Client alleges you did wrong? Still, don’t talk too much.

When it comes to client confidences, I think lawyers would be well served to remember lessons imparted by Run-DMC: it’s not tricky, don’t talk too much.

Information relating to the representation of a client, no matter the source, is confidential.  Per Rule 1.6, such information can only be disclosed if:

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

Today, I want to look at one of the instances in which paragraph (c) permits disclosure of otherwise confidential information.  I’m going to refer to (1) an ineffective assistance of counsel claim made by a criminal defendant against a defense attorney; and, (2) an ABA advisory opinion on the extent to which Rule 1.6 applies to claims of ineffective assistance.

Don’t tune out simply because you don’t do criminal defense.  There’s a larger point: the mere fact that the client alleges that you did something wrong does not give you license to disclose anything and everything that the client ever shared with you.

Rule 1.6(c)(3) permits (but does not require) a lawyer to reveal information relating to the representation if the lawyer reasonably believes that disclosure is necessary:

  • to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client;
  • to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved; or,
  • to respond to allegations in any proceeding concerning the lawyer’s representation of the client.

Per Comment [14], if a lawyer reasonably believes that (c)(3) permits disclosure, disclosure is nonetheless limited to “the extent the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes specified.”  It continues:

  • “[D]isclosure adverse to the client’s interest should be no greater than the lawyer reasonably believes necessary to accomplish the purpose.  If the disclosure is made in connection with a judicial proceeding, the disclosure should be made in a manner that limits access to the information to the tribunal or other persons having a need to know it and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable.”

In simple terms, do what you advise your clients to do in depositions and on the witness stand: listen to the question and answer only the question.   Actually, a federal magistrate recently stated it far more succinctly.

Yesterday, I came across this post in the ABA Journal.  The opening paragraph:

  • “A federal magistrate judge has ordered a West Virginia lawyer accused of ineffective assistance of counsel to respond to his one-time client’s allegations in a way that limits disclosure of confidential information.”

The magistrate’s opinion is here.  The analysis includes reference to Rule 1.6 and ABA Formal Opinion 10-456.  The magistrate’s succinct conclusion:

  • “Simply put, the filing of an ineffective assistance of counsel claim does not operate as an unfettered waiver of all privileged communications.”

I’ll stop there otherwise I risk sudden onset of carpal tunnel syndrome.

Suffice to say, even when a client puts your representation into issue, don’t talk too much.

After all, who wants to be this guy? (80’s lyrics are the best!)

“Everywhere that you go, no matter where you at
I said you talk about this, and you talk about that
When the cat took your tongue, I say you took it right back
Your mouth is so big, one bite would kill a Big Mac.”

~ Run-DMC, “You Talk Too Much,” King of Rock, Track 3, 1985.

Image result for run dmc talk too much images

Related Posts

Monday Morning Answers #176

Good morning VT!

Friday’s questions are here.  The answers follow today’s Honor Roll.

Thank you to everyone who shared a “speechless” story! It’s great to learn I’m not alone having one.  My only regret (but not really) is that so many of them are not suitable for posting on a PG blog!

Honor Roll

  • Matt AndersonPratt Vreeland Kennelly Martin & White
  • Penny Benelli, Dakin & Benelli
  • Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
  • Mike DonofrioStris Maher
  • Erin GilmoreRyan Smith & Carbine
  • Laura Gorsky, Esq.
  • Bob Grundstein, Esq.
  • John LeddyMcNeil, Leddy, & Sheahan
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Deb Kirchwey, Esq.
  • Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Jeff MessinaBergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Herb Ogden, Esq.
  • Eric ParkerBauer Gravel & Farnham
  • Jonathan Teller-Elsberg, Vermont Law School, Class of 2020

Answers

Question 1

By rule, which must be in writing?

  • A.  a contingent fee agreement.
  • B.  concurrent clients’ consent to waive a conflict of interest.
  • C.  a former client’s consent to waive a conflict of interest.
  • D.  all of the above

Question 2

If a client’s capacity to make adequately considered decisions in connection with a representation is diminished, there’s a rule that states that a lawyer’s initial duty is to:

  • A.  withdraw.
  • B.  seek appointment of a guardian.
  • C.  as far as reasonably possible, maintain a normal client-lawyer relationship with the client.  V.R.Pr.C. 1.13(a)
  • D.  A or B, whichever will result in the least harm to the client’s interests.

Question 3

By rule, how long must a lawyer preserve complete records of funds and property held in connection with a representation?

  • A.  6 years following the termination of the representation.  V.R.Pr.C. 1.15(a)
  • B.  It depends on the type of case.
  • C.  It depends on whether the lawyer held more than $5,000 (in aggregate) throughout the course of the representation.
  • D.  B & C.

Question 4

Prospective Client contacts Lawyer.   Lawyer learns that Lawyer’s Spouse represents Other Side.  As such, Lawyer declines to accept Prospective Client’s case.

Can another lawyer in Lawyer’s firm represent Prospective Client in the matter?

  • A.   Yes.
  • B.   No.
  • C.  Ordinarily yes, unless Lawyer’s Spouse’s involvement presents a significant risk of materially limiting the representation of Prospective Client by the remaining lawyers in the firm.  V.R.Pr.C. 1.7 (Cmt. 11 (citing to Rule 1.10(a))

Question 5

On September 20, 1814, a Baltimore newspaper published a poem that was originally known as The Defence of Fort McHenry.”  The author was lawyer who, at the time, was one of the more competent real estate and trial practitioners in the DC area.

In private practice, the lawyer’s clients included Sam Houston and several of Aaron Burr’s alleged co-conspirators.  As United States Attorney for the District of Columbia, the lawyer prosecuted Richard Lawrence, the first person prosecuted for attempting to assassinate a U.S. President.

Name the lawyer who, despite an intriguing legal career, is more well known for the poem that the Baltimore newspaper published 205 years ago today.

Francis Scott Key (The Star Spangled Banner)

Image result for francis scott key image

Five for Friday #176: Speechless

Welcome to Friday!

Hint: foreshadowing alert.

Try as I might, I’ve got nothing for today’s introduction.  Neither the quiz number nor today’s date inspired a topic.  I went to bed hopeful that by dawn’s early light I’d have something.

Nope.

So, rather than linger over coffee in my kitchen, I left for the office, confident that by the time I arrived words of great wisdom and intrigue would be gallantly streaming from brain to fingertips, through the keyboard, into this space.

Alas, nothing.  An early arrival marked by me staring blankly at the screen merely gave proof that I’d lost the perilous fight.

I thought, “I’m speechless.”

Then, I had three other thoughts.

  1. I love the stories that readers send in response to my Friday posts.
  2. The story of my “speechless” moment as a lawyer.
  3. I wonder if my readers will share their stories of situations when, as lawyers, they found themselves utterly speechless.

My story dates to my time as the disciplinary prosecutor.

I’ve previously blogged on the process by which hearing panels (the PRB’s version of trial courts) and the Supreme Court arrive at a disciplinary sanction.  In short, the ABA Standards for Imposing Lawyer Sanctions play a key role.  The ABA Standards are like sentencing guidelines.  Basically, they call for a matrix-like application of several factors.  This leads to a presumptive sanction that can be ratcheted up or down upon consideration of aggravating and mitigating factors.

Back to my case.  It was one that went to the Supreme Court.

The case involved conduct that did not fit too well into any of the ABA Standards, certainly not squarely within the standard that called for disbarment.  But, in my mind, the conduct was so egregious as to warrant disbarment.  So, on appeal, my argument was something like this:

  • “Sure, we could apply the standards and impose something less than disbarment.  But let’s not so rigorously adhere to standards that, as applied, talk us out of doing what we know we should do: disbar this lawyer.  Indeed, anything less than disbarment in the name of celebrating adherence the ABA Standards will leave us no different than the Emperor with no clothes.  The public, its faith in a self-regulating profession wavering, will surely cry out ‘but that should’ve been disbarment!'”

While not an actual quote, that’s about how the first 30 seconds of my argument went.

Then, the first question from a Supreme Court justice:

  • “Mr. Kennedy, are you picturing us naked right now?”

Talk about speechless.

Note to George Washington Law School: we never went over that in class. Something to consider in appellate advocacy.

I couldn’t see.  I recall feeling blinded by a weird red glare, my thoughts figurative bombs bursting in the air:

“Mike, say ‘no.’!  Wait, Mike, ‘no’ might offend them!  Wait, Mike, DO NOT SAY ‘YES’!!  Mike, say something!”  

Then the Court burst into laughter.  As it turns out, a lawyer had used an analogy to The Emperor With No Clothes in an argument the day before.

As a lawyer, that’s my “speechless” moment.  Please feel free to share yours!

Onto the quiz!

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

By rule, which must be in writing?

  • A.  a contingent fee agreement.
  • B.  concurrent clients’ consent to waive a conflict of interest.
  • C.  a former client’s consent to waive a conflict of interest.
  • D.  all of the above

Question 2

If a client’s capacity to make adequately considered decisions in connection with a representation is diminished, there’s a rule that states that a lawyer’s initial duty is to:

  • A.  withdraw.
  • B.  seek appointment of a guardian.
  • C.  as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
  • D.  A or B, whichever will result in the least harm to the client’s interests.

Question 3

By rule, how long must a lawyer preserve complete records of funds and property held in connection with a representation?

  • A.  6 years following the termination of the representation.
  • B.  It depends on the type of case.
  • C.  It depends on whether the lawyer held more than $5,000 (in aggregate) throughout the course of the representation.
  • D.  B & C.

Question 4

Prospective Client contacts Lawyer.   Lawyer learns that Lawyer’s Spouse represents Other Side.  As such, Lawyer declines to accept Prospective Client’s case.

Can another lawyer in Lawyer’s firm represent Prospective Client in the matter?

  • A.   Yes.
  • B.   No.
  • C.  Ordinarily yes, unless Lawyer’s Spouse’s involvement presents a significant risk of materially limiting the representation of Prospective Client by the remaining lawyers in the firm.

Question 5

On September 20, 1814, a Baltimore newspaper published a poem that was originally known as The Defence of Fort McHenry.”  The author was lawyer who, at the time, was one of the more competent real estate and trial practitioners in the DC area.

In private practice, the lawyer’s clients included Sam Houston and several of Aaron Burr’s alleged co-conspirators.  As United States Attorney for the District of Columbia, the lawyer prosecuted Richard Lawrence, the first person prosecuted for attempting to assassinate a U.S. President.

Name the lawyer who, despite an intriguing legal career, is more well known for the poem that the Baltimore newspaper published 205 years ago today.

 

 

 

 

Advising Clients on their Social Media Use

Earlier this week, I blogged on an advisory opinion issued by the North Carolina State Bar.  It’s an opinion that discusses a lawyer’s ethical duties when reviewing and accessing social media platforms maintained by adverse parties and witnesses.

Today, the flip side: what duties does a lawyer owe to clients regarding their social media use?

Many of you like to cut to the chase.  So, here’s the deal:

  1. Competent representation includes advising clients as to how their social media use will impact a matter.
  2. Yes, a lawyer can advise clients to make their privacy settings more restrictive.
  3. Whether a lawyer can advise clients to “clean-up” their social media posts is nuanced, and certainly not so simple as “that’s not allowed.”  Substantive law on preservation and spoliation will play a critical role.
  4. A lawyer may not advise a client to post false or misleading information on social media.
  5. Finally, it is no longer okay to choose to ignore the fact that your clients likely use multiple social media platforms.  If that means finding someone to help you discuss with clients something that you don’t know how to discuss, then so be it.

I find the Social Media Guidelines from the New York State Bar’s Commercial and Federal Litigation Section to be incredibly helpful.  The Guidelines were updated earlier this year.  If you click on only one link in this post, make sure it’s the introduction to the update.  It’s worth reading.

I’ll end there.   For those of you interested in more, below the image you’ll find links to helpful advisory ethics opinions with a few important quotes from each.

Image result for images of social media

Pennsylvania Bar Association Formal Opinion 2014-300

  • “The Rules do not prohibit an attorney from advising clients about their social networking websites. In fact, and to the contrary, a competent lawyer should advise clients about the content that they post publicly online and how it can affect a case or other legal dispute.”
  • “A lawyer may not instruct a client to alter, destroy, or conceal any relevant information, regardless whether that information is in paper or digital form.
    A lawyer may, however, instruct a client to delete information that may be damaging from the client’s page, provided the conduct does not constitute spoliation or is otherwise illegal, but must take appropriate action to preserve the information in the event it is discoverable or becomes relevant to the client’s matter.”
  • “Similarly, an attorney may not advise a client to post false or misleading information on a social networking website; nor may an attorney offer evidence from a social networking website that the attorney knows is false.”

Florida Bar Ethics Opinion 14-1

  • “In summary, [an attorney] may advise that a client change privacy settings on the client’s social media pages so that they are not publicly accessible. Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence, the inquirer also may advise that a client remove information relevant to the foreseeable proceeding from social media pages as long as the social media information or data is preserved.”

North Carolina 2014 Formal Ethics Opinion 5

  • “competent representation includes advising the client of the legal ramifications of existing postings, future postings, and third party comments.”
  • “If removing postings does not constitute spoliation and is not otherwise illegal, or the removal is done in compliance with the rules and law on preservation and spoliation of evidence, the lawyer may instruct the client to remove existing postings on social media. The lawyer may take possession of printed or digital images of the client’s postings made for purposes of preservation.”

West Virginia Legal Ethics Opinion 2015-02

  • “Attorneys must have a general understanding as to how social media and social networking websites function.”
  • “Attorneys should ensure that their clients are aware of the consequences of their actions via social media and social networking websites, as it is reasonable to expect that their client’s activities will be monitored by opposing counsel and others.”
  • “Although attorneys may instruct their clients to delete information from the clients’ social media pages that may be damaging to the clients, provided the attorneys’ conduct does not constitute spoliation or is otherwise illegal, attorneys must take the appropriate steps to preserve the aforementioned information in the event that it is deemed discoverable or becomes relevant the clients’ cases.”

D.C. Bar Opinion 371

  • “Rules 1.1 and 1.3 require a lawyer to consider the potential risks and benefits that client social media could have on litigation, regulatory, and transactional matters undertaken by the lawyer, and Rule 1.4 requires a lawyer to discuss such risks and benefits with clients.”
  • “Because social media postings are subject to discovery and subpoenas, a lawyer may need to include social media in advice and instructions to clients about litigation holds, document preservation, and document collection.[23] A lawyer also may need to determine whether under applicable law, which varies from jurisdiction to jurisdiction, clients may modify their social media presence once litigation or regulatory proceedings are anticipated. For example, are clients permitted to change privacy settings or to remove information altogether from social media postings? Such analysis may need to include consideration of obstruction statutes, spoliation law,[24] and procedural rules applicable to criminal and regulatory investigations and cases; procedural rules and spoliation law in civil cases; and the duty under Rule 3.4(a) not to “[o]bstruct another party’s access to evidence or alter, destroy, or conceal evidence, or counsel or assist another person to do so. . . .”[25] Before any lawyer-counseled or lawyer-assisted removal or change in content of client social media, at a minimum, an accurate copy of such social media should be made and preserved, consistent with Rule 3.4(a).”

On Constitution Day, Consider Civics & Giving

Today is Constitution Day.  It marks the day in 1787 that the delegates to the Constitutional Convention signed the document.

Last night, the Vermont Bar Association and the Vermont Judiciary held their 4th annual celebration of Constitution Day.  This year’s event took place at Vermont Law School and featured presentations from Justice Eaton, Justice Robinson, Judge Tomasi, Judge Pearson and Professor Teachout.  The theme was “Free Speech, Free Press, Free Society.” You can read more about the night on the VBA Blawg.

I have no doubt that the presentations were fantastic.  But we need to do more.

More than once, I’ve blogged on disturbing statistics related to civic education.  Last May, I posted this blog in which I linked to an ABA Journal piece that reported on “gaps in Americans’ civic knowledge.”  The numbers are concerning.

Not as concerning as numbers I blogged about two years ago.  Marking Constitution Day 2017, I wrote about a study that revealed that nearly 40% of Americans cannot name even one of the protections afforded by the First Amendment.

There are 6.

We must do more to promote civic education.

Bob Carlson is the immediate past president of the American Bar Association.  He’s quoted in the ABA piece that I referenced above:

  • “Democracy is not a spectator sport, but to participate, you need to know the rules. That’s too important to leave to chance. The ABA conducted the survey to determine how well the American public understands the law, the Constitution and their rights and responsibilities. The results clearly show that we have more work to do.”

Carlson added:

  • “American democracy does not function without a fully informed citizenry. As Justice Sandra Day O’Connor said: ‘The practice of democracy is not passed down through the gene pool. It must be taught and learned anew by each generation of citizens.’”

You can help.  Many Vermont lawyers volunteer in schools and before community groups speaking about the Constitution, the separation of powers, and civics.  If you’re interested in doing the same, contact Jennifer Emens-Butler.  Jennifer is the VBA’s Director of Education & Communication.

Finally, keep an eye out for the Vermont Bar Foundation’s Access to Justice Campaign. Two years ago this month, I laid down a challenge.  In my post The Constitution & Karaoke, I wrote:

“As I’ve mentioned at a few seminars, my initial exposure to the U.S. Constitution was during the Saturday morning cartoons I watched as a kid.  Courtesy of the folks at Schoolhouse Rock!, that’s when, where, and how I first learned about the origins of the Constitution and the words to The Preamble.

Of course, if people are not able to access the legal services that they need to protect their rights, the Constitution might mean little to them.  So, in honor of Constitution Day, if an attorney or firm donates $1,000 to the Vermont Bar Foundation’s Access to Justice Campaign by Friday, September 29, I’ll karaoke the Schoolhouse Rock! version of The Preamble at the VBA’s upcoming annual meeting.”

It worked.  I held up my end of the bargain and, with my parents sitting front & center, sang like it’d be my last time ever on stage.

And it will be.  As my friend and fellow attorney James Valente has suggested, I’d have raised more money for the A2J Campaign by soliciting donations not to sing.

He’s right.  And I’ll be the first to say that any argument to the contrary would be frivolous and wholly without support in fact or law.

Still, my commitment to remaining a one-time wonder doesn’t change the fact that the Constitution will mean little if the people who need its protections most cannot access legal services.  If it hasn’t already, the VBF A2J campaign will start soon.  Be ready.

On Constitution Day, consider civics and giving.

Thank you.

Schoolhouse Rock Preamble

NC Advisory Opinion on Reviewing & Accessing Social Media Platforms

Yesterday, I came across the North Carolina State Bar’s 2018 Formal Ethics Opinion 5.  It “reviews a lawyer’s professional responsibilities when seeking access to a person’s profile, pages, and posts on a social network to investigate a client’s legal matter.”  As such, it’s blogworthy.

Social Media

The opinion opens with an important point: technology is ever evolving. Social networks and social media platforms are no different: their features “are constantly changing.”  The duty of competence includes keeping abreast of the benefits and risks of relevant technology.  This echoes Comment 8 to Vermont’s Rule 1.1 and is the exact point I’ve tried to make when addressing the duty to safeguard client information.

Next, the opinion addresses five questions.   My synopsis:

  1. Yes, it’s okay to look at information that is public.  Note, however, that repetitive viewing for no other reason than to cause the person to receive notice that you looked can rise to the level of impermissible harassment.  In other words, competence likely includes knowing which platforms notify a person that someone has viewed their profile.  I blogged on that very point here.
  2. No, you may not use deception to access a restricted (or private) portion of a person’s social network presence.
  3. Yes, it’s okay to request access to restricted (or private) portions of an unrepresented person’s social networks.  As long as the request does not include deception or dishonesty, and as long as you correct any misunderstanding that the unrepresented person has of your role.**
  4. No, you may not send a request for access to restricted (or private) portions of a represented person’s social networks.  To do so would violate the rule that prohibits communicating with a represented person on the subject of the representation.  Nor may you direct a third person to do the same.
  5. Yes, you may request and accept information from a third party who has access to the restricted (or private) portions of a person’s social networks.  You may not, however, direct or encourage a third person to use deception or misrepresentation to gain access.**

For more, check out the entire opinion.

** Note: the opinion makes quite clear that it does not “obviate” the Comment to Rule 8.4 that authorizes a lawyer to advise “a client or, in the case of a government lawyer, investigatory personnel, of action the client, or such investigatory personnel, is lawfully entitled to take.”

Other resources

Monday Morning Answers #175

Welcome back to another work week. Wherever you are, I hope your Monday weather is as fantastic as it is here at headquarters.

Friday’s questions are here.   The answers follow today’s Honor Roll.

Most importantly: you have spoken.  On the issue of expirations dates, here are the results from Friday’s poll:

When it comes to expiration dates on food:

  • 63.3% – I’m like J&J. Expiration dates arrive well before the food goes bad. No mold or odor? It’s fine! 
  • 20% – I’m like Mike & Taylor.  Never, ever after the expiration date.
  • 16.7% – One or two days past is ok, but that’s the max.”

As always, thanks to all who reached out with more specific responses.  I loved every one of them!

Have a great day!

Honor Roll

  • Karen Allen, Esq.
  • Matt AndersonPratt Vreeland Kennelly Martin & White
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, John Marshall Law School
  • Jennifer Emens-Butler, Director of Education & Communication, VBA
  • Erin GilmoreRyan Smith & Carbine
  • Laura Gorsky, Esq.
  • Bob Grundstein, Esq.
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy, JB Kennedy Associates, Blogger’s Mom
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Kevin LumpkinSheehey Furlong & Behm
  • Lon McClintock, Esq.
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Hal Miller, First American
  • Herb Ogden, Esq.
  • Robyn SweetCORE Registered Paralegal, Cleary Shahi  & Aicher
  • Jonathan Teller-Elsberg, Vermont Law School, Class of 2020
  • Jason Warfield, Vermont Law School, Class of 2020

Answers

 

Question 1

Which is most accurate?  By rule, a lawyer shall ___________:

  • A.  reasonably consult with the client about the means by which the client’s objectives are to be accomplished.  
  • B.  abide by the client’s direction as to the means by which the client’s objectives are to be accomplished.
  • C.  B, unless to do so would violate the Rules of Professional Conduct.
  • D.  None of the above.  The rules require a lawyer to abide by the client’s objectives but are silent as to the means by which those objectives are accomplished.

This is the exact language from Rule 1.4(a)(2), the rule that outlines the scope of a lawyer’s duty to communicate with a client.  Per Rule 1.2(a), a client owns the objectives.

Question 2

By rule, when representing a client, a lawyer shall not communicate with a person who is represented by another lawyer absent the consent of the other lawyer.

True or False: the rule only applies if the represented person’s interests are adverse to the interests of the lawyer’s client.

FALSE.  Rule 4.2 applies whenever a person is represented.

Question 3

Lawyer called me with an inquiry.  I listened then said “there are 3 exceptions to the rule.  The first is if the testimony relates to an uncontested issue.  The second is if the testimony relates to the nature and value of legal services rendered in the case.”

Given my response, the testimony of who?

  • A.   an expert witness
  • B.   Lawyer’s former client, and former client is adverse to Lawyer’s current client
  • C.   a lawyer
  • D.  Lawyer’s client, and Lawyer’s client suffers from a diminished capacity.

This is Rule 3.7, Lawyer as Witness.

Question 4

By rule, Disciplinary Counsel and the Supreme Court are authorized to conduct & order, respectively, compliance reviews & audits of a lawyer or law firm’s:

  • A.  financial records
  • B.  financial records, including trust accounts
  • C.  financial records, including trust & fiduciary accounts
  • D.  C, but only upon receipt of information sufficient to establish that there is probable cause for the compliance review or audit.

The authority to conduct & order compliance reviews & audits of a lawyer or law firm’s financial records, including trust and fiduciary accounts appears in Rules 1.15A(b) and 1.15A(c).

Question 5

Privileges, confidences, conflicts.

In real-life, Paul Giamatti’s father, Bart, served as Commissioner of Major League Baseball.  There, Bart effectively disbarred Pete Rose by banning him from the sport.

On television, Paul Giamatti plays Chuck Rhoades, United States Attorney for the Southern District of New York.  Initially, the show focuses on Rhoades’ fixation with building a criminal case against Bobby Axelrod, an incredibly wealthy hedge fund trader who owes much of his fortune to gains made as a result of the 9/11 terrorist attacks.  A complicating factor?  Rhoades’ wife, Wendy, is a psychiatrist who works as a “performance coach” at Axe Capital, the hedge fund owned by Axelrod.

Central to the show’s plot are Wendy’s relationships with Rhoades and Axelrod, and the issues related to privileges, confidences, and conflicts that arise as a result.

Name the show.

BILLIONS

Image result for billions

Five for Friday #175: Superstitions & Expiration Dates

Happy Friday!

On the superstition spectrum, I’m much closer to Steve Wonder

Image result for stevie wonder very superstitious

than I am to Michael Scott.

Image result for michael scott superstitious

That being said, Friday the 13th doesn’t bother me.  No, when it comes to superstitions, most of mine relate to sports or food.  In fact, I’m using today’s intro to ask my readers to weigh in on a particular of my food superstitions, one that is not shared by two of my most loyal readers.  More on that in a moment.

First, my food-related superstitions include:

  • it’s bad luck to set a microwave for a time that ends in 0.  (e.g.: 1: 59 is far safer than 2:00.)
  • it’s bad luck to pour the cream or milk after you’ve poured the coffee. put the cream or milk in first, then the coffee. Always.
  • in a restaurant, it’s bad luck to disclose your order to someone you’re eating with before you announce the order to the server;
  • in a restaurant, it’s bad luck to order the same thing as someone eating with you.
  • thus, it’s obvious that, in a restaurant, it’s bad luck not to order last.

(Don’t worry, over dinner, my wit, charm, and conversational skills will cleanse your palate of how insufferable I was prior to ordering.)

Fact:  I live my life by the superstitions listed above.  However, I write today for your input on the food-related superstition that is most critical to my belief system: expiration dates.

I treat consuming food after the expiration date like Taylor Swift treats getting back together: never ever.   Literally.  If the expiration date is the 15th, I might not even consume it on the 13th.  There is zero chance that I will use it on the 16th.  To me, this isn’t even a superstition.  It’s science.

Now, as I mentioned,  at least two of my most loyal readers disagree with me on this issue.  I’m not sure that I should I identify them.  Thus, to protect their anonymity:

  • each has a first name that begins with J;
  • one has known me for every single second of my life; and,
  • the other works for the Vermont Bar Association.

Their cavalier attitudes towards expiration dates leaves me worried for their health.  Seriously.   I’m not talking about using something a day or two after the deadline.  I’m talking weeks!  That’s not wellness!

So, here’s what we’re going to do.   I’ve set up a poll.  It’s here.  Please weigh in on this important issue. You don’t have to take the legal ethics quiz to do so. .

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

Which is most accurate?  By rule, a lawyer shall ___________:

  • A.  reasonably consult with the client about the means by which the client’s objectives are to be accomplished.
  • B.  abide by the client’s direction as to the means by which the client’s objectives are to be accomplished.
  • C.  B, unless to do so would violate the Rules of Professional Conduct.
  • D.  None of the above.  The rules require a lawyer to abide by the client’s objectives but are silent as to the means by which those objectives are accomplished.

Question 2

By rule, when representing a client, a lawyer shall not communicate with a person who is represented by another lawyer absent the consent of the other lawyer.

True or False: the rule only applies if the represented person’s interests are adverse to the interests of the lawyer’s client.

Question 3

Lawyer called me with an inquiry.  I listened then said “there are 3 exceptions to the rule.  The first is if the testimony relates to an uncontested issue.  The second is if the testimony relates to the nature and value of legal services rendered in the case.”

Given my response, the testimony of who?

  • A.   an expert witness
  • B.   Lawyer’s former client, and former client is adverse to Lawyer’s current client
  • C.   a lawyer
  • D.  Lawyer’s client, and Lawyer’s client suffers from a diminished capacity.

Question 4

By rule, Disciplinary Counsel and the Supreme Court are authorized to conduct & order, respectively, compliance reviews & audits of a lawyer or law firm’s:

  • A.  financial records
  • B.  financial records, including trust accounts
  • C.  financial records, including trust & fiduciary accounts
  • D.  C, but only upon receipt of information sufficient to establish that there is probable cause for the compliance review or audit.

Question 5

Privileges, confidences, conflicts.

In real-life, Paul Giamatti’s father, Bart, served as Commissioner of Major League Baseball.  There, Bart effectively disbarred Pete Rose by banning him from the sport.

On television, Paul Giamatti plays Chuck Rhoades, United States Attorney for the Southern District of New York.  Initially, the show focuses on Rhoades’ fixation with building a criminal case against Bobby Axelrod, an incredibly wealthy hedge fund trader who owes much of his fortune to gains made as a result of the 9/11 terrorist attacks.  A complicating factor?  Rhoades’ wife, Wendy, is a psychiatrist who works as a “performance coach” at Axe Capital, the hedge fund owned by Axelrod.

Central to the show’s plot are Wendy’s relationships with Rhoades and Axelrod, and the issues related to privileges, confidences, and conflicts that arise as a result.

Name the show.

Image result for bobby wendy chuck one picture

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Judicial Recusal: Guidance from Mag & the ABA

In my first year as a high school varsity basketball coach, I started a sophomore guard named Chris Magistrale.  “Mag” (pronounced “madge”) was a terrific player, teammate, and person.   By the time his high school basketball career ended, he’d been named captain, earned numerous all-league & all-state honors, and scored more than 1,000 points.  He and I remained close over the years.

A few years after graduating, Mag got into reffing.  He eventually worked his way up to the varsity level, reffing in the same league in which he used to play and in which I continued to coach.  Somewhat surprisingly, one year, Mag was assigned to ref our season-opener.  He worked a great game, neither helping nor hurting his alma mater & old coach.

Still, a few opposing coaches expressed concern to the referee in charge of assigning officials.  From then until my retirement, Chris never again worked one of my games.

And rightfully so.  In basketball, when it comes to the fairness of the game, appearances matter.

Last week, the ABA’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 488.  The opinion provides guidance as to judges’ obligations to recuse themselves due to a social or personal relationship with a party or lawyer.  The ABA Journal and Lawyer Ethics Alert Blog reported on the opinion.

The opinion begins by citing to Rule 2.11 of ABA Model Code of Judicial Conduct. The rule governs disqualification.  Vermont’s equivalent is Rule 3(E) of the Vermont Code of Judicial Conduct.  For the most part, it mirrors the Model Rule by requiring recusal whenever a “judge’s impartiality might reasonably be questioned.”  Then, the VT rule lists various relationship in which it is presumed reasonable to question the judge’s impartiality.

Vermont’s rule includes another critical component.  As I read Rule 3(G), even if a judge’s initial (and perhaps internal) decision is that recusal is not required, the judge must nevertheless “disclose any fact or matter relevant to the question of impartiality that, in the judge’s view, may require disqualification under Rule 3(E)(1).”

In any event, back to the ABA Opinion.

The opinion divides judges’ social and personal relationships into three categories:

  1. Acquaintances
  2. Friendships
  3. Close Personal Relationships

The conclusion:

  • ” In summary, judges need not disqualify themselves if a lawyer or party is an acquaintance, nor must they disclose acquaintanceships to the other lawyers or parties. Whether judges must disqualify themselves when a party or lawyer is a friend or shares a close personal relationship with the judge or should instead take the lesser step of disclosing the friendship or close personal relationship to
    the other lawyers and parties, depends on the circumstances.”

Judicial ethics are not my bailiwick. Nevertheless, I find the final sentence in the block-quote a bit surprising.  It strikes me that “close and personal” should require recusal.  Indeed, my sense is that the Vermont bench errs on the side of caution and that our judges disclose and recuse themselves more often than the opinion suggests is required.

To me, that’s a good thing.  Like basketball, when it comes to the fairness of the judicial process, appearances matter.

By the way, Chris is still pretty terrific.  He is making a difference in this world.  Here’s Mag now: