Medal Monday #207

Welcome to Monday!  Friday’s questions are here. The answers follow today’s Medalists.

Medalists

• Matthew Anderson, Pratt Vreeland Kennelly & White
• Evan Barquist, Montroll Backus & Oettinger
• Mimi Brill, Windham County Public Defender
• Erin Gilmore, Ryan Smith & Carbine
• Robert Grundstein, Esq.
• Glenn Jarrett, Jarrett & Luitjens
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Elizabeth Kruska, President-Elect, VBA Board of Managers
• John Leddy, McNeil Leddy & Sheahan
• Kevin Lumpkin, Sheehey Furlong & Behm
• Jack McCullough, Vermont Legal Aid, Project Director – Mental Health Law Project
• Jake Perkinson, Esq.
• Jim Runcie, Esq.
• Jay Spitzen, Esq.
• Jonathan Teller-Elsberg, Hershenson, Carter, Scott & McGee
• Jack Welch, Esq.

Answers

Question 1

The following statement refers to 2 of the 7 Cs of Legal Ethics.  One is “competence.” What’s the other?

Lawyers should be aware of the risks related to the inadvertent disclosure of client information & data that are associated with working remotely.

CONFIDENTIALITY.   For more, see my CLE video Protecting Client Data While Working Remotely. It’s 23 minutes.

Question 2

By rule, how often must a lawyer or firm reconcile a trust account?

• A.  “Timely” with timely defined as no less than monthly.  V.R.Pr.C. 1.15A(a)(1)
• B.  Quarterly.
• C.  As recommended by general accounting standards and best practices.
• D.  Trick question.  The rules are silent.  However, in a disciplinary case, the Vermont Supreme Court held that “more than 2 months without reconciliation is a violation of the general duty to safeguard client funds.”

Question 3

Client retains Lawyer and agrees to pay Lawyer an hourly fee.  The fee agreement is reduced to a writing that is signed by Client.

The representation ends.  Client has paid less than half of the outstanding bill and owes Lawyer for 20 hours of work.

May Lawyer claim the 20 hours as pro bono?

• A. Yes.
• B.  Yes, but only if Lawyer stops trying to collect the bill.
• C.  Yes, but only if Client is “a person of limited means.”
• D.  No.

To qualify as pro bono, legal services must be provided without a fee or expecation of a fee.  V.R.Pr.C. 6.1(a).

Question 4

There is a rule that has 3 exceptions.  They are:

• unless the testimony relates to an uncontested issue;
• unless the testimony relates to the nature and value of legal services rendered; or,
• if disqualification of the lawyer would work substantial hardship on the client.

What does the rule prohibit?

It’s Rule 3.7 and it prohibits a lawyer from serving as an advocate at trial in a matter in which the lawyer is a necessary witness.  “Conflict of interest” counts as a correct answer.

Question 5

Juneteenth dates to an event that took place on June 19, 1865.  What event?

• A.  The ratification of the 13th Amendment to the U.S. Constitution.
• B.  President Lincoln’s signing of the Emancipation Proclamation.
• C.  Union soldiers arriving in Texas and announcing that enslaved people were free.  For more, visit Juneteenth.com
• D.  Lee’s surrender at Appomattox.

 

Five for Friday #207

Welcome to Friday.

Lawyers owe a duty of competence to their clients.  It’s the very first rule and, to me, encompasses every other rule.  That is, competent representation includes maintaining client confidences, providing conflict-free representation, safeguarding client funds . . . yada, yada, yada.

I also believe that the duty of competence includes knowing, for lack of a better term, what’s going on.  For example, in a pandemic, a lawyer should be aware of the impact that the Judicial and Executive Orders have on clients’ matters.  Or, when a lawyer shows up at a deposition or hearing, the lawyer should have a basic idea about, you know, what’s going on.

More often than not, I use the intro to the #fiveforfriday quiz to share a story related to the week’s number. However, I’ve also used it to blog about events associated with the publication date.  Last night, pondering how to compose a post connected to “207” or June 19, I realized that I know next to nothing about the origin, history or meaning of Juneteenth.

I was surprised that my lack of knowledge surprised me.  Indeed, I’m often struck by how little I know about many of the holidays and observances.  For instance, I often struggle to remember the answers to these questions: **

• is March 17 the anniversary of St. Patrick’s birth, death, or return to Ireland?
• is Cinco de Mayo Mexico’s Independence Day?
• who were the other commanders with Ethan Allen at the Battle of Bennington?

Again, in my view, as lawyers, we violate the duty of competence when we don’t know what’s going on.  As people, we’ve long done so with holidays: we participate without bothering to learn a day’s true meaning or importance to those who celebrate, honor, and observe. As an Irish-Catholic, I assure you that multiple green beers by 2PM on a workday in March isn’t the point.

I want to understand Juneteenth’s history, origin and meaning.  So, I will mark the day by learning. You can do the same here, here, here, or a whole lot of other places.

It’s good to know what’s going on.

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

The following statement refers to 2 of the 7 Cs of Legal Ethics.  One is “competence.” What’s the other?

Lawyers should be aware of the risks related to the inadvertent disclosure of client information & data that are associated with working remotely.

Question 2

By rule, how often must a lawyer or firm reconcile a trust account?

• A.  “Timely” with timely defined as no less than monthly.
• B.  Quarterly.
• C.  As recommended by general accounting standards and best practices.
• D.  Trick question.  The rules are silent.  However, in a disciplinary case, the Vermont Supreme Court held that “more than 2 months without reconciliation is a violation of the general duty to safeguard client funds.”

Question 3

Client retains Lawyer and agrees to pay Lawyer an hourly fee.  The fee agreement is reduced to a writing that is signed by Client.

The representation ends.  Client has paid less than half of the outstanding bill and owes Lawyer for 20 hours of work.

May Lawyer claim the 20 hours as pro bono?

• A. Yes.
• B.  Yes, but only if Lawyer stops trying to collect the bill.
• C.  Yes, but only if Client is “a person of limited means.”
• D.  No.

Question 4

There is a rule that has 3 exceptions.  They are:

• unless the testimony relates to an uncontested issue;
• unless the testimony relates to the nature and value of legal services rendered; or,
• if disqualification of the lawyer would work substantial hardship on the client.

What does the rule prohibit?

Question 5

Juneteenth dates to an event that took place on June 19, 1865.  What event?

• A.  The ratification of the 13th Amendment to the U.S. Constitution.
• B.  President Lincoln’s signing of the Emancipation Proclamation.
• C.  Union soldiers arriving in Texas and announcing that enslaved people were free.
• D.  Lee’s surrender at Appomattox.

 

 

**

1. March 17 is the traditional date of St. Patrick’s death.
2. No, Cinco de Mayo is not Mexico’s Independence Day. The holiday commemorates the Mexican Army’s victory over France in the Battle of Puebla on May 5, 1862.
3. Umm, Ethan Allen wasn’t at the Battle of Bennington.  At the time, he was in NY, a prisoner of the British.

 

 

 

Reach Out

It’s going to take me 3 or 4 paragraphs to get to my point.  Bear with me.

Earlier this week, I noticed a spike in blog traffic.  It coincided with a “hey, how are you doing?” email that the VBA’s Covid-19 Committee sent to the bar.  The email included a link to this blog’s tab HELP: Resources for Assistance & Recovery  As soon as the email went out, visits to the tab skyrocketed.

Important Aside! I am not able to discern WHO visited a particular page.  I’m only able to see the number of visits that each post and tab receive.

Anyhow, the tab includes links far and wide.  Lots got clicks.  From the resource page published by the ABA Commission on Lawyer Assistance Programs, to my post Coping With Coronavirus-Related Stress, to the proactive and socially focused tips in the ABA’s Well-Being Toolkit for Legal Employers in a Nutshell.

My point: the Committee’s email caused people to reach out.

Not only via clicking the link, but by contacting me.  Two lawyers called for no other reason than to chat, each mentioning that it’s good to have someone to talk to, if only for a few minutes during otherwise stressful times.  If that’s you, reach out whenever you want.

And don’t forget to reach out to others.  Last year, I posted Wellness Wednesday: Reach out, check in.  Prompted by a tip from Andrew Manitsky, I quoted from an op-ed that had run in the New York Times: I Had Completely Lost the Knack for Staying Alive.  I highlighted a tip from the author.  Referring to spring’s annual arrival, she wrote:

• “It brings new pleasures by the week — asparagus in the farmers’ market, excitable toddlers in the playgrounds — and also a reminder to try to reach out to people who have lost someone recently, or those who seem withdrawn. They may need to be given a chance to talk about how they’re doing, and if things are very bad, encouraged to get the professional support they need. I can confirm that with time, help and love, things get better.” (emphasis added).

There are times when it’s not necessary to over complicate things.  Each one of us can be our own lawyer assistance program.  If someone you know has withdrawn, maybe all they need is chance to say “hey, thanks for thinking of me.”  Sometimes, that’s all it takes.

Finally, don’t forget about your own proactive well-being.  The things that each of us can do to help prevent us from having to access recovery resources.  For more on this, check out my National Lawyer Well-Being Week posts and videos.

Whether for yourself or to someone you know, reach out.  It’ll make a difference.

 

 

 

 

Scam Alert: imposter pretending to be a lawyer you know.

Recently, many Vermont lawyers received a barrage of emails, texts messages, and phone calls from someone pretending to be Vermont Attorney.  The contacts did not come from numbers or accounts associated with Vermont Attorney.  In each, the recipient was asked to purchase gift cards for Vermont Attorney’s nieces and nephews.

One recipient replied that he would do anything to help Vermont Attorney, but only after speaking to Vermont Attorney.  The recipient immediately received a phone call from a number other than Vermont Attorney’s.  The caller was a male with a foreign accent who claimed to be Vermont Attorney.  Vermont Attorney is not male and does not have a foreign accent.

There’s a positive aspect to the story.  As Vermont Attorney noted in an email to me:

• “The really amazing thing is most everyone immediately responded.  Such a great thing to have a bar that protects each other!”

Indeed!

For more:

The $67 million pair of pants that resulted in a 90-day license suspension.

These days, if a day ends in “y,” it feels like I’m giving another CLE.  At each, I’ve been reminding lawyers of the importance of communicating reasonable expectations to the client at the outset of the client-lawyer relationship.  Alas, I’d never stopped to consider how that might apply to a lawyer who self-represents.  Which brings me to today’s post.

I’ve never forgotten a piece of advice that the Dean of GW Law School gave to my incoming 1L class.  It went something like this:  “as you read the cases, yes, pay attention to the legal analysis.  But never lose sight of the crazy disputes that people find themselves in.  Your job will include advising them to drop or resolve those disputes.”

Indeed! The duty to competently communicate candid legal advice.

Anyhow, today I post to update you on a matter that I’ve been following a few years.  I’ve long wondered if it would result in a Was That Wrong? post.  It didn’t, but only because I reserve that column for disbarments. Nevertheless, the conduct at issue is definitely wrong.

As reported by the ABA Journal, the Legal Profession Blog, and others, a lawyer in D.C.  has been suspended for 90 days because of conduct associated with his relentless pursuit of his dispute with a dry-cleaning business.  The D.C. Court of Appeals order imposing the suspension is here.  I’m not sure I can do it justice, but I’ll do my best.

Many years ago, the lawyer dropped off a pair of pants at the dry cleaner.  He alleges that when he returned, the dry cleaner had lost the pants and tried to give him pants that were not his.  The lawyer demanded $1,150.

Now, I’ve never paid that much for pants, but nor have I ever worked in D.C.  So, who knows?

Alas, by the time the lawyer sued the dry cleaner, he sought $15,000 in compensatory damages for emotional distress and $45,000 in punitive damages.  Some of his legal theories were premised upon the fact that the dry cleaners had hung a sign that said, “Satisfaction Guaranteed” and that he’d been left far from satisfied.

As the case proceeded, the lawyer’s monetary demands skyrocketed.  Here’s an excerpt from the Court’s opinion:

• “His claims for emotional damages increased to $3,000,000 by trial.  He asserted that he was entitled to $90,000 to obtain a rental car so he could travel to a different dry cleaner in the city.  He claimed that he had expended 1,200 hours of work on the matter, worth $500,000 in attorney’s fees.  He sought prospective relief requiring [the defendants] to pay him $10,000 within twenty-four business hours if he notified them that they were not providing him with acceptable service.”

Then, after a summary of the lawyer’s various claims as to why the damages should be multiplied, the kicker:

• By the time the Joint Pre-Trial Statement was filed, [the lawyer] claimed that he was owed more than $67,000,000 in compensatory and punitive damages.”

Remember: he’d dropped off ONE pair of pants.

After rejecting a $12,000 offer of judgment, the lawyer lost at trial.  His appeal was not successful.

An interesting aside: the record suggests that, in fact, the dry cleaners did not lose the pants! Indeed, from one of the many opinions issued along the way:

• “The Court found [the dry cleaner] to be very credible, and her explanation that she recognized the disputed pants as belonging to [the lawyer] because of the unusual belt inserts was much more credible than his speculation that she took a pair of unclaimed pants from the back of the store and altered them to match his measurements.”

Anyhow, in the end, the DC Court of Appeals suspended the lawyer’s law license for 90 days after concluding that he violated the rules that prohibit the pursuit of frivolous claims and conduct that is prejudicial to the administration of justice.

All over a pair of pants.  I can’t help but think that this story is exactly what Dean Friedenthal meant when he gave the advice that he did to my incoming class.  And it might also both illustrate and reinforce the long-held notion about lawyers who represent themselves.

Medal Monday #206

Monday, Monday.   Can’t trust that day.

Friday’s questions are here.  The answers follow today’s Medalists.

Medalists

• Matthew Anderson, Pratt Vreeland Kennelly & White
• Andrew Delaney, Martin Delaney & Ricci Law Group
• Jennifer Duxbury, Pratt Vreeland Kennelly Martin & White
• Erin Gilmore, Ryan Smith & Carbine
• Benjamin Gould, Paul Frank & Collins
• Glenn Jarrett, Jarrett & Luitjens
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Elizabeth Kruska, President-Elect, VBA Board of Managers
• John Leddy, McNeil Leddy & Sheahan
• Jack McCullough, Project Director, Mental Health Law Project
• Hal Miller, First American
• Jay Spitzen, Esq.
• Jonathan Teller-Elsberg, Hershenson. Carter, Soctt & McGee
• Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

If a section of the Rules of Professional Conduct requires a “writing,” does an email comply with the rule?

• A.   Yes.  V.R.Pr.C. 1.0(n) 
• B.   No.

Question 2

Imagine you hear me say this during a seminar:

• “Depositing your own funds to cover reasonably expected bank charges falls within a safe harbor from the general prohibition on _______________.”

Which of the 7 C’s of Legal Ethics correctly fills in the blank?

COMMINGLING

Question 3

Attorney serves as a mediator.  The matter does not settle or resolve at mediation.  Going forward, can Attorney represent one of the parties?

• A.  No.
• B.  Yes.
• C.  Yes, if all parties to the matter give informed consent, confirmed in writing.  V.R.Pr.C. 1.12(a).
• The Rules of Professional Conduct do not address this type of conflict issue.

Question 4

In response to an inquiry, I tell a lawyer “the rule says that you can’t counsel or assist your client to unlawfully alter, conceal, or destroy material that has potential evidentiary value. Most advisory ethics opinions add that you can’t counsel your client to do so if it would constitute spoliation.”

In context, “do so” most likely means that Lawyer asked me if Lawyer could advise a client to:

• A.   Take down material that the client had posted to social media.  See, my blog post Advising Clients On Their Social Media Use
• B.    Speak directly to a represented opposing party.
• C.    Surreptitiously record a conversation with the opposing party.
• D.    Intentionally post false information to social media to deceive the opposing party.

Question 5

Thank you Elizabeth Kruska for the tip!

Tech competence is a thing.

Earlier this year, a relatively famous lawyer was temporarily released from prison due to the COVID-19 crisis.  The lawyer, often mentioned on this blog, was back in the news this week: prosecutors allege that metadata associated with the lawyer’s court filings shows that the lawyer violated his conditions of release.

Name the lawyer.

Michael Avenatti.   Among others, CNN and The Hill covered the story.

Five for Friday #206

Welcome to Friday.

As of 7:05 AM, I had a nearly complete essay on how “206” reminds me of a common marathon strategy. It began by reminding readers that a marathon is 26.2 miles.

• (Tip:  EVERY marathon is 26.2 miles.  There’s no need to ask a runner “how far is your next marathon?”)

From there, I shared that, in their heads, runners often divide a marathon into two segments: the first 20 miles, and the final 6.2  It’s a mental trick.  Then, I tried to use the so-called “20 & 6” strategy to connect “206” to a lawyer’s professional responsibility to provide clients with competent representation.  Alas, the draft stunk, so it now lives wherever trashed WordPress posts go to spend their days.

Before I deleted it, I considered revising it.  Then, as a new pot of coffee brewed, I made the mistake of browsing the news and stumbled upon this headline:

Study Suggests Bald Men Could Be More At Risk For Severe Coronavirus

As a result of the quarantine, you might not remember what I look like:

The news led me down a rabbit hole of articles from which I returned mere moments before an 8:30 meeting that kicked off a morning of meetings.  Now, I’ve no time to revise my essay on 206, the 20 & 6 strategy, and the duty of competence.  So, today, this is what you get.

Please remember me fondly when you buy shampoo and comb or brush your hair.

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 a section of the Rules of Professional Conduct requires a “writing,” does an email comply with the rule?

• A.   Yes.
• B.   No.

Question 2

Imagine you hear me say this during a seminar:

• “Depositing your own funds to cover reasonably expected bank charges falls within a safe harbor from the general prohibition on _______________.”

Which of the 7 C’s of Legal Ethics correctly fills in the blank?

Question 3

Attorney serves as a mediator.  The matter does not settle or resolve at mediation.  Going forward, can Attorney represent one of the parties?

• A.  No.
• B.  Yes.
• C.  Yes, if all parties to the matter give informed consent, confirmed in writing.
• D.  The Rules of Professional Conduct do not address this type of conflict issue.

Question 4

In response to an inquiry, I tell a lawyer “the rule says that you can’t counsel or assist your client to unlawfully alter, conceal, or destroy material that has potential evidentiary value. Most advisory ethics opinions add that you can’t counsel your client to do so if it would constitute spoliation.”

In context, “do so” most likely means that Lawyer asked me if Lawyer could advise a client to:

• A.   Take down material that the client had posted to social media.
• B.    Speak directly to a represented opposing party.
• C.    Surreptitiously record a conversation with the opposing party.
• D.    Intentionally post false information to social media to deceive the opposing party.

Question 5

Thank you Elizabeth Kruska for the tip!

Tech competence is a thing.

Earlier this year, a relatively famous lawyer was temporarily released from prison due to the COVID-19 crisis.  The lawyer, often mentioned on this blog, was back in the news this week: prosecutors allege that metadata associated with the lawyer’s court filings shows that the lawyer violated his conditions of release.

Name the lawyer.

 

Conflicts, Confidences & Prospective Clients

Long ago, I investigated this disciplinary complaint:

• Person met with Lawyer to discuss representation in a matter;
• Person shared information about the matter with Lawyer;
• Person opted not to retain Lawyer;
• Litigation ensued;
• Opposing Party retained Lawyer; and,
• Lawyer represented Opposing Party in the same matter about which Person had consulted with Lawyer.

Back then, Vermont had yet to adopt V.R.Pr.C. 1.18, the rule that sets out a lawyer’s duties to a prospective client.  Thus, as disciplinary counsel, I was left to analyze whether Lawyer had violated the rule that prohibits concurrent representation of clients with conflicting interests or the rule that prohibits representing a client whose interests are materially adverse to those of a in the same or a substantially related matter.

At the time, the general legal principle was that prospective clients were “neither fish nor fowl” for the purposes of the ethics rules.  Thus, conceding that Person was not a current or former client, I argued that the spirit and intent of the conflicts rules rendered Lawyer’s representation of Opposing Party a violation.

Alas, a hearing panel of the Professional Responsibility Board disagreed. The panel concluded that my decision to charge Lawyer with a violation was not supported by probable cause.  Thus, complaint dismissed.

Not long thereafter we got to work on proposing & promulgating V.R.Pr.C 1.18.  It took effect on September 1, 2009.

Under the rule, a “prospective client” is a person who, in good faith, discusses with a lawyer the possibility of forming client-lawyer relationship.  If no relationship ensues, the lawyer’s duty of loyalty is relaxed, but the duty of confidentiality is not.

That is, the lawyer must maintain the prospective client’s confidences as if the person had retained the lawyer.  However, the lawyer may represent someone whose interests are materially adverse to the prospective client, even in a matter that is the same as or substantially related to the matter that was the subject of the consultation, as long as the lawyer did not receive information that “could be significantly harmful” to the prospective client. Depending on the steps that the lawyer took to avoid or minimize the receipt of disqualification, lawyer’s conflict might not be imputed to lawyer’s firm.

Earlier this week, the ABA’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 492. The opinion addresses a lawyer’s obligations to prospective clients. The ABA Journal reported the opinion here.

In my view, the opinion provides clear and helpful guidance on (1) what constitutes a “consultation;” (2) the type of information that would be considered “significantly harmful” and thereby potentially disqualifying in a subsequent matter; and (3) the steps lawyers and firms can take to avoid receiving disqualifying information in an initial consultation.

I suggest reading it. Which is my way of saying that, as I ease back into blogging after the annual mini-hiatus that comes with the CLEs and training that take place this time of year, I’m not going to regurgitate an advisory opinion that is written far better than I could.

Aside: with the adoption of Rule 1.18, I assume that the prospective client has achieved fish or fowl status.  I’m not sure which.

Confidentiality, Privilege, and Lobster.

Many of the inquiries I receive involve a lawyer’s duty of confidentiality.  The duty is set out in Rule 1.6.  Paragraph (a) prohibits a lawyer from revealing “information relating to the representation of a client” unless:

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

Remember: the ethical duty is not to reveal “information relating to the representation of a client” unless one of the exceptions is present.

Anyhow, too often, we use the words “confidential” and “privileged” interchangeably.  While related, they are different concepts.  On the distinction, Comment [3] is helpful:

• “The principle of client-lawyer confidentiality is given effect by related bodies of law: the attorney-client privilege, the work product doctrine and the rule of confidentiality established in professional ethics. The attorney-client privilege and work product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct.”

In my view, a lawyer has an ethical duty not to disclose information relating to the representation of a client, as well an ethical duty to act competently to protect the privilege.

In blog posts and videos, I’ve mentioned & recommended Brian Faughnan’s blog Faughnan On Ethics.  In one of his recent posts, Brian suggested that his readers follow another site as well: Presnell on Privileges.  I join Brian’s suggestion – PoP looks like a fantastic resource for anyone with questions on the evidentiary privilege.

Plus, when the first post I see refers to lobster and “the most New England crime ever,” how could I resist??!!?

Responding to Online Reviews

I took a week off from blogging.  I’m back, albeit not so much because I missed it.  Rather, I’m here to celebrate a Vermont connection, however tiny, to an article in today’s ABA Journal.

Lawyers in Bennington County might remember Cynthia Sharp.  Last year, Attorney Sharp presented a CLE for the BCBA.  Today, the ABA Journal ran her article How to ethically respond to negative reviews from clients.  The article shares valuable tips and includes quotes from two names that regular readers of this blog will recognize: Tom Wilkinson and me.  Tom serves on the ABA’s Standing Committee on Professionalism and frequently appears on the #fiveforfriday Honor Roll in Legal Ethics.

Not having blogged in a week, I’m unprepared to dive directly back into the deep end.  So, here’s the “knee-deep” version on responding to online reviews:

1. Information relating to the representation of a client is confidential.
2. The rules prohibit lawyers from disclosing information relating to the representation of client.
3. There are exceptions to the general prohibition.
4. “The client gave me a negative review” is not one of the exceptions.

Last month, I received two inquiries from lawyers seeking guidance on how to respond to negative reviews.  I was struck by the intensity with each wanted to respond. It reminded me of the criticism often directed my way in various online forums when I was coaching high school basketball.

Trust me, I get it.  Still, be careful.  Don’t let your initial reaction cause you to disclose information that the Rules of Professional Conduct require you to keep confidential. If, upon reflection you choose to respond, consider the type of response suggested by Tom Wilkinson in Attorney Sharp’s article.

Additional Resources

• North Carolina State Bar, Proposed Opinion 2020-1
• New York State Bar Association Ethics Opinion 1032
• The Bar Association of San Francisco, Ethics Opinion 2014-1
• Los Angeles County Bar Association Ethics Opinion 525
• Responding to Negative Online Reviews, Catherine Reach, North Carolina Bar Association Center for Practice Management

Related Posts

• Negative Online Review? How NOT to respond
• Negative Online Review? Restrain Yourself
• Hey Lawyers: STFU!!
• ABA & Client Confidences: It’s Deja Vu All Over Again
• Can’t Keep Quiet? Try Harder