Vermont’s New Bar Assistance Program: an important clarification.

The Bar Assistance Program launches tomorrow.  I’m posting today to clear up some confusion.

Legal Ethics

Last night, a lawyer email me with an inquiry.  Here are the first few lines of the email:

  • Dear Mike: I hope I catch you before you change positions! Please answer one last question!!! 

The lawyer who sent the email is not the first to think that I will no longer respond to inquiries.

Yes, my role will change tomorrow.  However, I will continue to respond to inquiries, even on matters not related to behavioral health issues.  The new rules leave that task specifically within my duties.

To recap, on June 17, 2012, I switched from Disciplinary Counsel to Bar Counsel.  Ever since, I’ve conducted the initial review of disciplinary complaints and responded to ethics inquiries.  We use the word “screening” to describe the initial review of disciplinary complaints.

Last year, the Supreme Court amended the rules that establish and govern the Professional Responsibility Program.  The amendments take effect tomorrow.  My role will expand to include assisting lawyers and judges on issues related to behavioral health.  As a tradeoff, I will no longer screen disciplinary complaints.  Andy Strauss, Vermont’s Licensing Counsel, will take over the screening function.

Again, while the new role has been expanded to include behavioral health issues, bar assistance includes responding to inquires on “traditional” legal ethics issues.  Therefore, lawyers will continue to be able to contact me for confidential guidance on conflicts of interest, client confidences, whether to withdraw or any other matter involving the Rules of Professional Conduct.

In sum:

  • If you have an inquiry, contact me.
  • If a disciplinary complaint is filed against you, I will not have any role in screening it.

As amended, the new rules are here.  The Bar Assistance Program is governed by Rules 4, 5, 6, 7 and 8.

Related posts:

Overbilling, fraudulent billing, and well-being: a lesson from Massachusetts.

The Supreme Judicial Court of Massachusetts issued an interesting disciplinary opinion this week.  The opinion is here.  I’m posting about it for two reasons:

  1. There is a critical difference between unreasonable fees and fraudulent billing.
  2. Stress, anxiety, and the pressures associated with practicing law do not excuse misconduct.

Excessive Fees & Fraudulent Billing

Rule 1.5 prohibits lawyers from charging unreasonable fees.  We don’t often receive fee complaints. When we do, many are referred for resolution by the VBA’s Committee for the Arbitration of Fee Disputes.  In my view, the Committee provides an appropriate forum for the review of bona fide fee disputes.  It is not the appropriate forum to review or resolve fraudulent billing practices.

Why?

Because fraudulent billing invokes another rule: Rule 8.4(c), the rule that prohibits lawyers from engaging in conduct involving misrepresentation, dishonesty, deceit, or fraud.  The Massachusetts opinion is an example of what happens when charging an unreasonable fee morphs into fraudulent billing.

Disciplinary prosecutors alleged that the lawyer “intentionally inflated the amount of attorney time billed to her four largest clients by approximately 450 hours, falsely ascribing to herself and other attorneys work that was not actually performed.”  A hearing committee recommended a one-year suspension after concluding that lawyer had “intentionally added to her bills time for work that was not performed.”  On appeal, the Board of Bar Overseers recommended that the suspension be increased to two years.

A single justice of the Supreme Judicial Court held a hearing and took additional evidence.  The lawyer conceded that she sent bills reflecting work done by partners and associate that, in fact, she had done herself.  Crediting her testimony, the single justice acknowledged that the bills were false in that they attributed work to people who had not done it, but concluded that the evidence failed to establish that the work had not been done at all.  Coupled with the clients’ satisfaction with the work performed, the single justice concluded that a 6-month suspension was appropriate.

On review, the full court disagreed.  For one, the court concluded that there was no evidence that the lawyer had done the work herself.  In fact, there was substantial evidence that she had not.  Further, the court stressed that it did not matter whether the lawyer had done some of the work, stating:

  • “Our focus, however, is not on the quantum of excessive fees that were billed, but on the fundamental dishonesty inherent in the respondent’s client billings themselves.  It is not the sheer number of unworked hours that establishes the misconduct but, rather, the dishonesty manifested by billing for them at all.”

Then, citing precedent holding that fraudulent billing will be dealt with more severely than charging an unreasonable fee, the Court suspended the lawyer’s law license for two years.

Fraudulent billing has another name: lying.

Well-Being & Mitigation

Throughout the disciplinary case, the lawyer argued that several factors mitigated in her favor.  Like the hearing committee, the Supreme Judicial Court concluded that mitigation was not appropriate.  However, the Court went on:

  • “That said, we recognize that — by all accounts — the respondent performed an extraordinary volume of work in 2015.  She testified that, to carry that workload, ‘[s]he neglected her physical health and was often sleep-deprived’ due to ‘routinely work[ing] over 12 hours a day, and regularly . . . on holidays, weekends and even when nominally on vacation.’  By all accounts, her legal work was of high quality.  Her clients, who were in constant contact with her and aware of the work she was doing for them, did not complain about the amount of time she billed to their matters.  In addition, the respondent’s sister was diagnosed with a serious illness.”

Still, the Court concluded that the lawyer had failed to establish a causal connection between her health (both behavioral and physical) and her misconduct.

Nevertheless, the Court devoted several paragraphs to reinforcing the importance of lawyer well-being.  The Court began with:

  • “Attorney well-being.  As stated, the evidence offered in mitigation in this case does not demonstrate a causal connection between the respondent’s workload and familial pressures, and her misconduct.  Although the evidence is dispositive here, we take the opportunity to acknowledge the role that lawyer well-being plays in the context of both fitness to practice and administration of justice.”

Then, citing to the work done by National Task Force on Lawyer Well-Being, the court made clear that there is no debate that, unaddressed, the stress of practice exacts a toll on lawyers’ health & lives. In addition, the court noted the connection between well-being & professional competence and stated:

  • “Recognizing that connection, taking steps to promote lawyer well-being, and supporting the lawyers who avail themselves of those measures will surely enhance the physical and mental health of individual lawyers and improve the quality and ethical standing of the profession as a whole.”

Still, the court made equally clear that “the pressures faced by lawyers in practice, including those described in the well-being report, do not excuse professional misconduct.”  As such, while behavioral health issues will serve to mitigate a sanction if they cause misconduct, they will not if they don’t.

With Vermont less than a week from the launch of the new Bar Assistance Program, the Massachusetts opinion serves as an important reminder.

Yes – stress, anxiety, and the pressures of practice can be harmful and destructive.  We must do more to assist and to encourage lawyers to address their well-being proactively.  However, stress, anxiety, and the pressures of practice do not necessarily cause us to lie or to engage in fraud.  And, if we go too far and use behavioral health issues that have no bearing on conduct to excuse misconduct, we will risk the privilege to self-regulate.

Yes.  Once the Bar Assistance Program begins, I will devote myself to proactive wellness & well-being. It’ll be no different than the proactive nature of the current inquiry process, one that provides ethics guidance to lawyers before they act.  Moreover, the system isn’t binary.  That is, help will be available even to lawyers facing disciplinary charges.  However, while the Bar Assistance Program will assist lawyers to address health issues that can cause misconduct, I do not envision it operating as a tool to excuse misconduct that has caused harm to clients and to the profession.

wellness

NJ Committee concludes that a lawyer who copies a client on an email to opposing counsel impliedly consents to “reply-all.”

Updated, 4:24 PM on 3/26/21 to include the advisory opinions linked at the end of the post.

Here’s the situation:

  • Attorney represents Blue.
  • Lawyer represents Red.
  • Attorney emails Lawyer and copies Blue.

For years, lawyers in Lawyer’s shoes have informed me how much it bothers them for Attorney to copy Attorney’s own client on an email to opposing counsel.

Earlier this month, the New Jersey Supreme Court’s Advisory Committee on Professional Ethics issued ACPE Opinion 739.  The Committee concluded “that lawyers who include their clients in the ‘to’ or ‘cc’ line of a group email are deemed to have provided informed consent to a ‘reply all’ response from opposing counsel that will be received by the client.”  Thus, in my example, Lawyer would not violate Rule 4.2 by “replying-all” to Attorney’s email.

The opinion doesn’t surprise me.  Given the nature of email, I expected that someone would eventually conclude that “cc” invites a “reply-all.”  Still, I urge caution.

As the Committee acknowledges, New Jersey is the first jurisdiction to reach this conclusion.  The opinion cites to advisory opinions from five other states that reached the opposite.  The Committee states:

  • “Many of these opinions caution the sending lawyer that it is inadvisable to include the client on the email, acknowledging that the sending lawyer may be ‘setting up’ opposing counsel for an ethics violation. The Committee finds that these opinions from other jurisdictions do not fully appreciate the informal nature of group email or recognize the unfairness of exposing responding lawyers to ethical sanctions for this conduct.”

In its coverage of the New Jersey opinion, JDSupra urges caution as well:

  • “Best practices also suggest that attorneys should avoid copying their clients on emails they send to opposing counsel so as not to imply consent for opposing counsel to communicate with the client. Any email sent to opposing counsel can just as easily be forwarded to a client.”

I agree, albeit for a different reason.  I’m not as concerned that the receiving lawyer might reply-all as I am that the sending lawyer puts their client at risk of doing the same, thereby disclosing confidential information to opposing counsel. Thus, to me, the lawyer who copies a client on certain emails to opposing counsel risks running afoul of Rule 1.1 (competence) and Rule 1.6 (confidentiality).

Still, the New Jersey opinion is interesting.  First, the Committee compared letters to conference calls:

  • “There is no question that a lawyer who receives a letter from opposing counsel on which the sending lawyer’s client is copied may not, consistent with Rule of Professional Conduct 4.2, send a responding letter to both the lawyer and the lawyer’s client. In contrast, if a lawyer were to initiate a conference call with opposing counsel and include the client on the call, the lawyer would be deemed to have impliedly consented to opposing counsel speaking on the call and thereby communicating both with the opposing lawyer and that lawyer’s client.”

Then, the Committee concluded that a group email is more like a conference call than a letter:

  • “Email is an informal mode of communication. Group emails often have a conversational element with frequent back-and-forth responses. They are more similar to conference calls than to written letters. When lawyers copy their own clients on group emails to opposing counsel, all persons are aware that the communication is between the lawyers. The clients are mere bystanders to the group email conversation between the lawyers. A ‘reply all’ response by opposing counsel is principally directed at the other lawyer, not at the lawyer’s client who happens to be part of the email group. The goals that Rule of Professional Conduct 4.2 are intended to further – protection of the client from overreaching by opposing counsel and guarding the clients’ right to advice from their own lawyer – are not implicated when lawyers ‘reply all’ to group emails.”

In addition, the Committee concluded that it would be unfair to require the receiving lawyer to sort through the email addresses of those copied to determine who should and should not be included on the reply.  That is, that in this day & age, the general norm is that a “cc” invites a “reply-all.”

Unsurprisingly, the Committee cautioned receiving lawyers against replying directly to the copied client without including the sending lawyer on the reply.

As always, be careful out there.

Update:  here are six opinions from other states, each of which advises that the receiving lawyer may not “reply-all” to an email in which the sending lawyer copies sending lawyer’s client.  All but the Pennsylvania opinion are cited in the New Jersey opinion.

Legal Analytics

 

Tuesday Tips

On this morning’s run, I realized that I haven’t blogged in a while.  I tried to fool myself into thinking that I hadn’t had time.  However, I realized that blogging is no different than running, staying in touch with friends & family, or anything else that we tell ourselves we don’t have the time to do: it’s not so much that we don’t have the time, it’s that we don’t make the time.  So, in the middle of a gorgeous morning run, I vowed that the day would include a blog post.

Alas, too distracted by the perfect running weather, no topic popped to mind.  A few minutes ago, however, my brother texted to ask which steak tips I buy from the meat market that’s near my condo.  Somehow, thinking of steak “tips” got me thinking that I should post a blog with some quick tips on legal ethics.  Especially with the opportunity for an alliterative headline.

What follows is an old blogger’s trick when no original content jumps to mind: a potpourri of links to other sources, each loosely related to professional responsibility.

Reregulation

I’m interested in the emerging concept of “re-regulation.”  In a nutshell, the concept embraces reforming and revising the traditional system of legal regulation to spur innovation and to increase access to legal services. I first mentioned re-regulation here, a post in which I linked to this more helpful post from Jayne Reardon at 2Civility.  From the ABA Journal, a few updates related to regulation:

  • this story about a proposal in New York to allow social workers to provide clients with limited legal services.
  • this story about the Utah law firm that is the country’s first to be owned entirely by non-lawyers.

Competence

The duty of competence is the cornerstone upon which this blog was built.  Here are some links to recent ABA Journal articles that touch upon the duty:

  • If you practice in the United States Court of Appeals for the District of Columbia Circuit, make sure not to use the Garamond font in your briefs.
  • Tired of using (or reading) “citation baggage?” Those cites with endless parentheticals and quotations?   Last month, Justice Clarence Thomas endorsed using “cleaned up” to convey that citation baggage has been omitted.
  • Finally, there’s this story. It serves to caution us that when characterizing another’s legal argument as “sound and fury signifying nothing,” we’d do well to remember the entirety of MacBeth’s statement.

If you clicked on the final two links, you’ll understand my closing line:

Let it never be said that quoting Ricky Bobby is “citation baggage.”

Ricky Bobby

Monday Morning Answers #223

Beware the Ides of March.

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

Honor Roll

  • Karen Allen, Karen Allen Law
  • Evan Barquist, Montroll, Backus & Oettinger
  • Janis Levart Barquist
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor of Law, University of Illinois at Chicago, John Marshall School of Law
  • Leslie Black, Govoni & Black; President, Lamoille County Bar Association
  • Andrew DelaneyMartin, Delaney & Ricci Law Group
  • Erin Gilmore, Ryan Smith & Carbine
  • Robert Grundstein
  • Jeanne Kennedy, JB Kennedy Associates; Mother of the Blogger
  • Nicole KilloranProfessor, Vermont Law School
  • Elizabeth KruskaPresident, Vermont Bar Association Board of Managers
  • John Leddy, McNeil Leddy & Sheahan
  • Pam Marsh, Marsh and Wagner
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeffrey Messina, Bergeron, Paradis & Fitzpatrick
  • Hal Miller, Hawaii Agency State Counsel, First American Title Insurance
  • Herb Ogden, Esq.
  • Keith Roberts, Darby Kolter & Nordle
  • Jim Runcie, Ouimette & Runcie
  • Jay Spitzen, Esq.
  • Jonathan Teller-ElsbergHershenson, Carter, Scott & McGee
  • Jay Spitzen, Esq.
  • The Honorable John Valente, Vermont Superior Judge
  • Jason Warfield, Applicant for Admission to the Vermont Bar
  • Thomas WilkinsonCozen O’Connor

 Answers

Question 1

A client’s failure to abide by the terms of a fee agreement:

  • A.  is not grounds for a lawyer to move to withdraw.
  • B. mandates that the lawyer move to withdraw.
  • C. permits the lawyer to move to withdraw. See, V.R.Pr.C. 1.6(b)(5) and Comment [8].  The rule requires the lawyer to give the client reasonable warning that the lawyer will move withdraw if the bill is not satisfied.
  • D. automatically excuses the lawyer from delivering the file.

 Question 2

Lawyer called me with an inquiry.  My response included the following words and phrases: “knowledge,” “violation,” “substantial question,”  and “honesty, trustworthiness, fitness.”

It’s most likely that Lawyer called to discuss whether to _________

  • A. inform the court that a client had testified falsely in a civil matter.
  • B. inform the court that a criminal defense client had testified falsely.
  • C. withdraw from representing a client.
  • D. report another lawyer’s misconduct.  The words and phrases are in V.R.Pr.C. 8.3(a).

 Question 3

Lawyer called me with an inquiry. I replied “here’s the rule: don’t state or imply that you’re disinterested.  If the person misunderstands your role, correct the misunderstanding.  If the person’s interests are likely to conflict with your client’s, don’t give the person any legal advice other than the advice to secure counsel.”  Given my response, the person is most likely:

  • A. Suffering from a diminished capacity.
  • B.  Lawyer’s client’s spouse.
  • C. Paying for Lawyer to represent Lawyer’s client.
  • D. Unrepresented.  My reply tracks V.R.Pr.C. 4.3.

Question 4

Fill in the blank.  Hint: it’s 2 words.

Several rules require a lawyer to receive ___________   _________.   The rules define ________ _______ as “an agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

INFORMED CONSENT.  V.R.Pr.C. 1.0(e).

Question 5

March 12, 1894, marked the first day that a specific product was ever sold in a bottle.  The product remains well-known to this very day.   In 1888, Asa Candler developed the recipe for the product and owned its rights.  Candler lived in Atlanta.

In 1899, Candler sold the bottling rights to the product to Benjamin Thomas and Joseph Whitehead.  Whitehead was a lawyer.  Apparently, he was also a good businessman. The contract he negotiated required he and Thomas to pay only $1 and left them with the bottling rights forever.  Supposedly, he and Thomas never paid Candler the $1.

I have no idea if Candler was represented in the transaction or if Whitehead took unfair advantage of an unrepresented person.

Name the product.

Coca-Cola.

coke bottle

 

Five for Friday #223: Judge Peter Hall.

Welcome to Friday and the 223rd legal ethics quiz.

Today, I urge readers to pause for a moment and remember Peter Hall.  Judge Hall passed away yesterday morning.  The Rutland Herald has the story here.

I first met Judge Hall when he was in private practice in Rutland. At the time, I was a young attorney and new to my role as the deputy disciplinary prosecutor.  Back then, Judge Hall’s practice included representing lawyers under disciplinary investigation & prosecution.

I will be forever grateful for the opportunity to have had Judge Hall as opposing counsel.  Unsure how to act while investigating and prosecuting fellow lawyers, I expected I’d have to be aggressive and antagonistic.  Judge Hall helped me to learn that effective advocacy requires no such thing.  By example, he showed me how to do my job without being a jerk and proved to me that every single one of us can do the same.  In retrospect, Judge Hall’s civility, grace, and temperment make referring to him as “opposing” counsel feel inappropriate.

An exceedingly effective advocate for his clients, Judge Hall’s approach to practice will always remind me of Aesop’s Fable of The North Wind and The Sun.   To me, the moral of having had the privilege to work with Judge Hall is that, even in the law,

“Gentleness and kind persuasion win where force and bluster fail.”

Like his friend Joan Wing, Judge Hall influenced my development as a lawyer and, later, guided my decision to run for a seat on the Vermont Bar Association’s Board of Managers. Reflecting today, I’m sad that two titans of the bar who so positively affected me (and many others) are no longer with us.

Lately, I’ve often noted my concern at the rise of incivility in the profession. As the Herald article notes, during his tenure on the Board of Managers, Judge Hall was instrumental in the VBA’s development and adoption of Guidelines of Professional Courtesy.  We’d all be well-served to review them. Not only today, but as often as possible. To honor Judge Hall, we’d be even better served to follow his lead and practice what he preached.

The Guidelines:

  • In fulfilling his or her primary duty to the client, a lawyer must be ever conscious of the broader duty to the legal system.
  • A lawyer should act with candor, diligence and utmost respect.
  • A lawyer should act with courtesy and cooperation, which are necessary for the efficient administration of our system of laws.
  • A lawyer should act with personal dignity and professional integrity.
  • Lawyers should treat each other, their clients, the opposing parties, the courts, and members of the public with courtesy and civility and conduct themselves in a professional manner at all times.
  • A client has no right to demand that counsel abuse the opposite party or indulge in offensive conduct. A lawyer shall always treat adverse witnesses and parties with fairness and due consideration.
  • In adversary proceedings, clients are litigants and though ill feelings may exist between clients, such ill feelings should not influence a lawyer’s conduct, attitude, or demeanor towards opposing lawyers.
  • A lawyer should not harass opposing counsel or counsel’s clients.
  • Lawyers should be punctual in communications with others and in honoring scheduled appearances. Neglect and tardiness are demeaning to fellow lawyers and to the legal system.
  • If a fellow attorney makes a just request for cooperation, or seeks scheduling accommodation, a lawyer shall not arbitrarily or unreasonably withhold consent.
  • Effective advocacy does not require antagonistic or obnoxious behavior. Lawyers should adhere to the higher standard of conduct which judges, fellow attorneys, clients, and the public may rightfully expect.

 To Judge Hall.

peter-hall-610x407

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

A client’s failure to abide by the terms of a fee agreement:

  •  A,  is not grounds for a lawyer to move to withdraw.
  •  B.  permits the lawyer to move to withdraw.
  •  C.  relives the lawyer of any obligation to continue working on the client’s matter..
  •  D. automatically excuses the lawyer from delivering the file.

 Question 2

Lawyer called me with an inquiry.  My response included the following words and phrases: “knowledge,” “violation,”  “substantial question,”  and “honesty, trustworthiness, fitness.”

It’s most likely that Lawyer called to discuss whether to _________

  • A.  inform the court that a client had testified falsely in a civil matter.
  • B.  inform the court that a criminal defense client had testified falsely.
  • C.  withdraw from representing a client.
  • D.  report another lawyer’s misconduct.

Question 3

Lawyer called me with an inquiry. I replied “here’s the rule: don’t state or imply that you’re disinterested.  If the person misunderstands your role, correct the misunderstanding.  If the person’s interests are likely to conflict with your client’s, don’t give the person any legal advice other than the advice to secure counsel.”  Given my response, the person is most likely:

  • A.  Suffering from a diminished capacity.
  • B.  Lawyer’s client’s spouse.
  • C.  Paying for Lawyer to represent Lawyer’s client.
  • D.  Unrepresented.

Question 4

Fill in the blank.  Hint: it’s 2 words.

Several rules require a lawyer to receive ___________   _________.   The rules define ________ _______ as “an agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

Question 5

March 12, 1894, marked the first day that a specific product was ever sold in a bottle. Asa Candler had developed the recipe for the product and owned its rights.  Candler lived in Atlanta.

In 1899, Candler sold the bottling rights to the product to Benjamin Thomas and Joseph Whitehead.  Whitehead was a lawyer.  Apparently, he was also a good businessman. The contract he negotiated required he and Thomas to pay only $1 and left them with the bottling rights forever.  Supposedly, he and Thomas never paid Candler the $1.

I have no idea if Candler was represented in the transaction or if Whitehead took unfair advantage of an unrepresented person.

The product remains well-known to this very day.  Name the product.

Vermont Supreme Court addresses a lawyer’s duty to deliver “the file.”

What is “the file?”

Summary

In late February, the Vermont Supreme Court issued this opinion in which it defined “the file.”  The opinion puts Vermont lawyers on notice as to what must be delivered to the client upon the termination of the representation.  For those of you who don’t have time to read this entire post, the answer is the entire file, but for documents that fall within the limited exceptions set out in Section 46 of the Restatement (Third) of the Law Governing Lawyers.

Background

The duties to safeguard and to deliver the file are rooted in V.R.Pr.C. 1.15(a) and V.R.Pr.C. 1.16(d).  The former requires a lawyer to safeguard client property. The latter states that:

  • “Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred.”

The profession has long endeavored to identify and define the “papers and property to which the client is entitled.” Must a lawyer deliver everything that is in the file? Or, is there material in the file to which the client is not entitled?  Prior to the Court’s recent opinion, there’s not been much guidance in Vermont.

Two years ago, I posted Deliver The File. In it, I suggested that Rule 1.16(d) can be traced back to David Hoffman’s 1836 publication of 50 Resolutions in Regard to Professional Deportment.  To my knowledge, Hoffman’s resolutions are the earliest known American guidelines for attorney conduct.  His 30th resolution:

  • “After a cause is finally disposed of, and all relation of client and counsel seems to be forever closed, I will not forget that it once existed, and will not be inattentive to his just request that all of his papers may be carefully arranged by me, and handed over to him. The execution of such demands, though sometimes troublesome, and inopportunely or too urgently made, still remains a part of my professional duty, for which I shall consider myself already compensated.”

In 1991, the VBA’s Professional Responsibility Committee issued Advisory Opinion 91-03.  The Committee declined to “define what property a client is entitled to have.” However, it noted with approval an informal ABA advisory opinion “that an attorney must return: (1) all of the property delivered to the attorney by the attorney’s client; (2) the ‘end product’ of the attorney’s work; and (3) all other material which is useful to the client in fully benefiting from the services of the attorney.”  The VBA opinion tacitly endorsed the ABA’s position that “an attorney need not deliver the attorney’s internal notes generated primarily for the attorney’s benefit in working on the client’s problem.”

In July 2015, the ABA’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 471.  It lists the papers that a lawyer is and is not required to deliver. The Committee advised that ABA Model Rule 1.16 does not require a lawyer to provide a client with material generated for the lawyer’s own purpose in working on the client’s matter.

As bar counsel, I don’t get many inquiries asking “what is the file?” To the extent I do, they’re almost always limited to “do I have to include my notes?” 

My reply has always been along these lines: “I don’t know what Disciplinary Counsel, a hearing panel, or the Supreme Court would say.  But here’s what the VBA and ABA have advised.”  Also, in that I view my role as assisting lawyers to manage risk, I often add what I wrote in the blogpost linked above: “there’s nothing wrong with erring on the safe side and delivering the ‘entire file’ as opposed to ‘end product.’”

Which brings me back to February’s decision from the Vermont Supreme Court. 

Delivering the entire file is no longer “erring on the safe side.”  With limited exceptions, it’s the rule.

The Opinion

The case involved a dispute between an attorney and former client. As noted in the Supreme Court opinion, in 2015, the former client filed a disciplinary complaint alleging that the attorney had not delivered the entire file.  Per the opinion, “Bar counsel determined that attorney did provide client with a copy of the file and that the Rules of Professional Conduct did not require him to provide another copy.”  Thus, the complaint was closed.

In 2018, the former client sued the attorney in Vermont Superior Court. The former client alleged that by failing to deliver the entire file, the attorney had converted the former client’s property.  The former client sought an order declaring that he owned the entire file and compelling the lawyer to deliver it.  

In response, the attorney asserted that he had delivered everything to which the former client was entitled, some of it more than once, and that anything that had not been delivered was papers or property that the client was not entitled to receive. The trial court entered summary judgment in favor of the attorney.

On appeal, the Supreme Court affirmed in part, and reversed in part. 

The papers and property that the client sought fell into four categories.  The Court affirmed the trial court’s entry of summary judgment with respect to two of the categories, concluding that the former client was not legally entitled to the papers and property he sought. The Court remanded the former client’s claims in the two other categories.  

On one, the Court concluded that there exists a question of material fact as to whether the former client received everything to which he was entitled.  On the other, the Court determined that there is a question of material fact as to whether the client is entitled to a paper copy instead of an electronic copy.

For today’s purposes, and going forward, the key takeaway is the first line of paragraph 13:

  • “We hold that client owns the entire contents of the file, subject to certain exceptions.”

In reaching its conclusion, the Court analyzed the approaches taken in other jurisdictions, as well as the standard set out in Section 46 of the Restatement (Third) of the Law Governing Lawyers. The Court stated:

  • “We agree with the majority approach as set forth in the Restatement, and conclude that a client’s entire file, with narrow exceptions as identified in § 46, belongs to the client and upon request, should be turned over to the client upon termination of representation.”

Section 46 of the Restatement deals with “Documents Relating to a Representation.”  For today’s purpose, § 46 (3) is the critical paragraph:

  • (1) A lawyer must take reasonable steps to safeguard documents in the lawyer’s possession relating to the representation of a client or former client.
  • (2) On request, a lawyer must allow a client or former client to inspect and copy any document possessed by the lawyer relating to the representation, unless substantial grounds exist to refuse.
  • (3) Unless a client or former client consents to nondelivery or substantial grounds exist for refusing to make delivery, a lawyer must deliver to the client or former client, at an appropriate time and in any event promptly after the representation ends, such originals and copies of other documents possessed by the lawyer relating to the representation as the client or former client reasonably needs.
  • (4) Notwithstanding Subsections (2) and (3), a lawyer may decline to deliver to a client or former client an original or copy of any document under circumstances permitted by § 43(1)

Conclusion

We have clarity.  But for the limited exceptions set out in § 46 of the Restatement, the client owns the entire file. 

In the notes below, and by reference to the comments to § 46, I address three of the more common inquiries I receive. 

Notes

  1. Per Comment b, the duty to safeguard documents is not extinguished by the termination of the representation. Rather, “[i]t continues while there is a reasonable likelihood that the client will need the documents, unless the client has adequate copies and originals, declines to receive such copies and originals from the lawyer, or consents to disposal of the documents.”
  2. Per Comment c, a lawyer may withhold documents if delivery would violate a duty that the lawyer owes to another. The comment states “for example, if a court’s protective order had forbidden copying of a document obtained during discovery from another party, or if the lawyer reasonably believed that the client would use the document to commit a crime.”  
  3. Per Comment c, “[a] lawyer may refuse to disclose to the client certain law-firm documents reasonably intended only for internal review, such as a memorandum discussing which lawyers in the firm should be assigned to a case, whether a lawyer must withdraw because of the client’s misconduct, or the firm’s possible malpractice liability to the client. The need for lawyers to be able to set down their thoughts privately in order to assure effective and appropriate representation warrants keeping such documents secret from the client involved. Even in such circumstances, however, a tribunal may properly order discovery of the document when discovery rules so provide. The lawyer’s duty to inform the client can require the lawyer to disclose matters discussed in a document even when the document itself need not be disclosed.”

Legal Ethics

Lawyer’s incivility factors in substantially reduced fee award.

It’s rare that I post twice in the same day.

Earlier today, I posted a blog with “quick tips” to reduce stress. In it, I mentioned what I’ve mentioned often over the past few months: in my opinion, incivility by lawyers contributes to stress and negatively impacts lawyer well-being.

If not being a jerk for its own sake isn’t enough, here, perhaps, is motivation to be more civil: a California appellate court recently affirmed a trial court’s decision to use a lawyer’s incivility as part of the basis to award a lower fee than the lawyer had requested.

The opinion is here.  Thank you to Geoffrey Bok for sending it me.  Geoff is admitted in Vermont and Massachusetts, is the former chair of the Massachusetts Board of Bar Examiners, and is an excellent resource on matters related to legal ethics and professional responsibility.

Per the opinion, a lawyer hired a contractor to work on the lawyer’s home. After paying the contractor more than $92,651, the lawyer instructed the contractor to stop.  The lawyer was not satisfied with the work and claimed that the contractor owed him $35,096.  The contractor agreed that he owed the lawyer a refund, but only $13,000.  The lawyer sued.

The lawyer prevailed.  Under California law, the lawyer was entitled to judgment in the entire amount he had paid to the contractor – $92, 651 – even though he’d received the benefit of work that not a single witness had “impugned.”  The trial court also awarded the lawyer just over $30,000 in other damages and costs.  By law, the lawyer was entitled to attorney’s fees.

If you don’t believe the next line, please refer to pages 5 and 6 of the opinion.  The lawyer requested “$271,530 in attorney fees, $52,021 in discovery sanctions, and $203,646 for proving matters at trial that had been denied in discovery.” The trial court determined that the lawyer had not provided sufficient evidence to assess whether the fee request was reasonable and gave the lawyer additional time to make the argument.  The trial court instructed the lawyer to limit additional argument to 10 pages of text, plus any exhibits.

The lawyer submitted additional evidence – 11 pages of text, over 400 pages of exhibits – and requested an additional $16,000 in fees.

In the end, the trial court awarded $90,000 in fees.  Among the factors that the court cited in declining to award the full amount requested was the lawyer’s incivility and over-litigation of the matter.

The appellate court affirmed the trial court’s decision that the lawyer was not entitled to the full amount requested.  In so doing, the appellate court commented on the lawyer’s incivility.  The comments begin on page 15.  Here are excerpts, with citations omitted:

Fifth, the court correctly noted the incivility in (the lawyer’s) briefing. Attorney skill is a traditional touchstone for deciding whether to adjust a lodestar. Civility is an aspect of skill.

Excellent lawyers deserve higher fees, and excellent lawyers are civil. Sound logic and bitter experience support these points.

Civility is an ethical component of professionalism. Civility is desirable in litigation, not only because it is ethically required for its own sake, but also because it is socially advantageous: it lowers the costs of dispute resolution. The American legal profession exists to help people resolve disputes cheaply, swiftly, fairly, and justly. Incivility between counsel is sand in the gears.

Incivility can rankle relations and thereby increase the friction, extent, and cost of litigation. Calling opposing counsel a liar, for instance, can invite destructive reciprocity and generate needless controversies. Seasoning a disagreement with avoidable irritants can turn a minor conflict into a costly and protracted war. All those human hours, which could have been put to socially productive uses, instead are devoted to the unnecessary war and are lost forever. All sides lose, as does the justice system, which must supervise the hostilities.

By contrast, civility in litigation tends to be efficient by allowing disputants to focus on core disagreements and to minimize tangential distractions. It is a salutary incentive for counsel in fee-shifting cases to know their own low blows may return to hit them in the pocketbook.”

Here, here.

Don't Be a Jerk

Wellness Wednesday & Bar Assistance: Quick Stress Relief Techniques

The Professional Responsibility Program’s new Bar Assistance Program (BAP) begins on April 1.  Set out in amendments to Administrative Order 9 that the Supreme Court adopted last November, BAP will be administered by bar counsel. My new role will:

  • continue to include responding to “traditional” inquiries. For example, questions on conflicts of interest, client confidences, whether to withdraw, and trust accounting.
  • continue to include presenting CLE seminars.
  • expand to include responding to and assisting legal professionals who are confronting behavioral health issues. For example, substance abuse, mental health challenges, chronic stress, or gambling addiction.
  • no longer include screening disciplinary complaints. That task will be assigned to Licensing Counsel Andy Strauss.
  • continue to include the #fiveforfriday legal ethics quiz.

In short, much like we should with behavioral health, my job will be decoupled from the disciplinary system. Having done nothing else since 1998, I’m both excited and apprehensive.

Anyhow, infused in BAP is a mandate for me to provide legal professionals with resources to assist with wellness and well-being.

Today, I’m sharing techniques to reduce stress.  These are not long-term strategies.  These are tools to use in the moment: whether immediately after the obnoxious email from opposing counsel, to help calm you after the phone call with the client who is never satisfied, or in response to any of the numerous interruptions inherent in working remotely.  Each comes from the American Psychological Association. Not one is longer than 50 seconds.

  1. Quick Ways to Manage Stress: Calm Yourself
  2. Quick Ways to Manage Stress: Relax Yourself
  3. Quick Ways to Manage Stress: Ground Yourself
  4. Quick Ways to Manage Stress: Celebrate Yourself
  5. Quick Ways to Manage Stress: Focus Yourself

Now that I think about it, these strategies shouldn’t be reserved for after your stress level rises.  I’ve been quite open recently: my conversations with lawyers around the state lead me to conclude, however anecdotally, that rising stress is causing increased incivility in the bar.  So, any of these techniques might be an appropriate appetizer to whatever uncomfortable communication you’re about to have.

You know, proactive wellness!

Oh, speaking of which, check out the flyer for the VBA’s upcoming Mid-Year Meeting.  The programming includes not one, but TWO wellness seminars.

Wellness