Most Important? We are down to 8!

And then there were 8!

Ten days ago, I created the Professional Responsibility & Legal Ethics Tournament. I matched up 64 rules & concepts associated with PR and legal ethics in an NCAA-style bracket.  Ever since, you’ve voted, and we are down to the Elite 8 rules & concepts.  Winners of this round will advance to an historic Final Four.

To vote, go to ELITE 8.

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As the picture shows, this tournament is intentionally low-tech.  Meaning, “no tech.”  Except for the videos referenced below.  If I must say so myself, the videos are jam-packed with hot tips on legal ethics!

This morning, I posted Briefly: what matters most in legal ethics?  In it, I distilled each of the then 16 remaining rules & concepts to a single thought.  For each of today’s 8 winners, here’s the thought I shared this morning.

1.  DUTIES TO NON-CLIENTS

Candor to a Tribunal vs. Social Media: Looking, Friending & Scrubbing

  • The integrity of the system requires that judges not be misled by false evidence.
  • Evidence must not be unfairly located, obtained, concealed, or destroyed.

2.  CONFLICTS & CONFIDENCES

Screening/Imputed Conflicts vs. Same or Substantially Related Matters?

  • Fairness includes strict measures to prevent improper sharing of confidential information.
  • A lawyer cannot switch sides.

3.  TRUST ACCOUNTS, FEES and DUTIES TO CLIENTS

Who Decides? Lawyer or Client? vs. Tech Competence

  • The client chooses the destination, the lawyer the route.
  • It’s 2020.

4.  MY COUSIN VINNY

Were these MAGIC grits?  vs. Did you say “yutes?”

  • On cross, know your facts.
  • What was that your honor?

Again, to vote, go to ELITE 8.

For more, including four 15-minute videos analyzing the rules & concepts in each of the tournament quadrants, go here.  Where else can you get at least 16 tips on professional responsibility & legal ethics in 15 minutes from a speaker sitting at his Garage Bar?!?!

#prmadness

Ethical Responsibilities | Bollinger Shipyards

Briefly: what matters most in legal ethics?

Lawyers – what if you had to choose between competing duties?  What would happen to the juducial system?  Or to the profession’s standing in the public eye? If forced to choose among the rules & concepts that have advanced to the Sweet 16, of the Professional Responsibility & Legal Ethics Bracket, which are more important?

I’ve tried to distill each remaining rule/concept down to a single thought.

To vote – go here.  The original bracket is here (image only).

Duties to Non-Clients

Semi-Final 1: Candor to a Tribunal vs. Dealing with the Unrepresented Person.

  • The integrity of the system requires that judges not be misled by false evidence.
  • The integrity of the system requires that unrepresented persons not be misled into thinking that another’s lawyer is looking out for their interests.

Semi-Final 2: Mandatory Reporting vs. Social Media: Looking, Friending, Scrubbing.

  • The privilege of self-regulation includes a responsibility to report misconduct.
  • Evidence must not be unfairly located, obtained, concealed, or destroyed.

Conflicts & Confidences

Semi-Final 1: Withdrawal from Representation vs. Screening/Imputation.

  • Competence includes conflict-free representation.
  • Fairness includes strict measures to prevent improper sharing of confidential information.

Semi-Final 2: Same or Substantially Related? vs. ESI: reasonable precautions.

  • A lawyer cannot switch sides.
  • No matter where it’s stored or the form in which it’s stored, client information must be protected.

Trust Accounts, Fees, Duties to Clients

Semi-Final 1: Who decides? Client or Lawyer? vs. Trust Accounting/Bookkeeping.

  • The client chooses the destination, the lawyer the route.
  • In you they trust: keep track of their money.

Semi-Final 2: Commingling v. Tech Competence.

  • In you they trust: theirs is not yours.
  • It’s 2020.

My Cousin Vinny

Semi-Final 1:  Were these MAGIC grits? vs. Everything that guy just said is B.S. Thank you.

  • On cross, know your facts.
  • As FDR said, “be sincere, be brief, be seated.”

Semi-Final 2: The Defense is WRONG! v. Did you say yutes?

  • Competence includes realizing when your theory of the case no longer holds water.
  • Yes, and I get scared running across bridges high over mouzes of rivers.

Again, to vote – go here.

Ethical Responsibilities | Bollinger Shipyards

 

An Order and message from Judge Toor regarding operations in Chittenden Civil.

Earlier today, Judge Toor issued a standing order in response to the COVID-19 public health crisis.  With the duties of competence and communication in mind, lawyers practicing in Chittenden Civil would be well-served to understand the order and to communicate with clients as to its imparct on their matters.

The order is here.

Judge Toor’s accompanying message:

Greetings all. I hope you are all hunkering down safely at home. Attached is a standing order effective today in this county. We continue to hope that some state-wide guidance will be forthcoming on some of these matters and others, but until then the trial judges are trying to address these issues in our own counties. Please let me know if other problems arise that might be within trial judges’ authority to address, or if these orders create problems we have not foreseen and perhaps should be revised.  You will note that the order does not extend trial-ready dates. This is because of the administrative burden it would create for our staff to determine what those dates are in each case and take the time now to reschedule them. The reality is that we are not going to be scheduling any trials in the immediate future anyway, and will be backed up on older cases when we do start setting them again.

I do not have the authority to order you to stop any filings. However, I ask you to consider whether what you are filing is urgent, or whether perhaps it could wait until after the current crisis has abated. We are working with half our staff at the moment, and that number could grow even smaller.

In addition, although we are allowing email filings to accommodate the fact that almost all of you are working from home, please try to avoid filing anything by email that is hundreds of pages long right now (you know who you are!), as staff have to print those out themselves now and it just adds to their stress. We’d appreciate such large filings being done by mail. If they are not urgent enough to justify you going  to the post office, they can probably wait.

As always, for issues not relating to specific cases, feel free to email me at helen.toor@vermont.gov.

Stay home and stay safe.

Helen M. Toor”

Again, here is Judge Toor’s Standing Order of March 30, 2020.

100+ Free Update & Upgrade Images - Pixabay

 

Monday Morning Honors

Good Monday Morning!

A few reminders:

  1. My tips on practicing reasonably during the public health crisis;
  2. We’re down to 16 in the bracket! To vote, go to THE SWEET 16; and,
  3. Friday’s questions.  Spoiler alert, the answers follow today’s Honor Roll.

Honor Roll

  • Karen Allen, Esq.
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, John Marshall Law School
  • Anna BlackStackpole & French
  • Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
  • Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labor
  • Andrew DelaneyMartin Delaney & Ricci Law Group
  • Erin GilmoreRyan Smith & Carbine
  • Robert Grundstein, Esq.
  • Glenn Jarrett, Jarrett & Luitjens
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • John LeddyMcNeil, Leddy, & Sheahan
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Lon McClintockMcClintock Law Offices
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Hal Miller, First American
  • Herb Ogden, Esq.
  • Jim Runice, Ouimette & Runcie
  • Jay Spitzen, Esq.
  • Jonathan Teller-Elsberg, Vermont Law School, JD Candidate
  • Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

Attorney called me with an inquiry.  Attorney said “Mike, I represent a witness.  The defendant’s lawyer keeps contacting my client directly. I asked the lawyer to stop.  Lawyer aid Lawyer doesn’t need my permission because my client is only a witness, not a party.  Is Lawyer right?”

What was my response?

  • A.   Yes.
  • B.   The rule is unclear.
  • C.   It depends.  Is your client a material witness?
  • D.  Lawyer is wrong. The rule applies to any person represented in a matter.

Rule 4.2 prohibits a lawyer from communicating with “a person the lawyer knows to be represented by another lawyer in the matter.”  The rule is quite clear. Just in case, however, Comment [2] says “This rule applies to communication with any person who is represented by counsel concerning the matter to which the communication relates.”

For more on Rule 4.2 (and Rick Springfield!) see my January post The No-Contact Rule.

Question 2

True or false.

The rule on trial publicity only applies to criminal cases.

False.  Rule 3.6 applies to any “lawyer who is participating in or has participated in the investigation of a matter.”  The rule prohibits:

  • extrajudicial statements,
  • that the lawyer knows or reasonably should know,
  • will be disseminated publicly, and,
  • will have a substantial likelihood of prejudicing an adjudicative proceeding.

Question 3

With respect to legal ethics, the phrase “going up the ladder” is most often used in connection with the duties of an attorney who:

  • A.  is bound to report another attorney to disciplinary authorities.
  • B.  represents an organization.
  • C.  is being paid by someone other than the client.
  • D. paints houses on the side.

Rule 1.13 governs lawyers with organizational clients.  Respectively, Paragraphs (b) and (c) set out the situations in which a lawyer must refer conduct to the highest authority in the organization or outside the organization.

Question 4

At one of the Zoom seminars I intend to present, you wake from a brief nap to me discussing conflicts of interest.  If I’m doing my job, it’s unlikely that I will use the word/phrase _____-:

  • A.  material limitation.
  • B.  former.
  • C.  held in connection with a representation.
  • D.  prospective.

And, if I’m doing my job, it’s your resolve that breaks.

The phrase “held in connection with a representation” is one you’ll hear me use in a presentation on trust accounts and client property.   Of course, with trust accounts, it’s tough to find a hook that brings you back.

Question 5

I’ve been running the Professional Responsibility & Legal Ethics Bracket. It’s based on the NCAA March Madness brackets.  In 3 of the 4 quadrants, the contestants are terms and phrases associated with legal ethics.   To vote in the 2nd round, go here.

The contestants in the 4th quadrant are quotes from My Cousin Vinny.  That’s a hint for question 5!  It’s a “fill-in-the-blank” question.

I’ll give Bill Belichick his due: when it comes to coaching football, the long-time Patriots coach clearly has satisfied the duty of competence.  Of course, as a Steelers fan stuck behind enemy lines in New England, I’ve always suspected Belichik’s team of skirting the ethics rules.  For example, 2015’s notorious Deflategate Scandal that involved Tom Brady and underinflated footballs.

At a press conference, Belichick defended his team’s ethics by blaming the deflated footballs on the weather:

  • “”So the atmospheric conditions, as well as the true equilibrium of the ball, is critical to the measurement.”

Asked further about the air pressure measurements in the footballs, Belichick, normally not one to say anything to suggest he’s aware of pop-culture, replied:

  • “”I’m not a scientist. I’m not an expert in footballs. I’m not an expert in football measurements. I’m just telling you what I know. I would not say I’m _______________ of the football world, as she was in the car-expertise area.”

MONA LISA VITO

And speaking of Ms. Vito! One of her lines remains alive in the Sweet 16 bracketGo vote!

Celebrity Movies: March Bloodstones: Mona Lisa Vito in My Cousin Vinny

Peace.

The Sweet 16

It’s official: we are down to 16.

That’s right, in the first ever* Professional Responsibility & Legal Ethics bracket, only the 16 rules, concepts and thoughts remain.  Here’s an exclusive 2-minute video of those that advanced from round 2.  Thanks to all who voted!

Who will claim the inaugural title?  Folks, I have no idea.  That’s why we play the games.

But you can help decide! To vote in the Sweet 16, go here.

#prmadness!

(* to my knowledge)

Sweet Sixteen Sweet-Sixteen - Free image on Pixabay

 

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Related: 

Schedule (all times EDT)

  • 3/22:  First round voting opens
  • 3/25:  First round voting closes
  • 3/25:  2nd round voting opens
  • 3/29: 2nd round voting closes: 6:00 PM
  • 3/29: Sweet 16 voting opens, 8:00 PM
  • 3/31: Sweet 16 voting closes, 7:00 PM
  • 3/31: Elite 8 voting opens, 8:00 PM
  • 4/2:   Elite 8 voting closes, 7:00 PM
  • 4/2:   Final Four voting opens, 8:00 PM
  • 4/5:   Final Four voting closes, 6:00 PM
  • 4/5:   Championship voting opens, 7:00 PM
  • 4/7:   Championship voting closes, 9:00 PM
  • 4/8:   Wellness Wednesday.  Champion announced

TV: none.   RADIO: none.   STREAMING: none.

 

 

The 197th Five for Friday Legal Ethics Quiz

I hope you’re all doing well.  Remember: keep rowing the boat.

I don’t have much to say this week.

Wait….are y’all serious?? I can hear the cheers from here! Come on!

Anyhow, I got out for a run yesterday.  During my trek, I pondered “197.”  Initially, my mind fast-forwarded to “200” and whether I should do something special to mark the occasion.  Then I re-wound.  As we’ve learned, 3 weeks is an eternity.  Day by day.

Then, after days of swirling in my clouded mind, a thought crystallized.

Like the rest of you, I haven’t gone anywhere for 2 weeks.  I’ve got my music, TVs, and streaming channels.  I’ve got fish & meat in the freezer, coffee/half & half galore, my Garage Bar, my dart board, the keyboard I’m (still) teaching myself to play, and my bike.  In theory, and likely in the mind of February-me, life is damn good: I’m not at the office and I’ve got all my things.

Things.

On a scale of 0-20, 0 being least important, 20 being most, I’ve realized that my things are, at most, 0.3.

I can hear you again: “Mike, what’s the rest?”

The answer came to me during my run.

Spending time with family and friends.  Chatting with the familiar faces working the various stores and businesses that life brings me to every week.  Catching up with the lawyers I bump into at the court house.  Chuckling at the couple that always takes the corner stools, whose names I couldn’t tell you but whose drink orders I know by heart. The option to wait until the morning to text my Dad about the Sox game.

The life experiences that have nothing to do with things.

They are, at the very least, 19.7

This will end.  And, when it does, I hope I remember the appropriate balance between life and things.

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

Attorney called me with an inquiry.  Attorney said “Mike, I represent a witness.  The defendant’s lawyer keeps contacting my client directly. I asked the lawyer to stop.  Lawyer aid Lawyer doesn’t need my permission because my client is only a witness, not a party.  Is Lawyer right?”

What was my response?

  • A.   Yes.
  • B.   The rule is unclear.
  • C.   It depends.  Is your client a material witness?
  • D.  Lawyer is wrong. The rule applies to any person represented in a matter.

Question 2

True or false.

The rule on trial publicity only applies to criminal cases.

Question 3

With respect to legal ethics, the phrase “going up the ladder” is most often used in connection with the duties of an attorney who:

  • A.  is bound to report another attorney to disciplinary authorities.
  • B.  represents an organization.
  • C.  is being paid by someone other than the client.
  • D. paints houses on the side.

Question 4

At one of the Zoom seminars I intend to present, you wake from a brief nap to me discussing conflicts of interest.  If I’m doing my job, it’s unlikely that I will use the word/phrase _____-:

  • A.  material limitation.
  • B.  former.
  • C.  held in connection with a representation.
  • D.  prospective.

And, if I’m doing my job, it’s your resolve that breaks.

Question 5

I’ve been running the Professional Responsibility & Legal Ethics Bracket. It’s based on the NCAA March Madness brackets.  In 3 of the 4 quadrants, the contestants are terms and phrases associated with legal ethics.   To vote in the 2nd round, go here.

The contestants in the 4th quadrant are quotes from My Cousin Vinny.  That’s a hint for question 5!  It’s a “fill-in-the-blank” question.

I’ll give Bill Belichick his due: when it comes to coaching football, the long-time Patriots coach clearly has satisfied the duty of competence.  Of course, as a Steelers fan stuck behind enemy lines in New England, I’ve always suspected Belichik’s team of skirting the ethics rules.  For example, 2015’s notorious Deflategate Scandal that involved Tom Brady and underinflated footballs.

At a press conference, Belichick defended his team’s ethics by blaming the deflated footballs on the weather:

  • “”So the atmospheric conditions, as well as the true equilibrium of the ball, is critical to the measurement.”

Asked further about the air pressure measurements in the footballs, Belichick, normally not one to say anything to suggest he’s aware of pop-culture, replied:

  • “”I’m not a scientist. I’m not an expert in footballs. I’m not an expert in football measurements. I’m just telling you what I know. I would not say I’m _____________ of the football world, as she was in the car-expertise area.”

Fill-in-the-blank.

Again, to vote in the 2nd round of the #prmadness bracket, go here.

Peace.

the-quiz

 

Ripeness & what not to file during the pandemic.

Who would’ve guessed that this blog would serve as forum to discuss constitutional issues?

Nobody, that’s who.  Especially not my Con Law professor at GW.

Anyhow, with my 1L year in mind, I’m confident of two things: (1) I’ll get this wrong; and (2) fans of the justiciability doctrines will let me know that I got this wrong.  So, I’ll do what I usually do: use basketball to make my point.

First, for non-legal scholars, and VERY generally, courts rule on actual controversies.  Not theoretical claims.

For instance, many of you are familiar with the saying “that’s a moot point.”  In short, if you bring a claim to court after the controversy has resolved, you’re too late.  Your claim is moot.

Well, the opposite can happen: you can get to court too early.  If you bring your claim before there’s an actual controversy for the court to decide, the court will dismiss your claim as “not ripe.”

(inside lawyer joke: clearly, I loved the nutshells!)

Ripe Tomato Pictures | Download Free Images on Unsplash

For instance, when I was a high school basketball coach, coaches were famous for chatting up the refs before the game.  The friendly banter would often segue from “you are sooooo much better than the other refs in this league,” to “hey, #12 on their team fouls every time.”

Now, even if it’s true that #12 fouls every time, which it is, the ref can’t call a foul on #12 during warm-ups.  The ref has to wait until the game starts and then do what refs do: judge whether #12 fouls, with me yelling suggesting “FOUL!!” and the other coach suggesting  yelling “no, it isn’t.”

Intuitively, most know that if I had waited two or three plays to suggest that #12 had fouled, the ref would’ve asked “what do you want me to do about it now?”  That’s mootness.  Ripeness is me asking the ref to call a foul on #12 during warm-ups.

Ripe Strawberry - Maddcatt Vapors

What a long & winding road to get to the crux of this blog!  Which is this:

Was That Wrong? is one of the more popular features on this blog.  As loyal readers know, I don’t ask Was That Wrong? until a disciplinary sanction has been imposed against a lawyer’s license.  Basically, I’m a mootness guy.

Which is why this post is not a Was That Wrong? entry: the lawyer involved has not been sanctioned.  Thus, there is no controversy before me.  If you askWas That Wrong?, I will dismiss your question as  “not yet ripe.”

Instead, the following is intended to guide lawyers who are trying to figure out which cases to file during a pandemic in which Vermont courts are accepting only emergency filings.

Loyal reader Geoff Bok tipped me off to this post from the FindLaw Blog.  The post links to this March 18 order issued by United States District Judge Steven Seeger.

Trust me, Judge Seeger’s order is well-worth the the time you spent reading to the end of this blog.

Thank you Geoff!

And, yes, in my example, I had standing.  I was the aggrieved coach!

This post is dedicated to Paul Burgoyne.  Don’t take no crap from coaches Paul!

 

 

SCOV Updates Judicial Emergency Order

On March 16, the Vermont Supreme Court issued Administrative Order 49.  It is an emergency order regarding judicial operations.  The order was amended on March 18 , March 20 and March 24.

Image result for update

Yesterday, the Court amended the order to further restrict public access to court proceedings.   In addition, the Court adopted an Explanatory Note.

The Note describes the balance between (1) minimizing the risks associated with COVID-19; and, (2) the Judiciary’s critical role in protecting individual rights, ensuring public access to judicial proceedings, and maintaining the rule of law.

Everyone should read it.  To do so, the March 25 amendments & Explanatory Note.

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Other Posts-Related to the COVID-19 Public Health Crisis

 

 

The #prmadness bracket: first round results are in!

The votes are in and we’re down to 32 rules, concepts, and precepts associated with legal ethics and professional responsibility.  The #prmadness bracket is off to a rollicking start!

Here are the results from the first round, along with links to vote in the 2nd round.

Didn’t vote in the first round? No problem!  It’s like real-life: just because you skipped the primary doesn’t mean you can’t vote in the general.  Even better, unlike real life, you can vote as many times as you want . . . and brag about it!

Here’s the full bracket.  Now, I’ll break down the first round results quadrant by quadrant.

Conflicts & Client Confidences

This quadrant was chalk.

“Chalk” dates to the days when gambling parlors posted horse-racing odds on chalkboards.  As more and more people bet on a favorite, the odds would change.  Someone would erase the old odds, post the new odds, causing clouds of chalk dust as the money came in.  The term has survived and refers to favorites winning.

Anyhow, chalk walked here.  Only the 7 v. 10 matchup was close, with Mandatory Disclosure slipping past Permissive Disclosure with 53% of the vote.

Same or Substantially Related Matters and Prospective Clients topped the quadrant, with each receiving 77% of the vote.  Their reward?  Going against each other in Round 2!

To vote in Round 2 go to: Conflicts & Confidences – 2nd Round.

Here’s the full round:

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Trust Accounts, Fees & Duties to Clients

It’s tough to call 9 over 8 an upset, but Who Decides, Client or Lawyer? slipped past higher seeded Disputed Funds. The vote was the closest of the quadrant: 56% to 44%.

A more surprising result was in the 6 v. 11 match-up where Commingling/Own Funds in Trust topped Collected Funds with relative ease.

Top-seeded Client Communication cruised to victory, amassing a quadrant best 82% of the vote.

Sadly, none of the 2nd round contests thrill me.  Which means TV will give these games the worst timeslots.

Wait, what? You think I don’t have a broadcast deal?

To vote in Round 2 go to Trust Accounts, Fees & Duties to Clients: 2nd Round.

Here’s the first round:

IMG_4664

Duties to Non-Clients

Conventional wisdom holds that if you’re going to bet an underdog in the first-round of the NCAA tournament you should pick at #12 to beat #5.  The match-up has produced some of the most exciting games and upsets of the past 20 years.

Well folks, our tournament is no different!

12th seeded Dealing with the Unrepresented Person posted a convincing win over Inadvertent Receipt. And by “convincing win” I mean, it was a rout! 73-27%.

Tenth-seeded Social Media/Can I look?/Can I friend? Can I scrub upset #7 Civility by a similar margin.  Hopefully this signfies that I need to do more presentations on social media, and not that people are telling me to cut back to 6 from my 7 C’s of Legal Ethics.

To vote in Round 2 go to Duties to Non-Clients: 2nd Round

Here’s the first round:

IMG_4665

My Cousin Vinny

Thes quadrant is proving to be a blogger’s dream!

68 people voted in this quadrant.  The other 3 combined for 65!

Oh, by the way, so far, not a single competitor has received 100% of the vote in any match.  My use of “so far” should be a hint.   That’s right Were those MAGIC grits? did what not even Candor to a Tribunal could do! It got every vote!

It gets better: a SHOCKING upset!  2-seeds almost NEVER lose in the first round of the NCAA tourney.  Dont tell that to You Knew You Could Ask Questions, Right Vin?

There was another mini-upset in what turned out to be the closest match-up of the ENTIRE first round.  Positration/Spinning Tires/Alabmama Mud (51%) nipped And Since They Were Both Made By GM, Were Both Available in Metallic Mint Green Paint? (49%).

Finally, in Round 2, we’ve got both B.S. v. B.S. and Mona Lisa Vito taking on herself!

To vote in Round 2, go to My Cousin Vinny: 2nd round

The full round:

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#Prmadness.  You can’t beat it.  Join it!

Professional Responsibilty & Coronavirus

(Originally posted on March 25. Updated on April 4.)

The YouTube version of this post is here.

*******

As I mentioned this morning, the Rules of Professional Conduct are rules of reason.  Here are some thoughts on practicing reasonably during a public health crisis.

Competence  & Communication

  • Current Events

To me, competence includes understanding the effect that current events have on the representation.

For instance, on March 16, the Supreme Court adopted Administrative Order 49.  It’s an emergency order that addresses judicial operations and it has been amended three times.  Here are the Court’s March 16 Emergency OrderMarch 18 amendmentsMarch 20 amendments, and March 24 amendments.

Yesterday the Governor issued the  “Stay Home/Stay Safe” order.  It’s the sixth addendum to an Executive Order that issued on March 13.  The original order and addenda are here.

Finally, here is a post on Judge Toor’s message and order regarding operations in Chittenden Civil.

Competence includes understanding how the Judicial and Executive orders apply to you and your clients. It also includes staying abreast of new orders as they’re issued.  Your duty to communicate with clients likely includes explaining to them how the orders will impact their matters.

  • Emergency Advice & Assistance

Competent representation includes having the knowledge and skill required for the representation.  However, here’s Comment [3] to the rule on competence:

  • “In an emergency a lawyer may give emergency advice and assistance in a matter in which the lawyer does not have the skill ordinarily required [and] where referral to or consultation or association with another lawyer would be impractical.  Even in an emergency, however, assistance should be limited to that reasonably necessary in the circumstances, for ill-considered action under emergency conditions can jeopardize the client’s interest.”

Diligence & Communication

Rule 1.3 requires lawyers to act “with reasonable diligence and promptness” on behalf of clients.  Rule 1.4 requires lawyers to keep clients reasonably updated as to the status of their matters, to provide clients with enough information to make reasonably informed decisions about their matters, and to respond to clients’ reasonable requests for information.

In my opinion, when it comes to assessing reasonableness, context matters. Conduct that might have violated the rules last summer, might not now. While lawyers cannot abandon or ignore clients, I’d argue that they can keep the bigger picture in mind when prioritizing their days.

What if you become unavailable?

First, these are stressful times.  Don’t forget your own well-being.  Here is my post on coping with the stress & anxiety related to the public health crisis.

Now, what if you are stricken with the virus?

I have not shown any symptoms. Still, who knows what the future holds?  So, today, I recommended that the Professional Responsibility Board plan for my unexpected unavailability. Develop a roster of lawyers able to do my job if I can’t.  In my mind, I thought of it as my “Amii Stewart Recommendation.” 

Because babe, as I was drafting it, I guaran-f’ng-tee you that I knock-knock-knocked on wood!

In short, none of us is immune.

Comment [5] to Rule 1.3 suggests that diligent representation includes having a plan to protect clients’ interests if a lawyer is incapacitated.  This is particularly important for sole practitioners.

For now, and given the duties of competence, diligence and communication:

  • Who will contact clients, courts, and opposing counsel if you are incapacitated?
  • Who will deliver files, return unearned funds, check your calendar?
  • Who will check email, voice mail, the U.S. mail?
  • Who will handle hearings or events that have not been suspended or postponed?

My post on succession planning is here.  My post on disaster planning is here.

KEY! If you have a succession plan, make sure someone knows where it is and who to contact when it’s triggered.

Your clients aren’t immune either.

Rule 1.2(a) requires a lawyer to abide by a client’s decisions concerning the objectives of a representation. What if a client cannot communicate their decisions to you?

Well, Rule 1.14 applies whenever a client’s capacity to make adequately considered decisions about the representation is diminished, no matter the reason.  Initially, the duty is to maintain as normal a client-lawyer relationship as possible.  At some point, doing so is no longer possible.  Thus, the rule specifies situations in which a lawyer will be authorized “to take reasonably necessary protective steps” or “to make express considered judgments about the matter.”

In my view, and at the risk of being promoted to Captain Obvious*, it’s best that the client makes the decisions that the rules envision the client making.  For now, some lawyers might have clients from whom it makes sense to seek advance direction, especially in matters with critical decision-points imminent.

*or would it be a demotion? I’ve always wondered which way the chain-of-command flows on obviousness.

Client Confidences and Working Remotely

I’m not sure what number immediately precedes “infinity.”  Whatever it is, it’s the number of times that I’ve blogged or said that a lawyer has a duty to take reasonable precautions to safeguard client information, including reasonable precautions to prevent that inadvertent disclosure of or unauthorized access to client information.

Most of you are working from home.  Do you have a dedicated workspace away from curious ears or bored and prying eyes? Are you working on a device that’s connected to others in your home? Are you on public Wifi?  Are you – gasp! – chipping in with your neighbor to share the same Wifi? Should you set up a VPN?

Important considerations.

Trust Accounting

Got this question from 3 different firms: no, Vermont’s rules do not prohibit an electronic signature on a trust account check.

Civility & Cooperation

99.99% of you rock.  I heard one story, however, that saddened & maddened me.  I urge all lawyers to be accommodating when considering requests for accomodations that are related to COVID-19.  Rescheduling, posptoning, extending a deadline, you name it.

I blogged about civility & the pandemic here.  It includes two examples of how NOT to act during the pandemic.

On that note, here’s an uplifting story.   Judge Amy Totenberg is a United States District Judge in Georgia.  Last week, Judge Totenberg issued an order related to court operations during the crisis.  The order included:

  • “Be kind to one another in this most stressful of times. Remember to maintain your perspective about legal disputes, given the larger life challenges now besetting our communities and world. Good luck to one and all.”

Among others, the ABA Journal and Law.Com have the story.

Oh, and for one of the more entertaining orders I’ve ever read – and another example of what courts will not consider to be an emergency – check out this post.

Conclusion

I know you are all doing your best.  I am too. I’m not trying to scare you; I’m trying to lend guidance by sharing some of the considerations to keep in mind as you make decisions. Please continue to contact me with specific questions.

This post was general, for a broad audience. I didn’t address every question I received this week, several of which related to duties and rules not discussed here.

Still, I’ll end as I began: the rules are rules of reason.

In my opinion, no matter the duty or rule you’re analyzing, there is nothing unreasonable about acting in such a way as to minimize the risk of spreading or acquiring a deadly virus.

Peace.

In the meantime, keep on knockin’.