Monday Morning Answers #217

Happy Monday!  Just think – the next time I post a Monday blog, it won’t be January anymore!

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

Honor Roll

Answers

Question 1

 Under the Rules of Professional Conduct, which is treated differently than the others?

  • A. whether to settle.
  • B. whether a particular witness will be deposed.
  • C. what information to request in discovery.
  • D. trick question. The rules treat each the same.

Rule 1.2(a) leaves this decision to the client.  B & C are left to the lawyer, in consultation with the client.

 Question 2

Lawyer works at Firm.  If Lawyer has a conflict of interest that prohibits Lawyer from representing Client, which type of conflict is least likely to be imputed to the other attorneys in Lawyer’s firm? A conflict that arises from:

  • A. Lawyer’s representation of a former client.
  • B. Lawyer’s current representation of another client.
  • C. a personal interest of Lawyer’s.
  • D. trick question.  In VT, all conflicts are imputed to others in the same firm.

See, V.R.Pr.C. 1.10(a).  Conflicts arising from the representation of other or former clients will be imputed.  Conflicts arising from a personal interest of the lawyer’s will not be imputed unless there is a significant risk that the lawyer’s personal conflict will limit representation by other lawyers in the firm.

Question 3

 Attorney called with an inquiry. I listened, then said: “well, it’ll likely depend on whether you received information from Person that could be significantly harmful if used against Person.” In this context, it’s most likely that Person is a:

  • A. former client of Attorney’s.
  • B. current client of Attorney’s
  • C. prospective client who met with but did not retain Attorney.
  • D. juror.

My comment tracks the standard set out in Rule 1.18.

 Question 4

 Lawyer called me with an inquiry. I listened, then said: “generally, your duty is to raise all non-frivolous defenses in a motion to quash that you file on behalf of you and Former Client. If the court enforces the subpoena, our rule permits you to comply and to disclose the information.”

Given my response, which is most likely?

  • A. Former Client is deceased.
  • B. Former Client did not pay Lawyer.
  • C. Former Client filed a disciplinary complaint against Lawyer.
  • D. The subpoena seeks to compel production/disclosure of information relating to Lawyer’s representation of Former Client.

 I blogged about this issue here.

 Question 5

  I’ve often blogged about amending the Rules of Professional Conduct to increase access to justice.

Douglas Emhoff is a lawyer.  Lately, Attorney Emhoff has been in the news due to a new role.  Attorney Emhoff has hinted at using that role to promote access to justice.

Proper etiquette being important, what is formal title that comes with Attorney Emhoff’s new role?

Attorney Emhoff is married to Vice-President Kamala Harris.  Thus, as indicated on the White House’s website, Attorney Emhoff is The Second Gentleman.

harris emhoff

Five for Friday #217

Welcome to the 217th #fiveforfriday legal ethics quiz.

Initially, “217” excited me.  Only one hundred weeks to 317!  The Irish in me cannot wait for the intro to that quiz.

Alas, it was short-lived. Next, the Irish in me shuddered at the thought of how long I’ll have to be here to post another 100 weekly quizzes.

Then, it hit me:

When the day’s initial worry is about keeping up a blog at work, it means that you’re fortunate enough to have a job that allows you to blog.

The Irish in me knows to be thankful for the cup and whatever it holds.

As winter and the pandemic slog on, look at your cup. It might contain more than you think.

Onto the quiz!

shamrock

Rules

  •  Open book, open search engine, text/phone/email-a-friend.
  • Even question 5!
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers.
  • Please consider sharing the quiz with friends & colleagues
  • Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

 Question 1

 Under the Rules of Professional Conduct, which is treated differently than the others?

  •  A.  whether to settle.
  •  B.  whether a particular witness will be deposed.
  •  C.  what information to request in discovery.
  •  D.  trick question. The rules treat each the same.

 Question 2

Lawyer works at Firm.  If Lawyer has a conflict of interest that prohibits Lawyer from representing Client, which type of conflict is least likely to be imputed to the other attorneys in Lawyer’s firm? A conflict that arises from:

  • A.  Lawyer’s representation of a former client.
  • B.  Lawyer’s current representation of another client.
  • C.  a personal interest of Lawyer’s.
  • D.  trick question.  In VT, all conflicts are imputed to others in the same firm.

Question 3

 Attorney called with an inquiry. I listened, then said: “well, it’ll likely depend on whether you received information from Person that could be significantly harmful if used against Person.”

In this context, it’s most likely that Person is a:

  • A.  former client of Attorney’s.
  • B.  current client of Attorney’s
  • C. prospective client who met with but did not retain Attorney.
  • D. juror.

 Question 4

 Lawyer called me with an inquiry. I listened, then said: “generally, your duty is to raise all non-frivolous defenses in a motion to quash that you file on behalf of you and Former Client. If the court enforces the subpoena, our rule permits you to comply and to disclose the information.”

Given my response, which is most likely?

  • A. Former Client is deceased.
  • B. Former Client did not pay Lawyer.
  • C. Former Client filed a disciplinary complaint against Lawyer.
  • D. The subpoena seeks to compel production/disclosure of information relating to Lawyer’s representation of Former Client.

 Question 5

 I’ve often blogged about amending the Rules of Professional Conduct to increase access to justice.

Douglas Emhoff is a lawyer.  Lately, Attorney Emhoff has been in the news due to a new role.  Attorney Emhoff has hinted at using that role to promote access to justice.

Proper etiquette being important, what is formal title that comes with Attorney Emhoff’s new role?

 

Conspiring to defraud the U.S. Government. Was that wrong?

This one left me stunned.  Even as the author of this column.

As most readers know, I’m a big fan of pub trivia.  The MVP on any pub quiz team is the person who can nail the “music round.”  A great tidbit of music trivia is that 10cc sang The Things We Do For Love. The relevant line today:

“You lay your bets and then you pay the price,

The things we do for love.”

First, and by way of background, Was That Wrong? is a semi-regular column on Ethical Grounds. The column features stories of the absurd & outrageous from the world of legal ethics and attorney discipline. My aim is to highlight misconduct that I hope you’ll instinctively avoid without needing me to convene a continuing legal education seminar that cautions you to do so.

The column is inspired by the “Red Dot” episode of Seinfeld. In the episode, George Costanza has sex in his office with a character known only as “the cleaning woman.”  His boss finds out.  Here’s their ensuing exchange:

(Scene) In the boss’ office.

  • Boss: I’m going to get right to the point. It has come to my attention that you and the cleaning woman have engaged in sexual intercourse on the desk in your office. Is that correct?
  • George: Who said that?
  • Boss: She did.
  • George: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know, cause I’ve worked in a lot of offices and I tell you people do that all the time.
  • Boss: You’re fired.
  • George: Well, you didn’t have to say it like that.

The full script is HERE.  The scene is HERE.

Now, onto today’s story.

I’m fairly confident that none of our judges has a spouse who will end up charged with federal crimes.

I’m as confident that those who do understand the risks of tampering with the government’s witnesses.

Finally, I’m even more confident that those who are removed from the bench for witness tampering in a spouse’s criminal cases will not later engage in an elaborate scheme to convince the Federal Bureau of Prisons that their convicted spouse is an alcoholic when, in fact, they know that their spouse is not.

This one also left me feeling naïve.

Who knew there were businesses that, for a fee, would help convicted persons learn to lie their way into prison programming that would help them gain early release?

The story comes via Bloomberg Law (sub. req.) and the Legal Profession Blog.  The relevant documents from the disciplinary case are here.  I urge you to scroll to the “agreed upon statement of facts.” It begins on page 18 of the PDF.

Anyhow, here’s how I envision the Was That Wrong? adaptation:

  • Court: We’re going to get right to the point. It has come to our attention that you and others conspired to get your wife into prison programming for which you knew she did not qualify?
  • Lawyer: Who said that?
  • Court: You did. When you pled guilty to conspiring to defraud the U.S. Government.
  • Lawyer: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know, cause I’ve worked in a lot of offices and I tell you people do that all the time.
  • Court: Disbarred.
  • Lawyer: Well, you didn’t have to say it like that.

Lay your bets indeed.

costanza

Prior Entries:

What is the file? Helpful guidance from Arizona.

Questions related to file delivery & retention are among the most common that I receive via ethics inquiry.  It’s odd, if only because so few of the complaints that are filed allege that a file wasn’t delivered or was incomplete.  Of course, I understand that with respect to the latter, a client likely wouldn’t know to complain about missing items.  Still, my general sense is that Vermont lawyers are on top of the duty to deliver the file.

But therein lies the rub: the duty is not to deliver the file.  Rather, upon the termination of the representation, V.R.Pr.C. 1.16(d) requires a lawyer “to take steps reasonably practicable to protect a client’s interests.”  Among other things, the duty includes “surrendering papers and property to which the client is entitled.”

Aside, and no offense to readers who are fans of Cheap Trick, but once I get around to proposing a rule change, I doubt I’ll recommend continued use of any form of the word “surrender.”**  I much prefer “deliver” or “provide.”  Alas, I digress.

Anyhow, the question: to what papers and property is the client entitled?  Or, what is “the file?”

In 2015, the ABA’ Standing Committee on Ethics & Professional Responsibility provided guidance in Formal Advisory Opinion 471.  I blogged about it here.  Both the opinion and my post list the items that must be delivered, as well as items that need not be provided. In other words, the opinion helps lawyers to determine what constitutes the file.  Frankly, while the opinion and my blog post are helpful, neither fully answers “what is the file?”

Fortunately, and thanks to a tip from Professor Bernabe’s Professional Responsibility Blog, I came across an advisory opinion that clarifies and simplifies the duty and analysis.

Last month, the Arizona Supreme Court’s Attorney Ethics Advisory Committee issued Ethics Opinion EO-19-0009.   Professor Bernabe blogged about it here

To me, the Arizona opinion does a terrific job answering “what is the file?” plain language. Here’s the committee’s summary of its opinion:

  • “Lawyers must retain sufficient information regarding the work they have done on a matter to permit the client to understand what was done for them and to permit a subsequent lawyer to take up the matter if the lawyer is discharged, withdraws, or is unable to continue the representation for other reasons such as death, disability, or discipline. This obligation informs the lawyers’ obligations concerning what materials they keep, how they store and organize those materials, and what they do with records at the end of a representation.”

Isn’t that exactly it? In other words, let’s fight the urge to be lawyers and debate every possible item – “what about this, what about that.”  Instead, let’s use common sense: “would this help the client or the client’s next lawyer figure out what I did for the client?” Or, as the committee notes later in the opinion:

  • “Lawyers do not maintain files for the sake of preserving files, but rather because keeping records of what they have done or plan to do in the course of representation is part of diligent, competent representation.”

Indeed!

That’s all I have for now.  However, I’m already planning a future post on other aspects of the Arizona opinion, including a paragraph that I expect will resonate with many lawyers who’ve contacted me.  By way of preview, here’s the pargraph from our friends in the southwest:

  • “The client is entitled to a single copy for free, and the lawyer may charge for additional copies or special copying requests that have associated costs, such as, scanning a file maintained in paper form. Lawyers may satisfy their obligations by providing copies throughout the representation, and do not need to provide additional free copies of those documents previously provided at the end of the representation. Of course, the lawyer may choose to provide more documents or copies than are required.”

Stay tuned!

** “Surrender, surrender, but don’t give yourself away.” Is this another way of stating that a lawyer need not include work product in the file?

Cheap Trick Surrender

ABA Issues Guidance on Responding to Online Criticism

I haven’t blogged since before Christmas. Alas, like tragic ancient romances, all good things must come to an end.

I’m going to ease back into it with a topic familiar to regular readers: a lawyer’s duties when responding to online criticism.  It’s an issue I’ve discussed often.  Links to my prior posts are below.  Here’s the nutshell version:

  • when considering if or how to respond to a negative review, a lawyer should be as careful as Elmer Fudd was quiet when hunting rabbits: very, very.

Yesterday, the ABA’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 496: Responding to Online Criticism.  I like the opinion and urge you to read it.  Here are my thoughts.

In Vermont, Rule 1.6 prohibits a lawyer from disclosing information relating to the representation of client.  Our rule on former clients, Rule 1.9, incorporates Rule 1.6 by reference.

There are exceptions to the general prohibition. Of the exceptions, the so-called “self-defense” exception is most often cited as permitting a lawyer to disclose other confidential information in response to a negative review.  As I’ve long pointed out, it doesn’t.

In Vermont, the “self-defense” exception appears in Rule 1.6(c)(3).  It permits a lawyer to disclose information relating to the representation:

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

As ABA Opinion 496 further makes clear, a negative review is not “a controversy” or “proceeding” that triggers the “self-defense” exception.

In short, “my client criticized me online” does not fall within the exceptions to the general prohibition on disclosure.

Finally, while I haven’t received many inquires about how to respond to online reviews, those I’ve received consistently include the lawyer saying something like “the client’s post waives the privilege, so I can respond, right?”

Hold up!!

Your ethical obligation is not to disclose information relating to the representation of a client or former client.  The obligation encompasses all information relating to the representation, no matter the source.  As such, it is much broader than the attorney-client privilege.

In addition, the privilege is asserted in response to demands that compel production of confidential information.  For example, discovery requests or a request to testify under oath.  Whether a client’s online review constitutes a waiver of an evidentiary privilege is for a court to decide. It is not for the lawyer to decide in posting a reply.  Or, as the committee notes at the very beginning of its analysis in Formal Opinion 496:

  • “[t]he scope of the attorney-client privilege, as opposed to confidentiality, is a legal question that this Committee will not address in this opinion.”

So, what can a lawyer do when criticized online? Opinion 496 includes guidance.  From the summary:

  • As a best practice, lawyers should consider not responding to a negative post or review, because doing so may draw more attention to it and invite further response from an already unhappy critic. Lawyers may request that the website or search engine host remove the information. Lawyers who choose to respond online must not disclose information that relates to a client matter, or that could reasonably lead to the discovery of confidential information by another, in the response. Lawyers may post an invitation to contact the lawyer privately to resolve the matter. Another permissible online response would be to indicate that professional considerations preclude a response.”

Negative online reviews will happen.  Fight the urge! Think and long & hard before you respond.

1.6

RELATED MATERIAL

 My Blog Posts

Negative Online Review? How Not to Respond

Negative Online Review? Restrain Yourself!

Other Blog Posts

ABA Journal, How to ethically respond to negative reviews from clientsCynthia Sharp (friend of this blog)

Responding to Negative Online Reviews, Catherine Reach, North Carolina Bar Association Center for Practice Management

Advisory Opinions

 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