Month: August 2021

Monday Morning Honors #234

Michael 1 Comment

Welcome to Monday! Happy Bennington Battle Day.

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

Honor Roll

Answers

Question 1

 Whether in response to inquiries, in blog posts, or at CLEs, I often say “the rule is broader than the privilege.”

What’s the topic of the rule?

 I might have phrased this one poorly.  Here, the topic of the rule that is broader than the privilege is “confidentiality.”  Lawyers often indicate to me a belief that only “privileged” information is subject to the confidentiality rule.  That’s incorrect.  Comment [3] to V.R.Pr.C. 1.6 makes clear that the rule’s prohibition is broader than the privilege.  The comment notes that the privilege applies “in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client.”  It goes on to state:

  • “The rule of confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for example, applies not only to matters communicated in confidence by the client, but also to all information relating to the representation, whatever its source.  A lawyer may not disclose information except as authorized or required by the Rules of Professional Conduct or other law.”

Question 2

 Client files a disciplinary complaint against Lawyer.  Lawyer calls bar counsel and asks whether it would be okay to refund Client’s fee in exchange for Client’s agreement to withdraw the complaint. Most likely, bar counsel will reply:

  • A.  That’s okay, if Client is given a chance to seek legal advice about the proposal.
  • B.  That’s okay, if Client is given a chance to discuss the proposal with disciplinary counsel.
  • C.  Bad idea, and likely a violation of the Rules of Professional Conduct, even if the complaint is wholly without merit.  For more, see my post What Not To Do When A Disciplinary Complaint Is Filed Against You.
  • D.  It depends on the nature of the allegations in the complaint.

Question 3

 Fill in the blank.

According to a comment to one of the rules, an “action is _________ if the lawyer is unable either to make a good faith argument on the merits of the action or to support the action taken by a good faith argument for an extension of, modification, or reversal of existing law.”

Frivolous.  See, V.R.Pr.C. 3.1, Cmt. [2].

Question 4

 Lawyer calls with an inquiry. In my response, I urge the Lawyer to consider “3-way reconciliation.”  It’s most likely that Lawyer called to discuss:

  • A.  A conflict between an insurance company and the insured.
  • B.  Representing clients in collaborative divorces.
  • C.  E-mail security.
  • D.  Trust account management.

 By rule, trust accounts must be reconciled no less than monthly.  There are 3 critical components to the reconciliation process: the ledger, the bank statement, and the individual client balances.  The ledger and bank statement should reconcile, and then reconcile to the sum of the individual client balances.  For more, review the Professional Responsibility Program’s Trust Accounting Manual.  My post Trust Account Tips includes 10 tips and links to all other trust accounting posts and videos.

 Question 5

 A two-part question, in honor of my Uncle Ed and his service in Herrick’s Rangers.

In an argument made during a jury trial that took place in 1770, a criminal defense attorney said:

  • “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence . . . It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished. But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, ‘whether I do good or whether I do evil is immaterial, for innocence itself is no protection,’ and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.”

Name the lawyer and the event that resulted in the lawyer’s clients being charged.

John Adams defending the British soldiers charged in connection with the Boston Massacre.

adams

 

Five for Friday #234

Michael 2 Comments

Welcome to Friday and the 234th legal ethics quiz.

In February 2020, I used the intro to the 191st quiz to introduce Uncle Edmund.  At the time, he wasn’t well and my brother, my father and I had just visited him.  It was sad in that my dad knew he was likely seeing his brother for the final time.

Alas, as he had throughout his life, Ed fought the good fight, stubbornly hanging in there until this April. Given the pandemic, the celebration of his life was pushed out until this weekend.  It’s tomorrow at Burke Mountain.  My brother and I are heading up in the morning.  On the eve of gathering in his memory, I’m using this week’s intro to honor him once more.

Hopefully my brother and I will find a store between here and Burke that sells Ballantine Ale. We will damn sure try.

Onto the quiz!

Ed

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

 Whether in response to inquiries, in blog posts, or at CLEs, I often say “the rule is broader than the privilege.”

What’s the topic of the rule?

Question 2

 Client files a disciplinary complaint against Lawyer.  Lawyer calls bar counsel and asks whether it would be okay to refund Client’s fee in exchange for Client’s agreement to withdraw the complaint. Most likely, bar counsel will reply:

  • A. Good idea, as long as you advise Client to seek independent legal advice about the proposal.
  • B. Good idea, as long as Client is given a chance to discuss the proposal with disciplinary counsel.
  • C. Bad idea, and likely a violation of the Rules of Professional Conduct, even if the complaint is wholly without merit.
  • D.  It depends on the nature of the allegations in the complaint.

Question 3

 Fill in the blank.

According to a comment to one of the rules, an “action is _________ if the lawyer is unable either to make a good faith argument on the merits of the action or to support the action taken by a good faith argument for an extension of, modification, or reversal of existing law.”

Question 4

 Lawyer calls with an inquiry. In my response, I urge the Lawyer to consider “3-way reconciliation.”  It’s most likely that Lawyer called to discuss:

  • A.  A conflict between an insurance company and the insured.
  • B.  Representing clients in collaborative divorces.
  • C.  E-mail security.
  • D.  Trust account management.

 Question 5

 A two-part question, in honor of my Uncle Ed and his service in Herrick’s Rangers.

In an argument made during a jury trial that took place in 1770, a criminal defense attorney said:

  • “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence . . . It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished. But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, ‘whether I do good or whether I do evil is immaterial, for innocence itself is no protection,’ and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.”

Name the lawyer and the event that resulted in the lawyer’s clients being charged.

“This is a cautionary tale for every attorney who litigates in the era of e-filing.”

Michael

Today’s post recounts the second story whose genesis lies in yesterday’s lunchtime walk to Beansie’s.  The first is here. While each story relates to tech competence, the relationship ends there and the two do not need to be read in order.  And, no, I didn’t go again today. But I was tempted!

Beansies

Anyhow, today’s headline was meant to catch your attention.  If you’ve already forgotten, here it is again:

  • “This is a cautionary tale for every attorney who litigates in the era of e-filing.”

The headline is the opening line of this decision issued Monday by United States Court of Appeals for the Fifth Circuit.  The ABA Journal reported the story here.

I’ve not done any research.  So, for all I know, this issue has been litigated in Vermont state courts or the United States District Court for the District of Vermont.  Nevertheless, I’m sharing the story because my sense it that “cautionary tales” for litigators warrant doing so.

In a nutshell, Attorney represented Client in a personal injury action against Employer. Shortly before an agreed upon deadline to file dispositive motions, Employer’s Counsel filed a motion for summary judgment.  Attorney did not learn that the motion had been filed.   According to the opinion,

  • “That’s because, by all accounts, his computer’s email system placed that notification in a folder that he does not regularly monitor. Nor did he check the docket after the deadline for dispositive motions had elapsed.”

Four days after the motion was filed, Attorney contacted Employer’s Counsel to discuss settlement.  No agreement was reached and, apparently, the summary judgment motion did not come up.

Shortly thereafter, the deadline to respond to the motion passed.  Not knowing of the motion, Attorney did not file a reply.  Within a week of the reply deadline passing, a federal district court entered judgment in favor of Employer.

A week later, Attorney again contacted Employer’s Counsel to discuss settlement.  It was only then that Attorney learned that the district court had granted the motion for summary judgment.

Attorney moved to alter or amend the judgment.  As reported by the ABA Journal, Attorney “did not see any notice of [the] summary judgment motion because his email system sent it to a folder labeled ‘other.’  All prior case filings had gone to his firm’s main email box.”

The district court denied the motion to alter or amend the judgment.  A 3-judge panel of the Fifth Circuit affirmed.  Relying on precedent, the appeals court concluded that the district court did not commit “manifest error to deny relief when failure to file was in [Attorney’s] reasonable control.”  Rather, the court noted:

  • Attorney had agreed to receive notice by email;
  • Notice of Employer’s motion was sent to the email address that Attorney had provided; and
  • Attorney “was plainly in the best position to ensure that his own email was working properly – certainly more so than the district court or [Employer].”

The court added that Attorney “could have checked the docket after the agreed deadline for dispositive motions had passed.”

The ABA Journal post includes additional information that interested me.

  • “[Attorney] says his firm had never had a problem with e-filing or with the email system. The opposing counsel never separately notified [Attorney] of the filing and continued settlement talks with the apparent knowledge that [Attorney] wasn’t aware of the pending motion, [Attorney] says.”

This reminds me of (1) a debate that Judge Hoar led when the bar was discussing the “professionalism” requirement many years ago; and (2) a hypothetical that Andrew Manitsky presented to the audience during a VBA seminar on “Ethics in Negotiation” that he, Tad Powers, and I presented.

The ABA Journal goes on:

  • “After [Attorney] learned of the granted summary judgment motion, his firm checked and scanned all emails and found the motion in an ‘obscure part’ of the email system, he says. The firm tried to open the email, but it had been corrupted.  [Attorney] says that, in his opinion, the 5th Circuit’s “lawyer beware” decision implies that e-filing lawyers will have to check the docket by the dispositive motion deadline and will have to make sure motions have been filed.”

Again, I haven’t looked for any Vermont decisions that address this issue.  Still, and as always, be careful out there.

Tech Competence, Screen Sharing, and Client Confidences.

Michael 1 Comment

Around 1PM, it felt like (another) day without a blog post.  Then, I went to lunch.

My office is in downtown Burlington.  Today, and despite the heat, I chose to walk to Beansie’s.

Beansies

Waiting for my cheeseburger topped with peppers & onions, I checked my email.  There, I found the first of two stories to post.  Perusing my phone while I ate my burger in the shade[1], I found the second.  Each involves technology.  As we know, a lawyer’s duty of competence includes tech competence.

Story 1

A Vermont lawyer forwarded me an email from another lawyer in the same firm.  The co-worker wrote:

  • “I’m in a deposition – other attorney’s email notifications keep popping up on screen share.  Seems like that could risk divulging attorney-client privileged information.”

Yes. Yes, it could.

I can sense some of you disagreeing.  You’re thinking “what could be privileged about an email notification?”

Well, I don’t know.  That’d be for a court to decide in the context of an attempt to compel disclosure.

But I do know this.

Rule 1.6 of the Vermont Rules of Professional Conduct prohibits a lawyer from disclosing information relating to the representation of a client. As I’ve oft stated in this space, Comment [3] makes clear that the rule’s prohibition is broader than the privilege.  The comment notes that the privilege applies “in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client.”  It goes on to state:

  • “The rule of confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for example, applies not only to matters communicated in confidence by the client, but also to all information relating to the representation, whatever its source.  A lawyer may not disclose information except as authorized or required by the Rules of Professional Conduct or other law.”

Neither the Rules nor other law include an exception for “it popped in while I was sharing my screen.”

The internet includes a plethora of resources on the various ways to avoid this problem.

I present a lot of CLEs via Zoom, WebEx, and Teams and often share my screen throughout a presentation.[2]  I’m petrified of having an email notification pop up and disclose (to some extent) a confidential inquiry of bar counsel.  So, I go old-fashioned.  When presenting, I close Outlook and all chats functions.

As always, be careful out there.

menu

Note: In that I strive to avoid TLDR in the comments, Story 2 will follow later today or early tomorrow.  Stay tuned.

[1] Many readers know my preference for summer over winter. I suppose this week’s weather has some considering whether to ask, “how do you like summer now?”  Just as much as I did before!  Because in January, I wouldn’t be able to walk over to Beansie’s in shorts and t-shirt and enjoy my lunch outside.

[2] I also make sure that the only screen open is the one that I intend to share and that I choose that particular window instead of “screen 1” when I start the share.

What not to do when a disciplinary complaint is filed against you.

Michael 5 Comments

Two weeks ago, I received a call from a lawyer who had just been notified that a former client had filed a disciplinary complaint against the lawyer.  The lawyer told me that the complaint was frivolous.  Then, the lawyer asked for my thoughts on the lawyer’s plan to refund a portion of the fee in exchange for the former client’s agreement to withdraw the complaint.

I cautioned against it.  In my view, asking the filer to withdraw a complaint is a violation in and of itself.

My view is not based on nothing.  There’s Vermont case law on point.

In the early 1990s, Lawyer sued Former Client for a fee. Former Client filed a counterclaim alleging malpractice.  Attorney represented Lawyer.  Seeking to resolve the matter, Attorney and Lawyer proposed to Former Client’s counsel that settlement include Former Client signing a release agreeing not to report Lawyer to the then Professional Conduct Board.  The PCB admonished both Lawyer and Attorney, concluding that the proposal violated the rule that prohibited “conduct prejudicial to the administration of justice.”

Alas, it’s no fun blogging about PCB decisions that are almost 30 years old.

Thankfully, this morning, Disciplinary Counsel Sarah Katz alerted me to the Legal Profession Blog’s post An Offer You Can’t Make.  The title tells the story.  It’s the story of an opinion issued last week in which the Indiana Supreme Court concluded that a lawyer “committed attorney misconduct by making an improper demand that disciplinary grievances filed against him be withdrawn as a condition for settlement in a civil matter.” The Hoosier Court suspended the lawyer’s law license for 30 days.

The facts evoke a soap opera plot.  Per the Court:

  • “The genesis of this case was Respondent’s breakup with his girlfriend in July 2018. In the immediate aftermath of that breakup, criminal and protective order proceedings were brought against Respondent in Hamilton County, and Respondent filed suit against his now ex-girlfriend alleging defamation and other counts. A few months later, Respondent’s ex-girlfriend and her sister filed disciplinary grievances against Respondent with the Commission.”

The sister too!!

Anyhow, I digress.

Next:

  • “In December 2018, Respondent sent an email to opposing counsel in the defamation case. Respondent’s email demanded, among other things, that the disciplinary grievances filed against him be withdrawn as a condition precedent to settlement discussions.”

Eventually, Indiana disciplinary authorities dismissed the sisters’ grievances.  However, in the process, disciplinary authorities learned of the lawyer’s demand that the grievances be withdrawn prior to settlement discussions.  So, they charged the lawyer with violating Rule 8.4(d) of the Indiana Rules of Professional Conduct.

Like Vermont’s, Indiana’s 8.4(d) makes it professional misconduct to engage in conduct that is prejudicial to the administration of justice. Thus, given the facts and circumstances peculiar to the case, the Indiana Supreme Court was left to decide:

  • “can an attorney’s demand that disciplinary grievances filed by an opposing party in a civil matter be withdrawn as a condition of settlement be “prejudicial to the administration of justice” within the meaning of Rule 8.4(d) when those grievances were meritless?”

In the end, the Court answered “yes.”

First, the Court cited to prior holdings.  Then, the Court made an important point.

Examining the lawyer’s demand that the grievances be withdrawn, it matters not that they weren’t or that “hindsight informs us those grievances’ lack of merit destined them for eventual dismissal by [disciplinary authorities.”

Why?  Because

  • “prejudice under Rule 8.4(d) is measured in relation to the ‘administration of justice’ and not any particular outcome for the parties. There can be little question that disciplinary investigations are encompassed within the administration of justice, both in terms of protecting the public from attorneys who commit misconduct and protecting attorneys from unwarranted claims of misconduct made against them. Accepting as true that the grievances against Respondent were meritless simply begs the question the Commission was charged with answering. At the time Respondent made his demand, the Commission had objectively good cause for its investigation, as Respondent was facing criminal charges and was the subject of a temporary protective order in connection with his alleged conduct toward his ex-girlfriend. That much of this eventually was resolved in Respondent’s favor does nothing to alter the need for the Commission to investigate the allegations made in the grievances, and for that process to occur free from any attempts to undermine it.” (internal citations omitted).

In other words, when subjected to a meritless disciplinary complaint, a lawyer should trust the process.

Can that be difficult?

Heck yes!

In fact, the Indiana Supreme Court recognized the difficulty:

  • “Respondent’s frustration at having to deal with meritless disciplinary grievances certainly is understandable. He is not alone in that regard.”

However, the Court went on:

  • “But there is a right way and a wrong way to go about addressing these matters, and our precedents make clear that any attempt—however mild or unsuccessful—to interfere with the investigatory process . . . or use the disciplinary process to leverage more favorable settlement terms is forbidden. “

Of interest is the Court’s decision to suspend the lawyer.  The opinion makes clear that the suspension resulted as much from the way the lawyer acted throughout the disciplinary process as it did from the violation itself. While worth a read, it’s not the topic I want to address in this post.

For today, remember: it’s not a good idea to ask a complainant to withdraw a complaint.

Legal Ethics

Monday Morning Honors #233

Michael

Welcome to August!

Friday’s questions are here. The answers follow today’s Honor Roll. But first, a view from Saturday morning’s run: the Thatcher Island Twin Lighthouses off Rockport.

IMG_6074

Honor Roll

Answers

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.

 A, B, C are the 3 situations in which V.R.Pr.C. 1.16(a) mandates withdrawal.

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.  V.R.Pr.C. 1.7(b)(4).
  • 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.

FALSE.  V.R.Pr.C. 1.15(a) requires a lawyer to safeguard all property that the lawyer holds in connection with a representation, including funds.

Question 4

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

  • person. V.R.Pr.C. 4.2(a).
  • 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.

 Brad Pitt & Angelina Jolie  Among others, The Hollywood Reporter has the story.