Monday Morning Answers #185

What a fantastic morning!   Friday’s questions are here.  The answers follow today’s honor roll.

Honor Roll

• Karen Allen, Esq.
• Matthew Anderson, Pratt Vreeland Kennelly Martin & White
• Evan Barquist, Montroll Backus & Oettinger
• Penny Benelli, Dakin & Benelli
• Erin Gilmore, Ryan Smith & Carbine
• Bob Grundstein, Esq.
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
• Elizabeth Kruska  & Wesley Lawrence
• John Leddy, McNeil, Leddy, & Sheahan
• Pam Loginsky, Washington Association of Prosecuting Attorneys
• Lon McClintock, McClintock Law Offices
• Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
• Rob McDougall, Assistant Attorney General; Chief -Environmental Protection Division
• Hal Miller, First American
• Kristen Shamis, Monaghan, Safar, Ducham
• Robyn Sweet, CORE Registered Paralegal, Cleary Shahi  & Aicher
• Jonathan Teller-Elsberg, Vermont Law School, JD Candidate
• Jason Warfied, Vermont Law School, JD Candidate
• Jack Welch, Esq.
• Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

At a CLE, visions of sugarplums distract you.  Yet, you vaguely hear me say something to the effect of “the rule relaxes the duty of loyalty owed to that person, but not the duty to maintain that person’s confidences.”

When I said, “that person,” I was referring to:

• A.   a client who sues a lawyer for malpractice.
• B.   a client who files a disciplinary complaint against a lawyer.
• C.   a prospective client who met with but did not retain a lawyer.  See, V.R.Pr.C. 1.18
• D.   all of the above.

Question 2

Attorney called me with an inquiry.  I listened, then replied, “the rule requires you to take reasonable remedial measures. A comment to the rule says that the first step is to remonstrate with your client.”

Given my response, it’s most likely that Attorney called because Attorney:

• A.  Learned that Client had presented false evidence to a tribunal.  See, Rule 3.3 and my blog post “Lawyer’s duty upon learning that a client or witness lied.”
• B.   Received information from opposing counsel that she reasonably believes opposing counsel inadvertently produced.
• C.   Discovered that her law firm previously represented the other party in a substantially related matter.
• D.  Communicated with a represented person without the consent of that person’s lawyer.

Question 3

Lawyer called me with an inquiry. I listened, then said “yes, for the sole purpose of paying service charges or fees on the account, and only in an amount necessary for that purpose.”

What did Lawyer call to ask?

Whether Lawyer could deposit Lawyer’s own money into Lawyer’s client trust account.  See, V.R.Pr.C. 1.15(b).

Question 4

Rule 3.4(a) prohibits a lawyer from unlawfully obstructing another party’s access to evidence or unlawfully altering, destroying or concealing material that has potential evidentiary value.

Earlier this week, some other lawyers and I met with the lawyers participating in the VBA’s Incubator Program.  Among other things, we discussed the legal ethics of social media. We mentioned that, generally, a lawyer does not violate Rule 3.4 by advising a client to delete or “take down” information from social media, so long as ____________________.

• A.   the conduct does not constitute spoliation of evidence.
• B.   the conduct is not otherwise illegal.
• C.    the lawyer takes appropriate action to advise the client to preserve the information should it become discoverable or relevant.
• D.   All of the above.  Many advisory ethics opinions have reached this conclusion. Among them, the Pennsylvania Bar Association’s Formal Opinion 2014-300.

Question 5

There’s a holiday movie that involves questionable conduct by the prosecutor, defense attorney, and judge.

The movie focuses on Kris, a seasonal employee at a department store in New York City. Kris got into hot water after whacking a fellow employee over the head with an umbrella. Soon thereafter, the state initiated involuntary commitment proceedings.  The prosecutor’s entire case rested on Kris’s claims to be someone who, according to the state, did not exist.

Fred represented Kris.  He did so as much for his romantic interest in Doris, Kris’s boss, as for his interest in providing Kris with competent and diligent representation.

In the end, Judge Henry X. Harper refused to commit Kris.  His decision was based on several factors, including:

1. a politician’s ex parte communication to the judge that the judge would certainly lose his re-election bid if he ruled that the person Kris claimed to be did not exist; and,
2. 21 bags of “dead letters” addressed to the person who Kris claimed to be.  The United States Post Office delivered them to Kris at the courthouse during the hearing.

Judge Harper concluded that if the federal government (the Post Office) agrees that Kris is who he claims to be, then the state has no business saying otherwise.

Following the hearing, Fred asked Doris to marry him.

In the movie, who does Kris claim to be?

Santa Claus (the movie is Miracle on 34th Street)

Five for Friday #185

Sometimes it’s funny what we miss.

As I type, it’s 4:31 AM.  In the spring & summer, the noise would’ve begun by now.  The damn birds would be full throttle into their daily concert.  Given my proclivity not to appreciate what I have in the moment I have it, I’d roll over and yell “be quiet!” as I hope for 29 more minutes of sleep.  Then, I’d grudgingly arise, have a quick coffee, and groggily walk out of the garage to run.

And I’d love it.

I love the light that comes between summer’s nights & dawns.  I love how cool even the hottest of days feel that early in the morning.  I love the stretch of my runs that includes an incredible view of the sun rising over the mountains.

Today, there’s no noise.  Even if there was, I wouldn’t be able to hear it. For as surely as my stockings are hung by the chimney with care, my windows are sealed shut to keep out this frigid air.

As for a morning run, the sun remains almost 3 hours from rising (and seems but 4 or 5 from setting.)  Further, per my weather app, Williston currently “feels like -6.”  Not exactly my jam.  So, the plan is to run indoors.  In a few minutes, I’ll hop into my car for the dark drive to the gym and the dizzying, mind-numbing effect of laps around a track that measures an 1/8th of a mile and is pretty much devoid of natural light.

Oh how I miss those damn birds and their noise!

Alas, there’s hope.  Beginning Sunday, each day will be longer than last.  Yet another reason why this is, truly, the most wonderful time of the year.

Happy Holidays and onto the quiz!

PS – I really do hang stockings:

Rules

• None.  Open book, open search engine, text-a-friend.
• Exception:  Question 5.  We try to play that one honest.
• 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
• Share on social media.  Hashtag it – #fiveforfriday

Question 1

At a CLE, visions of sugarplums distract you.  Yet, you vaguely hear me say something to the effect of “the rule relaxes the duty of loyalty owed to that person, but not the duty to maintain that person’s confidences.”

When I said, “that person,” I was referring to:

• A.   a client who sues a lawyer for malpractice.
• B.   a client who files a disciplinary complaint against a lawyer.
• C.   a prospective client who met with but did not retain a lawyer.
• D.   all of the above.

Question 2

Attorney called me with an inquiry.  I listened, then replied, “the rule requires you to take reasonable remedial measures. A comment to the rule says that the first step is to remonstrate with your client.”

Given my response, it’s most likely that Attorney called because Attorney:

• A.  Learned that Client had presented false evidence to a tribunal.
• B.   Received information from opposing counsel that she reasonably believes opposing counsel inadvertently produced.
• C.   Discovered that her law firm previously represented the other party in a substantially related matter.
• D.  Communicated with a represented person without the consent of that person’s lawyer.

Question 3

Lawyer called me with an inquiry. I listened, then said “yes, for the sole purpose of paying service charges or fees on the account, and only in an amount necessary for that purpose.”

What did Lawyer call to ask?

Question 4

Rule 3.4(a) prohibits a lawyer from unlawfully obstructing another party’s access to evidence or unlawfully altering, destroying or concealing material that has potential evidentiary value.

Earlier this week, some other lawyers and I met with the lawyers participating in the VBA’s Incubator Program.  Among other things, we discussed the legal ethics of social media. We mentioned that, generally, a lawyer does not violate Rule 3.4 by advising a client to delete or “take down” information from social media, so long as ____________________.

• A.   the conduct does not constitute spoliation of evidence.
• B.   the conduct is not otherwise illegal.
• C.    the lawyer takes appropriate action to advise the client to preserve the information should it become discoverable or relevant.
• D.   All of the above.

Question 5

There’s a holiday movie that involves questionable conduct by the prosecutor, defense attorney, and judge.

The movie focuses on Kris, a seasonal employee at a department store in New York City. Kris got into hot water after whacking a fellow employee over the head with an umbrella. Soon thereafter, the state initiated involuntary commitment proceedings.  The prosecutor’s entire case rested on Kris’s claims to be someone who, according to the state, did not exist.

Fred represented Kris.  He did so as much for his romantic interest in Doris, Kris’s boss, as for his interest in providing Kris with competent and diligent representation.

In the end, Judge Henry X. Harper refused to commit Kris.  His decision was based on several factors, including:

1. a politician’s ex parte communication to the judge that the judge would certainly lose his re-election bid if he ruled that the person Kris claimed to be did not exist; and,
2. 21 bags of “dead letters” addressed to the person who Kris claimed to be.  The United States Post Office delivered them to Kris at the courthouse during the hearing.

Judge Harper concluded that if the federal government (the Post Office) agrees that Kris is who he claims to be, then the state has no business saying otherwise.

Following the hearing, Fred asked Doris to marry him.

In the movie, who does Kris claim to be?

 

 

 

 

 

A lawyer’s duty upon learning that a client or witness presented false evidence.

Earlier this month I presented CLEs for both the Defender General’s Office and the VBA’s Bankruptcy Section.  At each, we discussed Rule 3.3 and a lawyer’s duty of candor to the tribunal.

A quick search of this site shows that I often include questions on the rule in the #fiveforfriday quiz.  Substantive posts, however, are exceedingly rare, limited, it seems, to this post on Rule 3.3(d) and the duty of candor in an ex parte proceeding.

While not often a topic I address, it’s a topic I hear about, whether by formal inquiry of bar counsel or by questions posed at CLEs.  The inquiries & questions boil down to this: “having learned that a client or witness lied, what do I do?”

When I get the question at CLEs, I respond by asking the audience “what’s the first thing you have to do?”  Two answers are common:

• “Withdraw.”
• “Inform the court.”

In my view, neither is the right answer.

Let’s look at Rule 3.3(a)(3).  The section relevant to this post states that “a lawyer shall not knowingly:

• offer evidence that the lawyer knows to be false. If the lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.” (emphasis added)

Stated differently, the rule does not say that

• “If the lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know its falsity, the lawyer shall withdraw/inform the tribunal.”

So, what are “reasonable remedial measures?”  The comments provide guidance.  Specifically, Comments [10] and [11].

Here are a few key lines from Comment [10]:

• “In such situations, an advocate’s proper course is to remonstrate with the client confidentially, advise the client of the lawyer’s duty of candor to the tribunal and seek the client’s cooperation with respect to the withdrawal or correction of the false statements or evidence.”

The use of “remonstrate” is telling.  I’m not bright enough to know whether, in the comment, “remonstrate” is a transitive or intransitive verb.  No matter which, it’s clear that it means more than “chatting” with the client.

Per Merriam-Webster, as an intranstive verb it means “to present and urge reasons in opposition.”  With an object receiving it – for instance, a client – it means “to say or plead in protest, reproof, or opposition.” To me, the duty, then, is to protest against the false evidence having been offered, present the client with reasons to correct it, and urge the client to do so.

The Comment goes on:

• “If that fails, the advocate must take further remedial action.  If withdrawal from the representation is not permitted or will not undo the adverse effect of the false evidence, the advocate must make such disclosure to the tribunal as is reasonably necessary to remedy the situation, even if doing so requires the lawyer to reveal information that otherwise would be protected by (the confidentiality rule).”

Harsh?  Yes.  The opening sentence to Comment [11] makes that clear:

• “The disclosure of a client’s false testimony can result in grave consequences to the client, including not only a sense of betrayal but also loss of the case and perhaps a prosecution for perjury.”

Why so harsh?  The next sentences provide the answer:

• “But the alternative is that the lawyer cooperate in deceiving the court. thereby subverting the truth finding process which the adversary system is designed to implement . . . Furthermore, unless it is clearly understood that the lawyer will act upon the duty to disclose the existence of false evidence, the client can simply reject the lawyer’s advice to reveal the false evidence and insist that the lawyer keep silent.  Thus the client could in effect coerce the lawyer into being a party to fraud on the court.”

I don’t know how often this arises in practice.  For now, if it does, remember: upon learning that a client or witness has provided false evidence, neither “withdraw” nor “inform the court” is the first step.

Remonstrate, remonstrate, remonstrate.

 

 

Update!

Last week, I posted Don’t Be This Guy.  It’s the story of a lawyer whose profane, abusive and threatening emails to opposing counsel shocked any & all who read them.  As I blogged, the presiding judge ordered the lawyer to appear and show cause why opposing counsel’s requests for relief should not be granted.

The show cause hearing was yesterday.  I expected to learn that the lawyer arrived contrite and begged for the court’s mercy.

I was wrong.

Several outlets have reported on yesterday’s hearing, including Law360 (subscription required), The Recorder (subscription required), the ABA Journal, and The Washington Post.  If you’re familiar with the lawyer’s emails, the headline in the ABA Journal won’t surprise you:

“Judge tells lawyer who sent ‘eat a bowl of dicks’ emails the profession doesn’t need him.”

Please read the article.  If I try to recap it here, you simply will not believe me.

Suffice to say, my original post on this story was entitled Don’t Be This Guy.  

I stand by that thought

 

Wellness Wednesday: Legal Acts of Kindness

Last night, I posted about a lawyer who engaged in disturbing conduct.  I hope that today’s post serves as an anti-dote of sorts.

2Civility is an arm of the Illinois Supreme Court Commission on Professionalism.  Its focus is to advance “the highest standards of conduct among lawyers to better serve clients and society.”

Last month, 2Civility’s deputy director, Stephanie Vilinski, posted Let’s Talk about Legal Acts of Kindness.  Stephanie’s post ran in conjunction with World Kindness Day.  I’m a bit late in calling attention to Stephanie’s message.

And it’s an important message.

Early on, Stephanie writes:

• “Attorneys don’t typically talk about legal acts of kindness. So, let’s begin to change that.”

From there, Stephanie shares 5 ideas for change. I’ll list them, but the post itself is worth reading for the additional info that Stephanie provides with each idea.  The ideas:

• “Be fair and empathetic.”
• “Agree that it’s okay to disagree, but not to be mean.”
• “Thank another attorney.”
• “Take care of yourself.”
• “Work for improved access to justice.”

Great ideas!

Implicit in the post – and, I think, in all 2Civility’s work – is that wellness and civility aren’t one-offs. Runners don’t increase their speed & distance by running once on a Wednesday.  They get faster & gain endurance by make running part of their routines.

Wellness and civility are no different.  Sure, it’d be nice if, on occasion, you mix-in to your day 1 of  Stephanie’s ideas.  It’d be nicer if you work to make them part of your routine.

Let’s begin.

Don’t Be This Guy.

Two topics I’ve covered before are civility & puffery.  As to the former, my thoughts are best summed up by my post Don’t Be A Jerk.  As to the latter, well, puffery in negotiations isn’t necessarily unethical.  Assuming, of course, that the conduct at issue can legitimately be described as “puffery in negotiations.”  More on that in a moment.

Over the past 21 years, I’ve seen some incredibly bad behavior by lawyers.  I’ve never seen anything like the story I’m about to recount, a story covered by Above The Law and Professor Bernabe’s Professional Responsibility Blog.  I’m not the only one. Indeed, the story is one of  behavior so bad as to cause opposing counsel to file a request for relief that ended with:

• “In a collective 75 years of legal practice, [defense] counsel have never seen
  behavior that even comes close to that of [plaintiffs’ counsel] here. It is unlikely that the Court has either.”

I can hear you now: “Mike, tell us more! What was this behavior?”

Here’s what I’m willing to share.

Water damaged a house.  A contractor hired by the homeowners’ insurance company estimated the damage at $150,000, which is the amount that the insurance company paid on the claim.  The homeowners sued, contending that they incurred $350,000 in covered damages.

Negotiations (and discovery) weren’t pleasant. So unpleasant that, last month, the insurance company’s lawyers asked a federal court to dismiss the complaint or, in the alternative, to disqualify plaintiffs’ attorney.  They also requested a restraining order against plaintiffs’ attorney and a protective order preventing plaintiffs’ attorney from deposing defense witnesses. A memorandum in support of the request opened with:

• “Plaintiffs’ attorney . . . has embarked on a campaign of abusive and intolerable conduct that began with profanity-laced emails, escalated to discriminatory slurs, and culminated in repeated threats of physical violence against Allstate’s witnesses, Allstate’s attorneys, and their families.”

This is where my job as tour guide ends.  To continue the journey, the insurance lawyers’ memorandum in support of the request is here and a declaration from one of the lawyers is here.  I suspect the odds that you’ve seen conduct as egregious are greater than the odds that I will win next year’s Boston Marathon.

The Above The Law post includes an excerpt of plaintiffs’ attorney’s response:

 

Umm, that’s not the kind of puffery I blogged about.  Also, the attorney’s apology and promise not to do it again make me think of Costanza: was that wrong?  Perhaps the lawyer will soon join those who learned the hard way that the answer is “yes.”

For now, and per an update on Above The Law, the court ordered the plaintiffs’ attorney to appear and show cause why the insurance company’s requests for relief should not be granted.  The hearing is set for December 16.

Stay tuned.

 

 

 

 

Monday Morning Answers #184

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

Honor Roll

• Karen Allen, Esq.
• Matthew Anderson, Pratt Vreeland Kennelly Martin & White
• Evan Barquist, Montroll Backus & Oettinger
• Alberto Bernabe, Professor, John Marshall Law School
• Anna Black, Stackpole & French
• Andrew Delaney, Martin & Delaney
• Laura Gorsky, Esq.
• Bob Grundstein, Esq.
• Tammy Heffernan, Esq.
• Glenn Jarrett, Jarrett & Luitjens
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Thomas Kester, Assistant General Counsel, Blue Cross & Blue Shield of Vermont
• John Leddy, McNeil, Leddy, & Sheahan
• Tom Little, Little & Cicchetti
• Pam Loginsky, Washington Association of Prosecuting Attorneys
• Lon McClintock, McClintock Law Offices
• Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
• Hal Miller, First American
• Jim Runcie, Ouimette & Runcie
• Kristen Shamis, Monaghan, Safar, Ducham
• Jonathan Teller-Elsberg, Vermont Law School, JD Candidate
• Jack Welch, Esq.

Question 1

If Lawyer’s continued representation of a client will result in a violation of the Rules of Professional Conduct, Lawyer _____________.

• A.    may withdraw.
• B.    shall withdraw.  V.R.Pr.C. 1.16(a)(1)
• C.    oddly, this situation is not mentioned in the Vermont Rules of Professional Conduct.

Question 2

Lawyer called me with an inquiry involving Client and Other.  I listened.  Then, I said:

“it’s ok as long as:

1. Client gives informed consent;
2. Other doesn’t interfere with your professional judgment or your relationship with Client; and,
3. you don’t share any information about the representation with Other absent Client’s consent.”

What is Other’s involvement with this situation?

Other is paying for Lawyer’s representation of Client.  V.R.Pr.C. 1.8(f).

Question 3

Later today at the Bankruptcy CLE, I’m going to mention “the 6 Cs of Legal Ethics.”  Competence, Communication, Confidentiality, Conflicts, Candor, and Civility.

There’s actually a 7^th “C”, but the word does not appear anywhere in the rules.  Rather, it’s the word we use to refer to a violation of the duty to hold property of clients and third persons separate from the lawyer’s own property.

What’s this 7th “C”?

Commingling

Question 4

Lawyer represents Kennedy.   This morning, Kennedy gave Lawyer a bank check for $6,000 to pay for various expenses related to the representation, including legal fees owed to Lawyer.  Lawyer did not have time to make it to the bank today but intends to deposit Kennedy’s check on Monday.

Honestly, Kennedy is a pain.  He hasn’t paid in a long time and has a hefty outstanding bill.

Lawyer’s trust account holds funds that belong to clients other than Kennedy. This afternoon, Lawyer wants (finally) to pay herself for legal services provided to Kennedy by transferring funds from the trust account to her operating account.  Then, on Monday, Lawyer intends to replace those funds by depositing Kennedy’s bank check into trust.

Which is most accurate?

• A.   Good plan, but only because it’s a bank check, not a personal check.
• B.   Good plan, if Lawyer charges Kennedy a reasonable fee.
• C.   Bad plan, because the bank check is for more than $5,000.
• D.   Bad plan, because the disbursement would take place before Lawyer deposits Kennedy’s bank check into her trust account.  V.R.Pr.C. 1.15(f).

Question 5

Today is the 154th anniversary of the ratification of the 13th Amendment to the United States Constitution, the amendment that abolished slavery.

One of the members of Congress who was instrumental in drafting and passing the 13th Amendment was a “radical republican” who was born & raised in Vermont.  After leaving Vermont, he practiced law in Pennsylvania.  As a trial lawyer, legend has it that he responded to a judge’s warning that he was “manifesting contempt” by saying “Sir, I’m doing my best to conceal it.”

In 2012, Tommy Lee Jones played him in a movie about Abraham Lincoln and won the Academy Award for Best Supporting Actor .

Name the lawyer who was born & raised in Vermont and who played a critical role in drafting, passing, and ratifying the 13th Amendment.

Danville’s own Thaddeus Stevens

Five for Friday #184

Happy Friday!

I’m about to hit the road to speak at two CLEs: the VBA Bankruptcy Section’s Holiday CLE in Killington, followed this afternoon by the Defender General’s training in Montpelier. Last night, I had visions of rising early and using today’s introduction to weave for you a magical story tying this week’s number (184), to today’s date, and, eventually, to The Irishman.  

I said “visions.”  I did not say – or do anything to indicate – that I had managed to transform my visions to a draft, not to mention a final product.

But you know what that makes me?

A visionary.

Onto the quiz!

Rules

• None.  Open book, open search engine, text-a-friend.
• Exception:  Question 5.  We try to play that one honest.
• 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
• Share on social media.  Hashtag it – #fiveforfriday

Question 1

If Lawyer’s continued representation of a client will result in a violation of the Rules of Professional Conduct, Lawyer _____________.

• A.    may withdraw.
• B.    shall withdraw.
• C.    oddly, this situation is not mentioned in the Vermont Rules of Professional Conduct.

Question 2

Lawyer called me with an inquiry involving Client and Other.  I listened.  Then, I said:

“it’s ok as long as:

1. Client gives informed consent;
2. Other doesn’t interfere with your professional judgment or your relationship with Client; and,
3. you don’t share any information about the representation with Other absent Client’s consent.”

What is Other’s involvement with this situation?

Question 3

Later today at the Bankruptcy CLE, I’m going to mention “the 6 Cs of Legal Ethics.”  Competence, Communication, Confidentiality, Conflicts, Candor, and Civility.

There’s actually a 7^th “C”, but the word does not appear anywhere in the rules.  Rather, it’s the word we use to refer to a violation of the duty to hold property of clients and third persons separate from the lawyer’s own property.

What’s this 7th “C”?

Question 4

Lawyer represents Kennedy.   This morning, Kennedy gave Lawyer a bank check for $6,000 to pay for various expenses related to the representation, including legal fees owed to Lawyer.  Lawyer did not have time to make it to the bank today but intends to deposit Kennedy’s check on Monday.

Honestly, Kennedy is a pain.  He hasn’t paid in a long time and has a hefty outstanding bill.

Lawyer’s trust account holds funds that belong to clients other than Kennedy. This afternoon, Lawyer wants (finally) to pay herself for legal services provided to Kennedy by transferring funds from the trust account to her operating account.  Then, on Monday, Lawyer intends to replace those funds by depositing Kennedy’s bank check into trust.

Which is most accurate?

• A.   Good plan, but only because it’s a bank check, not a personal check.
• B.   Good plan, if Lawyer charges Kennedy a reasonable fee.
• C.   Bad plan, because the bank check is for more than $5,000.
• D.   Bad plan, because the disbursement would take place before Lawyer deposits Kennedy’s bank check into her trust account.

Question 5

Today is the 154th anniversary of the ratification of the 13th Amendment to the United States Constitution, the amendment that abolished slavery.

One of the members of Congress who was instrumental in drafting and passing the 13th Amendment was a “radical republican” who was born & raised in Vermont.  After leaving Vermont, he practiced law in Pennsylvania.  As a trial lawyer, legend has it that he responded to a judge’s warning that he was “manifesting contempt” by saying “Sir, I’m doing my best to conceal it.”

In 2012, Tommy Lee Jones played him in a movie about Abraham Lincoln and won the Academy Award for Best Supporting Actor .

Name the lawyer who was born & raised in Vermont and who played a critical role in drafting, passing, and ratifying the 13th Amendment.

Leaving a Law Firm – Update

In September, I posted Leaving A Law Firm: Breaking Up Is Hard To Do.  The post highlights the duties that a departing lawyer and firm owe to clients. It’s based (mostly) on a formal advisory opinion that the ABA issued in 1999.

Yesterday, the ABA’s Standing Committee On Ethics And Professional Responsibility issued Formal Opinion 489: Obligations Related to Notice When Lawyers Change Firms.  The entire opinion is worth reading.  Here’s an outline of the key duties owed to clients.

Which Clients?

The duties flow to clients with whom the departing lawyer had “significant client contact.”

Per the ABA Opinion, ‘” ‘significant client contact’ would include a client identifying the departing lawyer, by name, as one of the attorneys representing the client.”

By contrast, the opinion is clear that “a departing attorney would not have ‘significant client contact,’ for instance, if the lawyer prepared one research memo on a client matter for another attorney in the firm but never spoke with the client or discussed legal issues with the client.”

Most Important – Prompt Notice 

The clients with whom the lawyer had “significant client contact” must promptly receive notice that the lawyer is leaving.  While the lawyer and firm may notify clients independently of each other, they should try to agree to a joint notification.  If the departing lawyer notifies clients of a pending move, the lawyer must provide contemporaneous notice to the firm.

Telling Them What?

That the lawyer is leaving and that clients can choose to go with the lawyer, remain with the firm, or choose new counsel altogether.  The key lines here:

• “Clients are not property.  Law firms and lawyers may not divide up clients when a law firm dissolves or a lawyer transitions to another firm. Subject to conflicts of interest considerations, clients decide who will represent them going forward when a lawyer changes firm affiliation.”

Also, no matter who informs the clients that the lawyer is leaving, no lawyer may make “false or misleading statements to clients.”

Orderly Transitions

Firms should adopt policies & procedures aimed at “orderly transitions.”  Among other things, an “orderly transition” includes:

• ensuring that clients continue to receive competent and diligent representation up until the lawyer’s departure.  This necessarily means that the departing lawyer “have access to adequate firm resources needed to competently represent the client during any interim period.”
• coordination between the lawyer and firm to ensure that the file is “organized and up to date” upon the lawyer’s departure.
• protecting “client information from inadvertent disclosure or misuse.”  In particular, “the duty of confidentiality requires that departing attorneys return and/or delete all confidential information in their possession, unless the client is transferring with the departing attorneys.”
• following the lawyer’s departure, monitoring the lawyer’s email and voice mail to ensure prompt responses to client matters.

Again, this post is but an outline.  I tried to highlight the portions of the opinion that respond to the inquires I typically receive from lawyers and firms when a lawyer departs.

As mentioned in my prior post, breaking up is hard to do.  But whatever you do while breaking up, do no harm to clients.

Wellness Wednesday: No obection to “no thank you.”

Another rerun, but with the holiday & office party season upon us, an important message.

Three years ago, I posted No Objection to “No, Thank You.”  The upshot: there’s no need to shame someone who doesn’t want a drink at a holiday party.

A regular reader responded to the post with a fantastic idea: when the reader hosts parties or dinners, the reader uses the same types of cups for all drinks, whether alcoholic or not.   That way, someone who isn’t drinking, but who is self-conscious about holding a glass that’s obviously soda, juice or water, need not feel uncomfortable.

(Now that I think about it, the reader might use tinted glasses.  Whatever the reader uses, you get the point.)

It’s a great tip.

Enjoy the season and the parties.  And let others do the same.