Five for Friday #233

Welcome to Friday and the 233rd #fiveforfriday legal ethics quiz!

233 prompts many thoughts. Alas, none that will be shared today.  Rather, today’s intro will focus on movies set in northeastern Massachusetts.

I’m in Gloucester, MA.  The First Brother has been camping here since Monday and I joined him for the weekend.  One of our favorite movies is Inglourious Basterds.

(I only mention Tarantino’s best effort because I like to reward people who do more than skip to Question 5.  If you know who starred in Inglourious Basterds, well, there’s your hint for Question 5.  Now, back to the intro.)

As true New Englanders know, when it comes to the North Shore, the movie that matters most is The Perfect Storm. 

Yes, I’m aware that Manchester By The Sea garnered more critical acclaim.

But this is my blog.

So, as much as I think that Casey Affleck ranks among the most underrated actors of all-time – (have you seen Gone Baby Gone?) –  the fact remains that the film I associate most with Cape Ann is The Perfect Storm.  So, high on the list of things that Patrick and I want to do this weekend is to pay a visit to The Crow’s Nest.

Low last on the list is “Mike blogging.” Thus . . .

. . . 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

 Which requires a lawyer to withdraw from representing a client?

  • A.  Continued representation will result in a violation of the Rules of Professional Conduct.
  • B.  The lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.
  • C.  The lawyer is discharged.
  • D.  All the above.

Question 2

 Assuming a conflict can be waived under the applicable rule, each affected client must:

  • A.  give informed consent.
  • B.  give informed consent, confirmed in writing.
  • C.  give informed consent, confirmed in writing within a reasonable time after the lawyer commences the otherwise prohibited representation.
  • D.  Don’t assume.  In Vermont, no conflicts can be waived.

Question 3

 True or False?

By its plain language, the rule on safekeeping a client’s property only applies to a client’s funds.

Question 4

 Absent consent, the “no contact” rule prohibits communication on the subject of the representation with a represented _______

  • A.  person.
  • B.  party.

 Question 5

 If you skipped the intro, you missed a hint.

 Since 2016, two movie stars have been locked in a custody dispute over their 5 children. As a result of a procedure that is confusing to me, they hired a “private judge” who, in May, granted custody to Movie Star #1.  Movie Star #2 objected and moved to disqualify the “private judge” for failing to disclose a prior business relationship with the lawyers who represent Movie Star #1.

Last week, a California court granted the motion, concluding that the private judge had committed an “ethical breach” that may “cast doubt on the judge’s ability to be impartial.”

Name the movie stars.

the-quiz

Emojis & the duty of competence.

Long-time readers probably remember the phrase “competence includes tech competence.”  I suppose, then, we should have known that today’s post would eventually be published.  Still, I expect the collective response to be something along the lines of:

☹️ 😠 😧 🤬 😱😒 😖

The duty of competence likely includes understanding that emojis can be critical to your client’s matter.

Earlier this week, I found Bloomberg Law’s Emojis and Visual Literacy: A Guide for Lawyers. The post fascinated me.  The author, Olga Mack, reminds lawyers that our work for our clients often includes language. Specifically, interpreting its meaning, explaining it, and putting it into context.  As Mack points out, emojis are a form of language.

For instance, imagine a client comes to you to enforce a contract.  One of the first things you’d do is ask to review the contract. What if the contract is a series of text messages that end with the other person replying to your client 🤝 🖊️🤝 🖊️?

Mack makes that exact point early in the post by asking:

  • “Can the handshake emoji 🤝 convey the sender’s contractually binding acceptance of preceding terms?”

The post so interested me that I did a bit of research.  The results included Above The Law’s Is Emoji Law Going To Be A Thing?  Consider this paragraph:

  • “Anytime some kind of ‘new’ form, method, or medium of communication pops up, people worry that courts will struggle to understand them and it will lead to vast miscarriages of justice. And you can see why. If your boss starts texting you ‘eggplants’ and ‘peaches,’ a dumb-ass judge might think that he’s just suggesting a recipe, but you know what’s really up. Our courts are going to have to become emoji literate, sooner rather than later.”

Confused?

Well, my research also included asking several Vermont lawyers if they’ve had to argue over or litigate the meaning and interpretation of emojis.  A State’s Attorney informed me that there’s been at least one criminal case involving youths, the exchange of pornography, and the use of the peach emoji 🍑 to signify a bare behind.

Back to the ATL post.  The author goes on:

  • “But, unlike some other olds, I’m not too worried about it. Judges and juries have a long and relatively successful history of ruling on issues that they do not even begin to understand. We don’t need to worry about a judge misinterpreting the latest emoji-speak for ‘sex’ or ‘crime’ or ‘let’s kill your husband.’ What we need to worry about is making sure that our soon-to-be coming crop of ‘emoji interpretation experts’ get recognized under Daubert to explain this to a judge or jury.”

And isn’t that where the duty of competence comes in? Understanding that your job will include trying to convince someone what your client meant when using an emoji or reasonably understood from another’s emoji?

Kevin Lumpkin regularly appears on this blog’s #fiveforfriday legal ethics Honor Roll.  I asked Kevin if he’s ever had to litigate the meaning of an emoji.  He hasn’t, but shared some thoughts that I think capture the competence issue perfectly:

  • “Based on limited experience with an emoji in one of my cases, I would think that the analysis turns on context and testimony just like interpretation of slang, sarcasm, or jest would. As far as competence goes, I would think that the biggest thing for attorneys to understand is that they need to be able to explain an emoji’s use in context to ensure that is interpreted correctly.  Kind of a like a prosecutor is really good at eliciting testimony to translate messages that cryptically reference drug activity.”

Kevin added:

  • “The real trick is to put a potentially misleading emoji in context correctly.  As an example, the skull emoji has overtaken the laughter emoji to indicate that something is funny.  Depending on the circumstances, I could see that being misinterpreted.  To make your gun emoji example[1] more complicated, not every platform displays every emoji uniformly, and then gun emoji has actually changed over time and wasn’t always consistent across platforms.  Depending on the timing, sender could be seeing a fake-looking super soaker type gun on their phone and recipient could be seeing a revolver on theirs!  If sender’s attorney assumes that the recipient’s view of the gun emoji is the one their client saw and doesn’t investigate the potential difference, that’s bad news!”

Yes, it is!

As the National Law Review noted in An Emoji is Worth 1,000 Words:

  • “Context matters. The same emoji can be texted by the same person to different people and mean something completely different. Legal professionals need to be mindful of this. Often context will only be found in further discovery—interrogatories, depositions, etc., but only if you know what questions to ask.”

In other words, don’t assume the emoji means what you think it means.

Elizabeth Kruska is the President of the Vermont Bar Association’s Board of Managers and another frequent member of the #fiveforfriday Honor Roll.  Elizabeth clued me into the Vermont Supreme Court’s opinion in State v. Harwood. It’s an opinion in which an emoji played a bit part, thus requiring the Court to include a footnote indicating that:

  • “An emoji is a “small digital image or icon used to express an idea, emotion, etc., in electronic communications.” Emoji, Oxford English Dictionary (3rd ed. 2013), https://www.oed.com/view/Entry/389343

So, emojis are working their way up![2]

I’ll conclude with this.

As technology, society, and the way we communicate changes, a lawyer’s duty remains the same: to provide the client with competent representation.  There will most certainly be situations in which understanding the meaning and use of emojis is central to satisfying the duty of competence.

With ❤️,

Bar Counsel.

emojis

[1] I’d posited to Kevin “Is a ‘gun’ emoji sufficient to constitute a criminal threat?”

[2] The Court’s opinion so interested President Kruska that she started “poking around a bit.”  In addition to her law practice, Elizabeth is an adjunct professor at VLS.  A student asked Elizabeth to supervise a research project. Elizabeth agreed and the project resulted in the student authoring a paper on the use of emojis as evidence.  Elizabeth and the student are revising the paper for publication in an upcoming edition of the Vermont Bar Journal.  Once it appears, I intend to link to it.

Considering cannabis clients? Competence can be complicated.

Updated on July 29, 2021 to include endnote ii.

In February, I was on a panel that presented a seminar at the annual meeting of the National Organization of Bar Counsel.  The panel’s topic was “Advising lawyers who advise clients involved in the cannabis industry.”  Basically, as more and more states legalize the cultivation, sale, and use of marijuana and cannabis products, people with jobs like mine must respond to ethics inquiries from lawyers whose clients are involved in the cannabis industry. So, the seminar’s aim was address how we go about doing our jobs.

Vermont does so a bit differently than other jurisdictions.  Here’s why.

cannabis

In some states, the question lawyers pose to bar counsel-types is still “do I violate the rules by representing someone involved in the cannabis industry?” This is because nearly every jurisdiction has adopted a version of ABA Model Rule of Professional Conduct 1.2(d).  The Model Rule, which Vermont has adopted verbatim, states:

  • “(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.”

The rule draws no distinction between state and federal law, or between laws that are more vigorously enforced than others.  And, for now, marijuana and THC remain Schedule 1 drugs under the Controlled Substances Act.[i]  Thus, in states that are new to the world of legal cannabis, the lawyer ethics question is often “by representing a client in the industry, am I violating Rule 1.2(d) by assisting the client to violate federal law?”

That’s no longer the question in Vermont.

In 2016, the Vermont Supreme Court adopted Comment [14] to V.R.Pr.C. 1.2(d).  The comment makes clear that a lawyer does not violate Rule 1.2(d) by advising clients on matters that are legal under Vermont’s regulatory scheme. [ii]

So, what is the question in Vermont?

Well, that gets me back to my portion of the NOBC presentation.  Here, it’s not so much a particular question that I receive as it is me responding to an inquiry by asking “are you sure you want to do this?”

Yes, I worry for lawyers who decide to dabble in cannabis law.

There’s no area of law in which one should dabble.  That’s especially true when it comes to representing clients in the cannabis industry.  It’s not as simple as “hey, I know a little about marijuana. This could be fun!”

The cannabis industry is a highly regulated industry that includes businesses that, like any other business, need competent legal advice. Or, as a Vermont lawyer who helped me to prepare for my NOBC presentation emailed to me:

  • “It has constantly amazed me that proprietors in this field often see the novelty of legalization and the ambiguity surrounding the direct regulation of cannabis (incomplete state laws, federal/state dynamics, etc.) and somehow assume this contingency suspends the normal application of every other law.  So, the first thing to recognize is that just because a part of government that regulates every other business is unfamiliar with cannabis, doesn’t mean the same rules and laws that apply to every other business don’t apply to cannabis operators.”

Here are some questions I ask of lawyers who I suspect are interested in dabbling in cannabis law.

  • Do you know the different types of licenses available in Vermont?
  • Do you know whether there are any requirements for the buildings in which a licensee locates a business?
  • Speaking of which, what about the zoning permit?
  • If your client is a cultivator or manufacturer, does the THC level remain the same throughout the process? Does it even matter?
  • Whether in Vermont or a state to which your client will ship product, do the food laws apply? Oh, and speaking of interstate transportation . . .
  • Does your client intend to accept payment by credit card?
  • What if your client’s labels or advertisements over or understate a product’s potency?
  • What if your cultivator client wants to trademark a name for a new ‘product?
  • What’s your client going to do with revenue (cash) generated from the business?

And you know what we haven’t mentioned yet?

The Rules of Professional Conduct!

Besides Rule 1.2(d), which rules apply?

ALL OF THEM!

To wit:

  • Can you represent multiple applicants for the same type of license? What if the clients agree to waive the conflict?  Then, what if one mentions to you a “trick of the trade” that makes the application “more appealing”?
  • Can you agree to accept a fee not to represent any other prospective licensees, even those applying for a different type of license than your client’s?
  • Can you accept an ownership interest in the business as payment for your legal fees?

I say again: it’s complicated.

Yesterday, Bloomberg News ran this post.  It’s a great primer on the complicated nature of representing clients in the cannabis industry.  The post includes a quote that makes the exact point I’m trying to make:

  • “Rachel Gillette, who leads Holland & Hart in Denver’s cannabis practice, said she sees ‘over and over lawyers in newly legalized states dipping their toes into what they would call ‘cannabis law.’ Really cannabis is an industry, and just because you practice criminal defense, DUI defense, or personal injury law, that does not mean you should now hang your shingle as a ‘cannabis lawyer.’”

Indeed.

[i] In December 2020, the House of Representatives passed the MORE Act, thereby voting to remove marijuana and TCH from Schedule I.  The MORE Act was reintroduced in the Senate in May 2021.

[ii] Important update: as reported by The Law for Lawyers Today, recent developments in New York and Georgia demonstrate how important it for lawyers who intend to represent clients in the cannabis industry to remain aware of the jurisdiction’s view of the scope of Rule 1.2(d).

Monday Morning Honors #232

Welcome to Monday!  What a comeback by the Sox!

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

Honor Roll

  • Penny Benelli, Dakin & Benelli
  • Beth DeBernardi, Administrative Law Judge, Vermont Department of Labor
  • Andrew DelaneyMartin, Delaney & Ricci Law Group
  • Benjamin Gould, Paul Frank + Collins
  • Robert Grundstein
  • Glenn Jarrett, Jarrett & Luitjens
  • Jeanne Kennedy, JB Kennedy Associates, Mother of the Blogger
  • Deb Kirchwey, Law Office of Deborah Kirchwey
  • Elizabeth Kruska, President, Vermont Bar Association
  • John Leddy, McNeil, Leddy & Sheahan
  • Stark Ligon, Ethics Counsel, Arkansas
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Jeffrey Messina, Bergeron, Paradis, Fitzpatrick
  • Jack McCullough, Vermont Legal Aid, Project Director, Mental Health Law Project
  • Jonathan Teller-Elsberg, Sheehey, Furlong & Behm
  • Rachel Trow, Shoup Evers & Green; Four-Year Law Office Study Program
  • The Honorable John Valente, Vermont Superior Judge
  • Zachary York, Legal Administrative Assistant, Sheehey Furlong & Behm

 Answers

 Question 1

“Confidentiality” wouldn’t be a bad answer. However, which of the 7 Cs of Legal Ethics is most specifically governed by rules that include the following words in their titles?

  • Current
  • Former
  • Prospective

CONFLICTS OF INTEREST.  See, V.R.Pr.C. 1.7, V.R.P.C. 1.9, V.R.Pr.C. 1.18

Question 2

Lawyer represents Client.  Lawyer knows that Client expects assistance that is not permitted by the Rules of Professional Conduct or other law.  Thus, by rule, Lawyer’s first step is:

  • A.  to withdraw.
  • B   to inform the tribunal.
  • C.  to consult with the client on any relevant limitation on Lawyer’s conduct.  V.R.Pr.C. 1.4(a)(5).
  • D.  Trick question.  It’s A & B.

Question 3

Lawyer represents Client. Client is distraught about information that will be made public during a trial scheduled to begin next week.  This morning, Client made statements to Lawyer that caused Lawyer reasonably to believe that Client intends to take their own life tonight.  Lawyer wants to disclose Client’s intent to someone who can intervene.  Under Vermont’s rules, Lawyer

  •  A.  must not disclose client’s intent.
  •  B.  must disclose client’s intent.
  •  C.  may disclose client’s intent.  See, V.R.P.C. 1.6(c)(1), Cmt. [10].

Question 4

 Which does the rule treat differently than the others?

  • a client’s personal check in the amount of $2000
  • a certified check
  • a trust account check from a lawyer licensed to practice law in Vermont in the amount of $100,001.00
  • a check issued by an insurance company licensed to do business in Vermont in the amount of $500,001.00.

V.R.Pr.C. 1.15(f) prohibits lawyers from disbursing from trust without collected funds.  Paragraph (g) lists exceptions – instruments against which a lawyer may disburse upon deposit.  B, C, and D are among the exceptions. The exception for personal checks is limited to $1,000 per transaction.

 Question 5 (and bonuses)

In honor of the bar exam being upon us . . .

. . . in 2002, one of Hollywood’s megastars was nominated for the Golden Globe for Best Actor for his work playing a character named Frank Abergnale, Jr.  The movie also starred another megastar as an FBI agent named Carl.

Here’s an exchange from the movie:

  • Carl: “How’d you do it Frank? How did you cheat on the bar exam in Louisiana?
  • Frank: “I didn’t cheat. I studied for two weeks, and I passed.”     

Name the movie and the Hollywood stars who played Frank and Carl.

Catch Me If You Can

Leonardo Dicaprio played Frank Abergnale.

Tom Hanks played Carl Ross.

catch me if you can

Five for Friday #232

Welcome to Friday and the 232nd #fiveforfriday legal ethics quiz.

My brother has two tickets to Sunday’s Red Sox game against the Yankees.  Originally, our respective plans did not include me using the 2nd ticket.  Of course, plans, as they say, change.  And while ours remain in flux, it looks like I’ll be joining my brother Sunday afternoon at Fenway.

Let me emphasize that my brother has the tickets. As in, he paid for them and they’re in his possession.

Why is that deserving of emphasis?

Because as anyone who recalls the 204th #fiveforfriday post knows, the last time Patrick and I went to a Red Sox-Yankees game, we didn’t have tickets.

Enjoy the weekend!

Onto the quiz.

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

“Confidentiality” wouldn’t be a bad answer. However, which of the 7 Cs of Legal Ethics is most specifically covered by rules that include the following words in their titles?

  • Concurrent
  • Former
  • Prospective

Question 2

Lawyer represents Client.  Lawyer knows that Client expects assistance that is not permitted by the Rules of Professional Conduct or other law.  Thus, by rule, Lawyer’s first step is:

  • A.  to withdraw.
  • B.  to inform the tribunal.
  • C.  to consult with Client on any relevant limitation on Lawyer’s conduct.
  • D.  A & B.

Question 3

Lawyer represents Client. Client is distraught about information that will be made public during a trial scheduled to begin next week.  This morning, Client made statements to Lawyer that caused Lawyer reasonably to believe that Client intends to take their own life tonight.  Lawyer wants to disclose Client’s intent to someone who can intervene.  Under Vermont’s rules, Lawyer

  •  A.   must disclose Client’s intent.
  •  B.   may disclose Client’s intent.
  •  C.   must not disclose Client’s intent.

Question 4

 Which does the rule treat differently than the others?

  • A.  a client’s personal check in the amount of $2000.
  • B.  a certified check.
  • C.  a check for $100,001.00 that is drawn on the trust account of a lawyer licensed to practice law in Vermont.
  • D. a check for $500,001.00 issued by an insurance company licensed to do business in Vermont.

 Question 5 (and bonuses)

Speaking of checks, and in honor of the bar exam being upon us . . .

. . . in 2002, one of Hollywood’s megastars was nominated for the Golden Globe for Best Actor for his work playing real-life forger and fraudster Frank Abergnale, Jr.  The movie also starred another megastar as an FBI agent named Carl, who devoted much of his work to tracking down Abergnale.

Here’s an exchange from the movie:

  • Carl: “How’d you do it Frank? How did you cheat on the bar exam in Louisiana?
  • Frank: “I didn’t cheat. I studied for two weeks, and I passed.”     

Name the movie and the Hollywood stars who played Frank and Carl.

 

Stories from a Bar: The Exit Sign

Whether with my family & friends, as part of the teams I’ve coached, or as a member of the Vermont bar, I’ve always thought we should do more to record, remember, and pass on stories of & from those who went before us.  You know, establish something akin to an oral history.

So, today, I’m starting a new column: Stories from a Bar.

Double entendre intended.

I don’t know if this will be a regular feature. Eventually, I might accept reader submissions.[1]  Especially from members of the Rutland County Bar Association.[2]  Alas, for now, it’ll be limited to stories from my time in the Professional Responsibility Program.  It’s with a mixture of amazement, bemusement, and sadness that I note that “limited to stories from my time in the Professional Responsibility Program” provides more than 22 years’ worth of material.

Today’s inaugural installment might be my personal favorite.

Many years ago, I was a prosecuting a disciplinary matter against an attorney.  It was one of the most contentious, difficult, and work-intensive cases I ever handled.  While it was pending, I was also a member of the Vermont Bar Association’s Board of Managers.  Here’s the picture that the VBA used on the section of its website devoted to then-Board members:

Screenshot 2021-07-22 at 4.36.27 PM

The picture was taken at a wedding reception.  If the photo isn’t clear, that’s an “exit” sign glowing above my head.  The lawyer I was prosecuting most definitely recognized the sign for what it was.

How do I know?

Because the lawyer sent an email referencing the picture and, more specifically, the exit sign.  I don’t remember if the email was to the hearing panel before which the case was pending or if it was to the Professional Responsibility Board.  It doesn’t matter.  What matters is the substance of the email.

While dealing with the lawyer frustrated me to no end, I give the lawyer credit for one of the funniest, wittiest, and most clever digs ever aimed in my direction.  The lawyer wrote something along the lines of:

  • “I found the attached picture of Michael Kennedy. It dismays me that there is an ‘Exit’ sign in the background. Because that means that Kennedy is neither in jail nor in Hell, and those are the only two places he belongs.”

What else could I say other than . . .

well-played

[1] You’re free to send a story.  If you do, I’m not required to print or use your story.  Ever. In fact, I probably won’t. I might, but I make no guarantees.  With “no guarantees” meaning “absolutely zero guarantees.”

[2] My honorary membership in the RCBA ranks quite high on my personal list of career accomplishments.  Many thanks JV.

Ohio lawyer alleged to have engaged in sexual misconduct with court staff and clients allowed to resign prior to a public disciplinary hearing. How would a similar situation play out in Vermont?

It’s been a while since I’ve blogged.  I hope your summer is going well.

Today’s goal is to outline a little-known aspect of Vermont’s disciplinary program.   Perhaps I’m wrong to describe it as “little known.”  To test my assumption that it is, I’ll use this scenario:

  1. Disciplinary complaint is filed against Attorney.
  2. Screening Counsel reviews the complaint and refers it to Disciplinary Counsel for investigation.
  3. Screening Counsel’s referral directs Attorney to provide Disciplinary Counsel with a written response to the complaint within 21 days.
  4. Attorney sends Disciplinary Counsel a letter in which Attorney does not respond to the allegations in the complaint. Rather, Attorney writes “I hereby resign my Vermont law license and waive my right to reactivate it.  This ends this matter.  It’s moot. I no longer have a license for you to sanction.”

Does Attorney’s argument hold water?

No.  Attorney is as wrong as was the defense in My Cousin Vinny.

Before I get to Vermont’s rule, why am I even blogging about a lawyer’s attempt to resign while under disciplinary investigation?  Because, as reported by The Legal Profession Blog and Bloomberg Law, the Ohio Supreme Court recently accepted the resignation of an attorney who, according to a complaint filed by Ohio Disciplinary Counsel, had engaged “in inappropriate comments and conduct with female court staff and clients.”   The complaint can be accessed here.  As noted on the Legal Profession Blog, ‘[t]he lengthy charges make for painful reading.”

The disciplinary complaint did not result in a hearing.  Rather, last week, the Ohio Supreme Court granted the attorney’s application for “resignation with disciplinary action pending.”  The opinion is here.

One justice dissented, focusing on the fact that under Ohio’s rules, when the Court approves a request to resign while under disciplinary investigation, most of the details remain confidential.  As such, the proceedings:

  • “are generally enshrouded in a cloud of secrecy that keeps the public, the bench, and the practicing bar ignorant of the reasons for the request to resign with discipline pending. This is problematic, especially when the allegations against an attorney describe a disturbing pattern of predatory behavior toward a vulnerable population.” (internal citation omitted.)

The dissenting justice acknowledged that the result left the attorney ineligible to practice law.  However, the justice added:

  • “But I do not think that this court should favor a process that is quick over a process that is designed to obtain truth and dispense justice that more effectively protects the public. The disciplinary proceedings governed by this court may provide the victims, the public, and [the attorney] with much-needed transparency about the entire situation. While the alleged victims would bear the heavy burden of testifying before a hearing panel, I believe that they should at least have the opportunity to have their voices heard by the public and by this court. The public should know what this court and the numerous volunteers and employees participating in this court’s disciplinary process are doing to keep the public safe from attorneys who are alleged to have violated the Rules of Professional Conduct in perturbing manners. And at least in the disciplinary process, this court has the opportunity to provide help to the attorney should an addiction or other issue be the root cause of the problem. By accepting [the attorney’s] resignation, the court simply washes its hands of the problem without providing any real resolution.”

In Vermont, Supreme Court Administrative Order 9 establishes the Professional Responsibility Program and sets out the rules that govern the disciplinary process.  Rule 23 of A.O. 9 is entitled “Resignation by Attorneys Under Disciplinary Investigation.”  The rule allows an attorney under investigation to resign by affidavit.

Among other things, the affidavit must acknowledge “that the material facts upon which the complaint is predicated are true” and that “the attorney knows that if charges were predicated upon the misconduct under investigation the attorney could not successfully defend against them.”  Rule 23 also allows Disciplinary Counsel to file a statement of facts that supports a finding that the attorney violated the Rules of Professional Conduct. If accepted, the Court enters “an order disbarring the attorney on consent.”

Rule 23(D) is most relevant to today’s post.

  • (D). Disclosure. The order disbarring the attorney on consent as well as the affidavit and statement of facts shall be a matter of public record.”

So, returning to the scenario I posed at the beginning of this post, Attorney would not be able to avoid investigation and public scrutiny by writing to Disciplinary Counsel “I resign and that’s that.”

Unless you’re disciplinary counsel investigating an attorney who attempts to resign, or on the Supreme Court or the Professional Responsibility Board and tasked to review an affidavit by resignation, may this post never be one to which you need to refer for guidance.

Legal Ethics