

I’ll cut to the chase: as I see it, when an attorney is “of counsel” to a firm, conflicts are imputed between the attorney and lawyers in the firm.  Here’s why I see it that way.

As we know from my intro to “of counsel,” a lawyer so designated must have a “close, regular, and personal relationship” with the firm.  Mutual referrals do not an “of counsel” relationship make. Nor does being brought in for a single case or the occasional consultation.

Next, from this post, we know that given the “close, regular and personal” nature of the “of counsel” relationship, the “of counsel” lawyer will be considered part of the firm for compensation purposes.  In other words, the fee sharing rule doesn’t apply.

A final reason that I see it as I see is that others smarter than I have stated that that’s how they see it.  That is, the ABA’s Standing Committee on Ethics and Professional Responsibility and the Illinois State Bar Association have opined that if lawyers are considered to be in the same firm for fee sharing purposes, then the same goes for conflicts.  The ABA opinion is here, while the Illinois opinion is here.  As the ISBA stated:

• ” If the lawyers are considered to be in the same law firm for purposes of
  the division of legal fees, it follows that the lawyers should be viewed as being in the same law firm for the purposes of any conflicts of interest, particularly given the close, personal nature of the ‘of counsel’ relationship. Accordingly, the disqualification of one from representation due to a conflict of interest must be imputed to the other.” (emphasis added).

The last sentence makes a critically important point.

Vermont imputes most conflicts to all other lawyers in the firm.  That is, but for a few exceptions, we do not recognize “the wall.”   It’s Rule 1.10, and here’s what it says:

• “While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rule 1.7 or 1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.”

Or, in language I use when I want to be understood:

• “The rule is this: if one lawyer can’t take the case because of a conflict with a current or former client, none of the other lawyers in the firm can take it either.”

An aside:, don’t get hung up on the “while lawyers are associated in a firm” bit.  The ABA & Illinois opinions says that “of counsel” counts.

So, the upshot:  Lawyer is “of counsel” to Firm.  Firm wants to represent Client.  However, the conflicts rules would prohibit Lawyer from representing Client, and the conflict isn’t a “personal” conflict.  Lawyer’s conflict is imputed to all lawyers in Firm.

I hear you now: “but Mike, that isn’t fair. She’s only ‘of counsel’, we never even really hear from her or see her.  We’ll wall her off.”

Be careful what you let me hear.

First of all, if you never even really hear from her or see her, then it’s likely misleading to call her “of counsel.”  Second, fair or not, Vermont doesn’t recognize the wall in this scenario. The conflict is imputed to all other lawyers in the firm.

To sum up my posts on the “of counsel” relationship:

1. All the rules apply.
2. If the relationship isn’t “close, personal, and regular” it’s likely misleading to call the lawyer “of counsel.”
3. For the purposes of fee division and conflicts, “of counsel” will be considered part of the firm.

I’m not sure this is a burning issue in Vermont.  Still, a lesson to be drawn might be this:  carefully consider these issues before doling out the “of counsel” designation. It’s not a title to be bestowed willy nilly.

 

 

 

 

 

Of Counsel: Compensation & Fees

Week before last, I started a 3-part series on ethics issues related to lawyers who work “of counsel” to a firm.  The first part is here.  To summarize: “of counsel” and its variants are misleading if the lawyer does not have:

• “a close, regular and personal relationship that is more than a mere forwarder or receive of legal business, more than an occasional consultant relationship, and more than a relationship for the purposes of one case.”

I promised two more posts. One on conflicts, another on the relationship between the fee rules and “of counsel” attorneys.  I’m finally getting around to it.  (Let’s be honest – it’s not the most thrilling of topics and, anyway, the weather has been fantastic the past few weeks. Summer is short in this neck of the woods!)

Anyhow, let’s pretend we’re at one of my seminars.  I’ll throw the question to the audience – what’s the ethics issue that comes up when it comes to fees & the manner in which a firm compensates a lawyer who is “of counsel?”

Anyone?  Anyone?  Bueller?

Wait, did someone say “fee sharing??”  We have a winner!

Remember – Vermont does not allow straight referral fees.  I’ve blogged on that issue here, here, and here.  Rather, whenever lawyers not in the same firm want to share a fee, Rule 1.5(e) allows the division only if:

1. it’s in proportion to work performed, or, each attorney assumes joint responsibility for the representation; and,
2. the client agrees to the arrangement and the arrangement is confirmed in writing; and,
3. the total fee is reasonable.

Scenario 1:  A former partner in a law firm is “of counsel” to the firm. The attorney has scaled back her practice, but will continue to practice through the firm. The attorney will not practice law at any other firm.  Former partner works on a client matter for firm.  Firm wants to pay former partner.  Does Rule 1.5(e) apply?

This one is clear: no, Rule 1.5(e) does not apply.  Here, though now “of counsel,” the rules treat former partner as being part of the same firm as, well, firm.

Scenario 2: Firm focuses on commercial litigation.  Firm’s clients often have related tax law issues.  Lawyer focuses on tax law.  Firm wants to take on Lawyer as “of counsel.”  Firm lawyers will consult with Lawyer on all client matters involving tax issues.  Firm will disclose the relationship to clients and Lawyer’s rate will be set forth in engagement letters.  Lawyer will also maintain a personal injury practice that is separate and independent from firm.   Does Rule 1.5(e) apply when Firm pays Lawyer?

The Illinois State Bar Association addressed this issue in Opinion 16-04:  The ISBA concluded that the answer is “no,” stating:

• “The question then becomes how the ‘of counsel’ lawyer can be compensated for his or her services. We have never addressed whether an ‘of counsel’ lawyer is in the same firm or in a separate firm for the purposes of fee division, but conclude that given the close nature of the ‘of counsel’ relationship, the lawyers should be viewed as being in the same firm. Accordingly, while the lawyers may choose to disclose the nature of the fee distribution between the attorneys withthe client, the lawyers should not be subject to the restrictions set forth in Rule 1.5(e). However, fee agreements with ‘of counsel’ attorneys must always meet the general requirements of Rule 1.5 that a lawyer may not charge or collect an illegal fee or an unreasonable fee.”

The Illinois opinion cites to opinions from several other states that reached the same conclusion.

Scenario 3:  Change the last one a bit.  Firm focuses on commercial litigation and its clients often have related tax law issues.  Lawyer’s practice areas include tax and personal injury law.  Lawyer is “of counsel” to firm for tax law issues, but maintains a separate personal injury practice.  Firm does not handle personal injury cases.  A Firm client, however, was injured in accident.  Firm referred the client to Lawyer.  Does Rule 1.5(e) if Lawyer wants to share the fee with Firm?

In this situation, I’d argue “yes,” because Firm and Lawyer are not part of the same firm.  Rather, Firm referred the client to Lawyer’s separate and independent personal injury practice.  As such, if Lawyer chooses to divide the fee with Firm, Rule 1.5(e) applies and the division may only be made:

1. in proportion to work performed, or, if Firm and Lawyer assume joint responsibility for the representation; and,
2. if PI client agrees to the arrangement and the arrangement is confirmed in writing; and,
3. if the total fee is reasonable.

In sum, it strikes me that the compensation issue will be governed by whether “of counsel” is working on the very matter for which client retained firm, or, whether firm referred to the “of counsel” lawyer a matter in which firm was not retained by the client.

Others might disagree.

Monday Morning Answers: #127

Welcome to Monday.  It’s August 13th.

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

Honor Roll

• Evan Barquist, Montroll, Backus & Oettinger
• Penny Benelli, Dakin & Benelli
• Alberto Bernabe, Professor, John Marshall Law School
• William V. Cristman, Jr.
• Andrew Delaney, Martin & Associates
• Bob Grundstein, Esq.
• Anthony Iarrapino, Wilschek & Iarrapino
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Jeanne Kennedy, JB Kennedy Associates, My Mom
• Tom Little, Little & Cicchetti
• Kevin Lumpkin, Sheehey Furlong & Behm
• Hal Miller, First American
• Lon McClintock, McClintock Law Offices
• Jeff Messina, Bergeron Paradis Fitzpatrick
• Herb Ogden
• Jody Racht, Assistant Attorney General
• Jay Spitzen, Esq.

Answers

Question 1

Rule 1.2 makes it clear that the client controls the objectives of a representation, with the means by which those objectives are pursued left to the lawyer in consultation with the client. In addition, I often remind lawyers to set & manage client expectations, especially with clients who have unreasonably High Hopes.

With these thoughts in mind, I’ve used Sinatra to caution lawyers against taking the client who:

• A.   Instructs the lawyer “thanks, but we’ll do it my way.”
• B.   Calls, emails, or texts every day saying “call me!”
• C.   Has a long list of ex-lawyers
• D.  Can’t get no satisfaction

I warn about each of the 4.  But the key word in the question was “Sinatra.” As he sang, “I did it my way.”  B is the Blondie client, C is the Taylor Swift client (Blank Space), and D is the Rolling Stones client.

Question 2

Love and Marriage.

True or false.

The rules specifically prohibit an attorney from representing a client in a matter in which a person whose interests are adverse to the client’s is represented by the attorney’s spouse.

False.  But, see Comment 11 to Rule 1.7.  “When lawyers representing different clients in the same matter or in substantially related matters are closely related by blood, marriage, or civil union, there may be a significant risk that client confidences will be revealed and that the lawyer’s family relationship will interfere with boy loyalty and independent judgment. As a result each client is entitled to know of the existence and implications of the relationship between the lawyers before the lawyer agrees to undertake the representation.  Thus, a lawyer related to another lawyer, e.g. as a parent, child, sibling, spouse or civil union partner, ordinarily may not represent a client in a matter where that lawyer is representing another party unless each client gives informed consent.”

Question 3

Lawyer represents Organization.   Organization is governed by a board.

Do the rules allow Lawyer to represent Chairman of the Board individually in a matter in which Lawyer also represents Organization?

• A.  No.
• B.   Yes.
• C.   Yes, subject to the normal conflicts rules.  See, Rule 1.13(g).
• D.   Trick question.  By representing Organization, Lawyer automatically has an attorney-client relationship with the Chairman of the Board in his individual capacity.

Question 4

Lawyer meets with Client.  Client isn’t focused on the subject matter of the representation and, instead, repeatedly tells Lawyer things like “Come Fly With Me,” and “Fly Me to the Moon!”  Lawyer suspects that Client might suffer from a diminished capacity.

Under the rules, Lawyer’s initial duty is to:

• A.   Withdraw
• B.   Withdraw, unless Client agrees to a voluntary guardianship
• C.   File for an involuntary guardianship
• D.   As far as reasonably possible, maintain a normal client-lawyer relationship with client.  See, Rule 1.14(a).

Question 5

Sinatra won an Academy Award for Best Supporting Actor for a movie that was released in 1953.  He played a soldier who befriended a former boxer.  The former boxer resisted a superior’s efforts to get him to join the regiment’s boxing team.

According to Hollywood legend, the manner in which Sinatra obtained the role wouldn’t exactly comply with Rules 3.4 (fairness to opposing party & counsel) and 4.4 (respect for the rights of third persons). Indeed, legend has it that the famed “horse head in the bed” scene in The Godfatherrefers to the methods by which Sinatra obtained the role.

Name the movie, released in 1953, for which Sinatra won the Oscar for Best Supporting Actor.

FROM HERE TO ETERNITY

Five for Friday #127

Welcome to #127!

So, every Thursday during the summer, Maple Tree Place has a concert on the green.  Last night’s band was I’ll Be Frank.  It’s a Frank Sinatra cover band.  I took my mom.

As an aside, shouldn’t they stop giving me the Son of the Year Award? It’s like a lot in row now.  Maybe just name it after me and let other people win?  Jus’ sayin’.

Anyhow, the concert was much more entertaining than I expected.  The setting is great.  The green is big enough for everyone to be comfortable, but small enough to see and hear the band.  Not only that, McGillicudy’s is but a stone’s throw from the stage, which enabled me to enjoy a frosty one as I waited at the bar for the Maple Barbecue wings that I ordered and brought back to my mom at our lawn chairs.  Finally, despite Sinatra being older than my mother’s mother, I actually recognized a bunch of the songs.

The show was great.  And…speaking of my mother’s mother, so were some of the folks dancing in the audience.  I spotted more than one bobby soxer who likely went to a few Tommy Dorsey shows back in the day, but who could still cut a rug!

All in all, a great summer evening.

What’s this got to do with 127?   Sinatra had 127 Top 20 singles on the Billboard charts.

127!!

Ethical Grounds favorite Taylor Swift has only had 129 songs . . . total!

(If you’re interested, Rolling Stone ranked them here.  Funny, I was just thinking the other day that Delicate might be her best.  Per RS, it’s #3.)

127 top 20 singles.  I’d say Ol’ Blue Eyes complied with the musical equivalent of the duty of competence!

Onto the quiz!

• None.  Open book, open search engine, text/phone/email-a-friend.
• Exception: if you must, open book for Question 5 . But, we try to play that one straight.
• 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 1.2 makes it clear that the client controls the objectives of a representation, with the means by which those objectives are pursued left to the lawyer in consultation with the client. In addition, I often remind lawyers to set & manage client expectations, especially with clients who have unreasonably High Hopes.

With these thoughts in mind, I’ve used Sinatra to caution lawyers against taking the client who:

• A.   Instructs the lawyer “thanks, but we’ll do it my way.”
• B.   Calls, emails, or texts every day saying “call me!”
• C.   Has a long list of ex-lawyers
• D.  Can’t get no satisfaction

Question 2

Love and Marriage.

True or false.

The rules specifically prohibit an attorney from representing a client in a matter in which a person whose interests are adverse to the client’s is represented by the attorney’s spouse.

Question 3

Lawyer represents Organization.   Organization is governed by a board.

Do the rules allow Lawyer to represent Chairman of the Board individually in a matter in which Lawyer also represents Organization?

• A.  No.
• B.   Yes.
• C.   Yes, subject to the normal conflicts rules
• D.   Trick question.  By representing Organization, Lawyer automatically has an attorney-client relationship with the Chairman of the Board in his individual capacity.

Question 4

Lawyer meets with Client.  Client isn’t focused on the subject matter of the representation and, instead, repeatedly tells Lawyer things like “Come Fly With Me,” and “Fly Me to the Moon!”  Lawyer suspects that Client might suffer from a diminished capacity.

Under the rules, Lawyer’s initial duty is to:

• A.   Withdraw
• B.   Withdraw, unless Client agrees to a voluntary guardianship
• C.   File for an involuntary guardianship
• D.   As far as reasonably possible, maintain a normal client-lawyer relationship with client.

Question 5

Sinatra won an Academy Award for Best Supporting Actor for a movie that was released in 1953.  He played a soldier who befriended a former boxer.  The former boxer resisted a superior’s efforts to get him to join the regiment’s boxing team.

According to Hollywood legend, the manner in which Sinatra obtained the role wouldn’t exactly comply with Rules 3.4 (fairness to opposing party & counsel) and 4.4 (respect for the rights of third persons). Indeed, legend has it that the famed “horse head in the bed” scene in The Godfather refers to the methods by which Sinatra obtained the role.

Name the movie, released in 1953, for which Sinatra won the Oscar for Best Supporting Actor.