Monday Morning Answers #214

Welcome to Monday.  Anyone around my age, I hope you caught Bel Biv Devoe during the AMAs last night.

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

Honor Roll

• Karen Allen, Esq
• Matthew Anderson, Pratt Vreeland Kennelly & White
• Penny Benelli, Dakin & Benelli
• Alberto Bernabe, Professor, John Marshall Law School
• Andrew Delaney, Martin, Delaney & Ricci Law Group
• Brian Faughnan, Lewis Thomason, Faughnan on Ethics
• Erin Gilmore, Ryan Smith & Carbine
• Benjamin Gould, Paul Frank + Collins
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• John Leddy, McNeil, Leddy & Sheahan
• Pam Marsh, Marsh and Wagner
• Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
• Jeffrey Messina, Bergeron Paradis Fitzpatrick
• Hal Miller, First American
• Herb Ogden, Esq.
• Jay Spitzen, Esq.
• Ian Sullivan, Chief Deputy State’s Attorney, Rutland County
• Jonathan Teller-Elsberg, Carter, Scott & McGee
• Honorable John Valente, Vermont Superior Judge
• Thomas Wilkinson, Cozen O’Connor

 Answers

Question 1

Which rule or rules are relaxed when a lawyer, under the auspices of a program sponsored by a nonprofit or court, provides short-term legal services without expectation of continued representation by either the lawyer or client?

• A. The rule that requires competent representation.
• B. The trust accounting rules.
• C. The rules on conflicts of interest.  V.R.Pr.C. 6.5.
• D. The confidentiality rule.

Question 2

Which is most accurate?

A lawyer who makes a frivolous discovery request or who fails to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party:

• A.  violates the Rules of Professional Conduct.  V.R.Pr.C. 3.4(d).
• violates the rules of procedure but not the Rules of Professional Conduct.
• does not violate the Rules of Professional Conduct unless it happens more than once in the same matter.
• does not violate the Rules of Professional Conduct unless it happens in more than one matter.

Question 3

Which is most accurate?

A lawyer or law firm’s website:

• A.  is not subject to the Rules of Professional Conduct.
• B.  likely is a communication concerning the lawyer’s services and, therefore, must not include any false or misleading statements about the services offered by the lawyer or firm.  See, V.R.Pr.C. 7.1.
• C.  must not include a link or button for a prospective client to email the office or firm, unless the email goes to a non-lawyer’s email account to review for conflicts.
• D.  must not be accessible in a jurisdiction in which no lawyer in the office or firm is licensed to practice law.

Question 4

Lawyer called me with an inquiry. I listened, then replied “It doesn’t matter. Since the two cases are substantially related, the Supreme Court has made clear that we aren’t going to make the former client disclose confidences to protect them.”

What “doesn’t matter.”  In other words, given my response, it’s most likely that the last thing Lawyer said before my reply was:

• A.  Mike, I already delivered the file once.
• B.  Mike, I don’t remember anything about the first case.
• C.  Mike, the client never paid me.
• D.  Mike, are you drunk?

This is key.  If a client’s interests are materially adverse to those of a former client in the same or a substantially related matter, the lawyer has a conflict even if the lawyer doesn’t remember anything about the former matter.

Question 5 (and bonus)

On November 19, the President made some remarks.  The Harrisburg Patriot & Union (a Pennsylvania newspaper) published a review that included the following paragraph:

• ““We pass over the silly remarks of the President. For the credit of the nation we are willing that the veil of oblivion shall be dropped over them and that they shall be no more repeated or thought of.”

I said the President made the remarks on November 19.  I did not say the President made them yesterday. Indeed, the President who made the remarks was a lawyer.

• Name the lawyer.
• Bonus: Name the title by which the “silly remarks” are better known.

 

ABRAHAM LINCOLN and The Gettysburg Address

In 2013, the paper published a retraction.

VBA COVID-19 Committee Wellness Survey

Last Wednesday, I posted a blog that linked to a wellness survey being conducted by the International Bar Association.  Two days later, I updated the post to include a similar survey recently put out by the Vermont Bar Association’s COVID-19 Committee.

Blog subscribers aren’t notified when I update a post. So, I’m posting again, to try to call as much attention as possible to the VBA survey.

The VBA’s COVID-19 Committee survey is here.  Committee Co-Chairs Bob Fletcher & Andrew Manitsky included this message:

Good Morning:

 To gather information about the impacts of COVID on lawyers and law firms in Vermont, the VBA COVID-19 Committee has commissioned this anonymous survey. We understand that many of you are busy and/or may not wish to dwell on COVID related matters. Nonetheless, we believe this is important information to gather, and ask that you please take a few moments to fill this out and submit it as soon as you can. The Committee will process the responses and publish the results on our webpage, as well as any follow-up plans the Committee develops based on the results.

 Thank you,

Please consider taking part.  As I blogged here last Wednesday, candid answers can only help.

Five for Friday #214

Welcome to Friday and the 214^th legal ethics quiz.

I’ll be honest: I got nothing today.  Nothing about “214” or “November 20” sparked a story or message to share.  So, I’ll leave you with this.

I might not blog next week.  If I don’t, we won’t be together again until after Thanksgiving.  I’m thankful for so much, including you — the members of Vermont’s legal community.  Thank you for all that you do.  You make it both easy and enjoyable to be bar counsel.

Peace.

Onto the quiz!

Rules

•  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 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

Which rule or rules are relaxed when a lawyer, under the auspices of a program sponsored by a nonprofit or court, provides short-term legal services without expectation of continued representation by either the lawyer or client?

• A.  The rule that requires competent representation.
• B.  The trust accounting rules.
• C.  The rules on conflicts of interest.
• D.  The confidentiality rule.

Question 2

Which is most accurate?

A lawyer who makes a frivolous discovery request or who fails to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party:

• A.  violates the Rules of Professional Conduct.
• B.  violates the rules of procedure but not the Rules of Professional Conduct.
• C.  does not violate the Rules of Professional Conduct unless it happens more than once in the same matter.
• D.  does not violate the Rules of Professional Conduct unless it happens in more than one matter.

Question 3

Which is most accurate?

A lawyer or law firm’s website:

• A.  is not subject to the Rules of Professional Conduct.
• B.  likely is a communication concerning the lawyer’s services and, therefore, must not include any false or misleading statements about the services offered by the lawyer or firm.
• C.  must not include a link or button for a prospective client to email the office or firm, unless the email goes to a non-lawyer’s email account to review for conflicts.
• D.  must not be accessible in a jurisdiction in which no lawyer in the office or firm is licensed to practice law.

Question 4

Lawyer called me with an inquiry. I listened, then replied “It doesn’t matter. Since the two cases are substantially related, the Supreme Court has made clear that we aren’t going to make the former client disclose confidences to protect them.”

What “doesn’t matter.”  In other words, given my response, it’s most likely that the last thing Lawyer said before my reply was:

• A.  Mike, I already delivered the file once.
• B.  Mike, I don’t remember anything about the first case.
• C.  Mike, the client never paid me.
• D.  Mike, are you drunk?

Question 5 (and bonus)

On November 19, the President made some remarks.  The Harrisburg Patriot & Union (a Pennsylvania newspaper) published a review that included the following paragraph:

• ““We pass over the silly remarks of the President. For the credit of the nation we are willing that the veil of oblivion shall be dropped over them and that they shall be no more repeated or thought of.”

I said the President made the remarks on November 19.  I did not say the President made them yesterday. Indeed, the President who made the remarks was a lawyer.

• Name the lawyer.
• Bonus: Name the title by which the “silly remarks” are better known.

 

Threatening disciplinary complaints isn’t the way to play the game.

When it comes to a threat to file a disciplinary complaint against another lawyer, I’m not a fan.

Note: it’s the threat I dislike, not the lawyer who makes it.  You know:

Anyhow, in a rare post not motivated by enjoyment, it seems that I must again share my thoughts on threats to make a complaint.

In June 2018, I posted Disciplinary Complaints: File & Let File.  I stated my opinion on threats, then wrote:

“I’m not alone in this view.  In 2012, the ABA Journal reported a decision in which the Indiana Supreme Court publicly reprimanded a lawyer for threatening to file a disciplinary complaint against another lawyer.

 Further, as noted by The Law for Lawyers Today, the threat to file a disciplinary complaint can backfire.  The post cites to the New York City Bar Association’s Formal Opinion 2015-5.  The opinion does not conclude that every threat to make a disciplinary complaint is a violation. However, the opinion urges caution.  It concludes:

•  ‘An attorney who intends to threaten disciplinary charges against another lawyer should carefully consider whether doing so violates the New York Rules. Although disciplinary threats do not violate Rule 3.4(e), which applies only to threats of criminal charges, they may violate other Rules. For example, an attorney who is required by Rule 8.3(a) to report another lawyer’s misconduct may not, instead, threaten a disciplinary complaint to gain some advantage or concession from the lawyer. In addition, an attorney must not threaten disciplinary charges unless she has a good faith belief that the other lawyer is engaged in conduct that has violated or will violate an ethical rule. An attorney must not issue a threat of disciplinary charges that has no substantial purpose other than to embarrass or harm another person or that violates other substantive laws, such as criminal statutes that prohibit extortion.’”

I’m not going to go much deeper into this.  My prior post is clear and cites to persuasive authority.

That said, yes, I’m well-aware that Vermont’s version of Rule 4.5 doesn’t speak to disciplinary complaints.  Rather, it prohibits a lawyer from threatening to present, presenting, or participating in presenting criminal charges to gain an advantage in a civil matter.

But let’s be clear: it is not cool to force a lawyer to do something that the lawyer and their client do not want to do, but that the lawyer, not wanting to have to respond to an ethics complaint, might do or recommend the client to.

Further, as the NYC Bar’s advisory opinion makes clear, such threats implicate several other rules.  Finally, several states have amended their versions of Rule 4.5 to include “administrative and disciplinary complaints.”  Maybe I’ll recommend the same.

For now, litigate your cases on their merits.  Use the procedural rules to a client’s benefit.  If another attorney engages in misconduct that triggers Rule 8.3, report it. And, think long and hard about using the threat of a disciplinary complaint to gain an advantage.

Additional Resources

• Lexology; Don’t Walk the Line: Impermissible Threats Versus Allowable Puffery in Negotiations; December 2019
• San Diego County Bar Association; Ethics in Brief: The Ethical Implications of threatening criminal, administrative, or disciplinary charges; April 2017
• Lawyer Ethics Alert Blog; NYC Bar Association Formal Opinion discusses what conduct by a lawyer constitutes “a threat of a disciplinary complaint;” August 2015
• McCabe/ALI, IPEthicsLaw.Com; OED Discipline For Practitioners Who Use “Snitch” Threats For Tactical Gain; (“The wrongful threat to file a complaint to extract some benefit from the “unethical” lawyer is not only unethical itself–it may also constitute a crime.”)
• State Bar of Wisconsin, Inside Track; Ethical Dilemmas: Threats to file disciplinary complaints against opposing counsel; March 2015
• My Arizona Bar; Threatening a Disciplinary Complaint; November 2009
• Florida Bar Ethics Opinion 94-05 (“Under most circumstances, it is unethical to threaten a fellow member of the bar with a grievance complaint.”)
• ABA Formal Opinion 94-383 (two situations in which threat to report another is inappropriate: (1) when report is mandatory; (2) when threat is “extortionate, fraudulent, or abusive.”)

Wellness Wednesday: Schitt$ Creek & paddles.

Believe it or not, there are days when I do things that don’t involve running or bar counseling.  Usually those days involve binging.  Admittedly, the objects of my binges vary.  Alas, more often than not, it’s a streaming service.

Netflix’s Schitt$ Creek  is one of my favorite binges of the pandemic.

For the uninitiated, it’s a Canadian sitcom that ended a six-year run in April. After dominating the awards circuit north of the border for years, Schitt$ Creek went out in a blaze of glory, winning all seven major comedy awards at this year’s Primetime Emmys.  People who went to college and law school around the same time as I did will recognize the father from American Pie, the mother from Home Alone, and the cameraman from Groundhog Day.

Highly recommend.

But what’s this got to do with wellness, surveys, and paddles?

I’m glad you asked.

In an episode of Schitt$ Creeks that I watched last night, characters who are siblings each took a “How Electric Is Your Relationship Test” that ran in a magazine  The results? Each learned that their respective romantic relationship was “in need of a generator.”  Neither was happy.

I’m here to argue that survey results can be misleading.

Earlier this year, the International Bar Association launched a project to address the wellbeing of legal professionals.  The project includes a survey on wellbeing issues, including the extent to which COVID-19 has exacerbated the impact that we know anxiety, depression, stress, and addiction have on the profession.

The survey is here.  The IBA and others associated with the attorney wellness movement are urging lawyers and legal professionals to take it.  The more data, the better.  You do not need an IBA member to participate.  I completed the survey this morning. It took 6 minutes.

The VBA’s COVID-19 Committee recently put out a similar survey. It’s here. Please take that one too!

Back to my point.

I assume the results will paint a dreary picture, with many proclaiming that the profession is up Schitt$ Creek without a paddle.  If that happens, I will channel my inner Lieutenant Commander Galloway and object.  Strenuously.  Here’s why.

For starters, let’s not pretend that the staggering rates at which behavioral health issues impact the profession are new.  It has been more than 4 years since I first blogged on the topic.  In my opinion, there will be something positive to take from data showing that the numbers have increased.

Mike, wait?  What the hell are you talking about? Worse numbers are a positive?

Yes. Because it shows that those within the profession are more willing to admit to coping with behavioral health issues.  We can’t help those who claim not to need it.  For far too long, we ran our profession in such a way as to discourage honesty on survey’s like the IBA’s.  If that has changed, it’s a positive.

For instance, since July 1, I’ve received more calls and emails from lawyers who want help than I did in my first seven years as bar counsel.  And, for the naysayers, yes, I received those calls and emails from lawyers who knew full-well that I would screen any disciplinary complaint that might be filed against them.  Maybe it’s true that the 80s were more than 30 years ago.  But I digress.

My point is this: the profession began debilitating its members long before the Hazeldon Study was released in 2016.  We just never admitted it. Rather, we compounded it by stigmatizing help-seeking behavior.  The fact that lawyers are asking for help – from bar counsel no less – is a positive.  I’d argue that, given our past, acknowledging our own behavioral health issues – even anonymously – is as well.

Take the surveys.

Which brings me to another positive.

Even destigmatized, requests for help wouldn’t come if people didn’t realize that others are willing to, you know, help.   Most importantly, we’ve made clear that we’re willing to help without reporting you to disciplinary authorities and without jeopardizing your law license and livelihood.  To stick with the theme, some of us are adrift in the water.  In the old days, the profession left us in its wake.   Now, there are many of us willing to extend a paddle to help pull others back to the boat.  That’s a positive.

So, yes. In my view, there will be positives to take from survey results that, at first blush, appear anything but encouraging.

But let me be honest. It’s not going to be all rainbows and unicorns.  We are going to need to redouble our efforts to help.  We’re all going to have to paddle.

In the early stages of the pandemic, I referred to it as “rowing the boat.”  I blogged:

I let things slide over the past several days.  Not today.

This morning, I made my bed.  I picked up the clothes that had been lying on my bedroom floor for days, folded them, and put them where they belong.  As my coffee brewed, I washed the mugs that had up in the kitchen sink.

I call this “rowing the boat.”  For me, routine helps keep my mind & spirit well.  Completing one simple task leads to another, and so on.  Next thing I know, I’ve changed my focus, been productive, and find myself one day closer to the good days that surely will return.

In rough seas, all I can do is keep rowing the boat.

I love and admire how so many of you are striving to take care of your clients and colleagues during this crisis.  Take care of your own wellness too.

Note: due to letting things slide, I haven’t shaved in 13 days.  “Rowing the boat” doesn’t include removing the pandemic beard . . . at least not yet.

Next week I’m going to post a blog aimed at those who are coping with personal issues and urge you to keep paddling.  Today I’m going to focus on a different maritime analogy.

Yesterday I interviewed a lawyer against whom a disciplinary complaint had been filed. After we finished discussing the complaint, the lawyer shared a story about how stressful the lawyer’s practice area has become since the onset of the pandemic. Then, the lawyer thanked me for blog posts that continuously “nudge” lawyers to remember things like wellness and civility.  The lawyer likened getting the profession to focus on wellness to turning a battleship.  If you aren’t aware, battleships don’t exactly turn on a dime.

It got me thinking.  To turn this ship around, we need as many as possible on board, on the same side, helping to paddle. One way to help? Take the  IBA survey and the VBA’s COVID-19 Committee survey. Answer honestly.

In closing, I suspect I’ve lost my train of thought.  I apologize.  I’ll leave you with this:

We might be up Schitt$ Creek, but we aren’t without paddles.

Additional Resources

• COPING WITH COVID-19 RELATED STRESS & ANXIETY

Lawyer Wellness & Lawyer Assistance

• Vermont Lawyers’ Assistance Program
• ABA Well-Being Toolkit for Lawyers & Legal Employers
• ABA Well-Being Toolkit in a Nutshell
• Lawyers Depression Project
• ABA Commission on Lawyer Assistance Programs
• The Addiction Center
• Al-Anon
• Alcoholics Anonymous
• Alcohol Rehab
• Com
• Gamblers Anonymous
• Vermont Alcohol & Drug Abuse Programs
• Vermont Association for Mental Health & Addiction Recovery
• Vermont Dept. of Health Alcohol & Drug Abuse Network
• Vermont Family Network – Mental Health Resources
• Vermont Suicide Prevention Center

National Task Force on Lawyer Well-Being:  The Path to Lawyer Well-Being, Practical Recommendations for Positive Change

Vermont Commission on the Well-Being of the Legal Profession: State Action Plan

American Bar Association: Law Firm Pledge & 7 point framework to reduce substance abuse disorders and mental health distress in the legal profession.

American Bar Association: ABA Well-Being Toolkit in a Nutshell

The Virginia State Bar: The Occupational Risks of the Practice Law (with tips on prevention & risk reduction)

Blog Posts

• Wellness Wednesday: Be Kind to Lawyers
• Civility Matters. Especially Now.
• Coping with COVID-19 Related Stress & Anxiety
• Wellness Wednesday: Unplug
• Well-Being is an Aspect of Competence
• Wellness Wednesday: Survival Skills
• Wellness Wednesday: Make time for what (and who) matters
• Wellness Wednesday: Risk & Response (this one is about the report I mentioned from the Virginia State Bar)
• Do summer your way
• Wellness Wednesday: Meet Alison, Shireen, Samantha, and Alison
• Reach Out, Check In
• Wellness Wednesday: Mentor Someone
• Wellness Wednesday: Joan Loring Wing
• Wellness Wednesday: Law Day & Pro Bono
• Get your sleep
• Take a Chance on Being Nice
• Attorney Wellness: We’ve Only Just Begun
• Be Kind to a Lawyer Today
• Be Nice to Someone Today
• Wellness v. Well-Being
• Wellness Wednesday: Meet Molly Gray
• Wellness Wednesday: Judge Garland & My Cousin Vinny
• Shakespeare, Pink Floyd and Wellness
• Wellness Wednesday: You are not an impostor
• Wellness Wednesday: “N O” is “O K”
• Wellness Wednesday: Stop it!

• Wellness Wednesday: Meet Jeff Messina
• Lawyers Helping Lawyers Part 2
• Lawyers Helping Lawyers: Keep it on the front burner
• Lawyer Well-Being: a call to action
• Anxiety, Stress & Work-Life Balance for Lawyers
• Make time for what matters
• Lawyer Wellness: resolve to find 6 minutes for yourself
• 108 is way too many
• Workplace Happiness
• HELP: Resources on addiction and mental health
• Make Wellness a Habit
• A pledge by legal employers to focus on lawyer well-being
• Legal Ethics & the Water Cooler
• Wellness Wednesday: Island Vines
• Wellness Wednesday: on ponds, puffery and paltering
• Wellness Wednesday: Neil Diamond, the Lock Screen, and National Mental Health Day for Law Students
• Wellness Wednesday: Meet Jennifer O’Connor
• Wellness Wednesday: The Heady Trotter 4 Miler
• Wellness Wednesday:  Judge McCaffrey
• Wellness Wednesday: Family Time
• Wellness Wednesday: Enough
• Wellness Wednesday: Meet Heather Moreau

Trust Account Tips

This post is prompted by an inquiry I received yesterday. 

Keeping with the alliterative theme of a blog known for its Five For Friday feature, here a “Tuesday’s Ten Trust (Account) Tips.”  

The tips are no substitute for the rules themselves.  Rather, they’re meant to serve as a starter kit.

Tuesday’s Ten Trust (Account) Tips

 1.  When a lawyer holds funds of clients or third persons in connection with a representation, the funds must be held separately from the lawyer’s.

2.  When a lawyer holds funds of clients or third persons in connection with a representation, the funds must be held in in one or more accounts in a financial institution.

3.  Funds held as a result of a representation in a lawyer-client relationship must be held in a “trust” account.

4.  Funds held as a result of a fiduciary relationship that arises in the course of a representation or as a result of a court appointment shall be held in a “fiduciary” account.

5.  At a minimum, a lawyer’s trust accounting system must include:

• a system showing all receipts & disbursements from the account, including entries that show the source of the receipts & the nature of the disbursements;
• a record for each client or person for whom funds are held that shows all receipts and disbursements made for that client or third person and carries that client or third person’s running account balance;
• records documenting timely notice of receipts & disbursements to all clients and persons for whom funds are held; 
• records documenting timely reconciliation of all accounts, with “timely” defined as “no less than monthly;” and,
• a single source that identifies all trust & fiduciary accounts maintained by the lawyer.

6.  Funds held in connection with a representation that are not reasonably expected to earn net interest or dividends not only must be held in a “trust” account, they must deposited into a “pooled interest-bearing trust account” – aka “an IOLTA account.”

7.  IOLTA accounts may only be held at approved financial institutions.

8.  A lawyer must promptly disburse funds that a client or third person (including the lawyer) is entitled to receive.

9.  A lawyer may deposit the lawyer’s own funds in a trust account, but only in an amount necessary to pay service charges & fees on the account.

10.  Complete records of all funds held in trust must be maintained for 6 years following the termination of the representation.

That’s 10. 

Here are additional resources:

The PRB’s Trust Account Manual

Blog Posts

• Trust Accounting: Basic Requirements
• Trust Account Tuesday: Don’t Commingle
• Don’t disburse without collected funds.
• Teddy KGB on prompt notification and delivery
• When a third-party asserts an “interest” in funds held in trust
• Nonrefundable fees
• Misappropriation: Don’t.
• With trust accounts, verify
• Third-Party Claims against Client Funds
• Trust Account Scams Continue
• T.I. & Jack Torrance: an overview of the trust account rules
• Want to save $2.5 million? Learn to identify trust account scams
• The basics of fee agreements

 The Trust Account Videos

• Don’t Fear, Simplify.  (25 minutes)
• Basic Requirements(41 minutes)
• Contingent Fees, Referral Fees & Fee Sharing(22 minutes)
• Flat Fees, Misappropriation & Trust Account Scams(35 minutes)
• Collecting & Disbursing Funds(33 minutes)

 

Competitive Keyword Advertising. Unethical or a good marketing strategy?

Do you know what happens when potential clients use the internet to search for you?  More specifically, do you know whether your name returns more than your name?

Imagine I quit as bar counsel and open my own firm.  If that were to happen, a natural focus for me would be legal ethics and malpractice defense.  A lawyer in need of both doesn’t know how to contact me but has heard of this thing called “the internet.”  So, the lawyer searches “michael kennedy legal ethics.”  Some of you might be surprised to know that the search might not return my firm’s website at the top of the list.  Rather, if a competing firm has purchased keywords that include “michael kennedy” and “legal ethics,” that firm might show up above mine.

I know for a fact that there are Vermont lawyers who engage in competitive keyword advertising.  If you don’t believe me, think of a lawyer who practices in a certain area and search the lawyer’s name and practice area.  I am willing to bet all that I didn’t win in yesterday’s NFL games that the results at the top will include “ads” (or promoted results) for at least one of the lawyer’s competitors.

I can sense your reactions. Some of you are thinking “well that’s dishonest and misleading!”  Others of you are thinking “duh, that’s nothing but a good SEO strategy.”  Thanks to a tip from a regular reader, I can report that we will soon have additional guidance.

Last week, the New Jersey Supreme Court took argument on whether a lawyer violates the Rules of Professional Conduct by purchasing competitors’ names as keywords on search engines.  Courthouse News provided coverage.  Here’s the back story.

In June 2019, New Jersey’s Advisory Committee on Professional Ethics issued ACPE Opinion 735. In it, the Committee concluded:

• “a lawyer may, consistent with the rules governing attorney ethics, purchase an internet search engine advertising keyword that is a competitor lawyer’s name, in order to display the lawyer’s own law firm website in the search results when a person searches for the competitor lawyer by name. This conduct does not involve dishonesty, fraud, deceit, or misrepresentation, and is not conduct prejudicial to the administration of justice.”

The Committee further concluded:

• “a lawyer may not, however, consistent with the rules governing attorney ethics, insert, or pay the internet search engine company to insert, a hyperlink on the name or website URL of a competitor lawyer that will divert the user from the searched-for website to the lawyer’s own law firm website. Redirecting a user from the competitor’s website to the lawyer’s own website is purposeful conduct intended to deceive the searcher for the other lawyer’s website. Such deceitful conduct violates Rule of Professional Conduct 8.4(c).”

The Committee’s opinion concurs with the State Bar of Texas’s Formal Opinion 661 and this decision from a Wisconsin court.  By contrast, in 2010 Formal Ethics Opinion 14, the North Carolina State Bar concluded that a lawyer violates the rules by purchasing a competitor’s name as a keyword.

I don’t know New Jersey’s procedural rules.  However, the New Jersey State Bar Association disagreed with the Advisory Committee’s conclusion and, per Courthouse News, “pushed the state Supreme Court on Tuesday to hold that attorney advertising rules forbid lawyers from purchasing the names of competing counsel as keywords on search engines.”  The NJSBA argued that such a practice is deceptive and misleading.  The NJ Attorney General defended the Committee’s conclusion.  I don’t want to get into a series of block quotes with the competing arguments and the questions asked by the justices on the New Jersey Supreme Court.  Again, Courthouse News has in-depth coverage of the argument.

I understand why competitive key word advertising causes a negative reaction. As a lawyer argued in this post in the New Jersey Law Journal:

• “Nevertheless, competitive keyword advertising is unethical in the greater sense of the word ‘ethics.’  At the least, ‘buying’ a colleague’s name and using it as bait in front of her potential clients violates the Golden Rule. Who among us would not resent his or her name being a keyword on another lawyer’s site? Who would okay another to siphon off the fruits of her goodwill? If our colleagues would agree to our piggybacking on their success, why not just ask for their permission. But we know they would object, so we do it with neither their knowledge nor consent. While that may be fair play in the marketplace, the practice is not only morally repugnant, it neither embodies who we are nor engenders the types of inter-attorney relationships we must have.”

However, as with most stories, there’s another side. Eric Goldman is a law professor at Santa Clara.  Professor Goldman’s Technology & Marketing Law Blog is in the ABA Journal’s “Blawg Hall of Fame.”  Professor Goldman discussed the New Jersey opinion in here. And, in 2016, Professor Goldman and a colleague authored this article in the Illinois Law Review in which they argued that competitive key word advertising is not misleading and should not be banned, concluding:

• “Lawyers are notorious laggards when adopting and embracing emerging technological developments. Thus, even as the wars over competitive keyword advertising wind down everywhere else, it is not surprising that the legal industry is still working through its own (delayed) catharsis about the legitimacy of competitive keyword advertising. But other than the North Carolina ethics opinion, competitive keyword advertising by lawyers is not restricted by intellectual property law or attorney advertising rules. As a result, it seems that North Carolina’s rule is an outlier that needs to be fixed, and North Carolina bar regulators should reconsider the matter. We also hope other bar regulators will affirmatively acknowledge, like the Florida bar did, that competitive keyword advertising is permissible.”

I lean towards the position adopted by Professor Goldman, the State Bar of Texas, and the New Jersey Committee.  For example, once I hit “publish,” it’ll go to my LinkedIn and Twitter feeds.  Is using this picture misleading or deceptive?

I mean – this post is about legal advertising.  And who stands as a better source of material to frame a discussion of legal advertising than Slippin’ Jimmy?

That said, I’m willing to listen to argument to the contrary by anyone who agrees with the North Carolina State Bar.

For now, the legal ethics of competitive keyword advertising doesn’t seem to be a hot topic in Vermont.  Perhaps it’s a sleeping dog that I’ll regret not letting lie.  Alas, it’s Monday, and, come Friday, I can’t send out a week’s worth of posts unless I start somewhere.

This is this week’s start.

ps: I assume the race is on to buy “michael kennedy legal ethics.”

pps: if you don’t think that all these words about legal advertising have me ready to call it a day and watch my next episode of Better Call Saul, then here are my keywords for you: Simply Red.

Monday Morning Answers #213

Welcome to another week! Friday’s questions are here. Today’s answers follow the Honor Roll.

No, the Clemson Tigers did not win Saturday night.  To my Notre Dame friends, enjoy Round 1. I look forward December 19!

Honor Roll

• Penny Benelli, Dakin & Benelli
• Andrew Delaney, Martin Delaney & Ricci Law Group
• Erin Gilmore, Ryan Smith & Carbine
• Robert Grundstein, Esq.
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Jeanne Kennedy, JB Kennedy Associates, Blogger’s Mom
• John Leddy, McNeil Leddy & Sheahan
• Pam Loginsky, Washington Association of Prosecuting Attorneys
• Jack McCullough, Project Director, Mental Health Law Project
• Jeffrey Messina, Bergeron Paradis Fitzpatrick
• Herb Ogden, Esq.
• Jonathan Teller-Elsberg, Hershenson, Scott, Carter & McGee
• Lucia White, CP, Nanci Smith Law
• Thomas Wilkinson, Cozen O’Connor

Answers

Question 1

There’s only one thing that the Rules of Professional Conduct require a lawyer to keep for a definite period following the termination of a representation.  What is it?

•  A.  a client’s confidences: 6 years.
•  B.  a copy of the client’s file: 7 years.
•  C.  a copy of the advertisement that led the client to the lawyer: 2 years.
• D.  Records of any funds held in trust for the client: 6 years.  V.R.Pr.C. 1.15(a)(1).

Question 2

Which word or phrase is associated with a different rule than the others?

• A.  knows or reasonably should know that the person misunderstands the lawyer’s role.
• B.  shall correct the misunderstanding.
• C.  without the consent of the person’s lawyer.
• D.  not give any advice, other than the advice to seek counsel.

A, B, and D are associated with V.R.Pr.C. 4.3, the rule that sets out a lawyer’s duties when dealing with an unrepresented person.  Thus, C is correct. The phrase appears in V.R.Pr.C. 4.2, the rule that prohibits communication on the subect of the matter with a person that the lawyer knows to be represented in the matter, with the consent of the person’s lawyer or otherwise authorized by law or court order.

Question 3

This is true: there is a rule that prohibits a lawyer from disbursing against a deposit to the trust account until the deposit has cleared and become “collected funds.”

True or false? In Vermont, there are no exceptions to the rule.

False.  The exceptions appear in V.R.Pr.C. 1.15(h).

Question 4

Which is most accurate?  The Rules of Professional Conduct impose a duty to  _______:

• A.  Encrypt email.
• B.  Encrypt a client’s electronically stored information in transit.
• C.  Encrypt a client’s electronically stored information at rest.
• D.  Act competently to safeguard client information, including by taking reasonable precautions to prevent against the inadvertent disclosure of or unauthorized access to client information.  See, V.R.P.C. 1.1, Comments 16 & 17.  Also, this blog post: Is there a duty to encrypt email?

 Question 5

I botched it by not asking this last Friday.  Anyhow, on October 30, a famous actor turned 75.  For five seasons, the actor played one of my favorite ethically challenged lawyers: Arrested Development’s Barry Zuckerkorn.  Of course, Zuckerkorn is not to be confused with the acting coach that the same actor plays in Barry and for which he won the 2018 Emmy for Outstanding Supporting Actor.

Readers of an earlier vintage might know the actor better for his Emmy-winning performances on a 1970’s sitcom. Per his Wiki page, on that show, he played “a greaser who became the breakout character.”

Whose 75^th birthday did I miss last Friday?

Henry Winkler

Five for Friday #213

Welcome to #213!

This week’s intro is via video from the Garage Bar.  It’s 6 minutes that not only include using sports memorabilia to explain the principles of imputed disqualification, but also the resumption of my singing career as my self-imposed sanction for the ethics violation I committed in last Friday’s post. To skip the conflicts lesson and get to my performance, go to the 3:34 mark.

Onto the quiz!

Rules

• 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

There’s only one thing that the Rules of Professional Conduct require a lawyer to keep for a definite period following the termination of a representation.  What is it?

• A.   a client’s confidences: 6 years.
• B.   a copy of the client’s file: 7 years.
• C.   a copy of the advertisement that led the client to the lawyer: 2 years.
• D.  Records of any funds held in trust for the client: 6 years.

Question 2

Which word or phrase is associated with a different rule than the others?

• A.  knows or reasonably should know that the person misunderstands the lawyer’s role.
• B.  shall correct the misunderstanding.
• C.  without the consent of the person’s lawyer.
• D.  not give any advice, other than the advice to seek counsel.

Question 3

This is true: there is a rule that prohibits a lawyer from disbursing against a deposit to the trust account until the deposit has cleared and become “collected funds.”

True or false? In Vermont, there are no exceptions to the rule.

Question 4

Which is most accurate?  The Rules of Professional Conduct impose a duty to  _______:

• A.  Encrypt email.
• B.  Encrypt a client’s electronically stored information in transit.
• C.  Encrypt a client’s electronically stored information  at rest.
• D.  Act competently to safeguard client information, including by taking reasonable precautions to prevent against the inadvertent disclosure of or unauthorized access to client information.

Question 5

I botched it by not asking this last Friday.  Anyhow, on October 30, a famous actor turned 75.  For five seasons, the actor played one of my favorite ethically challenged lawyers: Arrested Development’s Barry Zuckerkorn.  Of course, Zuckerkorn is not to be confused with the acting coach that the same actor plays in Barry and for which he won the 2018 Emmy for Outstanding Supporting Actor.

Readers of an earlier vintage might know the actor better for his Emmy-winning performances on a 1970’s sitcom. Per his Wiki page, on that show, he played “a greaser who became the breakout character.”

Whose 75^th birthday did I miss last Friday?

Is there a duty to encrypt email?

Given that it’s Friday, I’ll start with a quiz question:

Which is most accurate? A lawyer must _____

• A.  encrypt an email that contains information related to the representation.
• B.  encrypt an email that contains “sensitive information.”
• C.  encrypt an email that contains privileged information.
• D.  act competently to protect the confidentiality of information related to the representation of a client, including by taking reasonable precautions to protect against the inadvertent disclosure of or unauthorized access to that information.

The answer is D.

I understand that practicing lawyers with professional responsibility inquiries want “yes” or “no” answers. However, bar counsel types who provide ethics guidance often don’t get as specific as lawyers would like. In no area is that more common than protecting client information.

Decades ago, I’m guessing that my predecessors didn’t answer “yes” or “no” when asked “am I required to buy one of those fancy new file cabinets that has locks on each drawer?”  Rather, they replied “you are required to take reasonable precautions to protect client information.”  Whether the inquirer’s personal circumstances made file cabinets sans locks unreasonable would’ve depended on the circumstances.  For instance, were the file cabinets in a locked closet to which only the lawyer and staff had access? Or were the file cabinets in storage room that the law firm shared with other businesses that rented space in the building?

Indeed, in 2017, the ABA’s Standing Committee on Ethics & Professional Responsibility declined to set “hard and fast rules” for storing client’s electronic information. In Formal Opinion 477, the Committee essentially announced that it’s not going to review every new advance in technology. No matter the next new thing, the duty remains the same: take reasonable precautions to protect client information.

Earlier this week, Professor Bernabe posted Does a lawyer have to encrypt e-mail messages? In it, he linked to LexBlog’s Encryption Ethics. I like the LexBlog post. The author makes clear that there will come a day when the failure to encrypt is deemed unreasonable. Here’s the post’s concluding sentence:

• “But as encryption and other safeguards get less expensive and cumbersome, your duty to implement these measures will undoubtedly increase.”

I’ve been saying the same thing for years. In 2015, I said it To encrypt or not to encrypt?  I said it again in 2017’s Encryption and the Evolving Duty to Safeguard Client Information.  In each post, I referenced various advisory opinions that make clear that, someday, technology will have evolved to the point at which it is no longer reasonable to choose not to encrypt email.  Similarly, there will come a time when it is not reasonable to use modes of information transmission or storage that do not encrypt the information in transit or at rest.

As I’ve run out of coffee and fret about having time to draft a Five for Friday post, I fear that I’ve lost focus.  So, I’ll leave you with this:  yesterday’s reasonable safeguards might be wholly unreasonable tomorrow. At the very least, take some time to think about how you and your firm are handling electronically stored client information.