Monday Morning Honors #258

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

Honor Roll

• Karen Allen, Karen Allen Law
• Penny Benelli, Dakin & Benelli
• Alberto Bernabe, Professor, UIC School of Law
• Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labo
• Andy Delaney, Martin Delaney & Ricci
• Cary Dube, Bergeron Paradis & Fitzpatrick
• Erin Gilmore, Ryan Smith & Carbine
• Benjamin Gould, Paul Frank + Collins
• Harrison Gregoire, JD Candidate, Syracuse Law; Summer Intern, Gale & McCallister
• Robert Grundstein
• Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
• John T. Leddy, McNeil Sheehan & Leddy
• Kevin Lumpkin, Sheehey Furlong & Behm
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Jeff Messina, Messina Law
• Hal Miller, Hawaii Agency Underwriting Counsel, First American Title
• Team MOB
  • Evan Barquist & Lescha Carpenter, Montroll Oettinger & Barquist
• Nikki Stevens, Firm Administrator, Langrock Sperry & Wool
• Jonathan Teller-Elsberg, Sheehey Furlong & Behm
• The Honorable John Valente, Vermont Superior Judge
• Jason Warfield, J.D.

 Answers

Question 1

According to the Rules of Professional Conduct, which of the 7 Cs of Legal Ethics is implicated when a lawyer provides “financial assistance to a client in connection with pending or contemplated litigation?”

Conflicts.  The quote is from paragraph (e) of Rule 1.8 – Conflict of Interest – Current Clients – Specific Rules

Question 2

Attorney called me with an inquiry. I listened, then responded:

“Be wary of disclosing too much. I think it’s best to cite to the specific provision of the rule that either requires it or allows it. Then, if the court asks for additional detail, provide it. I’ll send you a case from Tennessee in which a lawyer was publicly reprimanded for disclosing too much information in a motion, even though the trial court granted the motion.”

What did Attorney call to discuss?  Filing ______

• A.  a motion to withdraw.  For more, see Stop Making Noise.
• B.  an ex parte motion.
• C.  a motion to disqualify the judge.
• D.  a motion to disqualify opposing counsel.

Question 3

 There’s a rule that governs “pooled interest-bearing trust accounts.”  Nobody I know calls such accounts by their formal name.  Anyhow, what is a pooled interest-bearing trust account?

• A. unethical and prohibited by the rule.
• B. an account that’s better known as an “operating account.”
• C. an account that generates interest that a lawyer must remit to the client.
• D. an account that generates interest that a lawyer must remit to the Vermont Bar Foundation. Rule 1.15B – Pooled Interest-Bearing Trust Accounts

Question 4

 Later today, I’m presenting at the Defender General’s Annual Training.  While I don’t plan to address this rule, there’s a rule that states that a criminal defense lawyer “may nevertheless so defend the proceeding as to require that every element of the case be established.”  Generally, what does the rule prohibit?

• A.  Representing a client at a trial in which the lawyer will be a necessary witness.
• B.  Frivolous claims and contentions.  Rule 3.1 – Meritorious Claims and Contentions
• C.  Conflicts of Interest.
• D.  False statements of material fact to a tribunal.

 Question 5

 William Saxbe was born on June 24, 1916. He was a lawyer who served as Ohio’s Attorney General, a United States Senator, and United States Attorney General.

In 1966, while serving as Ohio Attorney General, Saxbe argued before the United States Supreme Court.  The case involved Sam Sheppard, a doctor who had been convicted of murdering his wife.  The US Supreme Court reversed the conviction, citing, among other things, a “carnival atmosphere” that had permeated the trial and the trial judge’s bias against the defendant.  In a retrial, Dr. Sheppard was acquitted.

In the U.S. Supreme Court and at the retrial, Dr. Sheppard was represented by a well-known lawyer who has since been disbarred.  During the retrial, the lawyer argued that the prosecution’s case was “ten pounds of hogwash in a 5-pound bag.”

The case inspired a novel and a hit movie starring Harrison Ford and Tommy Lee Jones.

Name the movie and the now disbarred lawyer who represented Dr. Sheppard.

The Fugitive & F. Lee Bailey

Five for Friday #258

Welcome to Friday and the 258^th legal ethics quiz.

A few years ago, I used the intro to a June quiz to urge readers to take advantage of summer sooner rather than later. Too often, it seems that I don’t get my summer started until waking up on Bennington Battle Day only to realize that Labor Day is just around the corner. This week, a few thoughts combined to remind me of that post.  As the thoughts have marinated, they’ve caused me to wonder if summer, or at least a northern summer, is but a metaphor for life.  Hopefully, I can explain.

Earlier this week, my mom shared a story of having recently called a childhood friend.  The friend lives in a care home now, her memory not what it once was.  She’s happy, and remembered my mom, but she also thought that it was August.  Watching and listening, I sensed that my mom was torn — glad to have talked with her friend, but sad that the person she spoke with was no longer the same person as the person my mom had been friends with all these years.

Oddly, the next day, I read an essay by a person whose college friend recently passed while in his mid-30s. The author described how the two didn’t see each other much after graduation, but always vowed to “stay in touch.”  They did, if only getting together once a year.  The author expressed joy and gratitude at having stayed in touch, because even though the logistics were difficult at times, the memories made by finding and making time to get together are now the only thing he has to remember his friend.  Unstated, but stated well, was the point that while we frequently tell old friends “Let’s stay in touch,” we don’t.

Which brings me to Dave Laberge.

I met Dave in 2^nd grade.  We’ve been best friends ever since. Dave’s that friend with whom I experienced so many “firsts.”  Communion, bike ride to the quarry, varsity game, night in a bar with (and without) a legal ID.  I’m sure there are many others.  I could go on & on about Dave and our adventures, like I did for too long during my best man speech a few years ago, but I won’t.  Those adventures aren’t the point.

The point is that this week, I realized that I haven’t seen or heard from Dave in a few years.  He lives in the Kingdom, where he and his brother own & operate Will-O-Wood Campground. I used to go up at least once a year, and Dave would always text or call when he was in town to visit family.  I’m not sure how we let that stop.  Thinking about it, I resolved that this summer will include a trek to the campground.

And that gets me back to my idea that, perhaps, summer is a metaphor for life.

Like the summers at Will-O-Wood, life is short.  Soon enough, our longest friends won’t be in our lives anymore — whether a bit too far away to visit, in a home not really knowing who we are, or gone.  Our relationships with those friends will become memories, like summer does once Labor Day passes.

So, maybe in addition to making sure to get out and do “things” this summer, another idea might be to seek out that old friend with whom you assumed you’d always be in touch but aren’t.  Because no matter your season in life, there’s still time to make summer memories.

Oh, and by the way, it’s June 24^th.  Which means happy birthday to my old friend Dave Laberge!

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

According to the Rules of Professional, which of the 7 Cs of Legal Ethics is implicated when a lawyer provides “financial assistance to a client in connection with pending or contemplated litigation?”

Question 2

Attorney called me with an inquiry. I listened, then responded:

“Be wary of disclosing too much. I think it’s best to cite to the specific provision of the rule that either requires it or allows it. Then, if the court asks for additional detail, provide it. I’ll send you a case from Tennessee in which a lawyer was publicly reprimanded for disclosing too much information in a motion, even though the trial court granted the motion.”

What did Attorney call to discuss?  Filing ______

• A.  a motion to withdraw.
• B.  an ex parte motion.
• C.  a motion to disqualify the judge.
• D. motion to disqualify opposing counsel.

Question 3

There’s a rule that governs “pooled interest-bearing trust accounts.”  Nobody I know calls such accounts by their formal name.  Anyhow, what is a pooled interest-bearing trust account?

• A.  unethical and prohibited by the rule.
• B.  an account that’s better known as an “operating account.”
• C.  an account that generates interest that a lawyer must remit to the client.
• D.  an account that generates interest that a lawyer must remit to the Vermont Bar Foundation.

Question 4

 In honor of the presentation I’m giving later today at the Defender General’s Annual Training.

While I don’t plan to address this rule, there’s a rule that states that a criminal defense lawyer “may nevertheless so defend the proceeding as to require that every element of the case be established.”  Generally, what does the rule prohibit?

• A.  Representing a client at a trial in which the lawyer will be a necessary witness.
• B.  Frivolous claims and contentions.
• C.  Conflicts of Interest.
• D.  False statements of material fact to a tribunal.

 Question 5

 William Saxbe was born on June 24, 1916. He was a lawyer who served as Ohio’s Attorney General, a United States Senator, and United States Attorney General.

In 1966, while serving as Ohio Attorney General, Saxbe argued before the United States Supreme Court.  The case involved Sam Sheppard, a doctor who had been convicted of murdering his wife.  The US Supreme Court remanded for a new trial, citing, among other things, a “carnival atmosphere” that had permeated the first trial and the trial judge’s bias against the defendant.

In the U.S. Supreme Court and at the retrial, Dr. Sheppard was represented by a well-known lawyer.  During the retrial, the lawyer argued that the prosecution’s case was “ten pounds of hogwash in a 5-pound bag.”  The jury apparently agreed: Dr. Sheppard was acquitted.  Later, in 2001, the lawyer was disbarred in Florida and, in 2014, denied admission to Maine’s bar.

The case inspired a novel and a hit movie starring Harrison Ford and Tommy Lee Jones.

Name the movie and the now disbarred lawyer who represented Dr. Sheppard.

Copying Clients on Emails to Opposing Counsel

As I’ve made the rounds this CLE season, one topic has proven especially provocative. While I’ve been blogging about it and mentioning it for a few years now, it has never generated as much discussion as it has lately. Here’s how I introduce it:

• “How many of you have received an email from opposing counsel that opposing counsel copied to their client?”

Hands shoot up, heads nod vigorously, and eyes roll in exasperation.

Side note: when I introduce the topic, nearly everyone reports having received an email that opposing counsel has copied to their client. I find that somewhat amusing.  What are the odds that it’s only the recipients – and never the senders – who attend CLEs?

Anyhow, given the recent interest, here’s a post that I originally published in March.

******

March 23, 2022

I’ve long expressed concern about a lawyer copying a client on an email to opposing counsel.  I’m here to do so again.

A few weeks ago, Brian Faughnan posted his reaction to the Washington State Bar Association’s (WSBA) release of Advisory Opinion 202201.  I recommend Brian’s post.

Here’s the scenario presented in the WSBA opinion:

• Lawyer A represents Client.
• Lawyer B represents someone else in the same matter.
• Lawyer A sends an email to Lawyer B.
• Lawyer A copies the email to Client.

As have most to address the issue, the WSBA opinion focuses on the duties of the receiving lawyer.  That is, does the receiving lawyer violate Rule 4.2  by replying to all?  In a nutshell, the WSBA concluded:

• “Short answer: It is the opinion of the Committee on Professional Ethics that “Reply All” may be allowed if consent can be implied by the facts and circumstances, but express consent is the prudent approach.”

In its longer answer, the WSBA set out the factors that the receiving lawyer should consider when assessing whether the sending lawyer impliedly consented to a “reply-all.”  Then, the WSBA advised:

• “To avoid a possible incorrect assumption of implied consent, the prudent practice is for all counsel involved in a matter to establish at the outset a procedure for determining under what circumstances the lawyers involved may “reply all” when a represented party is copied on an electronic communication.”

I don’t necessarily disagree. However, I continue to believe that the sending lawyer’s duties to the client are as important to the analysis. Indeed, as Brian noted in his blog post:

• “What the opinion does not address is the flip side of the situation – does the first lawyer who decides to loop his client directly into a conversation by cc’ing them on an email to opposing counsel run the risk of an ethical violation in doing so. Given the trend in various ethics opinions addressing the obligations of the receiving lawyer, there seems to be a good measure of safety for the sending lawyer, but I continue to believe that there is almost never a good reason outside of very limited circumstances for proceeding in this fashion.”

I agree!  Here are few reasons why sending lawyers should think twice about the client cc.

Last year, the New Jersey Supreme Court’s Advisory Committee on Professional Ethics issued ACPE Opinion 739.  I blogged about it here.  The Committee concluded:

• “Lawyers who initiate a group email and find it convenient to include their client should not then be able to claim an ethics violation if opposing counsel uses a ‘reply all’ response. ‘Reply all’ in a group email should not be an ethics trap for the unwary or a ‘gotcha’ moment for opposing counsel. The Committee finds that lawyers who include their clients in group emails are deemed to have impliedly consented to opposing counsel replying to the entire group, including the lawyer’s client.”

The Committee went on:

• “If the sending lawyer does not want opposing counsel to reply to all, then the sending lawyer has the burden to take the extra step of separately forwarding the communication to the client or blind-copying the client on the communication so a reply does not directly reach the client.”

Now, as far as I know, the New Jersey opinion is the only to conclude that the mere fact of copying a client on an email to opposing counsel is consent for opposing counsel to reply to all. However, other jurisdictions have cautioned that it’s not best practice.

For instance, in Opinion E-442, the Kentucky Bar Association stated:

• “Avoiding use of ‘cc’ also prevents the client to inadvertently communicate with opposing counsel by hitting the ‘reply all.’ ”

In Ethics Opinion 2018-01, the Alaska Bar Association urged caution, advising that there are situations in which lawyers who cc their clients on emails to opposing counsel risk waiving the attorney-client privilege.

Finally, in Formal Opinion 2020-100, the Pennsylvania Bar Association agreed with Kentucky and noted:

• “When a client is copied on email (either by carbon or blind copy), the client or its email system may default to replying to all. In doing so, the client may reveal confidential information intended only for his or her lawyer or waive the attorney-client privilege.”

The opinions include helpful examples of how the privilege might be waived. In addition, each concludes that it’s best practice for the sending lawyer not to cc the client and, instead, to forward to the client the email that was sent to opposing counsel.

Of course, I’m sure many lawyers are yelling “but Mike!!!”  I get it.  Indeed, as Brian blogged:

• “Now transactional lawyers may be screaming at me here for my naivete, but, unless you are truly trying to mimic a situation where lawyers and clients are all sitting around the table and having a discussion, I don’t think including all of those parties on an email thread makes sense. (And, it’s 2022, if that’s what you are trying to do then use some other communications platform at this point whether that be Zoom or WebEx or Teams or something else.) Otherwise, whatever you want your client to see, just forward the email thread to them separately. Doing anything else, absent a clear agreement among the counsel involved about whether communication is permitted is simply an unnecessary risk to take.”

To be clear, I’m not stating that a lawyer violates the Rules of Professional Conduct by cc’ing a client on an email to opposing counsel.  Nor is it my role to do so. That’s a decision left to Disciplinary Counsel, a hearing panel, and, ultimately, the Vermont Supreme Court.  Also, I understand that there will be situations in which the sending lawyer impliedly consents to a reply-all or doesn’t cause any undue risk when copying a client.

Still, my role includes lending guidance. When doing so, I tend to urge lawyers to avoid risk. Hence, I agree with the numerous jurisdictions and commentators who think that it’s best practice not to copy a client on an email to opposing counsel. If only to avoid the risk of the client mistakenly replying to all.

I’ll end with this.  Many will think I’m making it up. I’m not, and I have the time stamps to prove it.

As I was drafting this post, I received an email from a criminal prosecutor.  Here’s what the prosecutor wrote:

• “Hi Mike – I have a question about when a defense attorney cc’s a client on an email to me.  If memory serves, when responding, I should remove the client from the email chain as that could be considered contact with a represented individual.  Is that still the recommended practice?”

In my opinion, yes.  But in New Jersey? Maybe not.

More importantly, the prosecutor’s scenario demonstrates the risk in copying a client on an email to an opposing counsel.  Can you imagine if a criminal defendant mistakenly replies all and discloses information that is subsequently used against them?

As always, be careful out there.

*****

Related posts:

• New Jersey committee concludes that lawyer who copies client on email to opposing counsel impliedly consents to “reply-all.”
• CC, BCC, and a lawyer’s duty of competence
• CC and “reply-all:” BCC is NOT the answer

Advisory Opinions

• Washington State Bar Association, Opinion 202201 (February 2022)
• Pennsylvania (Opinion 2020-100, 1/22/20)
• Alaska (Opinion 2018-1, 1/18/18)
• Kentucky (Ethics Opinion KBA E-442, 11/17/17)
• New York (Opinion 1076, 12/8/15)
• North Carolina (2012 Formal Ethics Opinion 7, adopted 10/25/13)
• New York City Bar Association (Formal Opinion 2009-01 1/2/09)

Virginia Lawyer Reprimanded for Vulgar E-Mail to Witness.

Of the 7 Cs of Legal Ethics, civility can be the most vexing. After all, while there are rules that specifically govern the other six, nothing in the Vermont Rules of Professional Conduct mandates civility.

Still, beginning with 2017’s Don’t Be a Jerk, I argued that civility has been a professional obligation of lawyers since our professional obligations were first reduced to writing.  Over the years, and as I’ve spoken around the state to various groups, I’ve learned that most agree. I’ve also learned – especially since the onset of the pandemic – that many Vermont lawyers perceive a lack of civility to be contributing to the stress and anxiety that, left unaddressed, morph into the burnout that threatens to drive people from the profession.

I’ve been candid that I’m not certain of the Professional Responsibility Program’s role in responding to incivility. For instance, how many lawyers must make confidential inquiries of bar counsel about the same rude & offensive lawyer before I contact the lawyer to discuss the behavior and potential enrollment in the Bar Assistance Program?

Even upon reaching the magic number, is diversion appropriate? Some would argue “no,” that nothing short of a formal complaint should invoke the diversion process.  Others would argue that diversion is inappropriate for the opposite reason – that it’s time to prosecute the chronically offensive and rude, if for no other reason than to put the bar on notice that donkeys will be dealt with.

My sense is that other states are having similar debates.  That said, over the past year, I’ve noticed a slight uptick in the number of jurisdictions that are prosecuting incivility. Rarely do such cases involve isolated instances of inappropriate behavior.  Rather, most are in response to a pattern of extreme, persistent, and pernicious conduct that almost everyone would agree merits a disciplinary response.

That might be changing.

Last week, the Legal Profession Blog and the ABA Journal reported that a district subcommittee of the Virginia State Bar Disciplinary Board publicly reprimanded a lawyer for a rude and offensive email.  According to the decision, the lawyer represented a client charged with a probation violation. The probation officer miscalculated the client’s sentence. Two days before a hearing, the probation officer sent the lawyer an email acknowledging the mistake and apologizing. The lawyer replied, thanking the probation officer, and suggesting that lawyer did not have a problem with the probation officer.

The lawyer’s conduct at the hearing suggested otherwise.  While cross-examining the probation officer, the lawyer became “angry and aggressive.” Then, the day after the hearing, the lawyer sent this email to the probation officer:

• “Don’t f— around with me or one of my clients again. I will always be the best f—ing attorney in the court room. Try and pull that kind of s— again and you will be begging to get off the witness stand.”

The probation officer filed a complaint with the Virginia State Bar. Eventually, the lawyer stipulated to discipline.  The subcommittee accepted the stipulation, concluding that the lawyer’s conduct violated three of Virginia’s disciplinary rules. The rules that:

• “a lawyer shall not file a suit, initiate criminal charges, assert a position, conduct a defense, delay a trial, or take other action on behalf of the client when the lawyer knows or when it is obvious that such action would serve merely to harass or maliciously injure another;”
• “in representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person;” and,
• “it is professional misconduct for a lawyer to commit a criminal or deliberately wrongful act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness to practice law.”

Only the second is on the books in Vermont. It’s Rule 4.4 – Respect for Rights of Third Persons.

In addition to the email itself, here’s what caught my attention.

• Nothing in the reprimand suggests that there was any more to the incident than the cross-examination and the email.
• Nothing in the reprimand suggests that the lawyer had previously been disciplined.

Moreover, the lawyer provided the ABA Journal with the following statement:

• “I respect the decision of the bar, and I ultimately agreed to a public reprimand because I did not wish to put my wife and children through anything further. Around the time the email was sent, I was working long hours at my previous firm, coming home to a sick child, running off of little to no sleep, and my wife had recently went through her third miscarriage, on top of other factors that led to my overreaction. Although that is no excuse for the harsh language that was used towards Ms. Woods, I acted completely out of character, and for that, I apologize. That email is not a reflection of me as an attorney or as a person.”

I wonder if perhaps a line has been drawn. Even a single “out of character” incident by a lawyer without a disciplinary history will result in public discipline.  If so, lawyers who make conduct like this their standard operating procedure should be on alert.

I’ll conclude with a message for those who interpret my posts on civility as me stating that the rules prohibit advocacy and require lawyers to play nicey-nicey 24/7.  I’ve never argued such things.

Rather, and to borrow from the Virginia lawyer’s email, I’ve argued that it’s possible to provide effective, competent, and diligent representation without being “the biggest f—ing donkey in the room.”

As always, let’s be careful out there.

Related Posts

• Judge Peter Hall
• Lawyer’s incivility results in substantially reduced fee award
• Illinois board recommends 3-year suspension for lawyer who sent harassing & abusive emails
• A civility oath for lawyers
• Lawyer admonished for making baseless allegations of incivility against another

 

 

Monday Morning Honors #257

Ignore the timestamp!  It’s morning o’clock somewhere!

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

Honor Roll

• Alberto Bernabe, Professor, UIC School of Law
• Andy Delaney, Martin Delaney & Ricci
• Benjamin Gould, Paul Frank + Collins
• Robert Grundstein
• Tammy Heffernan, Esq.
• Glenn Jarrett, Jarrett & Luitjens
• Deb Kirchwey, Law Office of Deborah Kirchwey
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Hal Miller, Hawaii Agency Underwriting Counsel, First American Title
• Lisa Penpraze, Assistant United States Trustee, Department of Justice
• Nikki Stevens, Firm Administrator, Langrock Sperry & Wool
• Jonathan Teller-Elsberg, Sheehey Furlong & Behm
• The Honorable John Valente, Vermont Superior Judge
• Jason Warfield, J.D.
• Thomas Wilkinson, Jr., Cozen O’Connor

 Answers

Question 1

When I’m presenting on the 7 Cs of Legal Ethics, which C am I discussing when I make this statement?

• “Generally, the duty is more relaxed when negotiating with opposing counsel than it is when making statements of material fact or law to a tribunal.”

CANDOR.  Compare Rule 4.1 – Truthfulness in Statements to Others and  Rule 3.3 – Candor Toward the Tribunal

Question 2

Fill in the blank. I understand that, arguably, each is correct.  However, I’m looking for the exact word used in the rule.

Lawyer called me with an inquiry. I listened, then replied “the rule only prohibits you from representing the client at trial if you are a(n) __________ witness.”

• A.  Fact.
• B.  Expert
• C.  Necessary. Rule 3.7 – Lawyer as Witness
• D.  Adverse. 

Question 3

 Each of these four phrases in the same rule.  However, the rule treats one differently than the other three.  Which phrase does the rule treat differently?

• A.  The representation will result in violation of the rules of professional conduct.
• B. The lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.
• C. The lawyer is discharged.
• D.  The representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client.

 In situations A-C, withdrawal is mandatory. In situation D, withdrawal is permissive.  See, Rule 1.16 – Declining or Terminating Representation

Question 4

At several seminars this month, I’ve resolved to review Vermont’s rule on “lateral transfers.”  In my opinion, the rule unnecessarily inhibits mobility and disproportionately impacts our newer lawyers.  What’s the rule on lateral transfers relate to?

• A.  Trust account management.
• B.  Trust account scams.
• C.  Conflicts that arise when a lawyer moves from one private firm to another.  See, Rule 1.10 – Imputation of Conflicts of Interest – General Rule
• D. Conflicts that arise when someone other than the client pays for a lawyer to represent the client.

Question 5

On June 17, 1994, a lawyer who would eventually go on to become one of the founders of Legal Zoom held a press conference.  The lawyer opened the press conference with a statement intended for the lawyer’s client, saying to the client:

• “Wherever you are, for the sake of your family, for the sake of your children, please surrender immediately.”

Then, the lawyer recounted the events of a day that had begun with the lawyer intending to facilitate the client’s surrender to law enforcement, only to have the client and a friend disappear while the lawyer, the client, and others were waiting for police to arrive.

Finally, the lawyer asked another lawyer, who was also a close friend of the client, to read a letter from the client.  Many perceived it to be a suicide letter. In the end, it was not.  While you might not remember the lawyer who read the letter, you’re most certainly aware of many of the members of the lawyer’s family.  In the 21^st century, you can’t help but not to be aware of them. 

In 2016’s Emmy Award winning series about the client’s case and eventual trial, the lawyer who began the press conference, the lawyer who read the note, and the client were played by John Travolta, David Schwimmer, and Cuba Gooding, Jr.

Name the lawyers and the client.

Robert Shapiro opened the press conference.

Robert Kardashian read the letter.

O.J. Simpson was the client.

A video of the press conference is here.

Breaking News Alert!! In fact there IS a legal ethics quiz this week!

Welcome (very belatedly) to Friday and the 257^th legal ethics quiz!

With CLE season in full-swing, I’ve not blogged much lately and wasn’t going to post a quiz today.  Further, I don’t believe I’ve ever published a quiz that, like today’s, is the week’s only post. Rather, the Friday quizzes have served as a sort of dessert that follows the week’s meal of substantive posts on legal ethics and professional responsibility.

Then, a few minutes ago, I was struck by this thought: “Mike, what would we have written about in this week’s intro had we posted a quiz?”  I replied: “Self, great minds truly think alike! I was just asking us the same thing!”  So, we fired up the Google Machine to research “257” and “June 17.”

Aside: candidly, I was hoping that my high school graduation had fallen on June 17.  If it had, I would’ve posted this picture from my senior year:

Alas, no such luck. Either with the date or with maintaining that flow as I aged!

However, and much more seriously, June 17 is an important day in legal ethics.  50 years ago today, “The Plumbers” broke into the Democratic National Committee’s headquarters at the Watergate complex.  The rest is history.

What’s that got to do with legal ethics?   Excellent question!  Here’s the answer.

In 2014, the ABA Journal published “Watergate’s lasting legacy is to legal ethics reform, says John Dean.”  As the post notes, the role that lawyers played in the scandal resulted in:

• the ABA directing law schools seeking accreditation to require that students take a class in legal ethics before graduating;
• states requiring applicants for admission to the bar to pass the MPRE; and,
• states mandating continuing legal education in ethics and professional responsibility.

The impact went further.

In 2012, the ABA Journal posted The Lawyers of Watergate: How a “3^rd-Rate” Burglary Provoked New Standards for Lawyer Ethics.  The article outlines how Watergate eventually resulted in the ABA’s 1983 vote to replace the Model Code of Professional Responsibility with the Model Rules of Professional Conduct.  The Vermont Rules of Professional Conduct are based on the ABA Model Rules.

The 2012 post also briefly delves into the history of Rule 1.13.  The rule governs the conduct of lawyers who represent or are employed by organizations, including government organizations.  Post-Watergate, the famed Kutak Commission recommended “that lawyers representing an organization be allowed to disclose confidential information concerning officers or employees who are violating the law.”

I could go on and on about Watergate and the resulting impact on legal ethics and professional responsibility.  But who wants that on a Friday afternoon?  Nobody, that’s who.

So, I’ll leave you with two things.

First, to learn more about the legal ethics fallout from Watergate, fire up your own Google Machine.

Second, given Watergate’s direct impact on the narrow area of law that I practice, I’d violate my duties of competence and diligence by NOT posting today.

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

 When I’m presenting on the 7 Cs of Legal Ethics, which C am I discussing when I make this statement?

• “Generally, the duty is more relaxed when negotiating with opposing counsel than it is when making statements of material fact or law to a tribunal.”

 Question 2

Fill in the blank. I understand that, arguably, each is correct.  However, I’m looking for the exact word used in the rule.

Lawyer called me with an inquiry. I listened, then replied “the rule only prohibits you from representing the client at trial if you are a(n) __________ witness.”

• A.  Fact.
• B.  Expert.
• C.  Necessary.
• D.  Adverse

Question 3

Each of these four phrases in the same rule.  However, the rule treats one differently than the other tree.  Which phrase does the rule treat differently?

• A.  The representation will result in violation of the rules of professional conduct.
• B.  The lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.
• C.  The lawyer is discharged.
• D.  The representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client.

Question 4

 At several seminars this month, I’ve resolved to review Vermont’s rule on “lateral transfers.”  In my opinion, the rule unnecessarily inhibits mobility and disproportionately impacts our newer lawyers.  What’s the rule on lateral transfers relate to?

• A.  Trust account management.
• B.  Conflicts that arise from someone a lawyer knew/worked with before becoming a lawyer.
• C.  Conflicts that arise when a lawyer moves from one private firm to another.
• D.  Conflicts that arise when someone other than the client pays for a lawyer to represent the client.

Question 5

On June 17, 1994, a lawyer who would later become one of the founders of Legal Zoom held a press conference.  The lawyer opened the press conference with a statement intended for the lawyer’s client, saying to the client:

• “Wherever you are, for the sake of your family, for the sake of your children, please surrender immediately.”

Then, the lawyer recounted the events of a day that had begun with the lawyer intending to facilitate the client’s surrender to law enforcement, only to have the client and a friend disappear while the lawyer, the client, and others were waiting for police to arrive.

Finally, the lawyer asked another lawyer, who was also a close friend of the client, to read a letter from the client.  Many perceived it to be a suicide letter. In the end, it was not.  While you might not remember the lawyer who read the letter, you’re most certainly aware of many of the members of the lawyer’s family.  In the 21^st century, you can’t help but not to be aware of them.

In 2016’s Emmy Award winning series about the client’s case and eventual trial, the lawyer who began the press conference, the lawyer who read the note, and the client were played by John Travolta, David Schwimmer, and Cuba Gooding, Jr.

Name the lawyers and the client.

It’s healthy for legal employers to value employees as people.

In 2018, the Vermont Commission on the Well-Being of the Legal Profession published its State Action Plan.  As I blogged here and here, I’m a big fan of the recommendations made by the Commission’s Legal Employers Committee.  Among other things, the Committee stated:

• “Legal employers, meaning all entities that employ lawyers, paralegals and legal assistants, can play a pivotal role in promoting and maintaining lawyer well-being.”

I agree 100%.  Which is one of the reasons that I’ve incorporated wellness and referred to the Committee’s recommendations for legal employers at nearly every CLE I’ve presented so far this month.  I will continue to do so, that’s how much of a fan I am of the Committee’s work.

Today, however, I’m here to share a new tip for legal employers: the more you value your employees as people instead of as revenue producers, the better for their well-being.

Says who?

Experts who asked the employees.  That’s who.

In 2020, the California Law Association (CLA) and the District of Columbia Bar Association (DC Bar) agreed to participate in a research project to study issues related to lawyers and their behavioral health.  Last Friday, the CLA announced the project’s most recent findings.  The findings are based on “research [that] examined the relationship between what lawyers think their employers value most about them, and the mental and physical health of those lawyers.”

To me, the key findings are both unsurprising and eye-opening.

As summarized by the CLA, the study

• “found that lawyers who felt most valued for their professional talent/skill or overall human worth had the best mental and physical health. Lawyers who felt most valued for their billable hours, productivity, and responsiveness were a distant second in mental and physical health. Lawyers who did not feel valued by their employers or did not receive enough feedback to know what their employers value about them fared the worst in terms of mental and physical health. In addition, lawyers who felt most valued for their professional talent/skill or overall human worth were much less likely to report they were considering leaving the profession.”

Imagine that! Valuing your employees for their “human” worth is better for their well-being than valuing them as revenue-producers or not showing them that you value them at all!

(The findings appear in a report by the researchers that was originally published in Behavioral Sciences.¹)

The researchers surveyed thousands of members of the CLA and DC Bar. Based on their responses, lawyers were broken into three groups.  Those groups, and each group’s percentage of the total were:

• Feel valued for their talent, skill, humanity:                               62%
• Feel valued for their productivity & financial worth:                28%
• Don’t feel valued or receive no feedback as to value:                10%

And here’s how the researchers ranked each group’s behavioral health and risk of attrition from the profession:

• Feel valued for their talent, skill, humanity:                               Best health, lowest risk
• Feel valued for their productivity & financial worth:                Worse health, higher risk
• Don’t feel valued or receive no feedback as to value:                Worst health, highest risk

For more details, check out this infographic.

According to the CLA, the “key takeaways for legal employers” are:

• “Employers who can make their lawyers feel more valued for their skill or humanity may be able to improve lawyer well-being, reduce healthcare costs, and mitigate unwanted turnover.
• Providing clear and regular feedback may reduce stress and improve mental health.
• By targeting and seeking to improve maladaptive behaviors in their workplace, employers may be able to improve the stress levels and mental health of their lawyers.”

In other words, when employers make people feel valued as people, the people are healthier and less likely to leave. And while I’m no expert, my guess is that healthier employees who aren’t looking to leave make for better business.

Here’s to making people feel like people.

For additional tips on how to create a healthy work environment, check out the ABA Well-Being Toolkit for Lawyers and Legal Employers or, my favorite, the ABA Well-Being Toolkit in a Nutshell.

¹ Last year, and as part 1 of the same project that’s the subject of today’s post, the researchers released Stress, Drink, Leave: an examination of gender-specific risk factors that their findings on the factors that drive lawyers from the practice. As Bloomberg Law noted upon its release, the first report concluded that women were at a higher risk of leaving the profession for behavioral health reasons than men.

Related Videos & Posts

 Wellbeing Week in Law Videos

• Stay Strong
• Spiritual Wellbeing: align
• Intellectual Wellbeing: I made bread!
• Social Wellbeing: connect & contribute
• Emotional Intelligence & The Kentucky Derby
• Recap, Wellbeing Week All-Stars, and my bread confession

 Posts

•  Meet David Rocchio: The Move to Movies
• With 40 wellness tips, the ABA has at least one for everyone
• I.P. Charlie Kryst
• Aiming for Well-Being
• Wellness, Emotional Regulation, and the power of “What’s Important Now?”
• A lesson from my dad, Nandi, and The Foo Fighters: find & experience awe
• Ask the Question
• Wellness Wednesday: Set communication boundaries with clients & opposing counsel
• Yes, wellness includes the results of my first moot court competition
• Wellness Wednesday:  It’s okay to ask for help.  Bar Assistance will listen and support you
• 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
• 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 Honors #256

Happy Monday!

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

Honor Roll

• Karen Allen, Karen Allen Law
• Alberto Bernabe, Professor, UIC School of Law
• Geoffrey Bok, Esq.
• Andy Delaney, Martin Delaney & Ricci
• Michael Donofrio, Stris & Maher
• Rick Fadden, Barry Callebaut, Blogger’s Stoolmate
• Benjamin Gould, Paul Frank + Collins
• Harrison Gregoire, JD Candidate, Syracuse Law; Summer Intern, Gale & McCallister
• Robert Grundstein
• Tammy Heffernan, Esq.
• Anthony Iarrapino, Wilschek & Iarrapino Law Office
• Glenn Jarrett, Jarrett & Luitjens
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Jeanne Kennedy, Mother of the Blogger
• Nicole Killoran, Professor, Vermont Law School
• Deb Kirchwey, Law Office of Deborah Kirchwey
• Elizabeth Kruska, Immediate Past-President, Vermont Bar Association
• John Leddy, McNeil Leddy & Sheahan
• Kevin Lumpkin, Sheehey Furlong & Behm
• Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
• Hal Miller, Hawaii Agency Underwriting Counsel, First American Title
• Herb Ogden
• Jonathan Teller-Elsberg, Sheehey Furlong & Behm
• The Honorable John Valente, Vermont Superior Judge
• Jason Warfield, J.D.
• Lucia White, Mediator & Paralegal, Nanci Smith Law

Answers

Question 1

One of my 7 Cs of Legal Ethics, identify the duty that is defined as requiring “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

Rule 1.1 – Competence

Question 2

Fill in the blanks.  The same word goes in each. The answer is not “legal.”

There’s a rule that requires a lawyer to “render _________ advice.”  A comment to the rule states that “a client is entitled to straightforward advice expressing the lawyer’s honest assessment” and that “a lawyer should not be deterred from giving ______ advice by the prospect that the advice will be unpalatable to the client.”

CANDID – Rule 2.1 – Advisor and my post A Lawyer’s Professional Obligation to Provide Candid Legal Advice.

Question 3

There’s a rule that prohibits a lawyer from knowingly making a false statement of material fact or law to a third person while representing a client.  Does a lawyer violate the rule by knowingly misstating a client’s “bottom line” in settlement negotiations with opposing counsel?

• A.  Yes.
• B.  Yes, but there’s an exception for lawyers who represent criminal defendants in plea negotiations.
• C.  No, because a comment to the rule states that, under conventional negotiation standards, certain statements are not to be taken as statements of material fact. Statements as to a client’s willingness to settle fall in this category. Rule 4.2 – Communication with Person Represented by Counsel, Cmt. [2]
• D.  I sure as hell hope not.

Question 4

Lawyer called me with an inquiry. I listened^*, then replied “the critical question seems to be whether it’s reasonable for you to believe that you will be able to provide competent representation to each affected client.”  At that exact moment, what were Lawyer and I discussing?

• A.  Whether Lawyer has a conflict.
• B.  Whether the conflict is waivable under Vermont’s rules.

Rule 1.7 – Conflict of Interest – Current Clients  applies.  My comment reflects the language in Rule 1.7(b)(1), which is part of the analysis whether a conflict can be waived.  Rule 1.7(a) addresses whether a conflict exists and does not mention a lawyer’s reasonable belief that the lawyer can provide competent representation to each affected client.

^*The First Brother eagerly awaits the quiz in which “Lawyer called me with an inquiry and I didn’t listen.” Sorry Bro. Not this week.

Question 5

 6 years ago today, a person widely regarded as one of the greatest athletes and most influential people of the 20^th century died of complications from Parkinson’s disease.

Arguably the most competent ever to compete in his sport, the athlete missed a chunk of the prime of his career due to a legal battle. After claiming conscientious objector status during the Vietnam War due to his religious beliefs, the athlete was charged and convicted of refusing to submit to induction to the Armed Forces.  The athlete appealed the conviction all the way to the United Supreme Court, a fight in which he eventually won one of his greatest’s victories when the Court overturned the conviction.

Years later, Bob Woodward and Scott Armstrong published The Brethren: Inside the Supreme Court. The book provides a behind-the-scenes look at the Court between 1969 and 1975. It includes a claim that the Court originally voted to uphold the athlete’s conviction, only to have the vote shift once the justice assigned to write the opinion changed his mind after further research into the tenets of the athlete’s religion.

If a lawyer were to use the athlete’s nickname to describe themselves in an ad, they’d probably violate the lawyer advertising rules. That would sting.

Who is the athlete?  Muhammad Ali

Bonus: by what name does the caption of the Supreme Court opinion refer to the athlete.  Cassius Clay.

The opinion is here.  Opinions sure used to be a lot shorter back in the day.

Five for Friday #256

Welcome to Friday and the 256^th legal ethics quiz!

Zenzizenzizenzic.

That is not a typo or misspelling.  It’s an actual word that, thanks to this intro, might someday propel you to trivia glory.

But first, the inaugural Vermont Film & Music Festival begins tonight in Stowe.  If you go, don’t forget to say hi to David Rocchio. As I blogged Wednesday, Rocchio made the move from the law to the movies and is one of the creative minds behind the festival.

Now, let’s get back to zenzizenzizenzic.

As most know, on Fridays, I try to tie the intro to the quiz number.  Often this results in me researching the number.  In so doing, it never ceases to amaze me how many complicated words & definitions are used to describe numbers and things associated therewith.  For all the grief directed at the law for our vocabulary being tough to comprehend, mathematicians seem to have gotten a free pass.

For example, my birthday is on July 18^th, and, after last night’s win, the Celtics are one game closer to their 18^th NBA championship.  18 is a composite number, a semi-perfect number, an inverted square-prime, an abundant number, a solitary number, a Fine number, the number of one-sided pentominoes, and, in base 10, a Harshad number.

I have no idea what any of that means, but it’s a lot of words.  Still, compared to other numbers I’ve researched, 18 has relatively few confusing descriptors associated with it.

Which brings me, finally, to zenzizenzizenzic.

By far the most eye-catching word ever to leap off Wikipedia during my numerical research, zenzizenzizenzic is used to describe any number that is the 8^th power of another number.  That is, x⁸ is always a zenzizenzizenzic number.  You can learn more about the word origin here.

When I read the origin, my initial reaction was that that they’d yet to invent superscript. I believe that’s incorrect.  Rather, when describing x^x, they only had words for x² and x³, “squared” and “cubed.”  They didn’t have words for x to any other power. So, for x⁴, someone decided to use “squared squared.”  This led to using “squared squared squared” to refer to a number to its 8^th power.  At the time, the Latin word for “squared” was “censo.” In English, it was “zenzic.”  Hence, zenzizenzizenzic.

Brief aside: nor does it cease to amaze me what math scholars were able to figure out thousands of years ago.  Sheer brilliance.  But to think that it took so long to invent words for powers beyond x³?  Kind of takes a bit of the shine off their other accomplishments.  Also, it’s now clear to me that we banned mathematicians from helping to draft the Constitution. Otherwise it’d include a “jeopardy jeopardy” clause.

Anyhow, two final points.

First, of all the words in the Oxford English Dictionary, none has more z’s than zenzizenzizenzic.  I expect a toast in my honor should you ever parlay this tidbit to trivia glory.

Second, there is only one 3-digit zenzizenzizenzic number.  I’m sure many of you have probably guessed it by now.   2⁸?

256.

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

 One of my 7 Cs of Legal Ethics, identify the duty that is defined as requiring “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

Question 2

Fill in the blanks.  The same word goes in each. The answer is not “legal.”

There’s a rule that requires a lawyer to “render _________ advice.”  A comment to the rule states that “a client is entitled to straightforward advice expressing the lawyer’s honest assessment” and that “a lawyer should not be deterred from giving ______ advice by the prospect that the advice will be unpalatable to the client.”

Question 3

There’s a rule that prohibits a lawyer from knowingly making a false statement of material fact or law to a third person while representing a client.  Does a lawyer violate the rule by knowingly misstating a client’s “bottom line” in settlement negotiations with opposing counsel?

• A.  Yes.
• B.  Yes, but there’s an exception for lawyers who represent criminal defendants in plea negotiations.
• C.  No.  A comment to the rule states that, under conventional negotiation standards, certain statements are not to be taken as statements of material fact and that statements as to a client’s willingness to settle fall in this category.
• D.  I sure as hell hope not.

Question 4

Lawyer called me with an inquiry. I listened^*, then replied “the critical question seems to be whether it’s reasonable for you to believe that you will be able to provide competent representation to each affected client.”  At that exact moment, what were Lawyer and I discussing?

• A.  Whether Lawyer has a conflict.
• B.  Whether Lawyer’s conflict is waivable under Vermont’s rules.

^*The First Brother eagerly awaits the quiz in which “Lawyer called me with an inquiry and I didn’t listen.”

Sorry Bro. Not this week.

Question 5

 6 years ago today, a person widely regarded as one of the greatest athletes and most influential people of the 20^th century died of complications from Parkinson’s disease.

Arguably the most competent ever to compete in his sport, the athlete missed a chunk of the prime of his career due to a legal battle. After claiming conscientious objector status during the Vietnam War due to his religious beliefs, the athlete was charged and convicted of refusing to submit to induction to the Armed Forces.  The athlete appealed the conviction all the way to the United Supreme Court, a fight in which he eventually won one of his greatest’s victories when the Court overturned the conviction.

Years later, Bob Woodward and Scott Armstrong published The Brethren: Inside the Supreme Court. The book provides a behind-the-scenes look at the Court between 1969 and 1975. It includes a claim that the Court originally voted to uphold the athlete’s conviction, only to have the vote shift once the justice assigned to write the opinion changed his mind after further research into the tenets of the athlete’s religion.

If a lawyer were to use the athlete’s nickname to describe themselves in an ad, they’d probably be found in violation of the lawyer advertising rules. That would sting.

Who is the athlete?

Bonus: by what name does the caption of the Supreme Court opinion refer to the athlete?

The importance of setting reasonable client expectations & providing clients with candid legal advice.

It’s CLE season.  I’ve presented a few this week and am scheduled for a bunch more between now and the reporting deadline. No matter the practice area of the target audience, nearly every presentation will include two points:

1. A lawyer should communicate reasonable expectations to clients at the outset of the representation.
2. A lawyer has a professional obligation to provide clients with candid legal advice, no matter how unpalatable.

With respect to the former, I’ve long sensed that the bar’s perception is that most disciplinary complaints are rooted in a lawyer’s failure to communicate with a client.  That’s true, but not for the reason many seem to think.  That is, in my experience, not many complaints allege “my lawyer doesn’t respond to my calls or emails.” It’s far more common for a complaint to allege that the representation did not turn out as the client expected and it’s the lawyer’s fault that it didn’t. To me, that’s a communication issue.

I know what you’re wondering: “Mike – if things don’t go as the client had hoped how is that a communication issue?”

My response: “Good question. If you failed to disabuse the client of unreasonable expectations, that’s a communication issue.”

Here’s what I mean.

Imagine that Lawyer agrees to represent Client in a claim for damages.  From the outset, Lawyer is aware that Client expects to receive $100,000.  Lawyer knows that, at best, the claim is worth $25,000.  However, Lawyer doesn’t disabuse Client of their unreasonable expectation. Then, a few months after Lawyer somehow manages to resolve the matter for $50,000, Client files a disciplinary complaint alleging that Lawyer botched the case and cost Client $50,000.

The scenario spans practice areas.

For instance, the divorce client who unreasonably believes they’re going to receive all the marital assets.  Or the criminal defendant who unreasonably believes that they’ll never set foot in jail.  No matter how much their lawyer gets them in a settlement, or how little time their lawyer convinces the sentencing judge to impose, the client is not going to be happy.  All because the lawyer failed to disabuse the client of unreasonable expectations.

Now, are these disciplinary violations?  Maybe not.  Nevertheless, it’s not fun to have a complaint filed or to be sued.  Nor is it good for business to have former clients telling everyone how poorly you did. That’s why I stress the importance of setting reasonable expectations at the outset of the representation, including expectations as to:

• the result;
• how long it will take;
• how much it will cost; and,
• how often the lawyer will communicate with the client.

Which brings me to point 2: candid legal advice.

Often, setting and managing client expectations necessarily includes delivering advice that the client won’t be happy to receive.  A lawyer’s job is not to tell the client what the client wants to hear.   Rather, a lawyer’s duty is to provide the client with candid legal advice.

Rule 2.1 of the Vermont Rules of Professional Conduct is entitled “Advisor.”  The first line is:

• “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.”

Comment [1] falls under the heading “Scope of Advice.” It makes my point better than I ever have:

• “A client is entitled to straightforward advice representing the lawyer’s honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront.  In presenting advice, a lawyer endeavors to sustain a client’s morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid legal advice by the prospect that the advice will be unpalatable to the client.”

Also, as a reader commented in response to a similar blog that I posted last year, the failure to provide candid legal advice implicates more than Rule 2.1.  It’s an integral part of the duty of competence. Further, one might argue that sugarcoating advice is misleading.  Finally, if the reason you’re not delivering bad news is because of the potential blowback to the messenger, well, that might be a conflict.

In closing, consider what you’d expect from your auto mechanic, doctor, dentist, financial advisor, or anyone else to whom you turn for advice.  Or from your lawyer if you ever need to hire one!  You’d expect candid advice that corrects any unreasonable expectations that you might have.  The advice might not be what you hoped for or wanted, but it’s the advice that you’re entitled to receive and that you require to make informed decisions about the matter at hand.

Your clients are entitled to the same.

Related posts:

• A lawyer’s professional obligation to provide candid legal advice
• Set reasonable expectations for clients
• Client communication in a social age: it’s still important to manage expectations
• Avoid complaints by managing expectations
• Client Communication and Cool Hand Luke
• Great Expectations