Secure Communications

Tech competence is an ever present theme on this blog.  Regular readers know the refrain:  “competence includes tech competence.”

The duty includes acting competently to protect the confidentiality of electronic communications.  I’ve blogged twice on e-mail encryption:

• To Encrypt or not to Encrypt
• Encryption and the Evolving Duty to Safeguard Client Information

At seminars, including this morning’s for the VBA’s Basic Skills Program, I’ve stated my opinion that lawyers should at least consider client portals.  Thus, it was with great joy that I stumbled upon this post in the ABA Journal:

• Alternatives to email give lawyers secure communications options

Give it a read. It’s a good intro to portals and other alternatives to e-mail.

Finally, don’t forget that it’s often the simple things that result in the accidental or inadvertent disclosure of client confidences.  For instance, not disabling auto-complete, or, exposing a client to the perils of an unintentional “reply-all.”

Wellness Wednesday: Island Vines

Around these parts, summer is an opportune time to work on wellness and work-life balance.  At least for me. I’m not a winter guy.

But that’s no excuse not to make wellness a habit that carries into winter! I vow to try. And, in that spirit, I’d like to use this column to call attention to lawyers who are doing the same.

This week’s focus – the lawyers who ran in Sunday’s RunVermont Island Vines 10K. I spotted at least 5. It was great to see them out there!

Let me know what your non-lawerly, non-work thing is to re-charge. Whether it’s running, reading, hiking, knitting, fly-fishing, jamming on a guitar – whatever  helps make you well – let me know.  If I can, I’ll show up, join you, and post it here (with your informed consent, of course. after all, this is an ethics blog.)

Anyhow, I’m already looking forward to who I might see Friday morning at the VBA Meeting in Manchester.  Both at the run/walk that Jennifer Emens-Butler has organized and yoga with Samara Anderson.  Thank you Jennifer and Samara for encouraging lawyers to make wellness a habit!

And speaking of Jennifer – she writes a column in every issue of the VBA Journal.  It’s called “Pursuits of Happiness.”  In it, she shares stories of lawyers who are doing fantastically intriguing & interesting things that have nothing to do with the law.  Happy things.  That help make and keep them well.   Check out the column. Or better yet, let Jennifer know about your own pursuit(s) of happiness!

The 10K’ers

Amber Thibeault – Ward Law – her first ever 10K!

Cara Cookson – Vermont Center for Crime Victim Services

Scott Kline – Vermont Superior Judge

Eric Knudsen – Langrock Sperry & Wool

Dave Mickenberg – Mickenberg, Dunn, Lachs & Smith

 

Find something that helps you be well and make it a habit!

Monday Morning Answers #132

Welcome to Monday!  Friday’s questions are here.  Today’s answers follow the honor roll.

Maybe it’s a good omen that, after Friday’s reference, Safety Dance played on the radio as I drove to work this morning.

Please see Question 4: I hope nobody guessed I’d make an untrue statement at a CLE!

Honor Roll

• Karen Allen, Esq.
• Evan Barquist, Montroll, Backus & Oettinger
• Penny Benelli, Dakin & Benelli
• Jeff Davis, Mt. Mansfield Union H.S. & Official Mathematician, Ethical Grounds Blog
• Tammy Buckingham Davis, Union Memorial, Colchester
• Deb Emerson, (f) M.D., Country Walkers 
• Seth “LSA” Emerson, Champlain Valley Union High School
• Erin Gilmore, Ryan Smith & Carbine
• Robert Grundstein
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Jeanne Kennedy, Mother of the Blogger
• Pam Loginsky, Washington Association of Prosecuting Attorneys
• Lon McClintock, McClintock Law Offices
• Jennifer Navin, Wells Fargo
• Ryan Navin, South Burlington High School
• Kate Skrocki, Ready Computing
• Jay Spitzen
• Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

Lawyer represented Kennedy.   During the representation, Lawyer held funds in trust for Kennedy.  The representation ended last week.  How long must Lawyer keep records of funds that were held in trust for Kennedy?

• A.   1 year from the termination of the representation.
• B.   6 years from the termination of the representation.  Rule 1.15(a)(1)
• C.   The rules do not specify a retention period for trust account records.
• D.   The rules do not specify a retention period for trust account records, but by case law it’s 7 years from the termination of the representation.

Question 2

Attorney represents Client.  Attorney received information relating to the representation of Client that Attorney knows was not intended to be sent to Attorney.  Under the Vermont Rules of Professional Conduct,

• A.  Attorney must notify sender.  Rule 4.4(b)
• B.  Attorney must ask Client for consent to notify the sender.
• C.  Attorney must not read, review, or inspect the information.
• D.  It depends. Who sent the information?

Question 3

Attorney called me with an inquiry. I listened, then said, “the rule says you can’t do it unless:

1. the terms are fair & reasonable to the client, and fully disclosed in a writing that the client can understand;
2. you advise the client, in writing, of the desirability of seeking independent legal advice, and give the client a reasonable opportunity to do so; and,
3. the client gives informed consent, in a signed writing, to the terms, including whether you are representing the client in that matter.”

What did Attorney call to discuss?

• A.  Settling a malpractice claim with a former client.
• B.  Settling a malpractice claim with a current client.
• C.  Entering into a business transaction with the client. Rule 1.18(a)
• D.  The client’s application for an advance from a third-party litigation funding company.

Question 4

You are at a CLE.  Your hear me say “there is a rule of professional conduct that specifically prohibits (a) frivolous discovery requests; and, (b) the failure to make reasonably diligent efforts to respond to an adversary’s proper discovery requests.”

That statement is:

• A.   True. Rule 3.4(d)
• B.   Not exactly true, but there’s a rule that requires lawyers “to make reasonable efforts to expedite litigation” and, arguably, this conduct falls under that rule.
• C.   False – but a violation of the civil, criminal, or family rules of procedure can rise to the level of a violation of the rules of professional conduct.
• D.  Mike, wait . . lawyers make frivolous discovery requests and drag their feet responding to an opponent’s legitimate requests?

Question 5

Speaking of the advertising rules, Harvey is a television lawyer who often refers to himself as “the best closer in New York.”  Maybe he is, maybe he isn’t.

Perhaps his bigger ethical concern should be that he hired an associate, Mike, who he knew hadn’t graduated from college, gone to law school, or passed the bar exam. Well, never passed the bar exam while taking it as himself.  Mike had passed many times while being paid to take the bar exam for others.

In real life, both actors attended this summer’s biggest wedding.

Name the show.

Suits.

This summer, the actors that play Harvey Specter and Mike Ross attended co-star Meghan Markle’s wedding to Prince Harry.

 

 

 

Five for Friday #132

Welcome to Friday!

By the way – thank goodness that brew festivals aren’t subject to the same advertising rules as lawyers & law firms.  If they were, tonight’s Oktoberfest would be shut down for having a misleading name!

So, #132.  Regular readers know I usually try to tie a story to the number.

Not today.

Why not? Because it’s September 21.

What’s that got to do with anything?  Well, let me ask you this:

“Do you remember the 21st night of September?
Love was changing the minds of pretenders
While chasing the clouds away.”

~ Earth, Wind & Fire – “September”

I’ve got a good friend.  (shocker, right?)  Anyhow, her name is Jenn and she LOVES that song.  So much so that September 21 will always remind me of Jenn, my close friends, and lining up by height in my basement.

Let me explain.

March 12, 2005, was a Saturday.  That day, the UVM men’s basketball team hosted Northeastern in the America East conference championship game.  On the line? A trip to the NCAA Tournament.

I’d bought my condo the prior summer and, over the winter, had finished the basement.  By early March, the basement had a carpet, a tv, a couch, and a stereo with fantastic speakers.

As usual, and for television purposes, the AE title game tipped off at 11:00 AM.  Some of my friends came over for the game:  Jenn, Ryan, Kate, Deb, Seth, Tammy, and JD.  Yesterday, I texted each and asked them to share one memory of the day.  I messaged each individually so that nobody’s response would influence anyone else.  This blog is a compilation of their responses and my memories.

Jenn and Ryan arrived first, shortly after 10 AM with the others close on their heels.  Because why not start a party an hour before a game? Gotta make sure we can find the right channel!! Anyway, Jenn brought egg sandwiches. While the sandwiches warmed in my oven, the first mimosas were poured and we were off & running.

Which is probably why I don’t remember much about the game other than we watched it in the basement and UVM demolished Northeastern.  I didn’t even remember JJ Barea’s antics.  As Ryan recalled, less than a minute into the game, Northeastern’s star guard punched a UVM player in the face!

What I do remember is this: my friends didn’t leave my condo, or really my basement, until midnight.  That’s right. We spent 14 hours hanging out in the basement.

What’d we do? What any normal group of people would do: we lined up by height! Nearly every text I received yesterday mentioned it:

• “my memory is us all lining up by height. Totally random.”
• “my memory is so dumb. It was us lining up by height.For what reason, I can’t recall.”
• “I remember a few . . . like lining up to see who was tallest. Seriously??”
• “Lining up by height?”
• “Didn’t we line up by height for some reason?”

Yes, yes we did.

We also listened to music, sang loudly, and danced awesomely.  Playing DJ, even though we had a real DJ there, I took requests. It was long before downloaded or streaming music, but I had a lot of CDs. Like, a lot. Still, for whatever reason, we listened to 2 songs about 500 times each.

The first: Far Behind by Candlebox.  (JD is really good – like REALLY good – at the fast part at the end.  So good that, each time the song played, I’d take a drink during that part so he wouldn’t know that I didn’t really know the words.)

The other? Jenn’s request:  September, by Earth, Wind & Fire.  Which is why today will always remind me of that day in my basement.

It’ll also remind me of something else: how great my friends are.

Yesterday, I had the opportunity to speak at Vermont Law School.  The topic was lawyer wellness and the crushing toll that the profession exacts from its members.  I was fortunate enough to share the podium with Professor Mark Latham and VLS student Phoenix Mikilas Meyers.  Each shared terrific strategies to maintain work-life balance, including the incredibly important point of making sure to take time away from work & away from the law.  This is a topic upon which I’ve often blogged:

• Make Time for What Matters
• Anxiety, Stress, and Work-Life Balance for Lawyers
• Make Wellness a Habit
• Workplace Happiness

Anyhow, and knock on wood, my work-life balance is pretty damned good.  One of the reasons: my friends.

No, we haven’t spent 14 hours in a basement since that day.  Life is life and, as it never fails to do, it has intervened.  Days like that are, well, like Candlebox sang, far behind us.  But we still see each other and stay in touch.  And for that I’m very grateful, because my friends make my life a better place.

My condo is under contract now.  Earlier this month, I got rid of a ton of clutter in anticipation of putting it on the market.  Sadly, I realized that I no longer have the one tangible item that is evidence of that long ago Saturday.

Back then, I was coaching.  There was a small dry erase clipboard in my basement.  One that I used to diagram plays during time-outs.  Kate & Deb drew on it.  All day.  An unbelievable kaleidoscope-like design that I never erased.  For years, I saved it as a memory of that day.  It made me a bit melancholy to realize I no longer had it, almost like a metaphor for life as, this weekend, summer turns to fall.

But I’ve got the memories.

And, 5, 10, 25 years from now, I’m still going to have the memories that my friends and I made. Those memories will last much longer than memories of a Saturday that I went to work to get less far behind.

Was it a foolish way to spend a day? Maybe.  But if you think so, your friends don’t dance and if they don’t dance, well, they’re no friends of mine.

Make time for what matters.  Friends who dance matter.

To Jenn, Ryan, Kate, Deb, Seth, Tammy, and JD: here’s to egg sandwiches, lining up by height, and making time for what matters.  Each of you is awesome! Thank you for being my friends.

By the way, I have way more than 7 friends.  Like, at least 9.  So you other friends, thank you too! Now do something blog worthy!

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 represented Kennedy.   During the representation, Lawyer held funds in trust for Kennedy.  The representation ended last week.  How long must Lawyer keep records of funds that were held in trust for Kennedy?

• A.   1 year from the termination of the representation.
• B.   6 years from the termination of the representation.
• C.   The rules do not specify a retention period for trust account records.
• D.   The rules do not specify a retention period for trust account records, but by case law it’s 7 years from the termination of the representation.

Question 2

Attorney represents Client.  Attorney received information relating to the representation of Client that Attorney knows was not intended to be sent to Attorney.  Under the Vermont Rules of Professional Conduct,

• A.  Attorney must notify sender.
• B.  Attorney must ask Client for consent to notify the sender.
• C.  Attorney must not read, review, or inspect the information.
• D.  It depends. Who sent the information?

Question 3

Attorney called me with an inquiry. I listened, then said, “the rule says you can’t do it unless:

1. the terms are fair & reasonable to the client, and fully disclosed in a writing that the client can understand;
2. you advise the client, in writing, of the desirability of seeking independent legal advice, and give the client a reasonable opportunity to do so; and,
3. the client gives informed consent, in a signed writing, to the terms, including whether you are representing the client in that matter.”

What did Attorney call to discuss?

• A.  Settling a malpractice claim with a former client.
• B.  Settling a malpractice claim with a current client.
• C.  Entering into a business transaction with the client.
• D.  The client’s application for an advance from a third-party litigation funding company.

Question 4

You are at a CLE.  Your hear me say “there is a rule of professional conduct that specifically prohibits (a) frivolous discovery requests; and, (b) the failure to make reasonably diligent efforts to respond to an adversary’s proper discovery requests.”

That statement is:

• A.   True.
• B.   Not exactly true, but there’s a rule that requires lawyers “to make reasonable efforts to expedite litigation” and, arguably, this conduct falls under that rule.
• C.   False – but a violation of the civil, criminal, or family rules of procedure can rise to the level of a violation of the rules of professional conduct.
• D.  Mike, wait . . lawyers make frivolous discovery requests and drag their feet responding to an opponent’s legitimate requests?

Question 5

Speaking of the advertising rules, Harvey is a television lawyer who often refers to himself as “the best closer in New York.”  Maybe he is, maybe he isn’t.

Perhaps his bigger ethical concern should be that he hired an associate, Mike, who he knew hadn’t graduated from college, gone to law school, or passed the bar exam. Well, neaver passed the bar exam while taking it as himself.  Mike had passed many times while being paid to take the bar exam for others.

In real life, both actors attended this summer’s biggest wedding.

Name the show.

 

 

 

 

 

E-mail Ethics

This issue continues to arise.

• Lawyer represents Client.  Lawyer copies Client on an e-mail to Opposing Counsel.

As the South Carolina Bar concluded earlier this year, it is well-settled that “the mere fact that a lawyer copies his own client on an email does not, without more, constitute implied consent to a ‘reply to all’ responsive email.”   The opinion is here.  It’s the most recent (that I know of) to address the issue.  It came out shortly after I posted a blog entitled CC, BCC, and a lawyer’s duty of competence.

To those of you who copy your clients on emails to opposing counsel, be wary!  Yes, the opinion says that your “cc” isn’t necessarily permission for opposing counsel to reply to your client.  However, it also makes clear that, depending on the circumstances, the fact that you copy your client might imply that you consent to opposing counsel responding to your client.

But that’s not why I’m blogging.  I’m blogging because of a footnote in the South Carolina opinion.

You’d be surprised how many lawyers have informed me that it drives them batty to receive an e-mail from another attorney that the other attorney has copied to his or her client.  Per the reports i receive, when they ask the other attorney to stop, the attorney replies with something like “i’ll copy my client if I damn please.”

Of course you will.

And you’ll do so at your own risk. Because, what happens if your client accidentally uses “reply-all” to send what was intended to be a confidential and privileged communication for your eyes only?*

That’s where the footnote comes in.  Here’s what it says:

• “[1] Although not before the Committee, the practice of copying one’s client – by either ‘cc’ or ‘bcc’ – when emailing with opposing counsel poses some risks. With a ‘cc’, a lawyer is disclosing his client’s email address, and with both ‘cc’ and ‘bcc’, the lawyer risks having the client ‘reply to all’ and potentially disclose confidential or other information. See, e.g., N.Y. State Bar Ass’n Comm. on Prof’l Ethics, Op. 1076 at ¶¶10 – 13. It is also not uncommon for a recipient of a group email to ‘reply to all’ unintentionally or without knowing the identity of each recipient, which in this context might expose the client to what were intended to be lawyer-to-lawyer communications. For these reasons, it is generally unwise to ‘cc’ a client on email communications to opposing counsel.”

As always, let’s be careful out there.

 

* I’d completely forgotten that Sheena Easton sang the theme song.  She remains the only musician ever to appear on-screen in the opening to a Bond movie.

 

Is your firm prepared for a disaster?

Earlier today, the American Bar Association announced that its Standing Committee on Professional Responsibility & Ethics had issued guidance on a lawyer’s ethical duties before, during, and after a natural disaster.  The guidance comes via Formal Opinion 482.

I’d say that the key takeaway from the opinion is this:

Or, as the Committee elaborated:

• “Lawyers must be prepared to deal with disasters. Foremost among a lawyer’s ethical obligations are those to existing clients, particularly in maintaining communication. Lawyers must also protect documents, funds, and other property the lawyer is holding for clients or third parties. By proper advance preparation and taking advantage of available technology during recovery efforts, lawyers will reduce the risk of violating professional obligations after a disaster.”

The opinion delvesin into the details of a lawyer’s duty to:

• communicate with clients following a disaster;
• continue to provide competent representation following a disaster;
• take steps, in advance, to ensure continued access to client information & funds following a disaster;
• take steps, in advance, to protect the confidentiality of client information should a disaster strike;
• withdraw if, for whatever reason, a disaster leaves a lawyer unable to provide competent representation;
• notify clients of property lost or destroyed in a disaster; and,
• be mindful of the solicitation rules if offering to provide legal services to prospective clients impacted by a disaster.

Don’t think it can’t happen here.  It has.  And, as a result, the Vermont Bar Association developed disaster planning resources for lawyers.  I urge you to review them.

Finally, for lawyers who practice alone or in very small firms, do you have a succession plan?  You should.  Not just in case of a natural disaster, but in case disaster, of any type, strikes you.

Rule 1.3 requires lawyers to act with reasonable diligence and promptness when representing a client.  The rule does not specifically mandate a succession plan. However, Comment [5] says:

• “To prevent neglect of client matters in the event of a lawyer’s death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer’s death or disability, and determine whether there is a need for protective action.”

Lawyers often advise clients to plan for disasters.  Lawyers should do the same.

Pledge to Focus on Lawyer Well-Being

Earlier this year, I blogged on the creation of the Vermont Commission on the Well-Being of the Legal Profession.  The Commission is in the midst of its work.  Its charge and designation is here.

This is a national topic.  Others states have undertaken similar projects.  The ABA has been a leader in raising awareness of issues related to lawyer well-being.

Last week, the ABA Journal reported that several of the country’s largest law firms have signed a pledge to follow a 7-point plan to improve lawyer well-being.  The pledge and the plan are here.   The pledge was developed by the ABA’s Working Group to Advance Well-Being in the Legal Profession.  The group has also developed this Well-Being Toolkit for Lawyers and Legal Employers.

Per the article in the ABA Journal, the goal is for all legal employers to take the pledge by January 1.

Here’s the pledge:

• “Recognizing that substance use and mental health problems represent a significant challenge for the legal profession, and acknowledging that more can and should be done to improve the health and well-being of lawyers, we the attorneys of _______________________ hereby pledge our support for this innovative campaign and will work to adopt and prioritize its seven-point framework for building a better future.”

The seven-point framework:

1. Provide enhanced and robust education to attorneys and staff on topics related tow well-being, mental health, and substance use disorders.
2. Disrupt the status quo of drinking based events by challenging the expectation that all events include alcohol, and, ensuring there are non-alcoholic alternatives when alcohol is served.
3. Develop visible partnerships with outside resources committed to reducing substance use disorders and mental health distress in the profession: healthcare insurers, lawyer assistance programs, EAPSs, and experts in the field.
4. Provide confidential access to addiction and mental health experts and resources, including free, in-house, self-assessment tools.
5. Develop proactive policies and protocols to support assessment and treatment of substance use and mental health problems, including a defined back-to-work policy following treatment.
6. Actively and consistently demonstrate that help-seeking and self-care are core cultural values, by regularly supporting programs to improve physical, mental, and emotional well-being.
7. Highlight the adoption of this well-being framework to attract and retain the best lawyers and staff.

The ABA’s program is a 2 year process.  The first year is focused on legal employers to recognize the problem and, as stated above, pledge to commit to promoting awareness & the seven-point plan. Then, in year 2, the ABA will ask legal employers to complete a commitment form that describes steps taken in the prior year.

In my view, whether formally taking the pledge or not, the ABA’s program provides a fantastic vehicle for legal employers to make the workplace healthier.

 

Monday Morning Answers #131

Happy Monday!

For those of you who venture to the NEK to bike or run, I highly recommend the Beebe Spur Rail Trail. I found it this weekend.  From the hospital, it’s just over 5 miles to the border.  Flat, packed gravel, beautiful views of Lake Memphramagog.  Or, add a few miles by parking downtown and using the Newport Rec Path to get to Beebe Spur. More great views.

Friday’s questions are here.  Today’s answers follow the Honor Roll.

Honor Roll

• Matthew Anderson, Pratt Vreeland Kennelly & White
• Evan Barquist, Montroll, Backus & Oettinger
• Alberto Bernabe, Professor, John Marshall Law School
• Deb Emerson, (f) M.D., Country Walkers 
• Erin Gilmore, Ryan Smith & Carbine
• Bob Grundstein
• Pam Loginsky, Washington Association of Prosecuting Attorneys
• Pam Marsh, Marsh & Wagner
• Lon McClintock, McClintock Law Offices
• Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
• Bill Pettersen, Pettersen Law
• Jim Runcie, Ouimette & Runcie
• Jay Spitzen

Answers

Question 1

You’re at a CLE.  You hear me say:

• “The privilege is different from the rule.  The rule talks about ‘information relating to the representation.’ A comment makes clear that the rule encompasses more than the privilege.”

What was I talking about?

• A. File delivery & work product
• B.  Client confidences.  Rule 1.6(a), Comment [3].
• C.  Storing client information in the cloud
• D.  Inadvertent production of privileged information

Question 2

In Vermont, most conflicts are imputed from the conflicted lawyer to other lawyers in the same firm.

True or false: unlike other conflicts, imputed conflicts cannot be waived by the affected client.

FALSE.  Rule 1.10(c).

Question 3

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

• “It depends. Did you receive information that could be significantly harmful to the person?”

Most likely, “the person” refers to:

• A.  a former client of Lawyer’s
• B.  a current client of Lawyer’s
• C.  a prospective  client who met with, but did not retain, Lawyer.  Rule 1.18(c).
• D.  opposing counsel

Question 4

How long must Vermont lawyers keep copies of advertisements?

• A.   2 years
• B.   6 years
• C.   It depends. Print ads or electronic ads?
• D.   They don’t.  The rule requiring retention of ads was repealed in 2009.

Question 5

As I mentioned above, 131 includes 3.1.   Rule 3.1 makes it a disciplinary violation to file a frivolous lawsuit.

One of the most misunderstood lawsuits of all time involved hot coffee and McDonald’s.  It’s not as frivolous as the legend that has grown around it would have you believe.

Anyhow, the suit served as the inspiration for an episode of a famous tv show in which one of the main characters sued Java World for burns that resulted from hot coffee.  Java World was prepared to make an opening offer of free coffee for life and $50,000.

The character & his lawyer showed up to meet with representatives from Java World and their attorney.  The Java World attorney said “we are prepared to offer you all the free coffee you want at any of our stores throughout North America and Europe, plus . . .”

Before he could finish, the character jumped from his seat, shook the Java World’s attorney’s hand and, without consulting with counsel, exclaimed “I’ll take it!!!!”

Name the character.

Cosmo Kramer, Seinfeld.  The scene is here.

Five for Friday #131

So, #131!

131 will always remind me what an idiot I am.  In particular, my utter incompetence at the 2013 New Bedford Half Marathon.  And it has nothing to do with the fact that a half marathon is 13.1 miles.

I started running in 2006.  Friends asked me to run on a relay team they’d entered in the Vermont City Marathon.  I agreed and was fortunate enough to run the final leg.

When you run the last leg, you get to cross the finish line.  The adrenaline rush from the crowd at the finish on Burlington’s Waterfront was unreal.  I was hooked on races. And, in 2008, ran my first full marathon.

I spent the next several years trying and failing to qualify for the Boston Marathon.  Back then, I had to finish a marathon in under 3:20 to qualify for Boston. I never ran better than 3:28.

So, in 2012, I hired a coach.  It is the most meritorious claim in history to state that RunVermont’s Jess Cover is the best running coach ever. (see how I worked Rule 3.1 into this 131 column?)  Under her tutelage, I finished the 2012 VCM in 3:19:07, thereby qualifying for the 2013 Boston Marathon. Out of respect for the race, I wanted to run it well. So, I continued to work with Jess.

Every March, there’s a half marathon in New Bedford, MA.  It sets up perfectly as a training run for Boston, a race that’s held on the third Monday in April.  We had 2 goals for the 2013 New Bedford half: (1) treat it as a sort of dress rehearsal for Boston; and (2) finish in less than 1 hour 30 minutes.

For you lawyers, dress rehearsal runs are quite similar to a mock trial or a moot court prior to an appellate argument.  You use them to prepare for the real event.

Up until then, I’d often battled cramps late in marathons.  Usually in my calves, but sometimes in my hamstrings.  Here’s a picture that my high school football teammate  Bobby Hill snapped at the precise moment that my left hamstring cramped as I passed his house in the 2010 Vermont City Marathon:

 

Anyhow, part of the plan for 2013 Boston was for me to take salt tabs during the race.    Having never used them before, Jess wanted me to practice using them during the New Bedford Half.  I remember thinking “who needs to practice taking a pill?”

Famous last words.

March 17, 2013, was a perfect day for a half marathon.  It was about 40 degrees, no wind, overcast.  The first several miles were great.  I was on pace to run under 1:30 and things were looking & feeling good.

Then I took my salt tab.

I didn’t carry water with me that day.  I had planned to, but decided against it at the last minute, concluding that there were plenty of water stations on the course.  Foolishly, when I took my salt tab, I was nowhere near a water station.

Turns out, salt tabs aren’t exactly small.  Definitely bigger than vitamins.  And they don’t dissolve quickly.  In fact, absent water or gatorade to wash them down, they get stuck in your throat.  At least mine did.  No exaggeration, I thought I was choking to death.

I stopped running and walked off the course.  I headed towards a group of people that included a police officer.  I couldn’t talk. So, I made the universal sign for “please help, I’m choking.” Meaning, I grabbed my throat and made sure the officer could see that my eyes had quadrupled in size from sheer panic.

Apparently the officer didn’t know the universal sign. Either that or he had mastered the skill of remaining standing while catatonic.  He offered no help whatsoever.

I was scared out of my wits.  And not only because I thought I’d soon pass out.  Also because I was thinking “mom is going to be so mad at me for dying from a salt tab.”

Then, it dislodged.  The whole episode probably took no more than 10 seconds.  But it felt like 10 hours. And it messed up my mind for another mile or so.

I finished in 1:30:24.  At the time, it was my fastest half marathon.  But I was bitter. (salty?)  Beyond angry at myself for being too incompetent to properly take a salt pill and, as a result, blowing my chance at running a sub-1:30.

If you ask a runner their time for any particular race, most do not include the seconds in their response.  For example, a 1:30:24 is “I ran a 1:30.”  And, we always round down.

For that race, I will never round down.  To me, it’ll always be a 1:31.

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

You’re at a CLE.  You hear me say:

• “The privilege is different from the rule.  The rule talks about ‘information relating to the representation.’ A comment makes clear that the rule encompasses more than the privilege.”

What was I talking about?

• A. File delivery & work product
• B.  Client confidences
• C.  Storing client information in the cloud
• D.  Inadvertent production of privileged information

Question 2

In Vermont, most conflicts are imputed from the conflicted lawyer to other lawyers in the same firm.

True or false: unlike other conflicts, imputed conflicts cannot be waived by the affected client.

Question 3

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

• “It depends. Did you receive information that could be significantly harmful to the person?”

Most likely, “the person” refers to:

• A.  a former client of Lawyer’s
• B.  a current client of Lawyer’s
• C.  a prospective  client who met with, but did not retain, Lawyer
• D.  opposing counsel

Question 4

How long must Vermont lawyers keep copies of advertisements?

• A.   2 years
• B.   6 years
• C.   It depends. Print ads or electronic ads?
• D.   They don’t.  The rule requiring retention of ads was repealed in 2009.

Question 5

As I mentioned above, 131 includes 3.1.   Rule 3.1 makes it a disciplinary violation to file a frivolous lawsuit.

One of the most misunderstood lawsuits of all time involved hot coffee and McDonald’s.  It’s not as frivolous as the legend that has grown around it would have you believe.

Anyhow, the suit served as the inspiration for an episode of a famous tv show in which one of the main characters sued Java World for burns that resulted from hot coffee.  Java World was prepared to make an opening offer of free coffee for life and $50,000.

The character & his lawyer showed up to meet with representatives from Java World and their attorney.  The Java World attorney said “we are prepared to offer you all the free coffee you want at any of our stores throughout North America and Europe, plus . . .”

Before he could finish, the character jumped from his seat, shook the Java World’s attorney’s hand and, without consulting with counsel, exclaimed “I’ll take it!!!!”

Name the character.

 

 

 

Prosecutors & Ethics: the duty to disclose in criminal cases.

Regular readers know that there’s only one rule that applies solely to a specific practice area.

Any guesses as to which practice area?

If you didn’t guess “prosecutors in criminal cases,” I suppose I need to fine-tune my headline writing.

It’s Rule 3.8 and it’s entitled “Special Responsibilities of a Prosecutor.” The rule sets out the ethical obligations of a “prosecutor in a criminal case.”

Nationally, there’s a perception, to say the least, that attorney regulators do not prosecute licensing cases against criminal prosecutors.  Professor Alberto Bernabe is a regular member of this blog’s #fiveforfriday Honor Roll.  He’s blogged extensively on the perception.  His posts on the topic are here.

That’s not today’s issue.  Today, I want to discuss Rule 3.8(d) and a prosecutor’s duty to disclose evidence in a criminal case.   The discussion flows from a case that I read about on Professor Bernabe’s blog.

The case is In the Matter of Hudson.  It’s a case in which, two weeks ago, the Indiana Supreme Court suspended a prosecutor for 18 months after concluding that the prosecutor violated Rule 3.8(d).  In brief . . .

. . . a deputy county prosecutor handled a case in which the defendant was charged with four counts of child molestation.  The victims were 2 of his step-children.  They are biological siblings.

Shortly before trial, one of the victims informed the prosecutor that he had lied to police about one of the counts.  He said that he did so at the urging of his biological father.  The prosecutor believed that the victim’s recantation was truthful, but did not disclose it to the defense.  Rather, at trial, the prosecutor did not ask the victim any questions about the count related to the recantation.

Still, through cross-examination and other witnesses, defense counsel elicited that the victim had informed the prosecutor that he’d lied about one of the counts.  Eventually, Indiana’s disciplinary authorities charged the prosecutor with violating several ethics rules, including Rule 3.8(d).

In relevant part, Rule 3.8(d) states that a “prosecutor in a criminal case shall:

• “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigate the offense . . ..”

To some of you, the rule might sound familiar, stirring vague recollections of law school or the bar exam.  Those recollections might include thoughts of words like “Brady” or “Brady material.”

You’re right!

Brady v. Maryland is the case in which the United States Supreme Court, per Justice William O. Douglas, held that the prosecution’s withholding of exculpatory evidence violates due process “where the evidence is material either to guilt or to punishment.”

So, what’s the point of referencing both Rule 3.8(d) and the Brady holding?

It’s to ask this question: is a prosecutor’s ethical duty under Rule 3.(d) co-extensive with or broader than a prosecutor’s Brady obligation?

Let’s go back to the Indiana case cited above.  In that case, the prosecutor contended that the victim’s recantation might be fodder for impeachment, but was not “material” to guilt or punishment. As such, she argued that Rule 3.8(d) did not require its disclosure, essentially contending that Rule 3.8(d) was, at most, co-extensive with Brady.

The Indiana Supreme Court chose not to decide the scope of Rule 3.8(d) vis-a-vis Brady.  Rather, it concluded that the prosecutor violated the rule regardless of whether interpreted as co-extensive with or broader than Brady.

While the Indiana Court did not decide the question, many others have weighed in.

In 2009, the ABA’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 09-454.  The Committee opined that Rule 3.8(d) does not include the “materiality” element of Brady and, therefore, is separate than, and necessarily broader than, the Brady obligation.

In June, the Harvard Law Review posted a blog on the topic. In my view, the post – Disentangling the Ethical and Constitutional Regulation of Criminal Discovery – is a fantastic resource on the debate as to whether a prosecutor’s duties under Rule 3.8(d) are broader than the duties under Brady.

As the post points out, while a majority of states have concluded that Rule 3.8 is broader than Brady, not all states have. For example, just last year, and in a case cited in the Indiana opinion, the Louisiana Disciplinary Board concluded that a 3.8(d) violation necessary turns on whether the evidence that was withheld was material, even though that word does not appear in the text of the rule.

The Indiana case also cites to a North Dakota decision that reached the opposite conclusion.  In Disciplinary Board v. Feland, the North Dakota Supreme Court held that “a prosecutor’s duty to disclose evidence under Rule 3.(d) is broader than the duty under Brady.”

I’ve been clear at CLEs.  My position is that Rule 3.8(d) is broader than Brady.  Of course, I’ll be clear here too: I do not know how disciplinary counsel views the rule, nor can I predict how a hearing panel or the Vermont Supreme Court would decide the issue. To me, however, there’s no question that the rule is broader than the constitutional obligation.

For one thing, the Brady court used very specific language: it violates due process not to disclose exculpatory evidence “where the evidence is material either to guilt or to punishment.”  Rule 3.8(d) does not use the word “material.”  Rather, it requires a prosecutor to disclose “all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigate the offense.”

To me, the word “all evidence of information that tends to negate the guilt of the accused or mitigate the offense” means exactly that – all of it.  That is quantifiably more than evidence that is “material to guilt or punishment.”  Or, as ABA Formal Opinion 09-454 points out, it’s not up to the prosecutor to decide whether evidence is material to the defense.

For another, Rule 3.8(d) must mean something.  In other words, why would we draft a rule that says “a prosecutor shall abide by the Constitution?”

An oft-stated criticism of the conclusion that Rule 3.8(d) is broader than Brady is that it imposes inconsistent obligations on the prosecutor.  Umm, no it doesn’t.  Compliance with Rule 3.8(d) necessarily includes compliance with the Brady obligation.

This might not be a burning topic in Vermont.  Over the past 10 or 15 years, I don’t know that I’ve received more than 1 or 2 complaints alleging violations of Rule 3.8(d).  Still, it’s a topic that is worthy of discussion. And, in my view, Rule 3.8(d) of the Vermont Rules of Professional Conduct is broader than the obligation under Brady.