Five for Friday #262

Welcome to Friday and the 262nd #fiveforfriday legal ethics quiz!

As a runner, finding something to associate with “262” is easy for me: a marathon is 26.2 miles. If you’re wondering, the name and distance reflect the 40 kilometers that a messenger allegedly ran from Marathon to Athens to share the news of the Greek’s victory.

Yes. Nothing inspires runners more than racing a distance named for someone who collapsed and died after delivering the message.

Anyhow, when introduced at the Athens Olympics in 1896, the event was 40K, which is 24.8 miles.  We can blame the British monarchy for the extra 1.4 miles. At the 1908 London Olympics, the original 40K course was lengthened at both ends to accommodate the royals’ viewing pleasures. 

Several months ago, I used this Friday intro to share the story of my utter incompetence in signing up for the 2022 Boston Marathon.  Yesterday, I received confirmation that I’d managed to register for Boston 2023. Years ago, I’d have turned the news into today’s intro.

However, today, it’s not running that I associate with 262 and marathons.

Disclosure: printed words can only convey so much. Please do not interpret the next paragraph as me being in any sort of funk. I’m not. And I’m about to go for a run in the sun followed by a drive to Lake Morey for the VBA meeting. I’m looking forward to the early foliage and to seeing people who I haven’t seen in a long, long time. Introspection, even shared in a public post, isn’t a cause for worry.

Rather, over the past week, I’ve wondered if we mislead ourselves when we tell ourselves that life is a marathon, not a sprint. The truth is, none of us knows when we’ll reach the finish line. Maybe we are in a sprint.  If so, from a wellness perspective and thinking of the value in making time for who and what matters, perhaps we are best served by using 262 as an occasion to reflect on our priorities.

Onto the quiz!

Rules

  • None.  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

Which “C” rule includes exceptions for a lawyer to make an inquiry of bar counsel, as well as to secure legal advice about the lawyer’s compliance with the Rules of Professional Conduct?

Question 2

There’s a rule that imputes a lawyer’s conflicts of interest to all other lawyers in the same firm. The rule does not apply to a particular group of lawyers. Rather, it specifically states that “disqualification of lawyers associated in a firm with former or current _____________ is governed” by a different rule.  The rule that applies to this group creates a relaxed imputation standard.  One reason for the relaxed standard is to ensure that lawyers are attracted to work in this group. 

What group? Former or current __________:

  • A.  law professors.
  • B.  government attorneys.
  • C.  legislators.
  • D.  All the above.

Question 3

Two days ago, the ABA Standing Committee on Ethics and Professional Responsibility issued an advisory ethics opinion.  The opinion focused on whether a lawyer who self-represents is a “party” or is “representing a client.” After reading the opinion, I wondered if Vermont should amend its rule.  What did the opinion address?

Whether self-represented lawyers:

  • A.  can count the work as “pro bono.”
  • B.  are subject to the rule that prohibits communication with a represented person without the consent of the represented person’s lawyer.
  • C.  have standing to file a disciplinary complaint against themselves for lack of competence or diligence.
  • D.  before proceeding, must get informed consent from themselves due to the inherent conflict in being both lawyer and client.

Question 4

With respect to tech competence, last week the Virginia Supreme Court approved an advisory opinion that concluded that a lawyer who does this creates a risk “that the lawyer’s client will respond in a way that the lawyer would not advise or desire.”

Does what?

Question 5

95 years ago today, George Herman Ruth, Jr. became the first major league baseball player to hit 60 home runs in a single season.  Four years later, he lost a legal case.  A patent court ruled that, contrary to the slugger’s claim, a popular product had, in fact, been named after President Grover Cleveland’s daughter.

As of right now, I’m leaning towards including the product in a blog that I post at the end of October with my updated product rankings for a certain holiday.

Name the product.

ABA opinion concludes that the ” no-contact” rule applies to self-represented lawyers. Should we amend Vermont’s rule?

The issue of whether a self-represented lawyer is subject to Rule 4.2’s “no-contact” provision is not one with which I have much experience. Whether as disciplinary counsel or when I was the screener, I never reviewed a single complaint alleging such a violation.  Nor has the topic ever been broached in the context of an ethics inquiry. My only real work on the topic was in this post about the first decision ever issued after Vermont adopted a formal professional responsibility program.[1]

Yesterday, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 502: Communication with a Represented Person by a Pro Se Lawyer.  The Committee concluded that a self-represented lawyer is bound by Rule 4.2.  That is, when self-representing, a lawyer cannot communicate about the matter with another person who the lawyer knows to be represented in the matter without the consent of the represented person’s lawyer or unless the communication is otherwise authorized by law.

I appreciate the opinion for several reasons.

For one, the opinion is well-researched and provides interesting and informative detail about the history of the debate as to whether Rule 4.2 applies to a self-represented lawyer. For another, I don’t necessarily disagree with the conclusion. As the Committee notes, “[t]he key evils intended to be managed by Model Rule 4.2 are (1) overreaching and deception; (2) interference with the integrity of the client-lawyer relationship; and (3) elicitation of uncounseled disclosures, including inappropriate acquisition of confidential lawyer-client communications.”  Thus, it makes sense to apply the rule to a self-represented lawyer.

Still, the opinion gives me pause. While I support the general conclusion, I’m drawn to the dissenting members’ view.  That pull leaves me wondering if we should amend V.R.Pr.C. 4.2. Alas, before I discuss the dissent, a bit more background is required. 

Comment [4] to both the ABA Model Rule and Vermont’s rule includes the following statement:

  • “Parties to a matter may communicate directly with each other and a lawyer is not prohibited from advising a client concerning a communication that the client is legally justified to make.”

The tension between this statement and the text of the rule drives the debate. Is the self-represented lawyer fish or fowl?  That is, a “lawyer” subject to Rule 4.2? Or a “party” to whom Comment [4] applies?  In Formal Opinion 502, the Committee answered by stating:

  • “It is not possible for a pro se lawyer to ‘take off the lawyer hat’ and navigate around Rule 4.2 by communicating solely as a client.”

Again, I don’t necessarily disagree. However, as I indicated, I remain drawn to the dissent.

Like me, the dissent doesn’t disagree with the Committee’s conclusion, stating:

  • “It is not the result I object to, it is the mode of rule construction that I cannot endorse. Self-representation is simply not ‘representing a client,’ nor will an average or even sophisticated reader of these words equate the two situations.”

The dissent continues:

  • “When an attorney consults the rule, it is highly unlikely that the phrase “in representing a client” will be considered to include self-representation. If the attorney goes further and consults Comment [4], the Comment will assure the attorney that, ‘Parties to a matter may communicate directly with each other.’ Given this apparent clarity, what will tip off the attorney that further research is required?”

Perhaps the same could be said for the represented person’s lawyer.  Which might explain never having received a complaint or inquiry on this topic in 24 years.

Finally, the dissent argues:

  • “By leaving this rule in place, we are also leaving in place a trap. The rule should be amended to achieve the result advocated for in the majority opinion.”

I tend to agree. And amending the rule wouldn’t be difficult.[2]  Here’s the relevant portion of Oregon’s Rule 4.2, with my emphasis added.

  • “In representing a client or the lawyer’s own interests, a lawyer shall not communicate or cause another to communicate on the subject of the representation with a person the lawyer knows to be represented by a lawyer on that subject unless: (a) the lawyer has the prior consent of a lawyer representing such other person; (b) the lawyer is authorized by law or by court order to do so . . .”

In any event, that’s why I post today. To raise the question of whether to amend Rule 4.2. 

To me, it’s an interesting question. Again, I don’t disagree with the conclusion that a no-contact rule should apply to self-represented lawyers.[3] However, many of the rules include phrases like “when representing a client” or “in representing a client.” If, for the purposes of Rule 4.2, a self-represented lawyer is “representing a client,” it’s interesting to consider the ramifications of construing other rules with like phrases to apply similarly.

I’m at risk of going on and on.  So, I’ll stop.  Please feel free to share thoughts, either in the comment section or by email to Michael.Kennedy@vermont.gov

As always, let’s be careful out there.


[1] PCB Decision 1 issued in August 1990, the same month that I began my first year in law school. While ostensibly about the application of no-contact rule to a self-represented attorney, the post was an excuse for me to include a picture taken around the same time. In that legions of Vermont lawyers may not now about my former flow, I’m sharing it again.

[2] Nor would it be the first time the rule was amended in response to a debate over its meaning. For many years, the rule prohibited communication with a “represented party.” Indeed, in 1994, the VBA issued this advisory opinion in which it stated that “[t]he use of the term ‘party’ . . . read in light of the purpose of the rule is reasonably interpreted as extending to any person represented by counsel in matters closely related to the subject matter of the client’s representation.” The next year, and in response to the debate, the ABA changed the Model Rule to “represented person.”  Vermont followed suit when it adopted the Model Rules in 1999.

[3] There are situations that make me wonder if the rule, either as currently written or amended, should include safe harbors that allow a self-represented lawyer to communicate with a represented person in specified situations. The safe harbors are a topic for another day.

Virginia advisory opinion concludes that sending lawyer who includes client in email to opposing counsel consents to “reply-all.”

Last week, the Virginia Supreme Court approved Legal Ethics Opinion 1897.  Regular readers will recognize the title topic: “RULE 4.2 – REPLYING ALL TO AN EMAIL WHEN THE OPPOSING PARTY IS COPIED.” 

I’ve blogged and spoken on this issue often.  I’ll continue to do so as long as lawyers continue to contact me to express concern about receiving emails from opposing counsel that are copied to opposing counsel’s client.

Here’s V.R.Pr.C. 4.2:

  • “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.” (emphasis added).

And here’s the Virginia State Bar’s conclusion:

  • “A lawyer who includes their client in the ‘to’ or ‘cc’ field of an email has given implied consent to a reply-all by opposing counsel.”

I find the opinion notable. For many years, advisory opinions cautioned against copying a client on an email to opposing counsel but stopped short of concluding that, by doing so, the sending lawyer consents to a “reply-all” by the receiving lawyer. Virginia did not stop short and, in fact, was quite clear in its conclusion. 

The Virginia opinion comes on the heels of this opinion that the New Jersey Supreme Court’s Advisory Committee on Professional Ethics issued in March 2021. In it, the ACPE stated:

  • “lawyers who include their clients in the ‘to’ or ‘cc’ line of a group email are deemed to have provided informed consent to a ‘reply all’ response from opposing counsel that will be received by the client.”

A trend seems to be emerging.[1]

The Virginia opinion includes guidance related to a sending lawyer’s duties to provide competent representation and to take reasonable precautions against the inadvertent disclosure of confidential information. 

  • “Including or copying the lawyer’s client risks not only that the opposing lawyer, or another recipient of the email, will respond directly to the lawyer’s client, but also that the lawyer’s client will respond in a way that the lawyer would not advise or desire.”

It goes on to include guidance on tech competence.

  • “Lawyers should note that merely blind copying their own client, while including other recipients in the ‘to’ field, will not fully prevent these issues; a blind copied client may still be able to reply all to everyone who was in the ‘to’ field of the original email.”

Now, for you transactional lawyers who are thinking about rolling your eyes, please check out this post on Brian Faughnan’s Faughnan on Ethics [2]

I’m not aware of a situation in which a client mistakenly replied to all, making disclosures that the lawyer wished the client wouldn’t have made.

Yet.

It’s bound to happen.  And when it does, trends suggest that the cc-ing lawyer might not be able to rely upon “how was I to know?”

As always, let’s be careful out there.

Related posts:

Advisory Opinions


[1] Important note for receiving lawyers: the trend is that opposing counsel has consent that you may “reply-all.”  Nothing yet suggests that the cc is consent to communicate directly with opposing counsel’s client without including opposing counsel in the loop.

[2] Brian’s post included: “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.”

Wellness Wednesday: To Ray Massucco

Update: the Brattleboro Reformer posted this article upon Ray’s passing

*****

A few hours ago, I learned that Attorney Ray Massucco died unexpectedly yesterday.  The news made me double over in shock.

I can’t say that Ray and I were close friends.  Over the years, I don’t think we’ve seen each other anywhere other than at a VBA meeting or the annual meeting of the Windham County Bar Association.

Still, Ray was my friend.  

We often communicated about issues related to legal ethics and professional responsibility. In recent years, I came to admire Ray’s commitment to both wellness and civility. Ray knew (and modeled) that there was nothing inconsistent with providing competent representation to his clients and treating all involved with his clients’ matters with respect.  Ray was also a stalwart supporter of efforts to improve the well-being of the legal profession. 

Ray will be missed.  In his own way, he’s helping me to process the news.  Memories of his inimitable recitation of the minutes of the WCBA’s annual meetings bring me a smile even so soon after learning that he passed.

I don’t know how properly to honor Ray.  So, I’ll leave the words to him.

Last spring, I sent out an email asking lawyers to participate in Well-Being Week in Law.  Ray was among the recipients and forwarded my email to many lawyers that he knew. In addition, he shared with me an email that he had recently sent to a blogger that he followed. The blogger had asked Ray how he defined “success,” and whether, in Ray’s view, his law practice was successful.  Ray informed me that his response to the blogger demonstrated how he practiced wellness.  Here it is:

“When I came to clerk here in 1972, my boss and later partner told me three things:

1. You’ll never be bored if you decide to stay here.

2. You’ll never have two days the same.

3. You’ll never get rich practicing law in a small town in Vermont. [yet, he died a multi-millionaire 33 years ago]

I would have been content with 2 out of 3. But, ‘rich’ is relative. I only put on a tie for in person court appearances. Clients may get an email from me at 11:00pm and another one at 5:00am, because that is when I might be working. On the other hand, on a nice afternoon in the summer, I may be on one of my two motorcycles or in my canoe or my kayak. At any time of the year, I might be in a yoga or tai chi class. 3-4 times a year my wife and I go to NYC for a few days. We summer on the coast of Maine. When we retire we will spend 4-5 months a year in Friday Harbor, San Juan Is. WA where our oldest daughter and her family have a vacation home. I’m the coordinator for volunteer staffing for our beautiful 1927 Art Deco, 553 seat Opera House here in Bellows Falls. I don’t have a lot of material wealth, but I am rich beyond measure. 

Over the last 50 years, I’ve chaired almost every local organization, sat on every non-profit board, held too many elected offices to count and managed not to get shot at.

My schedule is my own, I’m in good health after having a full left shoulder arthroplasty last November, I just finished renovating my 220 year old office building, my paralegal has been with me for 38 years and her daughter works here part time, my 33 year old partner is stunningly brilliant [high school dropout, only has one eye, once went 100 days in Vermont not wearing shoes to see what it felt like, spent time on a fish farm in Israel, worked at a garlic collective in CA, has lived all over the world and passed the bar by “reading the law” for 3.5 years with me and one other firm for 8 months. Won his first Vermont Supreme Court appeal less than a year after passing the bar. My 68 year old office manager once ran a 1000 member weaver’s guild, has a daughter who is a Federal judge and is in training to become a Buddhist monk.

I honestly don’t remember how I came across your email list. It could have been from ClioCon, or The Lawyerist or one of the several other legal blogs I follow. We close the office for a full two weeks over Christmas – New Years. I took my entire office to San Diego for a week in 2019 and we’re all going to Nashville for a week in October. Other area lawyers always blast me for shutting down for extended periods of time and posting about it on Facebook, Instagram, Twitter [although if the Musk deal goes through, I’m done with Twitter] because their staffs read about it and want to know why they can’t do the same. I need to up my game on TikTok, however.

Hope you are well and that this answers your questions and that you enjoy reading.”

Ray signed off “be well Mike.” 

You too my friend, you too.

Here’s to Ray Massucco.

Monday Morning Honors #261

Happy Monday! 

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

Honor Roll

  • Evan Barquist, Montroll Oettinger & Barquist
  • Alberto Bernabe, Professor, UIC School of Law
  • Beth DeBernardi, Administrative Law Judge, Vermont Department of Labor
  • Benjamin Gould, Paul Frank + Collins
  • Robert Grundstein
  • Keith Kasper, McCormick, Fitzpatrick, Kasper and Burchard
  • John T. Leddy, McNeil, Leddy, Sheehan
  • Pam Loginsky, Deputy Prosecuting Attorney, Pierce County, Tacoma, WA
  • Kevin Lumpkin, Sheehey Furlong & Behm
  • Brad Martin, Baystate Financial
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeffrey Messina, Messina Law
  • Hal Miller, Hawaii Agency Underwriting Counsel, First American Title Insurance
  • James Remsen, Master Planner, Parker Hannafin
  • Keith Roberts, Darby Kolter & Roberts
  • Jason Warfield, J.D.
  • The Honorable John Valente, Vermont Superior Judge
  • Thomas Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

Which of the 7 Cs of Legal Ethics refers specifically to funds & property?

COMMINGLING.

Tip:  V.R.Pr.C. 1.15(a) requires a lawyer to keep funds & property of clients and third persons separate from the lawyer’s own.  There is an exception for funds deposited in trust “for the sole purpose of paying service charges or fees on [the] account, but only in an amount necessary for that purpose.”  The most common cause of “commingling” a lawyer’s failure to remove an earned fee from trust.  Remember: as I pointed out in Trust Accounting in a Nutshell, commingling can also result from improper handling of a fee that is paid in advance and that complies with Rule 1.5(f).

Question 2

Lawyer called me with an inquiry.  I listened, then responded “one of the situations that requires it is when continued representation will result in a violation of the Rules of Professional Conduct.”

Given my response, what does “it” refer to?  Whether Lawyer must _______:

  • A.   self-report to Disciplinary Counsel.
  • B.   disclose confidential information over a client’s objection.
  • C.   withdraw from representing a client.  V.R.Pr.C. 1.16(a)(1).
  • D.   put Lawyer’s malpractice insurance carrier on notice of a potential claim.

Question 3

Attorney represents Client.  At the outset of the relationship, Client advanced a fee that Attorney billed against.  When the matter resolved, Client was so pleased that Client lauded Attorney’s virtues in a public comment posted to Attorney’s firm’s social media page.

What do the rules require Attorney to keep for 6 years?

  • A.  Client’s confidences and secrets.
  • B.  Records of funds held on behalf of Client.  V.R.Pr.C. 1.15(a)(1).
  • C.  A “copy’ of the social media page because it’s an “advertisement.”
  • D.  A copy of Client’s file.

Answer (A) is not correct.  Unless disclosure is permitted or required by the rules, a former client’s confidences must be kept forever.

Answer (C) is not correct. The rule requiring lawyers to keep copies of advertisements was repealed long ago. And, when it was in place, it required ads to be kept for 2 years.

Answer (D) is not correct.  There is no requirement for a lawyer to keep a “copy” of a client’s file.  Rather, Rule 1.169d) requires a lawyer to deliver “papers and property” to which the client is entitled upon the termination of the representation. 

Question 4

There are two types of cases in which a contingent fee is prohibited.  Name them.

  • V.R.Pr.C. 1.5(d)(2) prohibits a contingent fee for representing a defendant in a criminal case.
  • V.R.Pr.C. 1.15(d)(1) prohibits a fee “which is contingent upon the securing of a divorce or upon or upon the amount of spousal maintenance or support, or property settlement in lieu thereof.”

NOTE: the rule ALLOWS contingent fees “in domestic relations matters which involve the collection of (i) spousal maintenance after a final judgment is entered, or (ii) child support and maintenance supplement arrearages due after final judgment, provided that the court approves the reasonableness of the fee agreement.  This can be an excellent tool to provide access to legal services.

Question 5

Earlier this week, the Academy of Arts & Television continued its embarrassing tradition of snubbing Better Call Saul.  Yet again, the show did not receive a single Primetime Emmy.  In protest, and because Jimmy McGill/Saul Goodman is my favorite ethically challenged fictional lawyer, I’m devoting Question 5 to the show for the second time in three quizzes. 

Doing so is quite timely.  Tomorrow is ___________ Day.  The word that properly fills in the blank is quite relevant to the legal profession.  It’s also the answer to this question:

In both Better Call Saul and Breaking Bad, what’s on the wallpaper in Saul’s office? 

Here’s a hint that might help people who have never seen the show.

Today is September 16. On this day in 1830, Oliver Wendell Holmes, Sr. (father of Supreme Court Justice Oliver Wendell Holmes, Jr.) wrote a poem. The poem is widely considered to have saved a US Naval vessel from being decommissioned. The vessel, which is now the oldest commissioned ship in the navy, is named after the answer to Question 5.

Saul’s wallpaper shows The Constitution of the United States.   Saturday was Constitution Day.  And Oliver Wendell Holmes’s Old Ironsides is a poem about the USS Constitution.

Five for Friday #261

Welcome to Friday and the 261st legal ethics 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 don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

Which of the 7 Cs of Legal Ethics refers specifically to funds & property?

Question 2

Lawyer called me with an inquiry.  I listened, then responded “one of the situations that requires it is when continued representation will result in a violation of the Rules of Professional Conduct.”

Given my response, what does “it” refer to?  Whether Lawyer must _______:

  • A.   self-report to Disciplinary Counsel.
  • B.   disclose confidential information over a client’s objection.
  • C.   withdraw from representing a client.
  • D.   put Lawyer’s malpractice insurance carrier on notice of a potential claim.

Question 3

Attorney represented Client.  At the outset of the relationship, Client advanced a fee that Attorney deposited into trust and billed against.  When the matter resolved, Client was so pleased that Client lauded Attorney’s virtues in a public comment posted to Attorney’s firm’s social media platforms.

What do the rules require Attorney to keep for 6 years?

  • A.  Client’s confidences and secrets.
  • B.  Records of funds held on behalf of Client.
  • C.  A “copy” of the comment on the social media platforms because it is an “advertisement.”
  • D.  A copy of Client’s file.

Question 4

There are two types of cases in which a contingent fee is prohibited.  Name them.

Question 5

Shout out to my friend Brad Martin!

Earlier this week, the Academy of Television Arts & Sciences continued its embarrassing tradition of snubbing Better Call Saul.  Yet again, the show did not receive a single Primetime Emmy.  In protest, and because Jimmy McGill/Saul Goodman and Kim Wexler are my favorite ethically challenged fictional lawyers, I’m devoting Question 5 to the show for the second time in three quizzes. 

Doing so is quite timely.  Tomorrow is ___________ Day.  The word that properly fills in the blank is very much a part of the legal profession.  It’s also the answer to this question:

In both Better Call Saul and Breaking Bad, what’s on the wallpaper in Saul’s office? 

Here’s a hint that might help people who have never seen the show.

Today is September 16. On this day in 1830, Oliver Wendell Holmes, Sr. (father of Supreme Court Justice Oliver Wendell Holmes, Jr.) wrote a poem. The poem is widely considered to have saved a US Naval vessel from being decommissioned. The vessel, which is now the oldest commissioned ship in the navy, is named after the answer to Question 5.

Supreme Court approves amendments to the Vermont Rules of Professional Conduct

Earlier this week, the Vermont Supreme Court approved several amendments to the Vermont Rules of Professional Conduct.  The Court’s order is here.  Last spring, I recorded this video in which I summarized the proposed amendments.  The new rules go into effect on November 14.  Here’s a recap:

Rule 1.2 – Scope of Representation and Allocation of Authority Between Client & Lawyer

Paragraph (c) has been amended to require a lawyer who assists a person to prepare documents that the lawyer knows the person will file in court to comply with any court rules that might require a seemingly self-represented litigant to disclose having received legal assistance.  For example, Second Circuit Local Rule 32.2.

Comment [5] was added. Among other things, it makes clear that civility to others is not inconsistent with a lawyer’s duty to their client.

Comment [14] was amended to reflect changes to Vermont’s cannabis laws.

Rule 1.6 – Confidentiality

The rule prohibits the disclosure of information relating to the representation of a client.

New paragraph (c)(3) creates an exception to secure guidance from bar counsel.

New paragraph (c)(5) creates a limited exception to detect conflicts of interest when changing jobs.

New paragraph (d) creates an affirmative duty to make reasonable efforts to prevent the inadvertent disclosure of or unauthorized access to client information.

Rule 1.15A – Trust Accounting System

Only lawyers who are admitted to practice law in Vermont and people who work under their direct supervision can sign trust account checks or initiate transfers or disbursements from the trust account.

Trust account checks must be made to a named payee and cannot be made to “cash.”

Rule 4.4 – Respect for Rights of Third Persons

The duty to notify the sender upon receiving information that the lawyer knows or should know was inadvertently sent has been expanded to “information” from “document.”

Rule 5.3 – Responsibilities Regarding Nonlawyers Assistants

Comments were added to clarify the scope of a lawyer’s duties to ensure that nonlawyer assistants act in a way that is compatible with the lawyer’s professional obligations.

Rule 5.5 – Unauthorized Practice of Law

Comment [22] was added to clarify that lawyers who are not admitted to practice law in Vermont do not necessarily engage in the unauthorized practice of law by working remotely from Vermont. 

Rule 8.3 – Reporting Professional Misconduct

Comment [4] was amended to clarify that an inquiry of bar counsel does not satisfy the duty to report to another lawyer’s misconduct.

Rule 8.4 – Misconduct

Paragraph (b) prohibits lawyers from engaging in conduct that involves a “serious crime.”  The amendment broadens the definition of “serious crime.”

Back to Basics: The 7Cs never go out of style.

I meant to do this last week but forgot.  At least that’s my initial argument.  A fair and reasonable examination of the evidence might reveal that “I didn’t feel like blogging” is more accurate than “I forgot.”

Anyhow, it’s back to school season.  Per usual, I’m marking the occasion with a post that, really, is more “back to the basics” than “back to school.” And, when it comes the basics of legal ethics and professional responsibility, some things never go out of style.[1] Those things being the 7 Cs:

  • Competence
  • Communication
  • Confidentiality
  • Conflicts
  • Candor
  • Commingling
  • Civility.

Here’s a 15-minute video in which I share thoughts on each of the 7 Cs of legal ethics & professional responsibility.

Welcome back!


[1] Maybe my goal for the year should be to include a Taylor Swift reference in every blog post. Don’t worry, if I do, I promise I won’t include footnotes highlighting each reference.