On #GivingTuesday, consider pro bono.

I took a class in “logic” at UVM.  Upon realizing it was far more complicated than solving problems like the knights & knaves puzzle, I withdrew.[1]  As such, I’m not certain that the following works as a proper syllogism.

• This blog is about legal ethics, professional responsibility, and the Rules of Professional Conduct.
• The Rules of Professional Conduct include a section on pro bono.

Ergo, I should post on the pro bono rules every so often.

Even if it makes logical sense, I’m sometimes reluctant to do so. Or, in legal ethics parlance, I feel conflicted about doing so.

Why?  First, some background.

In 2017, the ABA’s Standing Committee on Pro Bono & Public Service surveyed 47,000 lawyers from 24 states on pro bono work.  Here’s an excerpt from the final report:

• “In Vermont, 77.5% of the attorneys reported having done at least some type of public service activity in 2016 – the highest percentage among the states participating in the survey. Additionally, attorneys in Vermont outperformed other states in terms of the percent having offered reduced fee services in 2016. Approximately one third (33.6%) of Vermont’s attorneys had offered such services. Finally, Vermont was one of the top states in terms of the percent of attorneys having offered limited scope representation as part of their practice, surpassed only by Wisconsin; 41.5% of Vermont’s attorneys offered such services in 2016.”[2]

Hence my conflict.

• Vermont lawyers already give so much.
• I know how hard it is to practice law right now.

Ergo, I’m conflicted about a post that will be read as asking lawyers to give even more.

That said, today is #GivingTuesday.  As I have in prior years, I’m marking the event by asking lawyers to consider pro bono.  In 2018, I used the starfish story.  Then, on #GivingTuesday in 2019, I reminded lawyers that “the hashtag won’t be trending tomorrow.  But those it’s intended to help will still need your time. Tomorrow and many tomorrows to follow.”

The need persists. To learn more about opportunities, check out the resources below. In the meantime, thank you for considering this post. And thank you all that you do and all that you’ve done.

[1] I was a master of “add/drop” deadline as well as of “withdraw – passing.”

[2] Supporting Justice: A Report on the Pro Bono Work of America’s Lawyers, p. 39.  On page 41, the report goes on to note that states whose lawyers had “high levels of motivation for doing pro bono included Maine, Oregon, California, New York, Mississippi, and Vermont. Maine and Oregon were leading states for the percent of attorneys (89.3% and 85.8% respectively) indicating that they believe doing pro bono is important. Both states also had relatively low ratings for the list of discouraging factors (2.8 and 2.69 respectively). California and New York were both leading states for the average ratings for the list of motivating factors (2.9 and 2.84 respectively). Mississippi and Vermont were both leading states in terms of the percent of attorneys indicating they were likely to do pro bono in 2017 (62.9% and 58.9% respectively). Meanwhile, both Wyoming and Vermont had particularly low ratings for the list of discouraging factors (2.79 and 2.81 respectively).”

OPPORTUNITIES & RESOURCES

• Mary Ashcroft is the Vermont Bar Association’s Legal Access Coordinator. E-mail Mary for information related to the VBA’s pro and low bono programs.
• Sam Abel-Palmer is the Executive Director of Legal Services of Vermont. Formerly known as Lawline of Vermont, LSV has opportunities here.
• Vermont participates in the ABA’s Free Legal Answers program.  As I noted in Pro Bono: There’s an App for That!, think of VT Free Legal Services “as pro bono without ever having to leave your desk.  All you have to do is sign up, then pick & choose the questions you want to answer.  It’s that simple.”
• A 7-question quiz that is intended to highlight pro bono FAQs

Tech competence: do lawyers have a duty to follow the news?

The early days of this blog featured me harping on the duty of tech competence.  Long-time readers might remember the refrain: competence includes tech competence.

While they might not know it, two of my ethics gurus are Lucian Pera and Catherine Reach.   I consider each a friend of this blog and am particularly thankful for their thoughts and work on a lawyer’s duty to understand the risks and benefits that technology brings to the practice of law.

In the current issue of Law Practice Magazine, Lucian explores the idea that the duty of tech competence includes following the news.  After setting the groundwork by referencing the applicable Rules of Professional Conduct, Lucian writes:

• “My pitch: As lawyers, we need to be alert to the news of hacks and cybersecurity incidents, whether specifically about lawyers or not, and we should have regular conversations with our tech gurus about them. They are teachable moments.  We need to train ourselves to be in regular learning mode. Because we can learn from others’ experiences and mistakes.”

From there, Lucian uses two cyber incidents – one widely reported, the other less so – to make the argument.  Lucian concludes:

• “Our ethical obligations amid the dangerous tech environment in which we find ourselves demand that we stay informed about new threats and how we are positioned to protect ourselves.”

I’m no fan of the news and, but for sports news, avoid it on purpose.[1]  It’s part of my personal wellness campaign. Still, I agree with Lucian’s point.  And, as I blogged here, I agree that lawyers can learn cybersecurity lessons from other professions.

I know what you’re thinking: “Mike, that’s all well & good, but how do I stay up on tech news?”

Here’s one way: check out Catherine’s work for the North Carolina Bar Association’s Center for Practice Management.

Following up on Lucian’s article, Catherine posted Staying Up to Speed on Security. Catherine’s post includes helpful “resources to subscribe to or follow to keep up to date with the constantly shifting sands of cybersecurity.” It’s worth the read and might lead to the one tip that saves you from learning this stuff after it’s too late.

As always, let’s be careful out there.

[1] Due to my news blockade, I only learned today – from a lawyer who called with an inquiry – that Taylor Swift did not win this year’s AMA Artist of the Year.  The Rules of Professional Conduct frown upon impugning judges’ integrity.  Alas, there can be no other explanation!

Monday Morning Honors #239

Happy Thanksgiving Week!

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

Honor Roll

• Matthew Anderson, Pratt Vreeland Kennelly Martin & White
• Penny Benelli, Dakin & Benelli
• Amy Butler, Amy Butler Law
• Alberto Bernabe, Professor of Law, University of Illinois Chicago
• Andrew Delaney, Martin Delaney & Ricci
• Heather Devine, Tarrant Gillies & Shems
• Benjamin Gould, Paul Frank + Collins
• Robert Grundstein
• Merle Haskins, Assistant Judge
• Deb Kirchwey, Law Office of Deborah Kirchwey
• John Leddy, McNeil, Leddy & Sheahan
• Pam Loginsky, Pierce County (WA) State’s Attorney’s Office
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Jeffrey Messina, Messina Law
• Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
• Herb Ogden, Esq.
• Keith Roberts, Darby Kolter & Roberts
• Brice Simon, Breton & Simon
• Jonathan Teller-Elsberg, Sheehey Furlong & Behm
• Jason Warfield, Esq.
• Zachary York, Paralegal, Sheehey Furlong & Behm

Answers

Question 1

 I often blog and talk about the 7 Cs of Legal Ethics.

Earlier this week, I mentioned that the duty associated with this “C” can create a conflict between a lawyer’s obligations to the court and the client’s interests.   Which C?

To be clear: the answer is not “conflicts.”

CANDOR TO A TRIBUNAL.  See, V.R.Pr.C. 3.3

Question 2

Which phrase appears in a different rule than the others?

• A.  the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client.
• B.  the representation will result in a violation of the rules of professional conduct or other law.
• C.  the lawyer’s physical or mental condition materially impairs lawyer’s ability to represent the client.
• D.  the lawyer is discharged.

A is one of the factors to determine whether a conflict is waivable.  V.R.Pr.C. 1.7(b)(1).  B, C, and D are situations in which a lawyer is required to withdraw.  V.R.Pr.C. 1.16(a).

Question 3

My microphone wasn’t working well during a virtual CLE.  You’re not positive, but you think I used the phrases:

• “contacted you in good faith;”
• “the duty of confidentiality applies nonetheless;” and,
• “the duty of loyalty is relaxed if you didn’t receive information that could be significantly harmful to that person”

As I cut in and out, I was discussing the rule that:

• A. requires a lawyer to report another’s misconduct.
• B applies to prospective clients, clients who meet with but do not retain a lawyer. R.Pr.C. 1.18.
• C. applies when a lawyer provides short-term, limited legal services at a pro bono clinic.
• D.  requires a lawyer to notify the sender that the lawyer received information that appears to have been inadvertently sent or produced.

Question 4

Fill in the blank.

By rule, “a lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.”  V.R.Pr.C. 1.5(a).

Question 5

Lawyers should be competent speakers.

Until this morning, I’d never heard of Edward Everett.  According to the interwebs, he was considered one of the great orators of his time. Everett was not a lawyer.

Today marks the anniversary of an event at which Everett was the keynote speaker.  His marathon of a speech lasted two hours. After he finished, a lawyer gave a speech that, by comparison to Everett’s, was a relative sprint: it was 272 words and lasted only two minutes.

I don’t know how Everett was reviewed, but a Pennsylvania newspaper wasn’t impressed with the lawyer. In an editorial that described the lawyer’s speech as “silly remarks,” the paper expressed hope “that the veil of oblivion shall be dropped over them and they shall be no more repeated or thought of.”

In 2013, the paper issued a retraction, stating that the critical editorial was written “perhaps under the influence of partisanship, or of strong drink, as was common in the profession at the time.”

Name the lawyer and the speech.

Abraham Lincoln.  The Gettysburg Address.

 

Five for Friday #239

Welcome to Friday and the 239^th legal ethics quiz.

The verdict is in: I’m an idiot.

I’ve often wondered how long the quiz will live.  Time will tell.  Alas, time also tells me that if ever there was a moment to reset the quiz to 000, it’s now.  Let me explain.

I ran my first marathon in 2008.  I’ve run 21 since, with the goal of each to qualify for the Boston Marathon.

Runners cannot simply sign-up for Boston.  Rather, to be eligible to apply for entry, a person must post a qualifying time in a certified marathon within the qualifying window.  The window is usually about one year and the qualifying time depends on a person’s age and gender.

Making the qualifying time doesn’t guarantee entry.  Once registration opens, the first few days are reserved for runners who exceeded their qualifying time by at least 20 minutes, the next few days for anyone who beat their time by at least 10 minutes, then a few days for anyone who exceeded their time by 5 minutes.  If space remains available, the final days of registration are open to anyone who met the qualifying time.

Space hasn’t always been available for everyone who qualifies and applies.  For instance, for Boston 2021, a runner had to beat their qualifying time by 7 minutes and 47 seconds to gain entry.  Since 2013, here are the so-called “cut-off” times:

• 2014 1:38 (a runner had to be 1 minute 38 seconds faster than their qualifying standard)
• 2015 1:02
• 2016 2:28
• 2017 2:09
• 2018 3:23
• 2019 4:52
• 2020 1:39
• 2021 7:47

For example, for the 2015 and 2016 races, I had run times that beat my qualifying standard by 50 seconds and 2 minutes 20 seconds.  But even though I applied, I didn’t get in.  The process is designed to ensure that the fastest people by age group and gender run the race.

I’ve run 3 Bostons: 2013, 2014, and 2017.  Since finishing the 2017 Boston Marathon, I’ve not come close qualifying for another. Frankly, I’ve been awful.

Until this year.

For Boston 2022, the qualifying time for a man my age is 3 hours 25 minutes.  In May, I ran a marathon in Schenectady.  Hoping to erase three years of poor marathons, I’d dedicated myself to qualifying for Boston again and had trained well.  As I crossed the 23-mile marker, things looked GREAT! I was on pace to run a 3:21:45 and had just completed what felt like two strong miles after a bit of a lull.  I said to myself “you’re going to do it!”

As someone who is so superstitious, that was an idiotic thing to say. Within seconds, the marathon gods exacted their revenge by causing my calves to cramp.  You can almost see the cramps in my mile splits:

I knew I was toast, that I’d never beat 3:25:00 by enough to qualify.  Still, I decided at least to try to run a qualifying time.  I did, barely, crossing the line in 3:24:57.

Registration for Boston 2022 opened last week.  Knowing that my 3 second margin wouldn’t come close to cutting it, I didn’t bother to apply.  Registration is now closed.

Yesterday, the Boston Athletic Association announced the field for the 2022 marathon.  In the release, the organization’s president and CEO said, “I am delighted to share that everyone who applied with a valid qualifying time will be joining us for the 126th Boston Marathon.”

In other words, the cutoff time was 0:00.

My 3 seconds were good enough. Had I simply applied, I’d be in.

And what a fantastic story it would’ve been!  “Kennedy fights off cramps, manages to qualify!”

But I didn’t even apply.

I suppose there’s a lesson here.  One along the lines of the age-old adage “you’ll never know unless you try.”  An adage with which a former coach should be well aware.

So, no matter the context, if there’s something in your life that’s causing you to tell yourself “nah, they’ll never say ‘yes’ to me,” remember this story.

Might they say “no?”  Possibly.

But if you don’t ask or apply, I guarantee you that they won’t say “yes.”

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 consider sharing the quiz with friends & colleagues
• Share on social media.  Hashtag it – #fiveforfriday

Question 1

 I often blog and talk about the 7 Cs of Legal Ethics.

Earlier this week, I mentioned that the duty associated with this “C” can create a conflict between a lawyer’s obligations to the court and the client’s interests.   Which C?

To be clear: the answer is not “conflicts.”

Question 2

 Which phrase appears in a different rule than the others?

• A.  the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client.
• B.  the representation will result in a violation of the rules of professional conduct or other law.
• C.  the lawyer’s physical or mental condition materially impairs lawyer’s ability to represent the client.
• D.  the lawyer is discharged.

Question 3

 My microphone wasn’t working well during a virtual CLE.  You’re not positive, but you think I used the phrases:

• “contacted you in good faith;”
• “the duty of confidentiality applies nonetheless;” and,
• “the duty of loyalty is relaxed if you didn’t receive information that could be significantly harmful to that person”

As I cut in and out, I was discussing the rule that:

• A.  requires a lawyer to report another’s misconduct.
• B.  applies to prospective clients, clients who meet with but do not retain a lawyer.
• C.  applies when a lawyer provides short-term, limited legal services at a pro bono clinic.
• D.  requires a lawyer to notify the sender that the lawyer received information that appears to have been inadvertently sent or produced.

Question 4

 Fill in the blank.

By rule, “a lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for ___________.”

Question 5

 Lawyers should be competent speakers.

 Until this morning, I’d never heard of Edward Everett.  According to the interwebs, he was considered one of the great orators of his time. Everett was not a lawyer.

Today marks the anniversary of an event at which Everett was the keynote speaker.  His marathon of a speech lasted two hours. After he finished, a lawyer gave a speech that, by comparison to Everett’s, was a relative sprint: it was 272 words and lasted only two minutes.

I don’t know how Everett was reviewed, but a Pennsylvania newspaper wasn’t impressed with the lawyer. In an editorial that described the lawyer’s speech as “silly remarks,” the paper expressed hope “that the veil of oblivion shall be dropped over them and they shall be no more repeated or thought of.”

In 2013, the paper issued a retraction, stating that the critical editorial was written “perhaps under the influence of partisanship, or of strong drink, as was common in the profession at the time.”

Name the lawyer and the speech.

How not to sue for fees.

I don’t speak or blog on legal fees often.  When I do, I’ve been clear: nothing in the Rules of Professional Conduct prohibits a lawyer from charging and collecting a reasonable fee. Then, if asked for guidance on suing a former client to collect a fee, I’ve added caveats:

1. Do you want to be known as the lawyer who sues clients?
2. If you sue, they might file a counterclaim. Carriers warn about this all the time.

I never imagined having to add a third: be careful that you don’t end up in jail.

As reported by the ABA Journal and Law360, that’s exactly what happened to a Georgia attorney who sued for his fee.  Per the reports,

• Lawyer represented Relatives (yes, the lawyer’s own) in a wrongful death action against multiple defendants.
• Relatives fired Lawyer after he settled with a defendant without their authority.
• Lawyer received over $100,000 in fees from the settlement.
• Relatives hired New Attorneys to pursue their claim against the remaining defendant.
• Lawyer put a lien on any recovery.
• A jury awarded Relatives $11.2 million.
• A trial court rejected the lien, finding that Lawyer’s “efforts weren’t instrumental to the verdict, and his unethical behavior in the co-defendant settlement barred additional compensation.”
• Lawyer lost his appeal and the trial court awarded attorney’s fees and costs against Lawyer.

If you’re thinking that’s the end of the story, you’ve probably never read my blog.  Regular readers are likely asking “oh no, how could it possible have gotten any worse for Lawyer?”

Here’s how.

• Lawyer sued New Attorneys.
• New Attorneys’ counterclaims included an allegation that Lawyer’s claim was meritless.
• Lawyer failed to appear for several depositions, including some for which the court had ordered him to appear after he didn’t show up for the first.
• New Attorneys moved for sanctions.
• A trial judge found Lawyer in contempt, ordered him jailed for 5 days, and ordered him to sit for the deposition while in jail. The judge also ordered that Lawyer would be released immediately if he “responds to all questions and produces all documents as previously directed.”

Okay then.

In closing, the Rules of Professional Conduct do not prohibit lawyers from suing a former client to collect a fee.  As today’s story shows, if that’s the route you choose, the devil will be in the details.

Conflicts of Interest: how signs, Squid Games, and your gut instincts can uncomplicate things.

Blogger’s Note:  This post includes a reference to an episode of Squid Game.  It does not, however, include any spoilers.

I receive about 1200 ethics inquiries per year.  About half involve conflicts of interest.  Of those, most are from lawyers whose instincts tell them “conflict” but who want to be sure.  Usually, “Mike, something doesn’t feel right, what do you think?”

Yes, navigating conflicts of interest can be tricky.  However, here’s a tip: as I’ve urged with trust accounting, the trek is easier if you don’t overcomplicate things. And, with conflicts, one of the easiest ways to uncomplicate things is to trust that gut instinct.

Of course, it’s easier blogged than done.  There are many rules that address conflicts:

• Rule 1.7 conflicts involving current clients
• Rule 1.8 transactions with clients that are prohibited because of an inherent conflict
• Rule 1.9(a) conflicts involving former clients
• Rule 1.10 imputed conflicts
• Rule 1.11 special conflicts rules for government employees
• Rule 1.12 rules for former judges, arbitrators, mediators, and other third-party neutrals
• Rule 1.18 conflicts involving prospective clients
• Rule 2.4 lawyers serving as third-party neutrals
• Rule 4.3 dealing with the unrepresented person
• Rule 6.3 membership in a legal services organization
• Rule 6.4 serving in an organization involved in reforming the law
• Rule 6.5 providing short-term, limited legal services at a pro bono program

And this is without listing Rules 1.16 or 3.3.  The former governs withdrawal, while the latter mandates candor to a tribunal, a duty that can create a conflict between a lawyer’s professional obligations and the client’s interests.

So, yes, I understand conflicts can be complicated. Here are two visuals intended to uncomplicate things.

The first I’ve used for years.  I took this picture on a run in South Hero.  It’s where Landon Road ends at South Street. The sign is clear: it’s either one way or the other. To me, it captures the essence of a conflict of interest.

Rule 1.7 (a)(2) states that a lawyer has a conflict when there is a significant risk that the representation of one client will be materially limited by a lawyer’s responsibilities to another client, a former client, or a third person, or by a personal interest of the lawyer.

If you imagine one of the arrows as the duties you owe to a client, the picture articulates the rule.  The other arrow is your responsibilities to anyone other than the client.  When your gut tells you that those other responsibilities are pulling you in the opposite direction as you should be going for the client, that might be a conflict.

The image works for me.  It might not for you.  So, here’s another.

In late October, I binged Squid Game in two days.  The episode that included the tug-of-war competition reminded me of conflicts of interest.

Even if you haven’t seen the show, you’re probably familiar with the game tug-of-war.  Picture two teams about to play.  Now, picture yourself, the lawyer, as the exact middle of the rope.  Once the representation begins, the client tugs you to their side.  If your gut ever tells you that someone other than the client is on the other end tugging to the opposite side, that might be a conflict.

Neither image is perfect. Not every single little thing that is different from what the client wants gives rise to an impermissible conflict.

Still, when it comes to conflicts, if your gut tells you that something is leading or pulling you away from where you should be going for your client, don’t overcomplicate things.  Instead, trust your gut.

PS: 067 is my favorite character.

Lawyers aren’t Kramer. When it comes to safeguarding client funds, there are no excuses.

I will lead with the most important takeaway from today’s story: neither inexperience as an attorney nor unfamiliarity with the trust accounting rules will excuse the failure to safeguard client funds. For a refresher, I’ve included links to my posts and videos on trust accounting at the end of this post. Now, back to today’s story.

As many readers know, Was That Wrong? is a semi-regular column in which I use a Seinfeld episode to highlight conduct that we shouldn’t need a CLE to know to avoid. Today’s story qualifies. It also reminds of another episode: the one in which Kramer was fired from a job that he didn’t even have because it was almost like he had no business training at all.

Alas, when it comes to safeguarding client funds, there’s no training required to know the most basic notion: my client’s money isn’t my money.

Last week, a New York appellate court imposed an interim suspension in a matter in which a lawyer has been charged with mishandling client funds. The Legal Profession Blog reported the opinion. Here’s a summary of the facts.

• Lawyer was admitted to practice law in 2004. After many years in a firm, Lawyer opened a solo shop.
• Lawyer represented Seller in a real estate transaction. In January 2019, Buyer advanced an $18,000 down payment that Lawyer deposited into a client trust account. Over the next several months, Lawyer withdrew more than $6,000 of the down payment and used the funds to pay personal expenses.
• In June 2019, Seller advanced $10,000 towards closing costs. Lawyer deposited the funds into the client trust account.
• The transaction closed in October. Seller cleared just under $50,000. Lawyer deposited the proceeds into the client trust account.
• About a month later, Lawyer paid $25,000 to Seller. Lawyer informed Seller that the balance would remain in trust until Lawyer received confirmation that various liens and taxes had been paid.
• By June of 2020, had yet to pay Seller and only $3.78 belonging to Seller remained in trust. Lawyer had used more than $35,000 to pay personal expenses.
• In September 2020 Lawyer borrowed enough money to pay just over $14,000 to Seller. Lawyer informed Seller that Lawyer was invoking his status as Seller’s power of attorney to withhold the balance pending Lawyer’s investigation into Seller’s tax liabilities associated with the sale.
• Seller filed a disciplinary complaint against Lawyer.
• In January 2021, Lawyer asked Seller to agree to withdraw the disciplinary complaint in exchange for payment.
• In March 2021, Lawyer finally paid Seller.

Disciplinary prosecutors charged Lawyer with various violations and sought the immediate interim suspension of Lawyer’s law license pending resolution of the charges. At a hearing on the request, Lawyer’s arguments against an interim suspension included:

• Lawyer had no background or training in real estate transactions.
• Prior to opening his own office, Lawyer had never opened a trust account or had to manage client funds.
• Lawyer received no trust account training in law school.
• Lawyer never attended any trust accounting CLEs.
• Lawyer had closed his office and taken a government job and, therefore, would not be handling client funds anymore.

The court wasn’t moved.  In the end, the court imposed the interim suspension.  The court’s order included this statement:

• “While respondent cites to a lack of experience regarding the rules related to the maintenance of accounts holding client funds, he declined to familiarize himself with them at any time prior to or during his representation of the subject client.”

To me, Lawyer’s arguments are offensive not only to lawyers new to managing client trust accounts, but to anyone with a sense of right and wrong. Nobody needs law school, a CLE, or any sort of training to know that money held in trust for others is not to be used as one’s own.

End of story.

Trust Account Resources

My videos on trust accounting:

• Don’t Fear, Simplify.  (25 minutes)
• Basic Requirements(41 minutes)
• Contingent Fees, Referral Fees & Fee Sharing(22 minutes)
• Flat Fees, Misappropriation & Trust Account Scams(35 minutes)
• Collecting & Disbursing Funds(33 minutes)

My blog posts on trust accounting:

• Back to (trust account) school
• Safeguarding Client Funds: Tech Competence & Mobile Payment Apps
• Taylor Swift & Trust Accounts: Don’t Say I Didn’t Warn Ya
• Disbursing without Collected Funds
• Mobile Payments & Legal Fees
• Trust Accounting Tips
• Trust Account Scams Continue
• I. & Jack Torrance: an overview of the trust account rules
• Third-Party Claims against Client Funds
• With trust accounts, verify
• Misappropriation: Don’t.
• Trust Account Tuesday: Nonrefundable fees
• Teddy KGB on prompt notification and delivery
• When a third-party asserts an “interest” in funds held in trust
• Trust Account Tuesday: (generally) don’t disburse absent collected funds.
• Trust Accounting: Basic Requirements
• Trust Account Tuesday: Don’t Commingle
• Trust Accounts & ACH Transfers
• Trust Account Scams: Change in Wire Instructions? CAUTION!!!!
• Don’t overcomplicate trust accounting.

 

Florida Supreme Court issues important reminder in opinion disbarring a lawyer whose misconduct resulted in prison time.

Happy Monday!

I’m blogging from Charlotte, North Carolina.  My brother and I went to the New England-Carolina game yesterday. For my brother, it was a fantastic win by his beloved Patriots in warm weather and under sunny skies. As for me, well, the weather was great.  In a few minutes, we’re heading west to spend a few days at our Dad’s place in Flat Rock, NC.

This morning I noticed the ABA Journal’s post Florida lawyer is disbarred over alimony dispute that led to imprisonment.  It’s the story of Lawyer and it includes a lesson that I wanted to share before hitting the road.

In 2014, Lawyer’s ex-spouse filed suit seeking $88,000 in unpaid alimony.  A few years later, and while the alimony action remained pending, Lawyer settled an injury claim on behalf of a client. Lawyer’s contingent fee was $400,000.

The attorney representing Lawyer’s ex-wife learned that Lawyer might have settled a matter for a large fee and served discovery requests seeking information. Initially, Lawyer lied about having settled the case and denied receiving a fee.  From there, Lawyer engaged in additional misconduct, with the result being the Florida Supreme Court’s decision to disbar Lawyer.  The Legal Profession Blog and Law.com also reported the story.

At first, I thought I’d turn the story into a Was That Wrong? script.  I changed my mind. Why? Because I didn’t want the lesson lost in the Seinfeld references.

In its order, the court stated:

• “In reaching the conclusion that [Lawyer] must be disbarred, we are mindful that divorce proceedings can bring out the worst in people. Yet even at one’s worst, we expect a lawyer’s oath to mean something. Indeed, we expect the oath to mean something then especially.”

Indeed. And, these days, it’s not just divorce proceedings that can bring out the worst in people.

As I’ve learned from feedback received at my last few seminars, practicing law can do the same. When it does, we’d be well-served to remember that it’s especially then that professional responsibility expects the most of us.

Monday Morning Honors #238

Happy November!

Friday’s questions are here.  The answers follow today’s Honor Roll.  But first, readers chimed in on my Halloween Candy rankings.  Some of the responses:

• Milky Way my friend. And Twix and Butterfinger….
• I am simply flabbergasted that you never even mention Snickers.  I wouldn’t hold it against you too much (some, but not too much) for it failing to make the final 5, but to not even be acknowledged as existing?  That is salt in the wound. Also, Twix.  Frozen Halloween mini size Twix.  A gift from the heavens.
• Candy Corn & Pumpkins 4. Peanut M&M’s. 3. Kit Kat  2. Fifth Avenue Bar 1. Reese’s Peanut Butter Pumpkins
• I can understand missing the 100 Grand Bar, but the Baby Ruth?  Caddyshack fans could never forgive……
• BUT WHAT ABOUT BUTTERFINGER?
• PS: ‘5^th Avenue’ was my go-to candy bar, 4th – 8th grades.
• As for the candy rankings, the only one of yours that would be on my list is Peanut M&M’s, although I will eat a Krackel if necessary. My wife is fond of the $100,000 bar, but they’re not easy to find. Kind of like the Fresca (her favorite soda) of the candy bar world.
• Ah, for a minute I was going to challenge your rankings and go all “Trader Joe’s dark chocolate peanut butter cups!” on you, but then I realized it has to be stuff that you can get in bulk for Halloween.  But really, Mounds didn’t even make the list?!
• How are Twix and Kit-Kat omitted here?
• Hey! I think it was me who brought up 100 Grand [last year] wasn’t it?
• Here’s hoping you are now taking stock of your trick-or-treating haul–and that it contains at least a few 100 Grand bars. 

Honor Roll

• Karen Allen, Karen Allen Law
• Matthew Anderson, Pratt Vreeland Kennelly Martin & White
• Penny Benelli, Dakin & Benelli
• Amy Butler, Amy Butler law
• Alberto Bernabe, Professor of Law, University of Illinois Chicago
• Andrew Delaney, Martin Delaney & Ricci
• Benjamin Gould, Paul Frank + Collins
• Robert Grundstein
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Jeanne Kennedy, JB Kennedy Associates, Blogger’s Mom
• Deb Kirchwey, Law Office of Deborah Kirchwey
• Cassandra Larae-Perez, Gravel & Shea
• John Leddy, McNeil, Leddy & Sheahan
• Pam Loginsky, Pierce County (WA) State’s Attorney’s Office
• Kevin Lumpkin, Sheehey Furlong & Behm
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Jeffrey Messina, Messina Law
• 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
• Zachary York, Legal Assistant, Sheehey Furlong & Behm
• Thomas Wilkinson, Cozen O’Connor

ANSWERS

Question 1

 I often blog and talk about the 7 Cs of Legal Ethics. 

During a CLE, I began by mentioning the phrases “informed consent” and “impliedly authorized to carry out the representation.”  Next, I contrasted the section of the rule that requires action with the section that permits, but does not require, a lawyer to act.  Finally, just as I began to address the situations in which the rule’s so-called “self-defense” exception applies, your Wi-Fi cut out, the Zoom feed died, and you missed my explanation of the exception.

What C was the topic of the CLE?

Client Confidences.  V.R.Pr.C. 1.6(a) prohibits a lawyer from disclosing information relating to the representation without a client’s informed consent or unless disclosure is impliedly necessary to carry out the representation.  Rule 1.6(b) requires disclosure in certain situations, whereas Rule 1.6(c) permits it in others.  Finally, Rule 1.6(c)(3) sets out the “self-defense” exceptions.

 

Question 2

Speaking of exceptions, there’s a rule that includes an exception for when a person is seeking a second opinion.  The rule addresses _______:

• A.  conflicts of interest.
• B.  the situations in which a fee agreement must be reduced to writing.
• C.  communicating with a represented person.
• D.  contacting and soliciting prospective clients who a lawyer knows or reasonably should     know need legal services.

V.R.Pr.C. 4.2 prohibits communicating with a represented person on the subject of the representation.  The rule only applies, however, when “representing a client.”  As such, and as made clear by Comment [4], the rule does not “preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter.”

Question 3

 It’s National Celebrate Pro Bono Week.  The pro bono rules include one that creates an exception to the rule(s) that ________:

• A.  prohibits unreasonable fees.
• B.  requires a lawyer to safeguard client property.
• C.  govern conflicts of interest.  V.R.Pr.C. 6.5.
• D.  requires a lawyer to keep a client reasonably updated as to the matter’s status.

Question 4

 There’s a rule that includes an exception for “testimony that relates to the nature and value of legal services rendered in the case.”  The rule’s title is ______”

• A.  Duties to Former Clients.
• B. Lawyer as Witness.  V.R.Pr.C. 3.7.
• C.  Fees.
• D.  Candor to a Tribunal.

Question 5

 Candy was the theme of Question 5 only two weeks ago!  Not today. Still, I’ll keep it somewhat related to Halloween. 

In 1991, a New York court issued the so-called Ghostbusters opinion.  In it, the court allowed a prospective buyer to rescind a contract to buy a house due to the seller’s failure to disclose a material condition.  Rejecting the seller’s “buyer beware” argument, the court stated:

• “Where, as here, the seller not only takes unfair advantage of the buyer’s ignorance but has created and perpetuated a condition about which he is unlikely to even inquire, enforcement of the contract (in whole or in part) is offensive to the court’s sense of equity. Application of the remedy of rescission, within the bounds of the narrow exception to the doctrine of caveat emptor set forth herein, is entirely appropriate to relieve the unwitting purchaser from the consequences of a most unnatural bargain.”

What did the court fault the seller for failing to disclose to the buyer?

That the house was haunted.  In Stambovsky v. Ackley, the court concluded “having reported [the ghosts’] presence in both a national publication… and the local press… defendant is estopped to deny their existence and, as a matter of law, the house is haunted.”

Here’s the house.