Tech competence: don’t take the wrong message from this NJ decision declining to sanction a lawyer.

When I created this blog, many early posts focused on technology.  Long-time readers probably remember the mantra “competence includes tech competence.”  Key points included:

  1. At some point, a basic understanding of technology that impacts client matters is required.
  2. Technology is always evolving.
  3. Even if you don’t know everything about a new technology, sometimes it helps to analogize to a “paper” or “real life” situation.

Weaved into the messaging was a reminder that “but I don’t even know how that stuff works!” likely won’t excuse a violation of the Rules of Professional Conduct.  Which is why today’s story so interests me.

As reported by the ABA Journal, the New Jersey Supreme Court recently dismissed disciplinary charges against a lawyer whose paralegal had obtained information directly from a represented adverse party via Facebook.  Law360 and Law.com also reported the opinion.

First, I’m going to summarize what happened. Then, I’m going to share several of the New Jersey Supreme Court’s statements with which I agree, and one that gives me pause.

What happened?

Flashback to 2007.  Yes, 2007.  Plaintiff, a police officer, was struck by a police car while exercising in the police station’s parking lot.  Plaintiff sued the police department.  Plaintiff claimed significant injuries.

Attorney represented the Department. In 2008, Attorney instructed Paralegal to “conduct internet research” into Plaintiff.  Paralegal found Plaintiff’s Facebook page.

With respect to what happened next, here’s what’s not in dispute:

At a time when Attorney knew that Plaintiff was represented, Paralegal became Facebook friends with Plaintiff.  Paralegal found a video showing Plaintiff wrestling.  Paralegal downloaded the video and gave it to Attorney.  Attorney believed that the video was made after Plaintiff was struck by the police car.  So, another lawyer in Plaintiff’s firm asked questions about the video during Plaintiff’s deposition.  Afterwards, Attorney forwarded the video and other postings to Plaintiff’s Counsel.  Never having consented to direct communication with Plaintiff, Counsel filed an ethics complaint against Attorney.

Not all was undisputed.  At a disciplinary hearing that, for reasons not important here, did not happen until April 2018, different versions of what else happened next emerged.

Paralegal’s version:  for a while, Plaintiff’s Facebook account was public, Paralegal monitored the account, and reported publicly available information to Attorney.  The account became private. Paralegal told Attorney that the only way to continue to monitor the account was to become Facebook friends with Plaintiff.  Attorney did not seem to understand Facebook privacy settings or friend requests and instructed Paralegal to send a message that would grant access to Plaintiff’s postings.  Paralegal sent a Facebook message to Plaintiff stating that Plaintiff looked like Paralegal’s favorite hockey player.  Plaintiff responded with “flirtatious messages” and a friend request.  Paralegal accepted the request and resumed monitoring the account.

Plaintiff’s version:  the account was always private.  Paralegal sent a friend request that Plaintiff accepted.  Plaintiff messaged Paralegal, asking who Plaintiff was.  Paralegal replied that Plaintiff looked like Paralegal’s favorite hockey player.  Nothing in Paralegal’s profile or reply indicated that Paralegal worked with Attorney.

Attorney: I told Paralegal to conduct internet research.  Back then, I didn’t know what it meant to be Facebook friends or that Facebook offered various privacy settings.  I did not tell Paralegal to friend Plaintiff.   I told Plaintiff to monitor any information about the lawsuit that Plaintiff posted to the internet. I believed that information posted to Facebook was available to all and that the duties of competence and diligence that I owed to my client required me to review such information.

Over many years, the case worked its way through New Jersey’s disciplinary system.  Eventually, at the trial level, a Special Master concluded that Attorney did not violate the Rules of Professional Conduct.

On review, the Disciplinary Review Board (DRB) concluded otherwise, determining that Attorney violated (1) the rule that prohibits communication with represented persons; (2) the rule that prohibits dishonesty (Paralegal’s failure to identify Paralegal’s role was a misrepresentation by omission); and (3) the rule that required Attorney to ensure that Paralegal’s conduct conformed with Attorney’s professional obligations.

In the end, the New Jersey Supreme Court dismissed the charges, concluding that they had not been proven by clear and convincing evidence. To a large degree, the court’s opinion recognizes that the ultimate decision turns on witness credibility and that the Special Master – not the DRB or the court – was in the best position to assess credibility having presided over the evidentiary hearing.

Still, several of the court’s statements bear noting.  Because while the court declined to sanction Attorney, it also made clear our duties with respect to tech competence.

For instance,

  • “[Attorney] may have had a good faith misunderstanding about the nature of Facebook in 2008, as the special master found; but there should be no lack of clarity today about the professional strictures guiding attorneys in the use of Facebook and other similar social media platforms.”

The court went on:

  • “When the communication is ethically proscribed, it makes no difference in what medium the message is communicated. The same rule applies to communications in person or by letter, email, or telephone, or through social media, such as Facebook.”

Finally,

  • “Lawyers must educate themselves about the commonly used forms of social media to avoid the scenario that arose in this case. The defense of ignorance will not be a safe haven.”

I don’t disagree with any of the quoted statements.  I’m especially a fan of refusing to find port in the storm for the “the defense of ignorance.”  Yet, it’s another statement that gives me pause.

Essentially, a single statement underpins the court’s opinion:

  • “What attorneys know or reasonably should know about Facebook and other social media today is not a standard that we can impute to [Attorney] in 2008 when Facebook was in its infancy.”

I get it.  Really, I do.  But, for practicing lawyers and their nonlawyer assistants, I urge caution.

On tech competence, people in my practice area have been clear: we are long past the day when we will provide “hard and fast” pronouncements on each new technological development.  Rather, lawyers are reminded that technology will continue to develop and, as it does, lawyers remain under a duty to ensure that their use of technology complies with the Rules of Professional Conduct.[i]

Whether 2030, 2025, or sooner, there will be a new way to communicate that none of us has ever imagined.  In my view, the New Jersey opinion should not be viewed as suggesting that, with brand new technology, lawyers can use first, ask questions later.  That is, with respect to the conclusion that a technology’s “infancy” may excuse a violation, I’d be very careful in how I define “infancy.” Indeed, as I read the NJ opinion, both Paralegal and Plaintiff were well-versed in how Facebook worked. It was only Attorney who was not.

Also, for two reasons, don’t forget my point about analogizing to “paper” or “real life.”

First, when the day comes that an assistant asks you if you want to communicate with a represented person via the assistant’s Ansible, I hope your reaction isn’t “I wonder what Ansible is.”  Instead, I hope warning bells go off as you respond, “we can’t communicate with a represented person!!”[ii]

Second, I suppose an assistant might resort to Ansible without asking you first.  So, remember: if someone brings you information that seems too good to be true, it just might be.

Competence includes tech competence.  As always, be careful out there.

Social Media

[i] See, ABA Formal Opinion 477R

[ii] It’s okay if you clicked on the Wiki entry for Ansible before realizing that that you’d been asked to communicate with a represented person.  As an old coach, it’s best to make mistakes in practice, learn from them, and not repeat them in games.

Maine disciplinary case addresses the duty to consult with a client prior to serving a complaint.

Today’s post focuses a lawyer’s duty to consult with the client about how the lawyer will pursue the client’s objectives.  Two rules are most relevant.

The first is V.R.Pr.C. 1.2(a). It states:

“(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decisions concerning the objectives of the representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued.  A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation.”

The second is V.R.Pr.C. 1.4(a)(2). It requires a lawyer to “reasonably consult with the client about the means by which the client’s objectives are to be accomplished.”

In my experience, most lawyers are aware of the duty, even if unable to cite to the rules or quote them verbatim.  It’s also my experience that lawyers are well-aware of the duty to maintain a client’s confidences.  With these duties in mind, consider this scenario:

  • Client meets with Lawyer to discuss getting divorced.
  • Client mentions that Client has a relief from abuse order against Spouse, but Client and Lawyer do not have a substantive discussion about the order.
  • Client expresses concern about Lawyer’s fee. Lawyer states that they can negotiate a payment plan.
  • Client and Lawyer agree to meet the next day for Client to sign the divorce paperwork.
  • Client leaves.
  • After leaving, Client has second thoughts. So, Client does not keep the appointment to sign the divorce paperwork. Instead, two days after the initial meeting, Client informs Lawyer that Client has had a change of heart and will not need Lawyer’s services.

So far, the scenario is not uncommon.  Here’s the twist.

  • On the same day that Client was supposed to meet with Lawyer to sign the paperwork, Lawyer is in court and sees Spouse. Lawyer asks Spouse if Spouse has an attorney who would accept service of divorce papers.  Until then, Spouse did not know the Client was considering divorce.
  • Upon being informed by Client that Client no longer requires Lawyer’s services, Lawyer informs Client that Lawyer had seen Spouse and asked about service.
  • Lawyer does not bill Client and they go their separate ways.

I can sense you sensing what happened next.

  • A few weeks later, Client filed a disciplinary complaint against Lawyer. In it, Client expressed concern that Lawyer put Client at risk of further harm (abuse) by informing Spouse that Client wanted a divorce.

As you might have guessed, this happened in real life.  Eventually, Lawyer was charged with violating Maine’s Rules of Professional Conduct.  Specifically,

  • Maine Rule 1.4(a)(2) by failing to reasonably consult with Client about the means (service) by which Client’s objective (divorce) would be pursued;
  • Maine Rule 1.6(a)(i) by revealing a confidence or secret without Client’s informed consent; and,
  • Maine Rule 8.4(d) by engaging in conduct prejudicial to the administration of justice.

In January, a panel concluded that Lawyer had violated each rule and reprimanded Lawyer.  The panel’s decision is here.  Lawyer appealed.  Earlier this month, a single justice of the Maine Supreme Judicial Court affirmed the panel’s decision.  The justice’s order is here.  The Legal Profession Blog reported the order here.

After seeing the headline but before reading the decision and order, I expected the matter to involve Maine’s version of Rule 1.18, the rule that sets out a lawyer’s duties to prospective clients.  In Vermont, the rule applies when a client consults with a lawyer in good faith but, for whatever reason, no client-lawyer relationship ensues.

I was wrong.  Both the panel and the court concluded that a client-lawyer relationship had formed.

For the purposes of analyzing the confidentiality issue, it’s of little consequence whether a formal relationship existed.  That is, whether a client is current or prospective, there’s a rule that prohibited Lawyer from revealing Client’s confidences. However, here’s why the conclusion that client-lawyer relationship had formed is important.

Lawyer was charged with violating Maine Rule 1.4(a)(2) by failing to reasonably consult with a client as to how the client’s objectives would be pursued.  By its plain language, the rule does not apply to prospective clients. 

So, having concluded that client-lawyer relationship had been formed, the question became whether Lawyer committed a violation by failing to consult with Client about service of the divorce paperwork. Here’s what the panel concluded:

  • “[Lawyer] testified that Ms. Doe did not mention anything about the protection order at first during their meeting, and she showed ‘no particular concern’ about it. She did not provide a copy to him, and he had no substantive discussion with her about it. He did not discuss service or how it could best be effected in light of his client’s circumstances. In the Panel’s view, however, the possible methods and timing of service of a divorce complaint should always be discussed with a client, especially one who has a protective order against an abusive spouse. Ms. Doe’s safety should have been a primary concern to [Lawyer] in agreeing to represent her in a divorce. He should have talked with her about the options and timing of service, and whether Ms. Doe felt the need to make advance arrangements for a safe place to be around the time of service should her husband react in a volatile fashion.”

Referring to the fact that Lawyer’s answer to the charges included “If I had been informed that she was fearful of physical action against her I would not have spoken to her husband but would haev simply employed a Deputy Sheriff to make service upon him,” the panel went on to state:

  • “[Lawyer] appeared to place the burden on Ms. Doe to tell him that she feared her husband so that he could have decided on another form of service . . . However, it was [Lawyer’s] duty to inquire further of Ms. Doe about the protective order and to fully discuss service, and the concerns around service, with her. Accordingly, the Panel finds that his failure to do so constitutes a violation of Rule 1.4(a)(2) of the M.R.P.C.”

On review, the Maine Supreme Judicial Court agreed, stating:

  • “The record does not indicate an exigent circumstance or an inability to consult with Ms. Doe further that could justify [Lawyer’s] failure to discuss the timing and manner of notifying her husband, especially when he was aware of the presence of domestic violence, The record supports the Panel’s finding [Lawyer] did not undertake his duty to engage in a reasonable consultation about Ms, Doe’s objectives, which necessarily would have entailed discussion about the timing and manner of service. He then took it upon himself to discuss the divorce with Jane Doe’s husband without regard to her safety concerns and objectives. The court finds no error in the Panel’s determination that [Lawyer] violated M.R.P.C. 1.4(a).”

My usual caveat: I have no idea how Vermont’s Disciplinary Counsel, Hearing Panels, or Supreme Court would analyze similar facts. 

That said, the obvious takeaway is that divorce lawyers who know that a client is an abuse victim have a duty to consult with the client before serving the abuser with a divorce complaint.  More broadly, the Maine case serves to remind all lawyers that serving a complaint or otherwise notifying the other side of a client’s claims could adversely impact the client.  And, therefore, there are situations in which the client must be consulted about service.

As always, be careful out there.

sanctions

Wellness Wednesday: It’s okay to reach out – BAP will listen and support you.

The Bar Assistance Program (BAP) began on April 1.  An aim of BAP is to assist lawyers and judges with behavioral health issues.

There haven’t been many referrals.  I suppose some might view that as a good thing.  Alas, given the informal inquiries I receive, it’s clear to me that many continue to struggle with stress, anxiety, and burnout.  If you are among the many, reach out.  We are here to help.

And, while I doubt you’ll ever find BAP on Yelp or Google, I’m here to share a positive review!

Through the end of August, I’d heard from a handful of lawyers who wanted guidance or resources, but not from any who wanted to participate in a more structured form of assistance.  Nor had Screening Counsel or Disciplinary Counsel referred to BAP a disciplinary complaint that revealed or was rooted in a behavioral health issue.

Then, in early September, a lawyer contacted me.  The lawyer reported levels of stress, anxiety, and burnout that had the lawyer considering whether to quit the profession. After I explained what BAP can and cannot do, the lawyer asked me to set up meeting with an assistance panel.  Three days later, the lawyer met via Zoom with me and two lawyers who volunteer in BAP.

I started the meeting by commending the lawyer for reaching out.  Each volunteer did the same. It takes a ton of courage to ask for help.

Then, the lawyer shared with us a perfect storm of personal and professional challenges that, over the past year, have relentlessly attacked the lawyer’s sense of self, self-worth, and worth as an attorney. To be very clear, challenges above and beyond those that are common to all practitioners, and challenges that I’m quite sure would’ve defeated me.  I found the lawyer’s strength inspiring: both in confronting the challenges and in expressing vulnerability to them.

In return, the panel members and I shared thoughts, experiences, and resources.  Our focus was that the lawyer is not alone, that it is okay to seek help, and that the lawyer is not an impostor.[1]  The lawyer intends to follow-up with one of the panel members to discuss a challenge common to their shared practice area.  In that sense, perhaps a mentorship was formed.

Today, I called the lawyer to check in.  Despite yet another setback that is outside the norm, the lawyer is doing okay. Challenges remain, but the lawyer is ready to take them on.  Then, the lawyer thanked me.  Specifically – and I have the lawyer’s permission to share this – the lawyer told me that mentors had often left the lawyer fearing “judgement,” a fear that caused the lawyer to engage in “approval seeking behavior” that wasn’t helpful or healthy. The lawyer told me the BAP experience wasn’t like that at all.  That it was supportive and “freeing.”

I shared the lawyer’s comments with one of the volunteer panel members.  The volunteer attorney said something that struck me. I don’t have the volunteer’s exact quote, but it was essentially this:  “sometimes people who are supposed to help think their job is to tell people what to do.  No.  Our role begins with listening.”

BAP is here.  It’s okay to reach out.

We will listen and we will support you.

wellness

[1] I have several posts and videos that touch upon “Impostor Syndrome.”  Including this post, this video, and this video.

Previous Wellness Wednesday Posts

Wellness Wednesday: Set communication boundaries with clients and opposing counsel

Wellness Wednesday: Compassion Fatigue

Wellness Wednesday: A message from Justice Eaton

Jessica Burke: “Well People Do”

Wellness Wednesday: Schitt$ Creek and Paddles

Wellness Wednesday: Be Kind to Lawyers

Civility Matters. Especially Now.

Coping with COVID-19 Related Stress & Anxiety

Wellness Wednesday: Unplug

Well-Being is an Aspect of Competence

Wellness Wednesday: Survival Skills

Wellness Wednesday: Make time for what (and who) matters

Wellness Wednesday: Risk & Response (this one is about the report I mentioned from the Virginia State Bar)

Do summer your way

Wellness Wednesday: Meet Alison, Shireen, Samantha, and Alison

Reach Out, Check In

Wellness Wednesday: Mentor Someone

Wellness Wednesday: Joan Loring Wing

Wellness Wednesday: Law Day & Pro Bono

Get your sleep

Take a Chance on Being Nice

Attorney Wellness: We’ve Only Just Begun

Be Kind to a Lawyer Today

Be Nice to Someone Today

Wellness v. Well-Being

Wellness Wednesday: Meet Molly Gray

Wellness Wednesday: Judge Garland & My Cousin Vinny

Shakespeare, Pink Floyd and Wellness

Wellness Wednesday: You are not an impostor

Wellness Wednesday: “N O” is “O K”

Wellness Wednesday: Stop it!

Wellness Wednesday: Meet Jeff Messina

Lawyers Helping Lawyers Part 2

Lawyers Helping Lawyers: Keep it on the front burner

Lawyer Well-Being: a call to action

Anxiety, Stress & Work-Life Balance for Lawyers

Make time for what matters

Lawyer Wellness: resolve to find 6 minutes for yourself

108 is way too many

Workplace Happiness

Make Wellness a Habit

A pledge by legal employers to focus on lawyer well-being

Legal Ethics & the Water Cooler

Wellness Wednesday: Island Vines

Wellness Wednesday: on ponds, puffery and paltering

Wellness Wednesday: Neil Diamond, the Lock Screen, and National Mental Health Day for Law Students

Monday Morning Answers #235

Happy Labor Day!

Well, so much for Friday’s statement that I was in a college football mood. Nothing ruins a mood as quickly as your favorite team managing 3 paltry points in its opener.  And the game was so boring that I can’t even say that the season was fun while it lasted!

Anyhow, while the calendar continues to indicate that it’s “summer,” I’ve also felt like Labor Day moves us from a summer vibe to one that isn’t so summery.  With that in mind, may today include something other than work to refresh & reinvigorate you as we transition to a new season.

Honor Roll

  • Evan Barquist, Montroll Oettinger & Barquist
  • Beth DeBernardi, Administrative Law Judge, Vermont Department of Labor
  • Jennifer Emens-Butler, Director of Education & Communication, Vermont Bar Association
  • Benjamin Gould, Paul Frank + Collins
  • Robert Grundstein
  • Anthony Iarrapino, Wilschek & Iarrapino
  • Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
  • Deb Kirchwey, Law Office of Deborah Kirchwey
  • John Leddy, McNeil, Leddy & Sheahan
  • Jack McCullough, Vermont Legal Aid, Project Director, Mental Health Law Project
  • Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
  • Keith Roberts, Darby Kolter & Roberts
  • Jonathan Teller-Elsberg, Sheehey, Furlong & Behm
  • The Honorable John Valente, Vermont Superior Judge
  • Thomas WilkinsonCozen O’Connor

Answers

Question 1

By rule, how often must a pooled interest-bearing trust account be reconciled?

  • A.  Timely, with “timely” meaning no less than monthly.
  • B.  Regularly.
  • C.  Quarterly.
  • D.  Trick question.  A pooled interest-bearing account is the operating account, not the trust account.

I ask this question often.  My harping is intentional.  Last week’s post Back to (trust account) School highlights the risks of failing to reconcile.

Question 2

I speak and blog often on civility. In fact, I did so this week.  Arguably, a lawyer who manifests extreme incivility while representing a client violates the rule that specifically prohibits using means that:

  • A.  “embarrass or harass a third person.”
  • B.  “have no substantial purpose other than to embarrass, delay, or burden a third person.”
  • C.  “constitute overzealous representation.”
  • D.  “are repugnant to contemporary standards of the profession.”

It’s V.R.Pr.C. 4.4(a).  For one of the more outrageous examples of how not to comply with the rule, check out last week’s post Well now, this answer isn’t boring.

Question 3

Vermont’s rule on withdrawal from representation _____________:

  • A.  includes situations in which withdrawal is permitted, but none in which withdrawal is required.
  • B.  only includes situations in which withdrawal is required.
  • C.  includes some situations in which withdrawal is required, and others in which withdrawal, while not required, is permitted.
  • D.  mandates withdrawal when “the differences between lawyer and client are irreconcilable.”

V.R.Pr.C. 1.16 governs withdrawal. Paragraph (a) sets out the situations in which withdrawal is required.  Paragraph (b) lists those in which withdrawal, while not required, is permitted.

Question 4

Vermont’s rule on the confidentiality of information relating to the representation of the client _______:

  • A.  includes situations in which disclosure is permitted, but none in which disclosure is required.
  • B.  only includes situations in which disclosure is required.
  • C.  includes some situations in which disclosure is required, and others in which disclosure, while not required, is permitted.
  • D.  doesn’t apply when a lawyer is moving to withdraw from the representation.

V.R.Pr.C. 1.6 prohibits disclosure of information relating to the representation of a client.  Paragraph (b) sets out the situations in which disclosure is required.  Paragraph (c) lists those in which disclosure, while not required, is permitted.

Question 5

A lot to choose from this week!  Lately, the law has leaked into several pop culture stories.  Today, I’ll go with music, saving a question about blood-testing for another week. Mainly because the question reminds me of law school and an album that caused great debates between me and my friends.

On August 25, the New York Times ran an article that began with the following sentence:

  • “Spencer Elden was 4 months old when he was photographed by a family friend in 1991 drifting naked in a pool.”

The NYT article goes on to report on how Elden recently sued 15 defendants, including a record label, the estate of a band’s deceased lead singer, the lead singer’s widow, and the still-living members of the band.  According to the NYT, the complaint, which seeks $150,000 from each defendant, alleges:

  • “Defendants knowingly produced, possessed, and advertised commercial child pornography depicting Spencer, and they knowingly received value in exchange for doing so.”

Name the album and the band.

Nevermind.  Nirvana.   The New York Times article is here.   And here’s a picture of my copy.   To me, it’s crazy to think how Dave Grohl has gone on to become such a megastar that some people might not even remember or realize that he was in Nirvana.

IMG_6169

Five For Friday #235

Welcome to Friday and the 235th legal ethics quiz.

I don’t have an intro this week. Not in the mood.  Actually, i’m a in a college football mood. I just hung my Clemson flag in anticipation of tomorrow night’s epic showdown with Georgia.  Alas, there aren’t many college football fans in Vermont. Even fewer who also read legal ethics blogs.  So, I’ll end there.

I hope everyone enjoys a relaxing and peaceful Labor Day weekend.

Onto the quiz.

Clemson.flag.org.white.paw_grande

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

By rule, how often must a pooled interest-bearing trust account be reconciled?

  • A.  Timely, with “timely” meaning no less than monthly.
  • B. Regularly.
  • C. Quarterly.
  • D. Trick question.  A pooled interest-bearing account is the operating account, not the trust account.

Question 2

I speak and blog often on civility. In fact, I did so this week.  Arguably, a lawyer who manifests extreme incivility while representing a client violates the rule that specifically prohibits using means that:

  • A.  “harass a third person.”
  • B.  “have no substantial purpose other than to embarrass, delay, or burden a third person.”
  • C.  “constitute overzealous representation.”
  • D.  “are repugnant to contemporary standards of the profession.”

Hint: only one of the four is actually a rule.

Question 3

Vermont’s rule on withdrawal from representation _____________:

  • A.  includes situations in which withdrawal is permitted, but none in which withdrawal is required.
  • B.  only includes situations in which withdrawal is required.
  • C.  includes some situations in which withdrawal is required, and others in which withdrawal, while not required, is permitted.
  • D.  mandates withdrawal when “the differences between lawyer and client are irreconcilable.”

Question 4

Vermont’s rule on the confidentiality of information relating to the representation of the client _______:

  • A.  includes situations in which disclosure is permitted, but none in which disclosure is required.
  • B.  only includes situations in which disclosure is required.
  • C.  includes some situations in which disclosure is required, and others in which disclosure, while not required, is permitted.
  • D.  doesn’t apply when a lawyer is moving to withdraw from the representation.

Question 5

A lot to choose from this week!  Lately, the law has leaked into several pop culture stories.  Today, I’ll go with music, saving a question about blood-testing for another week. Mainly because the music question reminds me of law school and an album that caused great debates between me and my friends.

On August 25, the New York Times ran an article that began with the following sentence:

  • “Spencer Elden was 4 months old when he was photographed by a family friend in 1991 drifting naked in a pool.”

Why is a picture taken in 1991 news in August 2021?  Because, as the NYT article goes on to report, Elden recently sued 15 defendants, including a record label, the estate of a band’s lead singer, the lead singer’s widow, and the still-living members of the band.  According to the NYT, the complaint, which seeks $150,000 from each defendant, alleges:

  • “Defendants knowingly produced, possessed, and advertised commercial child pornography depicting Spencer, and they knowingly received value in exchange for doing so.”

Name the band.  Bonus: the album.

the-quiz

Well now, this answer isn’t boring.

Having worked in the Professional Responsibility Program for twenty-three years, I’ve seen, heard, and read some wild stuff.  Never ever did I think I’d read a story like today’s.  Alas, after so long in the field, I should know better than ever to say never.

Mike Frisch is Ethics Counsel at Georgetown Law. He also runs the Legal Profession Blog, which, unlike this one, is in the ABA Journal’s Blawg Hall of Fame. Two days ago, Mike posted Issue Joined, reporting on a disciplinary prosecution that is pending in Illinois.  It took approximately 3 seconds for me to realize that the story qualifies as “wild stuff.”  So, I figured I’d share it and, in the process, continue my quest to shed light on the disciplinary process.

In Vermont, formal disciplinary proceedings can be commenced in two ways: (1) Disciplinary Counsel and the lawyer can file a stipulation of facts; or (2) Disciplinary Counsel can file a “Petition of Misconduct.”  The latter is a charging document that is analogous to a “complaint” that commences a civil proceeding.  As in the civil arena, the lawyer against whom the Petition of Misconduct is filed must file an answer admitting or denying the charges.

The Illinois process is similar. In early August, Illinois disciplinary prosecutors filed this complaint against Lawyer. Last week, Lawyer filed this answer.

In my years as the disciplinary prosecutor, most answers were, frankly, boring. I mean how interesting can “admit” or “deny” be? It was the ensuing hearings where the interesting details emerged. Well, in the Illinois matter, Lawyer’s answer is anything but boring.

The complaint includes six counts.  The first five allege that Lawyer engaged in misconduct during his own divorce.  The sixth charges Lawyer with violating the rules while representing a client in an unrelated matter.  While I recommend reading Lawyer’s entire answer, I’m going to focus on Count II.

According to the complaint, Lawyer’s wife filed a petition to dissolve their marriage in February of 2017. Count II involves two emails.  The Lawyer allegedly sent the first to opposing counsel, the guardian ad litem, the judge’s scheduler, and opposing counsel’s father (who is also a lawyer and who was on Wife’s legal team).  Opposing counsel’s first name is “Caidi.”  The complaint alleges that Lawyer’s email included the following statement:

  • ““Caidi, I strenuously object to you being a lowlife bottomfeeder, who suborns perjury, breaks the [Illinois Rules of Professional Conduct] and extorts your own client.”

Aside: flabbergasted by “lowlife bottomfeeder,” it took me until just now to notice the “strenuous” objection.

Anyhow, the complaint goes on to allege that, a few months later, Lawyer sent an email to opposing counsel’s father that was copied to opposing counsel, the judge, the judge’s scheduler, and the GAL.  Per the complaint, the email stated:

  • “IF it means your fat ass and your suborning perjury piece of shit daughter have to get an order of protection against me, we will be in court before Judge Carr before October 21, 2020 one way or the other. You are all child abusing filth, all of you. Bring it. When the justice system fails, I will have my recourse.”

From there, Count II charges Lawyer with violating two rules:

  1. the rule that prohibits using means that have no substantial purpose other than to embarrass, delay, or burden a third person; and
  2. the rule that prohibits conduct that is prejudicial to the administration of justice.

Now, having read many answers to formal charges, I tried to anticipate Lawyer’s response.  My best guess was that Lawyer would admit to making the statements, but then express remorse and offer (credible or not) an explanation. Coming in second?  “I was hacked.”

I was wrong.

Lawyer admitted to sending the emails and asserted that the statements were “entirely truthful and accurate.” Lawyer’s response includes:

  • “There was no purpose to embarrass [opposing counsel] or [opposing counsel’s father]. Domestic relations attorneys are well known amongst the bar and the public to be bottom-feeders. Respondent has spoken to ethics attorneys for years who note the volume of complaints they receive involving these attorneys, and call these attorneys bottom-feeders themselves. Domestic relations attorneys generally graduate from 3rd and 4th tier law schools, and will do almost anything for money, including suborn perjury from mentally ill parents.”

The answer goes on:

  • “There was no purpose to embarrass [opposing counsel] when [Lawyer] reminded her that she suborned perjury and violated the Illinois Rules of Professional Conduct (IRPC). Any attorney should already be embarrassed to suborn perjury, and should not need the assistance of another attorney to remind them they should be ashamed of themselves.”

Wow.

Again, this post deals only with Count II.  Lawyer’s answers to the other counts are equally “not boring.” The response to Count I explains why Lawyer called the judge “a clown.” Meanwhile, answering Count 6, Lawyer admits that he and Client intentionally chose not to attend a hearing, explaining that Client, upset with the process, “effectively went on ‘strike,’ and [Lawyer] felt no professional obligation to cross [Client’s] picket line.”

I’ll try to remember to post a follow-up once the disciplinary proceeding ends.

For now, I’ll also remember never to say never.

PS:  I blog and speak often on civility. In my opinion, it’s sorely lacking in the profession, with incivility affecting the profession’s wellness and well-being.  To those who have suggested that I use civility as a “speech code,” it’s conduct like that at issue in today’s post that I’m referring to when I say Don’t Be A Jerk.

UPDATE:  With a bit of additional research, I found this opinion from an Illinois Appellate Court.  It deals with Lawyer’s divorce.  According to the opinion, “As described in our ruling on the last appeal, the case eventually went to trial and, before any evidence could be presented, [Lawyer] stormed out and did not return.”