Month: April 2022

Five for Friday #252

Michael 2 Comments

Welcome to Friday and the 252nd legal ethics quiz!

Later today, Andrew Manitsky and I are presenting a CLE at the YLD Thaw in Montreal. Our seminar will focus on the duty of candor. With that in mind, would you believe me if I told you that you could both win a prize and secure internet fame merely by writing a single “thank you” note next week?

Maybe you wouldn’t.  And maybe my statement includes a scoop of puffery and a dash of paltering. But,  the statement includes kernels of truth!

Next week is Well-Being Week in Law. This participation guide includes 187 suggestions, with the suggestions divided among the different themes assigned to each day.  Don’t worry. I’m not asking people to do 187 things or even to do something every day. Indeed, as the guide indicates, Well-Being Week in Law

  • “is designed so that people and organizations can participate in any way that fits their goals and capacities. If you want to participate in multiple things every day, that’s great. But also feel free to select only a few things over the entire week that match your priorities.”

So, I’m asking folks to consider finding ONE thing to do during the week. And that one thing doesn’t even have to be from the list of 187 suggestions – choose whatever works for you!

Now, back to the “thank you” note.

Many of the guide’s suggestions can be completed in 20 minutes or less. No amount of participation is too “small” or “inconsequential.” Indeed, as we know too well, when it comes to improving the profession’s well-being, there is no step too small to take. For example, sending a “thank you” note qualifies!

In fact, here’s how easy it is.

Yesterday, I sent notice of Well-Being Week in Law to many who are part of Vermont’s legal community. A friend texted. The friend had recently learned that “expressing gratitude” can improve wellness. So, the friend asked whether thanking me for looking out for their wellness qualifies as participation. I replied that it does. Then I thanked the friend for asking. Boom! We’d both done our one thing!

Oh, yeah. Prizes and internet fame.

The Institute for Well-Being in the Law is offering a chance to win prizes by completing the 2022 Well-Being Week in Law Participation Survey.  Or, you can show your commitment to well-being by participating in the Social Media Challenge.  Finally, I will use my blog and Twitter account to mention any member of Vermont’s legal community who lets me know that they, their co-workers, or their office/firm participated, even if just barely, in Well-Being Week.

With all this in mind, hardly seems that my opening statement was misleading or deceptive!

Finally, and to tie this message to the week’s quiz number, yes, my goal is for as many folks as possible to consider doing 1 thing during Well-Being Week in Law. However, here’s my dream. It’s rooted in the palindromic nature of “252.”

What if you chose 2 things over the week’s 5 days? Then, what if you turned around and did the same the following week?

Here’s to the Vermont legal community making well-being a habit!

For more on Well-Being Week in Law and how to participate, see this blog post.

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

Lawyer works at Firm. If Lawyer has a conflict of interest that prohibits Lawyer from representing Client, which type of conflict is least likely to be imputed to the other attorneys in Lawyer’s firm? A conflict that arises from:

  • A.  Lawyer’s representation of a former client.
  • B.  Lawyer’s current representation of another client.
  • C.  a personal interest of Lawyer’s.
  • D.  trick question. In VT, all conflicts are imputed to others in the same firm.

Question 2

Can a lawyer accept compensation from someone other than the client?

  • A. Yes, but only if the payor is related to the client.
  • B.  Yes, but only if the payor is the client’s insurance company or employer.
  • C.  Yes, if the client gives informed consent, the payor doesn’t interfere with the lawyer-client relationship, and information relating to the representation of the client is not disclosed to the payor except as authorized by the rule on client confidences.
  • D.  A & B.

Question 3

Under Vermont’s rules, if a lawyer reasonably believes that a client intends to commit an act that will result in the death of or substantial bodily harm to the client, the lawyer ____:

  • A.  must disclose the client’s intention.
  • B.  must not disclose the client’s intention.
  • C.  may disclose the client’s intention.
  • D.  It depends on how old the client is.

Question 4

Lawyer called me with an inquiry related to a potential conflict between a prospective client and a former client. We discussed the distinction between the lawyer’s general knowledge of the former client’s policies and practices, versus the lawyer’s knowledge of specific facts gained during the prior representation that are relevant to the new matter.

As such, it’s most likely that Lawyer’s former client is _________:

  • A. a minor.
  • B.  an organization.
  • C.  deceased.
  • D.  represented by a law firm that once employed Lawyer.

Question 5

The Thaw is on my mind.

With “most” defined as “all,” most of my knowledge of the British Commonwealth’s legal system comes from tv and movies. Last week, I binged Anatomy of a Scandal. Set in England, here are the lawyers who appeared in a criminal trial:

Englih Lawyer

A few years ago, I loved the Australian show Rake. Here’s the main character:

Rake

So, if I bump into a Canadian lawyer this weekend, I might ask the lawyer if they have a peruke. It’s altogether possible that the lawyer will have no idea what “peruke” means. If so, what’s the word I’ll use instead? The more common term for a “peruke?”

Negative infinity points for any smart aleck comments that I should get my own a peruke.

 

Consider participating in Well-Being Week in Law. Nothing is too small . . . and there are prizes!

Michael 2 Comments

Next week is Well-Being Week in Law. Conceived and promoted by the Institute for Well-Being in Law (IWIL), the event’s goals are “to raise awareness about mental health and to encourage action and innovation across the profession to improve well-being.”

I encourage you, your co-workers, and your colleagues to participate, even if only by doing something that might seem “small” or “inconsequential.”  Indeed, as we know too well, when it comes to improving the profession’s well-being, there is no step too small to help. For example, sending a “thank you” note. Surely, someone at your office has time (and reason) to express gratitude at some point next week!

Of course, Well-Being Week in Law features many additional activities and opportunities to promote well-being. Legal professionals can participate as individuals, with a friend/colleague/co-worker, or as an entire office/firm. There’s something for everyone!

And speaking of everyone, you lawyers, don’t forget to include your non-lawyer staff. They are much a part of the profession as lawyers!

Each day focuses on a different aspect of wellness:

Each Day

IWIL’s participation guide includes dozens of suggestions for each day, breaking the suggestions into things to read, things to watch or listen to, and things to do.  For instance, on Monday, legal professionals might

Or, for the legal professional who has an Apple Watch, Vermont lawyer Tammy Heffernan has offered to host a month-long challenge associated with well-being. Tammy set it up so that there are both team and individual challenges. Instructions on how to sign-up are at the end of this letter.

There are other ways to participate in Well-Being Week.

The event coincides with May being Mental Health Awareness Month. So, next week, you and your co-workers might consider the daily challenges in the 31-Day Mental Health Challenge.

In addition, I plan to host virtual discussions on Tuesday, Wednesday, Thursday, and Friday. The discussions will begin at noon and focus on the day’s theme. All are welcome. Each morning, I’ll post a link to join that day’s discussion on my blog. The videos I recorded last year provide a flavor of the discussions.

Again, the participation guide is chock full of ideas.

Finally, well-being is not “one size fits all.’  It’s personal. As the participation guide states:

Pick & Choose to Fit Your Needs

WWIL is designed so that people and organizations can participate in any way that fits their goals and capacities. If you want to participate in multiple things every day, that’s great. But also feel free to select only a few things over the entire week that match your priorities.

As I mentioned, there’s something for everyone. I encourage you to find what works for you and to encourage your colleague and co-workers to do the same.

Oh! One last thing. With participation comes reward(s)!

IWIL is offering legal professionals a chance to win prizes by completing the 2022 Well-Being Week in Law Participation Survey.  Or, you can show your commitment to well-being by participating in the Social Media Challenge.  Finally, I will use my blog and Twitter account to mention any member of Vermont’s legal community who lets me know that they, their co-workers, or their office/firm participated, even if just barely, in Well-Being Week.

Thank you for considering ways that you and your co-workers might participate in 2022 Well-Being Week in Law.

**********************************************************************

P.S. – thank you Tammy!

APPLE WATCH TEAM CHALLENGE

”VT Attorney Well Being Team Challenge ”

First, download Challenges: https://challengesapp.app.link/download

Once you have the app, enter invite code: ‘cheu’ or tap on the link below to join:

https://sync.challenges.app/invite?eligibilitycode=cheu

APPLE WATCH INDIVIDUAL CHALLENGE

“VT Attorney Individual Challenge”

First, download Challenges: https://challengesapp.app.link/download

Once you have the app, enter invite code: ‘kfdk’ or tap on the link below to join:

https://sync.challenges.app/invite?eligibilitycode=kfdk

Related Resources

Previous Wellness Wednesday Posts

 

Proposal to require Vermont lawyers to disclose whether they carry malpractice insurance is published for comment.

Michael 2 Comments

The Vermont Supreme Court recently published for comment a proposal to require lawyers to disclose their malpractice/professional liability insurance status on the attorney licensing statement. The proposal would not require lawyers to carry coverage, only to disclose whether they do. The Court Administrator’s Office would make the responses public. Government attorneys, in-house counsel, and lawyers not on active status would be exempt from the disclosure requirement.

The proposal is here, under the heading “Proposed Order Amending A.O. 41 § 4 and adding § 18.”  Send comments to me. The comment period closes on June 20, 2022.

Background

A few years ago, a disciplinary complaint was referred to an assistance panel for non-disciplinary resolution. The assistance panels are the Professional Responsibility Program’s version of diversion. For lack of a better phrase, an assistance panel is where complaints go when they’re too serious to dismiss, but not serious enough to warrant a disciplinary prosecution.

By rule, at least one member of each assistance panel must be a non-lawyer. In this matter, the non-lawyer asked the respondent something like “I assume you’ve notified your carrier about this.”  The respondent replied that they did not have professional liability insurance. The non-lawyer was surprised, having assumed that Vermont lawyers are required to carry coverage. They are not. The Professional Responsibility Board became aware and, eventually, formed a joint committee with representatives from the Vermont Bar Association.

The committee met throughout 2021. The committee heard from several lawyers and studied other jurisdictions’ approaches. The committee considered four options. One was to maintain the status quo. The others were whether to recommend that the Court:

  1. require lawyers to disclose their insurance status on the licensing statement; or,
  2. require lawyers to disclose their insurance status directly to clients; or,
  3. require lawyers to carry malpractice coverage.

In the end, the committee chose to recommend that the Court require lawyers to disclose their insurance status on the licensing statement. The committee presented the recommendation to the PRB and the Vermont Bar Association Board of Bar Managers. Each Board voted to forward the recommendation to the Court.

Again, comments should be sent to me. The comment period closes on June 20, 2022.

For those interested in more information, read on.

Survey Responses

The committee surveyed the bar. 269 lawyers responded.

  • 80% reported having coverage.
  • Asked whether lawyers with active licenses should be required to disclose whether they carry malpractice insurance, 76% responded “yes,” 24% responded “no.”
  • Asked whether lawyers with active licenses should be required to carry malpractice insurance, 64% responded “yes,” 36% responded “no.”

The survey included questions that called for narrative responses. I apologize that this isn’t the best format, but here are compilations of responses to those questions.

Other Jurisdictions

This chart summarizes each state’s approach to legal malpractice insurance. The various approaches fall into each of the four categories outlined above. I’ll address the categories in reverse.

  • Mandatory Malpractice Coverage

Oregon and Iowa require lawyers to carry malpractice insurance.

  • Mandatory Disclosure to Clients

A handful of states require lawyers to disclose their insurance status to clients, or to notify clients if their coverage is less than (or falls below) a certain amount: Alaska, California, New Hampshire, New Mexico, Ohio, Pennsylvania, and South Dakota.

For example, for lawyers across the river, here’s Rule 1.19 of the New Hampshire Rules of Professional Conduct.

  • Mandatory Disclosure to the Licensing Authority or State Bar

This is the option proposed in Vermont. Several states take this approach: Arizona, Colorado, Delaware, Florida, Hawaii, Illinois, Kansas, Maine, Massachusetts, Minnesota, Nebraska, Nevada, Rhode Island, Virginia, West Virginia, and Washington.

For example, in Massachusetts, the disclosure is made on the licensing statement and the information is publicly available by selecting the “Look Up An Attorney” tab on the Board of Bar Overseers website.

  • No requirements.

The remaining states either have no requirement or a requirement that is not specific to lawyers. For instance, there are some states in which state law requires all limited liability corporations to carry professional liability insurance. In those states, law firms are subject to state law.

  • Other

A few states have their own twists. Illinois does not require coverage but requires disclosure on the licensing statement. Illinois lawyers who are not exempt and who do not have coverage must complete a four-hour self-assessment. In Montana, lawyers are not required to carry insurance but those who don’t are not eligible to participate in the bar association’s lawyer referral service.

Scope of Coverage in Vermont

The committee was not able to determine the number of Vermont lawyers in private practice who do not have insurance. Based on the information provided to the committee, the committee is confident that a high percentage are covered. Indeed, of the 269 who responded to the survey, 80% reported having coverage. The best estimate is that there are approximately 300-350 Vermont lawyers in private practice who do not carry malpractice insurance.

Conclusion

To reiterate, the proposal is to require lawyers to disclose whether they carry professional liability insurance. Government lawyers, in-house counsel, and lawyers not on active status would be exempt.

To comment, email me. The comment period closes on June 20, 2022.

legal ethics

Indiana, Montreal, and Vermont’s legal ethics rules on honesty.

Michael

Earlier this week I used rather extreme misconduct to highlight the duty to safeguard client funds.  I’m back at it, but with today’s example an opportunity to mention rules that I don’t often discuss anywhere but in the Friday quiz.

In February, the Indiana Supreme Court suspended a lawyer for 90 days after concluding that the lawyer violated two of the honesty rules while deposing an unrepresented opposing litigant.

Wait . . .

. . . having re-read the previous sentence, I can sense a collective yawn.  So, let me try this.

Here’s the headline from the ABA Journal article that reported the Indiana opinion:

“Lawyer is suspended for deposition threat to expose intimate photos of woman in court record”

According to the opinion, the lawyer “represented a man against whom a woman had petitioned for a protective order.”  The opinion goes on:

  • “During a deposition of the unrepresented petitioner that was attended by a court reporter and others in Respondent’s firm, Respondent confronted the petitioner with several 8”x10” color copies of intimate photos she had sent the man during their relationship, prior to the events giving rise to the protective order petition, displaying them facing up on the table for all in attendance to see. Respondent asked the petitioner, ‘why do women who seek the aid of the court send these kinds of pictures to men?’ Respondent then asked her if she still intended to pursue a protective order or whether there would be a ‘better way’ to handle things than for her to be ‘drug through’ and ‘exposed in’ the court. When the petitioner responded she just wanted the man to stop harassing her, Respondent ended the deposition and told the petitioner ‘[t]he court reporter will transcribe this to final form, submit it to the court, it then becomes a public record. There’s a way to stop that, but otherwise with the matter still pending we’ll have to submit it to the court and attend a hearing, which will be a very public hearing as well.’ The petitioner then indicated she wanted to dismiss the case, Respondent instructed the court reporter to go off the record, and Respondent instructed the petitioner how to file for dismissal, which she did immediately after leaving the deposition. Respondent later bragged to an associate about having secured a dismissal by threatening to have the photographs become part of the record.”

But for the short suspension, this would’ve qualified for Was that Wrong?

Anyhow, the Indiana Court concluded that the lawyer’s conduct violated several provisions of the Indiana Rules of Professional Conduct, including Rules 4.1(a) and 8.4(c).  Let’s review Vermont’s version of each.

In Vermont, V.R.Pr.C. 4.1 states that “in the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person.”  Aspects of the Comment are instructive.

Comment [1] reminds lawyers that they are “required to be truthful when dealing with others on a client’s behalf.” It goes on to state that a lawyer can violate the rule by incorporating or affirming another person’s statement that the lawyer knows to be false, as well as by making a misrepresentation by omission.

Next, Comment [2] sets out what I refer to as “the puffery exception.”

  • “This rule refers to statements of fact. Whether a particular statement should be regarded as one of fact can depend on the circumstances. Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value placed on the subject of a transaction and a party’s intentions as to an acceptable settlement of a claim are ordinarily in this category, and so is the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud. Lawyers should be mindful of their obligations under applicable law to avoid criminal and tortious misrepresentation.”

As Comment [2] suggests, puffery most often arises in negotiation.  I first blogged about puffery here, a post in which I noted that “I’ve often kidded, but only half-jokingly, that the Comment really means that it’s okay to lie to other lawyers.”

In any event, with respect to Rule 4.1, the takeaway from this post should be the first sentence of Comment [1]: “a lawyer is required to be truthful when dealing with others on a client’s behalf.”

Next, Vermont’s 8.4(c) makes it ”professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”  As stated above, the Indiana court concluded that the lawyer violated this rule as well.

Now, I can sense what some of you might be thinking: “Mike, of course the court concluded that the lawyer violated Rule 8.4(c).  A violation of Rule 4.1 is necessarily a violation of Rule 8.4(c).”

In the words of the inimitable Lee Corso:

corso

Many years ago, two Vermont lawyers were representing a client charged with murder.  Mid-trial, a person claimed to have information that would exculpate the lawyers’ client.  The court granted a short reprieve to interview the witness.  The interview took place by telephone.  The witness asked if the interview was being recorded.  The lawyers knew that, in fact, they were recording the interview.  Nevertheless, one answered “no” and the other remained silent.  Eventually, a disciplinary complaint was filed, and the lawyers were charged with violating Rule 4.1 and Rule 8.4(c).

A hearing panel concluded that the lawyers had violated the former but not the latter. The panel determined that Rule 8.4(c) only applies “to conduct so egregious that it indicates that the lawyer charged lacks the moral character to practice law” and that given the circumstances, the lawyers’ conduct did not rise to that level.

On review, the Supreme Court affirmed.  The Court stated that it was:

  • “not prepared to believe that any dishonesty, such a giving a false reason to break a dinner engagement, would be actionable under the rule. Rather, Rule 8.4(c) prohibits ‘conduct involving dishonesty, fraud, deceit, or misrepresentation’ that reflects on an attorney’s fitness to practice law, whether that conduct occurs in an attorney’s personal or professional life.”

So, there you have it.

On a personal note, and as many of my friends & relatives will not be surprised to learn, I’m quite relieved that giving a false reason for not showing up for dinner or drinks isn’t actionable.

In closing, I’m not sure where this post was ever intended to go.  So, I’ll leave with you this tantalizing morsel.

On April 29, Andrew Manitsky and I will present at the YLD Thaw in Montreal.  We intend to discuss all aspects of the honesty rules, including just how far a lawyer can go without crossing the line.  Not only will we mention “puffery,” but we’ll touch upon its cousin: “paltering.”  Paltering is a condition that my French-Canadian mother is certain that my father’s Irish genes afflicted her sons:  the active use of the truth to deceive.

Join us for a lively seminar!

In the meantime, when it comes to honesty, and as always, let’s be careful out there.

Monday Morning Honors #251

Michael

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

Honor Roll

  • Evan Barquist, Montroll Oettinger Barquist
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, University of Illinois at Chicago Law
  • Andrew Delaney, Martin Delaney & Ricci
  • Robert Grundstein
  • Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
  • Nicole Killoran, Professor, Vermont Law School
  • John T. Leddy, McNeil Leddy & Sheahan
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Hal Miller, First American Title Insurance, Hawaii Agency State Counsel
  • Honorable John Valente, Vermont Superior Judge
  • Jason Warfield, J.D.

 ANSWERS

Question 1

Lawyer called me with an inquiry.  I listened, then responded: “Maybe.  Does it arise from your relationship with a current or former client? Or does it arise from a personal interest of yours?

In my response, what is “it?”

It is a conflict of interest.  My response to the inquiry refers to imputed conflicts.  See, Rule 1.10 – Imputation of Conflicts of Interest – General Rule.

Question 2

 By rule, a lawyer who has direct supervisory authority over a nonlawyer ___________:

  • A.  will be sanctioned if the nonlawyer does something that would violate the rules if done by the lawyer.
  • B.  is not professionally liable for the conduct of the nonlawyer.
  • C.  shall make reasonable efforts to ensure that the person’s conduct is compatible with the lawyer’s professional obligations.  Rule 5.3 – Responsibilites Regarding Nonlawyer Assistants.
  • D.  None of the above.  While there is a rule that applies to a lawyer’s supervision of other lawyers, there is no rule that applies to a lawyer’s supervision of nonlawyers.

Question 3

There’s a rule that prohibits a lawyer from making false or misleading communications about the lawyer or the lawyer’s services.

Does the rule prohibit truthful statements that are misleading?

Yes.  It’s rule Rule 7.1 – Communications Concerning a Lawyer’s Services It states that a “communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.”  Per Comment [2], “truthful statements that are misleading are also prohibited by this rule.”  The comment goes on to describe truthful statements that violate the rule.

Question 4

What do the Rules of Professional Conduct define as “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

Informed Consent. Rule 1.0 – Terminology

Question 5

Season 6 of Better Call Saul debuts on Monday. I can’t wait. It’s one of my favorite shows of all-time and I am so looking forward to the final season.

For those who don’t know, the lead character, “Saul Goodman,” is an attorney who often finds himself on the wrong side of the Rules of Professional Conduct. In addition, in both Better Call Saul and Breaking Bad, Saul often mentions (complains of) his bad knees.

According to the show’s writers, Saul’s needs are so bad because of antics he engaged in well before changing his name to Saul Goodman.  Indeed, those antics resulted in a nickname associated with his real name.

What’s Saul Goodman’s real name?

And, bonus, what’s the antic-driven nickname that explains his bad knees?

James M. McGill.  Slippin’ Jimmy.

8u2S

Five for Friday #251

Michael 1 Comment

Welcome to a glorious Friday morning and the 251st legal ethics quiz!

I botched it this week.  This would’ve been the perfect intro to write about the iconic 251 Club of Vermont.  Alas, it wasn’t until about 8:30 this morning that I realized I should’ve made this post about a member of Vermont’s legal community who’d visited all 251 cities and towns.  In other words, I completely failed to comply with my duty of diligence.  So, for now, if you or someone you know is a verified 251er, let me know and I’ll interview you for a Wellness Wednesday post.

Instead, today, I’ll leave you with this.

A few days ago, I bumped into two of Papa’s daughters, Mary and Helen-Anne.  We attended an event at which my mom won an award. (Yay Mom!)  Helen-Anne is my mom’s youngest sister and an avid fan of this blog.  What can I say? Good taste runs in the family.

Anyhow, when we saw each other, I was wearing this tie:

IMG_6783

Aunt Mary commented on it first.  Then, AHAB (their maiden name is “Bonneau’ so my brother and I call Aunt Helen-Anne “AHAB”) grabbed my tie and asked how many diamonds are on it.  At first, I was baffled and thought it was yet another example of behavior by his children that my brother and I believe must’ve left Papa perpetually shaking his head in exasperation.  AHAB continued with something like “maybe the total is a number that you could TIE to the quiz number! Get it??? Tie to the quiz number??”

I confess. I must give credit where credit is due.

But first, and backing up a bit, when I was 6 and my brother 4, our parents took us to Virginia Beach for vacation.  I don’t remember whether AHAB was a high school senior or in her first year at UVM, but she tagged along.  One day, while tasked with babysitting us in the hotel, AHAB lost my brother. Yes, lost him.  She let him get on an elevator and then literally stood watching as the doors shut and it went wherever it went.  For all I know, the kid we found and brought back to Vermont isn’t really Patrick.

Many years later, AHAB lived just outside Boston during the 3 semesters that I attended Boston College.  I often stopped by to visit, serving as a much more responsible babysitter for my cousins than their mother had been for Patrick.  My thanks?  One night, AHAB tried to poison me with Bailey’s Irish Cream!

Now, returning to the tie: I’ve not counted the diamonds. Maybe there are about 251, or maybe there are 51 or 551.  Who knows? And, indeed, the total might be the perfect “tie” to a future quiz number.  In fact, I’ve used far looser “ties.”

Therefore, AHAB, thank you!  Your clever and witty remark has earned you full and final forgiveness for the aforementioned (and all your other) transgressions!

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

Hint:  The 7 Cs of Legal Ethics.

Lawyer called me with an inquiry.  I listened, then responded: “Maybe.  Does it arise from your relationship with a current or former client? Or does it arise from a personal interest of yours?

In my response, what is “it?”

 Question 2

 By rule, a lawyer who has direct supervisory authority over a nonlawyer ___________:

  • A.  will be sanctioned if the nonlawyer does something that would violate the rules if done by the lawyer.
  • B.  cannot be held professionally liable for the nonlawyer’s misconduct.
  • C.  shall make reasonable efforts to ensure that the person’s conduct is compatible with the lawyer’s professional obligations.
  • D.  None of the above.  While there is a rule that applies to a lawyer’s supervision of other lawyers, there is no rule that applies to a lawyer’s supervision of nonlawyers.

Question 3

There’s a rule that prohibits a lawyer from making false or misleading communications about the lawyer or the lawyer’s services.

Does the rule prohibit truthful statements that are misleading?

Question 4

What do the Rules of Professional Conduct define as “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

Question 5

Season 6 of Better Call Saul debuts on Monday. I can’t wait. It’s one of my favorite shows of all-time and I am so looking forward to the final season.

For those who don’t know, the lead character, “Saul Goodman,” is an attorney who often finds himself on the wrong side of the Rules of Professional Conduct. In addition, in both Better Call Saul and Breaking Bad, Saul often mentions (complains of) his bad knees.

According to the show’s writers, Saul’s needs are so bad because of antics he engaged in well before changing his name to Saul Goodman.  Indeed, those antics resulted in a nickname associated with his real name.  (He didn’t become “Saul Goodman” until the last episode of Season 4).

What’s Saul Goodman’s real name?

And, bonus, what’s the antic-driven nickname that explains his bad knees?

the-quiz

ABA Formal Opinion on soliciting business serves to remind of the importance of training non-lawyer staff.

Michael

Earlier this week, the ABA Standing Committee on Ethics and Professional Responsibility released Formal Opinion 501.  The opinion is titled “Solicitation” and addresses a lawyer’s duties under Model Rule 7.3.  Generally, the rule prohibits certain types of live, person-to-person solicitation of legal services for “pecuniary gain.”  Vermont’s version is Rule 7.3 – Direct Contact with Prospective Clients.

Since I started fielding inquiries in 2012, I’ve received fewer than five related to the direct solicitation of clients. Over the same period, I don’t recall screening a single complaint alleging a violation of V.R.Pr.C. 7.3.  So, this post won’t focus on solicitation.  Still, for anyone interested in the ABA’s view of what does (and does not) constitute impermissible solicitation, the opinion includes four hypos that I’ve added at the end of this post.  The answers are in the opinion itself.

Instead, I post today to highlight a message in the opinion that is sound advice no matter the specific rule that we’re discussing.  The message, in short, make sure that those around you aren’t doing something that would violate the rules if you did it yourself.

On the topic of solicitation, the opinion reminds lawyers that it is not uncommon to receive client referrals from both non-lawyer employees and third parties not employed by the lawyer.  Thus, the opinion reminds lawyers to their obligations under Model Rules 8.4(a) and 5.3.  The former makes it professional misconduct to violate the rules through the act of another, while the latter requires a lawyer to make reasonable efforts to ensure that the conduct of non-lawyer assistants is compatible with the lawyer’s professional misconduct.

Two lines in the opinion jumped out at me.  They’re in the section that addresses a lawyer’s duty to ensure that non-lawyer employees act compatibly with the lawyer’s obligations.  The lines are:

  • “Under Rule 5.3, a lawyer with supervisory responsibility over the nonlawyer employees must discuss the ethical rules with these employees to ensure that they understand the limitations on their conduct imposed by the fact of their employment with the law firm. Just as a supervisory lawyer must explain the ethical duty of confidentiality to employees, the supervisory lawyer must likewise explain the requirements of Rule 7.3 to refrain from improper solicitation on behalf of the lawyer.”

Again, take solicitation out of it.  In my opinion, these two lines provide an excellent reminder of the importance of regular and periodic trainings for staff.  If you will, in-house CLE for non-lawyers.

For example, a few weeks ago I did a CLE for a relatively large local firm.  Non-lawyer staff attended and participated.  I recommend this.  Also, any firm that employs a paralegal who is a member of the Vermont Paralegal Organization is fortunate.  The VPO does an outstanding job putting on trainings for its members. Having spoken at several, and with another just around the corner, I am confident that VPO members are keenly aware of their employers’ ethical obligations.

Trust accounting, conflicts of interest, confidentiality, reviewing a witness’s social media platforms.  Whatever the issue, it affects your non-lawyer staff.  Take steps to ensure that their conduct is compatible with yours.

As always, let’s be careful out there.

legal ethics

Each hypo is taken directly from ABA Formal Opinion 501.  Click on the opinion for the ABA’s opinion on each.

Hypothetical 1

A lawyer obtains a list from the local sheriff of persons arrested within the last week, calls them on the telephone, and offers to provide general legal services. None of the arrestees are lawyers. The lawyer also does not personally or professionally know, nor is lawyer related to, any of the arrestees. Does the conduct violate Rule 7.3?

Hypothetical 2

A lawyer with direct supervision over a law firm’s marketing department hires a professional lead generator to obtain client leads. The lawyer signs an agreement with the lead generator to pay a flat monthly fee for leads in mass tort cases. The agreement includes no information on how the lead generator obtains leads, nor does the lawyer provide any direction or limitation on how the lead generator does so

Hypothetical 3

A paralegal at a law firm works as a paramedic on weekends. As part of the paralegal’s employment agreement with the firm, the paralegal lists the paramedic work as outside employment. To explain away any perceived conflict, the paralegal maintains that “not only does the outside employment not conflict with law firm work, but it also contributes by bringing in new firm business.”

Hypothetical 4

A lawyer asks a personal friend and colleague who is a banker to provide the lawyer’s name and contact information to any banking customer or employee that the banker thinks might need an estate plan. Does the lawyer violate any Rules?

West Virginia disciplinary opinion serves as a reminder of the importance of a lawyer’s duty of candor to a tribunal.

Michael

In 2020, I ran a NCAA tournament-style pool in which participants selected “winners” from 64 topics associated with legal ethics and professional responsibility.  As with the real tournament, I broke mine into four “regions.”  They were:

The final four was:

  • Former Client Conflicts
  • Candor to the Tribunal
  • Who decides? Lawyer or client?
  • Did you say “yutes?”

In the end, “Candor to the Tribunal” defeated “Did you say ‘yutes’” in the championship.

(Aside: yes Kathleen, Rule 3.3 is the Kansas Jayhawks of the Vermont bar.)

Anyhow, the result makes sense.  Arguably, there’s no rule that’s more important. Depending on the circumstances, the rule trumps duties owed to the client, and, in some situations, requires disclosure of confidences even though disclosure will result in “grave consequences to the client.”  See, Rule 3.3 – Candor Toward the Tribunal, Cmt.[11].

Today’s post highlights just how grave the consequences can for a lawyer who violates the duty of candor to a tribunal.

sanctions

First, some background.

Ethics inquiries come from across the spectrum of lawyers and practice areas.  In my experience, lawyers from any given practice area are convinced that theirs is more likely than others to foist its practitioners onto the horns of ethics dilemmas. Indeed, each practice area has its own pressure points. That said, from the inquiries I’ve received over the years, no lawyer will encounter as many daily dilemmas as the criminal defense attorney.  Navigating the tension duties to clients, courts, and non-clients is a task during which rocky shoals constantly lurk just below the surface.

Which brings me to today’s case.

As the Legal Profession Blog reported Saturday, the West Virginia Supreme Court recently ordered the suspension of a public defender’s law license.  The incident that resulted in the suspension presents a relatively common scenario: whether at arraignment or some other point in the criminal process, how much can a defense lawyer rely on statements made by the client or the client’s family?

According to the opinion, the lawyer appeared at a sentencing hearing that followed a client’s guilty plea.  The lawyer asked the sentencing court to impose probation so that the client could receive treatment at a health facility.  When asked whether “a guaranteed bed” was reserved for the client, the lawyer replied “Yes, it is, your Honor.”  So, the court imposed a suspended sentence and ordered probation that included a stay at the health facility.

Very shortly after the hearing,  a probation officer learned that the facility had not guaranteed a bed for the client. The probation officer notified the court.  In turn, the court revoked probation, imposed a “to serve” sentence, and ordered the lawyer to appear at a hearing to show cause why the lawyer should not be held in criminal contempt of court.

At the show cause hearing, the State’s evidence established that the facility had not guaranteed a bed prior to sentencing.  Then, the lawyer testified that, just before sentencing, the client informed the lawyer that the client’s mother had arranged for treatment.  The lawyer called the facility and was told that the client was eligible for admission.

The court was unmoved.  It held the lawyer in criminal contempt, concluding that the lawyer engaged in intentional dishonesty by stating that there was “a guaranteed bed” awaiting the client.  The court imposed various sanctions and referred the matter to disciplinary authorities.

The disciplinary office charged the lawyer with violating three Rules of Professional Conduct.  The rules

  • requiring candor to a tribunal;
  • prohibiting certain type of criminal conduct; and,
  • prohibiting conduct prejudicial to the administration of justice.

The lawyer stipulated to the facts underlying the charges and agreed to a one-year suspension, all stayed but for 90 days.

A hearing panel (the disciplinary version of a trial court) agreed with the violations, but reduced the sanction to one-year suspension, all stayed but 30 days.  Disciplinary authorities appealed.

On appeal, the WV Supreme Court reimposed the 90-day “to serve” portion of the suspension.  A majority agreed with the disciplinary office’s argument that doing so was “proper in light of the severity of [the lawyer’s] offense and is consistent with other lawyer disciplinary cases involving dishonesty.” Two justices dissented, with one arguing that the hearing panel’s decision to suspend the lawyer’s license for 30 days was “sensible” and that there was “no useful purpose in continuing to pillory” the lawyer with a 90-day suspension.

I don’t have a position on the West Virginia matter.  Rather, I post this as reminder that, no matter the practice area, there’s risk in relying on nothing but a client’s word.  Especially when the client’s representation can be confirmed (or not) by a phone call or email.  Indeed, Comment [3] to V.R.Pr.C. 3.3 falls under the hearing “Representations by a Lawyer” and begins with these two sentences:

  • “An advocate is responsible for pleadings and other documents prepared for litigation, but is usually not required to have personal knowledge of matters asserted therein, for litigation documents ordinarily present assertions by the client, or by someone on the client’s behalf, and not assertions by the lawyer. However, an assertion purporting to be on the lawyer’s own knowledge, as in an affidavit by the lawyer or in a statement in open court, may properly be made only when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry.”

Now, many of you might be thinking “the lawyer should’ve responded ‘my client informs me that there’s a guaranteed bed.’”  Maybe.  And maybe that would’ve resulted in the lawyer in avoiding a criminal contempt finding.

But think back to my point about criminal defense attorneys and rocky shoals.  Then, consider this: if the lawyer had floated treatment and responded, “my client informs me there’s a bed,” how turbulent would the sentencing waters have become for the client once the court learned that, in fact, the client had not been guaranteed a bed?

As always, be careful out there.

Here’s how Vermont’s legal professionals can plan for Well-Being Week in Law.

Michael 1 Comment

Well-Being Week in Law begins on May 2.  Driven by the efforts of the folks at the Institute for Well-Being in Law (IWIL), the week is designed to raise awareness by encouraging all in the profession to engage in activities that promote well-being.

There are many ways to get involved.

Each day has a different theme, with each theme a component of wellness.

WBW-Infograohic-11_2020-300x256

Last year, I hosted daily virtual meetups over the lunch hour.  There was no agenda.  Rather, we shared thoughts and tips related to the day’s theme.  My posts and videos on the project are here.  I intend to reprise the discussions this year.

There’s also A LOT more that folks can do. I encourage legal professionals, legal organizations, and individuals within the profession to get involved.  Here are some resources from IWIL’s website:

I’ve not yet finalized the activities I’ll promote in addition to the daily discussions.  I hope to do so next week.  Until then, if you, your firm, or your organization is interested in planning even a single activity, let me know if you need assistance or want me to stop by.  I will if I can. Also, if you’re interested in learning what others intend to do, IWIL is hosting a series of free planning sessions.  For more information on how to register for the planning sessions, go here.

Let’s continue to promote the well-being of Vermont’s legal profession and its members.

 Related Resources

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