Monday Morning Honors #229

Happy Memorial Day.

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

Honor Roll

• Karen Allen, Karen Allen Law
• Janis Barquist
• Penny Benelli, Dakin & Benelli
• Geoffrey Bok, Esq.
• Teri Corsones, Executive Director, Vermont Bar Association
• Andrew Delaney, Martin, Delaney & Ricci Law Group
• Heather Devine, Costello Valente & Gentry
• Jennifer Emens-Butler, Director of Communication & Education, Vermont Bar Association
• Benjamin Gould, Paul Frank + Collins
• Anthony Iarrapino, Wilschek & Iarappino
• Glenn Jarrett, Jarrett & Luitjens
• Deborah Kirchwey, Law Office of Deborah Kirchwey
• Jeanne Kennedy, JB Kennedy Associates, Blogger’s Mom
• Elizabeth Kruska, President, Vermont Bar Association
• John Leddy, McNeil Leddy & Sheahan
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
• Keith Roberts, Darby Kolter & Nordle
• Jim Runcie, Ouimette & Runcie
• Brice Simon, Breton & Simon
• Jay Spitzen, Esq.
• Jonathan Teller-Elsberg, Sheehey Furlong & Behm
• The Honorable John Valente, Vermont Superior Judge
• Jack Welch, Esq.
• Jason Warfield, Candidate for Admission to the Vermont Bar

 Answers

Question 1

There’s a rule that prohibits a lawyer from communicating about the subject of the representation with a person that the lawyer knows is represented by another lawyer in the matter.

Which is NOT an exception to the prohibition?

•   A.  The other lawyer consents to the communication.
•   B.  The communication is authorized by law.
•    C. The represented person initiates the communication. V.R.Pr.C. 4.2, Cmt. [3].
•   D. Trick Question.  A, B, and C are the 3 exceptions to the rule.

Question 2

Attorney called me with an inquiry. I listened, then replied, “yes, but only in an amount reasonably necessary for the purpose.” You may assume that my response accurately (and exactly) quoted the rule.

Given my response, Attorney asked whether the rules permit Attorney to:

•  A.  review an adverse party’s social media platforms.
•   B. deposit Attorney’s own money into a client trust account.  V.R.Pr.C. 1.15(b).
•  C.  engage in ex parte communications with jurors post-trial.
•  D.  take time off to relax.

Question 3

Communication is one of the 7 Cs of legal ethics.

Several rules require a lawyer to secure a client or former client’s ___________  __________ before acting.   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.”

The quoted language is the definition of what phrase?

INFORMED CONSENT.

Question 4 

This is a tough one.  While self-reporting might be advisable in response to each, which is the only event that, by rule, a Vermont lawyer is required  to self-report?

• A.  trust account overdrafts.
• B.  adverse malpractice judgements.
• C. discipline imposed in another jurisdiction.
• D.  criminal convictions.

V.R.Pr.C. 8.3 imposes a duty to report “another lawyer.”  So, generally, there’s no duty to self-report violatios of the Rules of Professional Conduct.  However, per Rule 20(A) of Supreme Court Administrative Order 9, a lawyer who is admitted in Vermont and who is disciplined in another jurisdiction must promptly inform disciplinary counsel.

 Question 5

Looking through the list of notable events to have occurred on May 28 in history, two are related to the law, share a connection, and reminded of my mother.

On or about May 28, 1431, this person was captured while wearing men’s clothing.  Having been convicted of wearing men’s clothing earlier in the same year, the person was charged with heresy and with being a witch.  The person was convicted, sentenced to death, and executed on May 30.

Nearly 500 years later, on May 28, 1923, the United States Attorney General announced that it was legal for women to wear trousers in public.  Yes, the United States Attorney General actually had to make such an announcement.

Sidebar: today is my mother’s youngest sister’s birthday.  Startlingly, Aunt Helen Anne’s birthday is not on today’s list of historical events! Happy birthday AHAB!!!

Anyhow, who was executed as a heretic and witch on this weekend in 1431?

Your hint (and reason I was reminded of my mother): my mom’s maiden name is Jeanne Bonneau.

JOAN OF ARC

Five for Friday #229

Welcome to Friday and the 229^th #fiveforfriday legal ethics quiz!

Today is National Road Trip Day, National Don’t Fry Day, and National Cooler Day.  I plan to honor each this weekend.

Tomorrow, I’m making a road trip to Schenectady to run Sunday’s Miles on the Mohawk Marathon.  The race day forecast calls for clouds, a chance of light rain, and temperatures in the high 40’s and low 50’s. Not only perfect marathoning weather, but perfect weather for my skin and bald head not to burn, which is the exact issue – overexposure to the sun – about which National Don’t Fry Day intends to raise awareness.

Upon finishing, I’ll hop back in the car and drive to Lake Dunmore where the First Brother is camping this weekend.  Now, today is also National Brisket Day and National Burger Day.  Nobody makes better brisket than my brother, but he’s not bringing his smoker to the campground. Perhaps we’ll have burgers instead.  Regardless, our cooler will remain within easy reach as we sit by the fire Sunday night.

Like mine, I hope your long weekend includes activities that, while legal, have nothing to do with the law or practice thereof.  Enjoy!

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 a rule that prohibits a lawyer from communicating about the subject of the representation with a person that the lawyer knows is represented by another lawyer in the matter.

Which is NOT an exception to the prohibition?

•   A.  The other lawyer consents to the communication.
•   B.  The communication is authorized by law.
•   C.  The represented person initiates the communication.
•   D.  Trick Question.  A, B, and C are the 3 exceptions to the rule.

Question 2

Attorney called me with an inquiry. I listened, then replied, “yes, but only in an amount reasonably necessary for the purpose” allowed by the rule.  You may assume that my response accurately (and exactly) quoted the rule.

Given my response, Attorney asked whether the rules permit Attorney to:

•  A.  review an adverse party’s social media platforms.
•  B.  deposit Attorney’s own money into a client trust account.
•  C.  engage in ex parte communications with jurors post-trial.
•  D.  take time off to relax.

Question 3

Communication is one of the 7 Cs of legal ethics.

Several rules require a lawyer to secure a client or former client’s ___________  __________ before acting.   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.”

The quoted language is the definition of what phrase?

Question 4

This is a tough one.  While self-reporting might be advisable in response to each, which is the only event that a lawyer is specifically rto self-report?

• A.  trust account overdrafts.
• B.  adverse malpractice judgements.
• C.  discipline imposed in another jurisdiction.
• D.  criminal convictions.

 Question 5

Looking through the list of notable events to have occurred on May 28 in history, two are related to the law, share a connection, and remind of my mother.

On or about May 28, 1431, this person was captured while wearing men’s clothing.  Having been convicted of wearing men’s clothing earlier in the same year, the person was charged with heresy and with being a witch.  The person was convicted, sentenced to death, and executed on May 30.

Nearly 500 years later, on May 28, 1923, the United States Attorney General announced that it was legal for women to wear trousers in public.  Yes, the United States Attorney General actually had to make such an announcement.

Sidebar: today is my mother’s youngest sister’s birthday.  Shockingly, Aunt Helen Anne’s birthday is not on today’s list of historical events! Happy birthday AHAB!!!

Anyhow, who was executed as a heretic and witch on this weekend in 1431?

Your hint (and reason I was reminded of my mother): my mom’s maiden name is Jeanne Bonneau.

Wellness Wednesday: might adopting some pandemic-related changes improve the profession’s well-being?

We know that the pandemic changed how, when, and where we work.  We also know that some of the changes will remain once the pandemic concludes.  Today, I write to share two developments that, to me, provide insight into pandemic-related changes that may prove beneficial to the profession’s well-being, thus warranting consideration as to whether they should become permanent aspects of how, when, and where we work.

The first development comes from Florida.

Last week, the Florida Supreme Court approved an advisory opinion issued by the Florida State Bar’s Standing Committee on the Unauthorized Practice of Law.  The opinion concludes that a lawyer who is licensed in another state, but not in Florida, does not violate Florida’s rules on unauthorized practice by providing legal services to out-of-state clients on matters not involving Florida law while working remotely from Florida.  The Legal Profession Blog and ABA Journal reported the Court’s decision to approve the opinion.

The advisory opinion cites to similar conclusions reached by the ABA and the Utah State Bar.  Those of you who recall my post ABA issues common sense guidance on working remotely will not be surprised to learn that I’m a fan of the Florida opinion. It’s a post in which I used this hypo to introduce the ABA and Utah opinions:

“Imagine this:

• You are a lawyer who is licensed in Other State but not in Vermont.
• You live and work in Other State and own a condo in Vermont.
• For various reasons, you move to the Vermont condo during the pandemic.
• There, and thanks to technology, you continue to work on your clients’ legal matters.
• You do not open an office in Vermont, advertise in Vermont, accept new clients in Vermont, or give advice on Vermont law.
• Not one of your client matters has anything to do with Vermont or Vermont law.
• But for the fact that you’re in your condo, your work is exactly what you’d be doing if you were working from your office in Other State.”

I remain of the opinion that the Utah State Bar nailed it:

• “what interest does the Utah State Bar have in regulating an out-of-state lawyer’s practice for out-of-state clients simply because he has a private home in Utah? And the answer is the same—none.”

 Returning to the Florida opinion, I support it even independent of any connection to well-being. However, I’m interested by (and appreciative of) the fact that the Florida committee went out of its way to note a comment that an individual lawyer submitted in support of the proposed opinion.  The Committee wrote:

• “In light of the current COVID-19 pandemic, the Standing Committee finds the written testimony of Florida-licensed attorney, Salomé J. Zikakis, to be particularly persuasive: ‘I believe the future, if not the present, will involve more and more attorneys and other professionals working remotely, whether from second homes or a primary residence. Technology has enabled this to occur, and this flexibility can contribute to an improved work/life balance. It is not a practice to discourage.'”

No, it is not!

The second development is actually an older story.

In early May, Above The Law posted Ropes & Gray’s Reopening Plan Puts An End To The 5-Day, In-Person Office Work Week For Associates.  The post reports on the return-to-work plan announced by one of the nation’s largest law firms.  ATL applauded the firm’s phased re-opening and the flexibility associated with the “ramp-up time the firm is allowing [staff] to reacquaint themselves with office life.” In addition, ATL noted statements that the firm’s chair included in a memo to staff that announced the plan:

• “No matter what phase we are in, we endorse flexibility post-pandemic. We don’t expect that we’ll ever mandate a five-day a week in-office environment.”

Here here.  Management’s endorsement of flexibility demonstrates a commitment to the well-being of both staff and the organization as a while.  Indeed, as the Florida lawyer noted in the comment above, flexibility contributes to a healthy work/life balance.

Making permanent some of the changes caused by the pandemic won’t be a bad thing.

Disciplinary Opinion from the Indiana Supreme Court provides helpful reminder on the scope of the “no contact” rule.

Earlier today I came across this opinion in which the Indiana Supreme Court reprimanded a lawyer who impermissibly communicated with a represented person.  I did so via this post on the Legal Profession Blog.  The factual scenario isn’t dissimilar from a common inquiry topic. So, I thought I’d share the opinion as a helpful reminder on the scope of Rule 4.2, the so-called “no contact rule.”

Ok, here’s the situation:[i]

“Respondent represented ‘Husband’ in ongoing post-dissolution litigation involving Husband’s marriage to ‘First Wife.’ In August 2018, a domestic dispute between Husband and ‘Second Wife’ led to criminal charges against Second Wife and Husband’s petition for marital dissolution from Second Wife. Respondent also represented Husband in this dissolution action.

“Counsel for First Wife issued notice of a deposition of Second Wife. Respondent knew Second Wife was represented by counsel in the dissolution case and in the criminal case; however, neither Respondent nor First Wife’s counsel informed either of Second Wife’s attorneys of the deposition. At the deposition Respondent and First Wife’s counsel elicited incriminating testimony from Second Wife and testimony about subjects relevant to the dissolution case, and Respondent later contacted the prosecutor and provided her with a copy of Second Wife’s deposition.”

Indiana’s rule is the same as Vermont’s.

“In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.”

A hearing officer concluded that the lawyer violated the rule. On appeal, the lawyer made three arguments.  Here’s my summary:

• Lawyer: The deposition was noticed in the case involving First Wife.  Second Wife wasn’t a party to that case.
• Court: The rule protects “persons” not “parties.”
• Lawyer: The rule prohibits me from communicating with Second Wife in the matter in which she’s represented. It doesn’t prohibit me from communicating with her in the other matter.
• Court: You were communicating with Second Wife in both matters. For one, the two matters so overlapped that the deposition was bound to cover both.  In fact, you admitted that you intended to use the deposition in both cases. Not only that, but the rule protects a represented person from uncounseled communications on the “subject of the representation . . . whether the representation involves the same proceeding, a different proceeding, multiple proceedings, or no proceeding at all.”
• Lawyer: But I was required to protect my client’s interests at the deposition.  Therefore, I was “authorized by law” to communicate directly with Second Wife.
• Court: Informing Second Wife’s lawyer that the deposition had been scheduled wouldn’t have kept you from doing your job.

I often ask lawyers who contact me with this scenario to tell me the reason they wish they could communicate with the represented person without going through counsel.  Once they hear themselves answer, they understand:[ii] their reason is the exact reason that we have the rule.

[i] For JEB: my parents went away on a week’s vacation!

[ii] Even those who are parents.

Monday Morning Honors #228

Happy Monday!

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

Honor Roll

• Karen Allen, Karen Allen Law
• Alberto Bernabe, Professor of Law, University of Illinois at Chicago, John Marshall School of Law
• Andrew Delaney, Martin, Delaney & Ricci Law Group
• Heather Devine, Costello Valente & Gentry
• Jennifer Emens-Butler, Vermont Bar Association, Director of Communication & Education
• Glenn Jarrett, Jarrett & Luitjens
• Deborah Kirchwey, Law Office of Deborah Kirchwey
• Jeanne Kennedy, JB Kennedy Associates, Blogger’s Mom
• John Leddy, McNeil Leddy & Sheahan
• Kevin Lumpkin, Sheehey, Furlong & Behm
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Jeff Messina, Bergeron, Paradis, Fitzpatrick
• Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
• Herb Ogden, Esq.
• Keith Roberts, Darby Kolter & Nordle
• Noah Rosenthal, Fenwick
• Jay Spitzen, Esq.
• Jonathan Teller-Elsberg, Sheehey Furlong & Behm
• The Honorable John Valente, Vermont Superior Judge
• Eva Vekos, Marsh & Wagner
• Jason Warfield, Candidate for Admission to the Vermont Bar
• Zachary York, Sheehey Furlong & Behm

 Answers

Question 1

Identify the duty imposed by a rule that includes these phrases. It’s one of the 7 Cs of Legal Ethics.

• Explain the matter to the extent reasonably necessary to permit the client to make informed decisions about the representation.
• Keep the client reasonably informed about the status of the matter.
• Promptly reply with a client’s reasonable requests for information.

COMMUNICATION.  Each phrase appears in V.R.Pr.C. 1.4.

Question 2

Lawyer contacted me with an inquiry. I listened, then replied “I recommend that you limit your motion to citing to the rule’s specific provision that either requires or permits it.  Then, if the court orders you to disclose more, do so carefully, without disclosing more than necessary to make your point.”

Given my response, it’s most likely that Lawyer called to discuss a motion to:

• A.  recuse the judge.
• B.  disqualify opposing counsel.
• C.  withdraw from representing a client.
• D.  order a competency evaluation.

This question refers to the dangers of “noisy withdrawal.”  See my blog post Stop Making Noise.

Question 3

Lawyer is an associate at Firm. Tomorrow, Lawyer intends to provide short-term limited legal services to clients at a walk-in clinic sponsored by a nonprofit organization.  Neither Lawyer nor the walk-in clients will expect Lawyer or Firm to provide continuing representation to the clients.  By rule, which set of rules will be (somewhat) relaxed, insofar as they relate to Lawyer’s work at the walk-in clinic?   The rules on:

•  A.  Malpractice Insurance
•  B.  Conflicts of Interest. V.R.Pr.C. 6.5
•  C.  Competence & Diligence
•  D.  Client Confidences

Question 4

 Many types of “threats” could violate the Vermont Rules of Professional Conduct.  However, there’s only one rule that specifically prohibits lawyers from threatening to do something.

Do what?

V.R.Pr.C. 4.5 makes it professional misconduct to present, participate in presenting, or THREATEN to present criminal charges in order to obtain an advantage in a civil matter.

 Question 5

Bobby Franks was brutally murdered on May 21, 1924.  He was 14 years old.

Two men were charged with the murder.  They were 19 and 18.  Their lawyer concluded that a jury trial would likely result in convictions and death sentences. So, the lawyer convinced the clients to plead guilty and allow him to argue that the judge should spare their lives and sentence them to life in prison.

Then, in a Chicago courthouse in what the media labeled “The Trial of the Century,” the lawyer delivered an argument famously criticizing the death penalty, its use on the young, and the place of vengeance in the justice system.

In the end, the judge sentenced the lawyer’s clients to life in prison.

Interestingly, over a decade earlier, the lawyer was banned from practicing law in California after having been charged with jury tampering and bribery while representing a client charged with bombing the Los Angeles Times building.  The lawyer was acquitted on one count and the jury (a different one) hung on the other.

Name the lawyer.

Bonus: name the lawyer’s clients.

CLARENCE DARROW in the trial of Leopold and Loeb.

The 228th #fiveforfriday legal ethics quiz.

Welcome to Friday and the 228^th #fiveforfriday legal ethics quiz!

My recurring condition of Blogger’s Block has flared again, leaving me without a topic for today’s intro. Over coffee, I put in a half-hearted effort to find a hook related to today’s date or quiz number.  Alas, as those who know me best know full well, “half-hearted” is damned near Herculean for me.  Thus, to characterize this morning’s quest as involving effort of any measurable quantity would likely violate Rule 7.1 and its ban on false or misleading communications concerning Bar Counsel’s services.

Still, I learned two things: today is both National Memo Day and National Pizza Party Day.  That each is honored with a day flummoxed me.

I’ll begin with National Pizza Party Day.

Umm…. why is it limited to a single day?

During Well-Being Week in Law, I mentioned my hope that the profession will attend to its well-being year-round, not just for a week in May. Similarly, I often tell my mother that every day should be Mother’s Day.

Wait a minute . . .

I’m not certain that I tell her that.  Indeed, she might read this blog and announce that it violates the ban on Bar Counsel making false or misleading communications about his service as a son.

Anyhow, to me, pizza parties are in the same category as moms and well-being.  While perfectly acceptable to highlight them at a specific moment in time, they are to be celebrated as often as possible.

As for National Memo Day, my initial reaction was one of shock and dismay. I despise memos.  I can conceive of no good reason to set aside a day to honor or send them.

Fortunately, I found this entry on the National Day Calendar.  As it turns out, “the observance aims to reduce the number of memos issued in the workplace. It also hopes that memo writers keep their messages brief and to the point.”

Here here!  And, yet another example of a celebration that shouldn’t be limited to a single day!

Now, stop reading this and send your co-workers a short memo suggesting that the office knock off early for a pizza party.

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

Identify the duty imposed by a rule that includes these phrases. It’s one of the 7 Cs of Legal Ethics.

• Explain the matter to the extent reasonably necessary to permit the client to make informed decisions about the representation.
• Keep the client reasonably informed about the status of the matter.
• Promptly reply with a client’s reasonable requests for information.

Question 2

Lawyer contacted me with an inquiry. I listened, then replied “I recommend that you limit your motion to citing to the rule’s specific provision that either requires or permits it.  Then, if the court orders you to disclose more, do so carefully, without disclosing more than necessary to make your point.”

Given my response, it’s most likely that Lawyer called to discuss a motion to:

• A.  recuse the judge.
• B.  disqualify opposing counsel.
• C.  withdraw from representing a client.
• D.  order a competency evaluation.

Question 3

Lawyer is an associate at Firm. Tomorrow, Lawyer intends to provide short-term limited legal services to clients at a walk-in clinic sponsored by a nonprofit organization.  Neither Lawyer nor the walk-in clients will expect Lawyer or Firm to provide continuing representation to the clients.  By rule, which set of rules will be (somewhat) relaxed, insofar as they relate to Lawyer’s work at the walk-in clinic?   The rules on:

•  A.  Malpractice Insurance
•  B.  Conflicts of Interest
•  C.   Competence & Diligence
•  D.  Client Confidences

Question 4

 Many types of “threats” could violate the Vermont Rules of Professional Conduct.  However, there’s only one rule that specifically prohibits lawyers from threatening to do something.

Do what?

 Question 5

Bobby Franks was brutally murdered on May 21, 1924.  He was 14 years old.

Two men were charged with the murder.  They were 19 and 18.  Their lawyer concluded that a jury trial would likely result in convictions and death sentences. So, the lawyer convinced the clients to plead guilty and allow the lawyer to argue that the judge should spare their lives and sentence them to life in prison.

Later, in a Chicago courthouse in what the media labeled “The Trial of the Century,” the lawyer delivered an argument famously criticizing the death penalty, its use on the young, and the place of vengeance in the justice system.

In the end, the judge sentenced the lawyer’s clients to life in prison.

Interestingly, over a decade earlier, the lawyer was banned from practicing law in California after having been charged with jury tampering and bribery while representing a client charged with bombing the Los Angeles Times building.  The lawyer was acquitted on one count and the jury (a different one) hung on the other.

Name the lawyer.

Bonus: name the lawyer’s Chicago clients who murder Bobby Franks 97 years ago today.

Surreptitious recordings.

A few months ago, a lawyer called to discuss the ethics issues associated with surreptitiously recording a conversation with a client.  More recently, another lawyer contacted me to ask about recording conversations with opposing counsel.

In my time here – 23 years – we’ve not received a single complaint in which a current or former client alleged that their lawyer secretly recorded them.  Nor have we received such a complaint from one lawyer against another. Of course, it’s difficult to complain about something you don’t know.  As such, I don’t necessarily consider the absence of evidence to be evidence of absence. For all I know, it happens, but the lawyer never uses the recording or alerts the client or other lawyer to its existence.

In the mid-2000s, two Vermont lawyers represented a client charged with murder.  Mid-trial, the lawyers learned that an incarcerated person claimed to have knowledge that someone other than their client had committed the crime.  The court granted a short recess for the lawyers to follow-up on the tip. The lawyers interviewed the incarcerated person.  The person asked if the lawyers were recording the conversation.  They were.  Yet, one answered “no” and the other remained silent.

I don’t recall how, but the incarcerated person found out that the conversation had been recorded. A disciplinary complaint followed.  Eventually, my office charged the lawyers with violating Rules 4.1 and 8.4(c) of the Vermont Rules of Professional Conduct.  The former prohibits a lawyer from knowingly making a false statement of material fact to a third person while acting on a client’s behalf.  The latter makes it professional misconduct to engage in conduct involving dishonesty, deceit, misrepresentation, or fraud.

To be clear, the charges were not based on the surreptitious recording itself.  Vermont is a one-party consent state.  The charges focused on the lawyers’ deceptive answer and affirmation-by-silence when asked if the conversation was being recorded.

A hearing panel determined that the lawyers had violated Rule 4.1, but not Rule 8.4(c).  Upon review, the Supreme Court affirmed, concluding that not every dishonest act violates Rule 8.4(c), only those acts that adversely reflect on the lawyer’s fitness to practice.  The Court held that while the lawyers had violated Rule 4.1 by falsely stating they were not recording the conversation, the circumstances were such — the mid-trial reception of a tip that might have exonerated their client — that the misrepresentation did not adversely reflect on the lawyers’ fitness to practice.  Neither the hearing panel nor the Court opined as to whether the lawyers violated the rules merely by recording the conversation without informing the incarcerated person.

Many state and local bar associations have issued advisory opinions on this issue.  Some have concluded that surreptitious recordings are inherently deceptive and unethical per se.  More have concluded that undisclosed recordings, standing alone, do not violate the rules.

The most prominent opinion might be ABA Formal Opinion 01-402. It’s an opinion in which the ABA’s Standing Committee on Ethics and Professional Responsibility advised that, in one-party consent jurisdictions, a lawyer does not violate the ethics rules merely by recording a conversation without informing the other participants.  Rather, it’s only unethical if the lawyer does something else to violate the law or rules. The ABA Committee was “divided as to whether a lawyer may record a client-lawyer conversation without the knowledge of the client, but agree[d] that it is inadvisable to do so.”

In January 2021, the Supreme Court of Arizona’s Attorney Ethics Advisory Committee recommended that the court approve Ethics Opinion EO-20-0002.  It’s an opinion in which the Arizona Committee concluded:

• “that it is not per se unethical or ‘inherently deceptive’ for an attorney in Arizona to record a telephone communication between the attorney and another individual without disclosing that the attorney is recording the communication, so long as the recording does not violate applicable federal or state law. The lawyer must still act consistent with all applicable Arizona Rules of Professional Conduct in making and using the recording, and an attorney’s undisclosed recording may still violate various Ethical Rules, depending on the facts of each case.”

Some members of the Arizona Committee dissented.  Here’s the crux of the dissent:

• “Over the past 40 years, Arizona has imposed a general blanket prohibition against an attorney recording a conversation without disclosure based on the view that any such recording is inherently deceptive and in violation of ER 8.4(c). This blanket prohibition is subject to a number of exceptions that have been articulated in several ethics opinions. The bedrock for the blanket prohibition is the simple proposition that, although such recordings may be legal under Arizona law at the end of the day, lawyers need to hold themselves to a higher standard. Over those 40 years, this rule, along with its exceptions, has worked well. There has been no hue and cry for a change.” (citation omitted).

In the end, and as reported by Professor Bernabe and Ethics at Law, the Arizona Supreme Court did not approve or adopt the opinion.  Still, aspects of the opinion provide educational value.  In particular, four of the majority’s caveats to its broader conclusion.

First, echoing the Vermont case that I mentioned above, the majority noted that it would continue to be a violation for a lawyer who was recording a conversation to state they were not.

Second, with respect to recording clients, the opinion stated that it is:

• “rare that a client’s interest would ever be served by lawyers making undisclosed recordings of conversations between lawyer and client, and therefore unlikely that undisclosed recording of a lawyer-client conversation would ever be appropriate.”

And that,

• “Lawyers should also avoid undisclosed recordings of conversations with their own clients, due to the likelihood that such recordings, if later discovered, would undermine the trust and candor that are essential to the lawyer-client relationship.”

Third, with respect to opposing lawyers, the Arizona Committee cautioned that “[u]ndisclosed recordings may also have serious negative effects on what would otherwise be collegial working relationships with opposing counsel.”

Finally, while noting that Arizona is a one-party consent state, the Committee stated:

• “Before choosing to make an undisclosed recording, the Committee strongly recommends that lawyers consider whether a disclosed recording would serve the same purpose, in order to avoid unnecessarily risking the potential pitfalls of undisclosed recording.”

I understand that technology has made it incredibly easy to record every encounter.  I also understand that we are more and more tempted to record conversations with people who we perceive to be difficult.   Still, I view my role as a risk manager of sorts.  And, in that role, my spidey sense tingles when the conversation includes “clients,” “opposing counsel,” “secret,” and “surreptitious.”

As always, be careful out there.

A civility oath for lawyers.

This part 2 of a two-part series I’m doing today on civility.  Part 1 is here.

Civility is one of my 7 Cs of Legal Ethics.  I regularly address it in blog posts and CLE seminars, making clear my opinion that incivility contributes to the stress and anxiety endemic in the legal profession. The topic was central to our discussion on emotional intelligence during Well-Being Week in Law.  For more on the discussion, here are the preview and recap videos.

I’ve often noted that several judges have indicated that lawyers who think they’re scoring points by filing motions replete with name-calling and accusations against opposing counsel are misguided.  Related, during our discussion on emotional intelligence, a consensus emerged that practicing lawyers believe that judges should be more proactive in calling out (and squelching) incivility. The consensus echoes a refrain that has emerged from nearly every seminar I’ve done on civility: we need to do something about it.

Here’s something West Virginia is doing about it. 

On Monday, the West Virginia Supreme Court of Appeals issued a release announcing that the Chief Justice had “signed an order provisionally adopting and releasing for public comment the addition of a civility pledge to the oath lawyers take when they are admitted to the practice of law.”  Here’s the West Virginia oath, with the new language underlined:

• ““I do solemnly swear or affirm that: I will support the Constitution of the United States and the Constitution of the State of West Virginia; that I will honestly demean myself in the practice of law; that I will conduct myself with integrity, dignity and civility and show respect toward judges, court staff, clients, fellow professionals and all other persons; and to the best of my ability, execute my office of attorney-at-law; so help me God.”

According to the release, once the order was signed, all 5 justices took it, along with the President of the West Virginia State Bar and the President of the West Virginia Board of Bar Examiners.  As reported by the West Virginia Metro News and the ABA Journal, the Chief Justice remarked:

• “West Virginia’s judiciary wants to be a leader and the leadership here is in promoting civility. You can look across the country and around the world that we need a very healthy dose of civility today.”

Indeed. 

Ps: Here’s the Vermont Attorney Oath.  A few years ago, we started the tradition of the Chief Justice re-administering the oath to all lawyers in attendance at the VBA Annual Meeting.

Lawyers admonished for making baseless allegations of incivility against opposing counsel.

Civility is one of my 7 Cs of Legal Ethics.  I regularly address it in blog posts and CLE seminars, making clear my opinion that incivility contributes to the stress and anxiety endemic in the legal profession. The topic was central to our discussion on emotional intelligence during Well-Being Week in Law.  For more on the discussion, here are the preview and recap videos.

I’ve often noted that several judges have indicated that lawyers who think they’re scoring points by filing motions replete with name-calling and accusations against opposing counsel are misguided.  Related, during our discussion on emotional intelligence, a consensus emerged that practicing lawyers believe that judges should be more proactive in calling out (and squelching) incivility. The consensus echoes a refrain that has emerged from nearly every seminar I’ve done on civility: we need to do something about it.

I post today to share two updates.  This part 1 and should serve to remind lawyers to think twice before accusing opposing counsel of being “unhinged.”

Earlier this month, a federal judge admonished a lawyer and law firm for making baseless allegations of incivility against opposing counsel.  The opinion is here.  As reported by the ABA Journal, the opinion issued in a lawsuit that “alleged that military personnel providing security for Exxon facilities in Indonesia sexually assaulted, kidnapped and tortured nearby residents.”

Following the deposition of an ExxonMobil general counsel, defense counsel moved for sanctions against plaintiffs’ counsel.  Upon reviewing the motion, the court ordered defense counsel to show cause why they shouldn’t be sanctioned.

Why?

Because the court determined that several of defense counsel’s allegations against plaintiffs’ counsel had no support in the record.  Specifically, the allegations that plaintiffs’ counsel:

• had become “agitated and combative;”
• “was indignant and adversarial;”
• “became unhinged . . . and repeatedly attacked and baselessly threatened to

seek sanctions against the witness and counsel;” and,

• “demonstrated a general lack of respect towards a professional adversary.”

Responding to the show cause order, defense counsel apologized and acknowledged contributing to a “breakdown of civility that occurred during and after [the] unfortunate deposition.”  Nevertheless, after examining the record, the court concluded that plaintiffs’ counsel hadn’t acted as described by defense counsel and, in fact, hadn’t acted inappropriately at all.  Disturbed by defense counsel’s failure to watch the video of the deposition before filing the motion, the court concluded

• “Both should have known better than to impugn another attorney’s character without reviewing the entire record. And neither should have made those accusations without evidentiary support. The court cannot allow such misconduct to occur without at least rebuking counsel.”

Now, maybe this has less to do with civility than it does with filing baseless motions.  Still, name-calling for name-calling’s sake can – and should – result in a sanction.

I’ll post part II later this afternoon.

Prepping your client for a remote hearing? Check the client’s screen name.

Good news: “I’m not a cat” lawyer might be off the hook!  More on that in a moment.

Yesterday the Vermont Supreme Court amended Administrative Order 49, the order declaring a judicial emergency. Per the State Court Administrator’s memo to the bar:

• “Paragraph 5(d) is amended to lift the existing requirement for mandatory remote hearings effective June 14, 2021. By this date, individuals will have had an opportunity to become fully vaccinated. The Court anticipates that some hearings will continue to be held remotely after remote hearings are no longer mandatory and even after the conclusion of the judicial emergency. Amending the order now gives judges, court staff, parties, and their lawyers adequate time to plan for the possibility of in-person court proceedings.”

Since some hearings will continue to be held remotely, I thought I’d share this tip: competent and diligent representation might include a dry run with a client before a remote hearing. Not only for the obvious reasons, but to check the client’s screen name.

Why would you want to check the client’s screen name?

Good question.

For the answer, read today’s ABA Journal post Judge is taken aback when Defendant logs in to Zoom arraignment with obscene screen name.  The Detroit News, Law & Crime, and Vice covered the story as well, each apparently including video.

And to think I never thought it could be worse than having to tell a judge “I’m not a cat.”