Do we need to amend the Rules of Professional Conduct in response to the legal profession’s embrace of AI? In my opinion, no.

Michael Leave a comment

Last month, the D.C. Bar issued Ethics Opinion 388: Attorneys’ Use of Generative Artificial Intelligence in Client Matters.  It’s an interesting, helpful, and easy-to-follow opinion that is well-worth the few minutes it takes to read.  The opinion highlights the Rules of Professional Conduct most likely implicated by a legal professional’s use of generative AI (GAI):

  • Competence,
  • Confidentiality,
  • Reasonable Fees,
  • Candor to a Tribunal,
  • Fairness to an Opposing Party,
  • A Lawyer’s Obligations as a Supervisor, and
  • The Duty to Maintain & Produce the Client’s File.

I am NOT going to address GAI’s impact on those duties in this post.  Read the opinion.

Rather, I post today because I’m especially of fan of what the DC opinion does not include: any suggestion that GAI’s emergence requires changes to the Rules of Professional Conduct. In avoiding such a suggestion, the opinion follows a path traveled by many prior opinions.

Technology evolves. Always has, likely always will.

Within the legal profession, each stage of technological evolution results in calls to change the Rules of Professional Conduct to adapt to the latest “new thing.” It happened with the introduction of telephones, fax machines, floppy discs, cell phones, email, cloud storage, and the profession’s embrace of electronic transmission & storage of confidential information. It’s happening again with GAI.

Don’t worry about the rules – they’re fine and well-equipped to respond to whatever technology arrives next.

For example, Rule 1.1 requires a lawyer to provide competent representation to clients.  The duty includes understanding the risks & benefits of relevant technology.  GAI is relevant technology.  Thus, the duty of competence includes understanding its risk & benefits. 

Or consider Rule 1.6(a):

  • “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is required by paragraph (b) or permitted by paragraph (c).”

The rule is clear.  Don’t reveal client information unless authorized to do so!

I’ve harped on this larger point for years. Most notably in this post in which I argued that the reasonable precautions that a lawyer must take before storing client information in the cloud aren’t much  different than the reasonable precautions that a lawyer must take before storing paper files in a unit at a store-all facility.

I could go on, making the same argument with respect to other rules. But I tend to get too simplistic. So, I’ll share what others have stated.

  • “Many of the risks posed by AI are more sophisticated versions of problems that already exist and are already addressed by court rules, professional conduct rules and other law and regulations.”[1]
  • Referring to court orders & rules adopted in response to concerns over lawyers’ use of GAI, “few . . . govern behaviors that are not already addressed by existing rules of professional responsibility.”[2]
  • “Advances in technology have greatly improved the ways in which lawyers provide legal services. What technology has not done is alter lawyers’ fundamental ethical obligations, and specifically, the duties lawyers owe to their clients—and to the courts.”[3]
  • “Like any technology, generative AI must be used in a manner that conforms to a lawyer’s professional responsibility obligations, including those set forth in the Rules of Professional Conduct and the State Bar Act.”[4]
  • “In sum, a lawyer may ethically utilize generative AI technologies but only to the extent that the lawyer can reasonably guarantee compliance with the lawyer’s ethical obligations.”[5]

Yes, one of these days I’ll share thoughts on the duties & rules most likely to raise questions about the proper use of GAI. For now, I remain of the opinion that the current rules are more than capable of responding to professional misconduct when using GAI. I’m willing to be convinced otherwise. However, as I’ve argued with social media, when it comes to lawyer misconduct, it’s not the tool that’s the problem.

As always, let’s be careful out there.

[1] Report & Recommendations of the New York State Bar Association’s Task Force on Artificial Intelligence, p. 53.

[2] Responsible AI in Legal Services, Resources: AI Orders

[3] DC Bar, Ethics Opinion 388 (April 2024)

[4] The State Bar of California, Standing Committee on Professional Responsibility and Conduct, Practical Guidance For The Use Of Generative Artificial Intelligence In The Practice Of Law, Executive Summary

[5] Florida Bar Ethics Opinion 24-1 (January 19, 2024)

Monday Morning Honors #299

Michael Leave a comment

Happy Monday! 

While I’d prefer it to remain so the entire day, I savor the bright sunny mornings that we know will soon give way to rain.  No – that wasn’t a metaphor.  Merely an observation based on the fact of the forecast.

Friday’s questions are here.  The answers follow today’s Honor Roll.  Kudos to The First Brother for using Question 5 as motivation to watch the top 3 the ABA’s list of the 25 Greatest Legal Movies of All-Time.

For those of you following the Karen Read trial, buckle up!  The cross-examination of Brian Albert could get interesting.  Will today be when the so-called “third party culprit” defense kicks into overdrive?

Finally, a special welcome to the Honor Roll to two judges: Jack Lu, retired justice of the Massachusetts Superior Court, and, for the first time as sitting judge, the Honorable Susan McManus!

Honor Roll

  • Karen Allen, Karen Allen Law
  • Penny Benelli, Dakin & Benelli
  • Beth DeBernardi, Administrative Law Judge, Vermont Department of Labor
  • Benjamin Gould, Paul Frank + Collins
  • Robert Grundstein
  • Glenn Jarrett, Jarrett/Hoyt
  • Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
  • Douglas Keehn, Assistant Attorney General, Medicaid Fraud & Residential Abuse Unit
  • Patrick Kennedy, The First Brother, AI Network Engineer, Amazon Web Services
  • John T. Leddy, McNeil Leddy & Sheahan
  • Honorable Jack Lu, Retired Associate Justice, MA Superior Court
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Honorable Susan McManus, Vermont Superior Judge
  • Jeffrey Messina, Flynn Messina Law
  • Hal Miller, First American Title Insurance Company (and the shores of SoCal)
  • Patrick Olmstead, Patrick Olmstead Law
  • Jonathan Teller-Elsberg, Staff Attorney, New Hampshire Legal Assistance
  • Jason Warfield, Jason Warfield Family Law & Mediation
  • Peter Young, General Counsel, Vermont Rail System

ANSWERS

Question 1

If continued representation of a client will result in a violation of the Rules of Professional Conduct, a lawyer ___________.

  • A.   must withdraw from the representation.  V.R.Pr.C. 1.16(a)(1).
  • B.   may withdraw from the representation.
  • C.   must abide by the client’s decision as to whether the lawyer should withdraw from the representation.
  • D.  B or C.

Question 2

Which is in a different rule than the others?

  • A.   whether to settle a civil claim.
  • B    whether to accept a plea offer in a criminal case.
  • C.   whether to testify in a criminal case.
  • D.   whether two matters are the same or substantially related.

Options A, B, and C are part of Rule 1.2, the rule that addresses the allocation of decision-making authority between lawyer and client.  Option D is in Rule 1.9(a), the rule that sets out a lawyer’s duties to former clients.

Question 3

Lawyer contacted me with an inquiry. I listened, then responded:

  • “The rule says that you can’t do so unless the client gives informed consent or unless doing so is impliedly necessary to carry out the representation.”

Given my response, Lawyer and I were discussing the rule that prohibits a lawyer from doing what unless one of the exceptions is present?

Disclosing (otherwise confidential) information relating to the representation of the client.  See, V.R.Pr.C. 1.6.

Question 4

When a lawyer decides to leave a law firm to join another, which is most accurate?

  • A.  There is no duty to provide advance notice to the law firm.
  • B.   Two weeks’ notice is the generally accepted minimum.
  • C.   Four weeks’ notice is the generally accepted minimum.
  • D.   The reasonableness of the notice provided will depend on the specific circumstances.  See, this blog post.

Question 5

I’ve used this question before. I’ve also used it during multiple live quizzes and seminars.  Alas, it’s one of my favorite questions, I failed to search for a good Question 5 during the week, and I don’t have the time to search for one now. So, here goes nothing.

In 2019, the ABA updated its list of the 25 Greatest Legal Movies of All-Time. Two of the top 3 are set in the same state.

Name the state and the two movies.

The state? Well, as Walker Hayes sings, “just tryna keep my wife, from figuring out, that I married up, and she married way, way down in Alabama where they love Nick Saban.” The movies are To Kill a Mockingbird and My Cousin Vinny. The entire list is here.

Five for Friday #299

Michael 4 Comments

Welcome to the 299th legal ethics quiz![1]

I apologize in advance for any typos. As I write, at least half of my brain is focused on the Karen Read trial that I have streaming in the background. The case fascinates me!  Right now, there’s a break to address the prosecution’s request that the Court remove Turtleboy, a blogger who received media credentials, from the courtroom.

That’s right.  There’s a break in a REAL-LIFE MURDER TRIAL to discuss whether to remove someone known as “Turtleboy.”

Turtleboy’s lawyer just responded to the prosecution’s argument by stating “the answer I have your honor is ‘so what?’”  I don’t remember learning that argument in law school. However, as a big fan of clarity & conciseness, I love it!

Ok. Back to the business at hand.

As much as I love the “so what?” argument, I loved your responses to the last two quiz intros even more. Two weeks ago, I used the intro to ask readers to share “the ‘things’ that we save or collect.”  . Then, in last week’s intro, I asked for examples of things we’ve collected or accumulated but maybe wish we hadn’t.

Here are some of your responses.[2] An asterisk indicates that multiple readers shared the response.

  • Backstage passes to concerts
  • Bottlecaps
  • Books*
  • Books by self-published authors
  • Cards & letters from our kids
  • Champagne glasses
  • Children’s books about cats
  • Clothes*
  • Coffee mugs*
  • Concert tickets*
  • Fasteners (screws, bolts, nuts) *
  • Flattened (or “squeezed”) pennies
  • Guitar Pins from Hard Rock Cafes
  • Headphones
  • Magazines* (Life*, Sports Illustrated*, Time “Person of the Year” issues)
  • Matchboxes* (usually from restaurants)
  • Matchbox cars
  • Nickels (the U.S. coin)
  • Playing cards (decks that have different images on the back of the cards)*
  • Political campaign pins/posters*
  • Race bibs*
  • Race t-shirts*
  • Refrigerator magnets*
  • Rocks*
  • Sea Glass/Shells*
  • Ticket stubs from sporting events*
  • Wish rocks
  • Yoyos

Great stuff!  I think my favorite response was:

  • “I collect nickels.  Not rare or valuable nickels, just any nickels.  I think they are silly–why so chunky for a low-value coin?  My big jars of nickels amuse me more than they should.” 

The comment “Why so chunky for a low-value coin?” could be straight out of a Seinfeld episode!

Onto the quiz! [3]

PS: Happy Mother’s Day! Especially to my mom!

Rules

  • None.  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honestly.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply.
  • Please do not post answers as a “comment” to this post.
  • E-mail answers to michael.kennedy@vtcourts.gov
  • Team entries welcome, creative team names even more welcome.
  • 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

If continued representation of a client will result in a violation of the Rules of Professional Conduct, a lawyer ___________.

  • A.   must withdraw from the representation.
  • B.   may withdraw from the representation.
  • C.   must abide by the client’s decision as to whether the lawyer should withdraw from the representation.
  • D.  B or C.

Question 2

Which is in a different rule than the others?

  • A.   whether to settle a civil claim.
  • B    whether to accept a plea offer in a criminal case.
  • C.   whether to testify in a criminal case.
  • D.   whether two matters are the same or substantially related.

Question 3

Lawyer contacted me with an inquiry. I listened, then responded:

  • “The rule says that you can’t do so unless the client gives informed consent or unless doing so is impliedly necessary to carry out the representation.”

Given my response, Lawyer and I were discussing the rule that prohibits a lawyer from doing what unless one of the exceptions that I mentioned is present?

Question 4

When a lawyer decides to leave a law firm to join another, which is most accurate?

  • A.  There is no duty to provide advance notice to the law firm.
  • B.   Two weeks’ notice is the generally accepted minimum.
  • C.   Four weeks’ notice is the generally accepted minimum.
  • D.   The reasonableness of the notice provided will depend on the specific circumstances.

Question 5

I’ve used this question before. I’ve also used it during multiple live quizzes and seminars.  Alas, it’s one of my favorite questions, I failed to search for a good Question 5 during the week, and I don’t have the time to search for one now. So, here goes nothing.

In 2019, the ABA updated its list of the 25 Greatest Legal Movies of All-Time. Two of the top 3 are set in the same state.

Name the state and the two movies.

[1] Given that this is my third post today, I can’t in good faith start the blog with my traditional “welcome to Friday!” This morning it struck me that this blog can’t be all quiz no meat. Hence, my earlier posts on the minimum notice required when a lawyer leaves a law firm and the ABA’s recent advice that lawyers who use listservs remain mindful of the duty of confidentiality.

[2] Oh, and by the way, it’s appropriate that I share the responses today, during Well-Being Week in Law (WWIL).  Each day of WWIL focuses on a different component of well-being. Wednesday’s focus was intellectual well-being and the importance of having/developing/nurturing interests outside the law.  Yesterday’s focus was social well-being and the importance of forging connections with others. Sharing your responses will demonstrate your non-law interests and might lead you to explore social connections with others who collect the same thing. 

[3] Uh oh!  The “so what” argument didn’t work.  The judge just “excused” Turtleboy from the courtroom while certain of the prosecution’s witnesses testify. 

ABA cautions lawyers who use listservs to be mindful of the duty of confidentiality.

Michael 1 Comment

I’ll start by trying to stave off the snowball that I expect to gather steam as it barrels downhill in my direction while evolving into an avalanche.

No, this post is not meant to offer a hard & fast rule that lawyers can’t use listservs. 

Rather, it’s meant to share guidance from others – much smarter than I – who recently concluded that when using listservs lawyers must be mindful of the duty of confidentiality that they owe to their clients.

What you do from here is up to you. My suggestion? See the picture.

Two days ago, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility released Formal Opinion 511: Confidentiality Obligations of Lawyers Posting to Listservs.[1] Here’s the first sentence of the concluding paragraph:

  • “Rule 1.6 prohibits a lawyer from posting comments or questions relating to a representation to a listserv, even in hypothetical or abstract form, without the client’s informed consent if there is a reasonable likelihood that the lawyer’s posts will disclose information relating to the representation that would allow a reader then or later to recognize or infer the identity of the lawyer’s client or the situation involved.”

The next sentence clarifies that:

  • “A lawyer may, however, participate in listserv discussions such as those related to legal news, recent decisions, or changes in the law, without a client’s consent if the lawyer’s contributions will not disclose information relating to a client representation.”

Now, let’s back up to go over the rule.

The opinion focuses on ABA Model Rule 1.6(a) which states:

  • “(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).”

Vermont’s Rule 1.6(a) is quite similar:

  • “(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is required by paragraph (b) or permitted by paragraph (c).”

For purposes of this post and the new ABA Formal Opinion, paragraph (b) of the Model Rule and paragraphs (b) and (c) of Vermont’s rule are not relevant. Rather, the focus is on the intersection of:

  • A lawyer’s posts to listservs; and,
  • Rule 1.6(a)’s prohibition on disclosing information relating to the representation of client unless the client gives informed consent to the disclosure or unless the disclosure is impliedly authorized to carry out the representation.

To avoid a post that is far too long, I’ll restrict myself to sharing’s the opinion’s conclusions and advising lawyers to read the entire opinion for a better understanding of the analysis.

Per the opinion:

  1. “Lawyers may disclose information relating to the representation with the client’s informed consent.”[2]
  2. “Lawyers who anticipate using listservs for the benefit of the representation may seek to obtain the client’s informed consent at the outset of the representation, such as by explaining the lawyer’s intention and memorializing the client’s advance consent in the lawyer’s engagement agreement.”[3]
  3. “In this opinion, the question presented is whether lawyers are impliedly authorized to reveal similar information relating to the representation of a client to a wider group of lawyers by posting an inquiry or comment on a listserv. They are not.”[4]

I understand that the opinion is likely to concern lawyers who use listservs.  Indeed, a lawyer who used to do my job (for a long time) in another state expressed concern on social media that the opinion might have a “chilling effect” on lawyers who use listservs.

However, the opinion does not conclude that the use of listservs is unethical.  Indeed, the opinion specifically recognizes that “it bears emphasizing that lawyer listservs serve a useful function in educating lawyers without regard to any particular representation.”[5] Nevertheless, “before any post, a lawyer must ensure that the lawyer’s post will not jeopardize compliance with the lawyer’s obligations under Rule 1.6.”[6]

As always, let’s be careful out there.

[1] An ABA Journal feature announcing the opinion’s release is here.

[2] ABA Formal Opinion 511, p. 2.

[3] ABA Formal Opinion 511, fn. 9.  Which goes on to state that “the lawyer’s initial explanation must be sufficiently detailed to inform the client of the material risks involved. It may not always be possible to provide sufficient detail until considering an actual post.” Footnote 15 provides even more detail: “When seeking a client’s informed consent to post an inquiry on a listserv, the lawyer must ordinarily explain to the client the risk that the client’s identity as well as relevant details about the matter may be disclosed to others who have no obligation to hold the information in confidence and who may represent other persons with adverse interests. This may also include a discussion of risks that the information may be widely disseminated, such as through social media. A lawyer should also be mindful of any possible risks to the attorney-client privilege if the posting references otherwise privileged communications with the client. Whether informed consent requires further disclosures will depend on specific facts.”

[4] ABA Formal Opinion 511, p. 4. See also, fn. 10: “Comment 5 to Rule 1.6 explains that a lawyer is impliedly authorized to make disclosures ‘when appropriate in carrying out the representation.’ In many situations, by authorizing the lawyer to carry out the representation, or to carry out some aspect of the representation, the client impliedly authorizes the lawyer to disclose information relating to the representation, to the extent helpful to the client, for the purpose of achieving the client’s objectives.”

[5] ABA Formal Opinion 511, p. 6.

[6] ABA Formal Opinion 511, p. 6.

Related Posts

Thoughts on the minimum amount of notice a departing lawyer must provide to a law firm.

Michael 2 Comments

Last month, a lawyer contacted me with an inquiry.

  • “Mike, I’m switching firms. How much notice do I have to give to my firm?” 

I’ve blogged many times on the legal ethics issues that arise when a lawyer leaves a law firm.  The posts have focused on the requirement that the departing lawyer and the firm notify clients that their options are to follow the departing lawyer, stay with the firm, or choose new counsel altogether.[1]  The posts have also addressed questions such as who provides the notice, to whom, and what must the notice include.

For reasons that elude me, I’ve never blogged about the question that the lawyer asked last month. So, this afternoon, I’m using my response to the lawyer to address the issue, as well as to share a reminder about the inquiry process.

The question “how much notice must I give my firm?” isn’t uncommon. For the past several years, I’ve directed lawyers to ABA Formal Opinion 489. [2]  In short, on the minimum notice issue, the opinion concluded that such requirements “cannot be fixed or pre-determined in every instance.”

Be careful how much you read into that phrase.

Indeed, the ABA opinion’s synopsis states:

  • “Firms may require some period of advance notice of an intended departure. The period of time should be the minimum necessary, under the circumstances, for clients to make decisions about who will represent them, assemble files, adjust staffing at the firm if the firm is to continue as counsel on matters previously handled by the departing attorney, and secure firm property in the departing lawyer’s possession. Firm notification requirements, however, cannot be so rigid that they restrict or interfere with a client’s choice of counsel or the client’s choice of when to transition a matter.”

In other words, while I know that most of you would prefer a hard & fast answer, I can’t give you one.  As far as notice goes, what’s reasonable will depend on the circumstances.

Indeed, earlier this year, the Professional Ethics Committee of the State Bar of Texas issued Opinion 699.  The opinion presents four questions, including:

  • “Through an employment agreement between a law firm and its lawyers, may the law firm impose a minimum departure notice period for lawyers who wish to depart the law firm?”

More specifically, the Texas opinion analyzes whether a law firm may enforce an employment agreement against a “lawyer [who] has given 30 days’ notice of departure and [who] disagrees with the employment agreement’s 90-day minimum departure notice provision.”

Knowing my readers, I’ll cut to the chase.  The opinion concludes that:

  • “Although a law firm may require a reasonable minimum departure notice, such requirements must not be set in stone.”

It went on:

  • “The specific circumstances will dictate whether a minimum departure notice period is reasonable, but a period of two to four weeks is ordinarily defensible.”[3]

Now, let’s return to last month’s inquiry.

When I shared the Texas opinion with the lawyer, the lawyer said something like “Great, thanks. So, I can tell my firm that you said that 2 weeks is enough.”

Umm, no.  You cannot tell your firm that I said that!

First, as I blogged here last week, I don’t give “yes” or “no” answers. Nor do I pre-approve or prohibit conduct.

In other words, by directing the lawyer to the Texas opinion, I was not suggesting that 2 to 4 weeks’ notice will necessarily be deemed reasonable. That is, I don’t know whether Disciplinary Counsel, a PRB hearing panel, or the Vermont Supreme Court – the ultimate arbiter – would conclude that a “period of two to four weeks is generally defensible.”[4]

Indeed, from a risk management perspective, it strikes me as more sensible to focus on two other aspects of the Texas opinion: (1) its statement that “specific circumstances will dictate whether a minimum departure notice period is reasonable;” and, (2) its use of the word “excessive” to describe notice requirements that are not reasonable.

Again, I understand that lawyers aren’t thrilled when I respond to inquiries with shades of gray. However, on this specific question, what’s reasonable will depend on the circumstances.  Moreover, it strikes me that the impact on affected clients is necessarily relevant to the analysis.  And, what’s reasonable given the status of one client’s matter might not be reasonable given the status of another client’s matter.

Similarly, I understand that law firms want to avoid abrupt departures and I agree that firms “have a legitimate basis for requiring reasonable notice of a lawyer’s planned departure [in order] to ensure that client matters transition smoothly and the clients’ interests are protected.”[5]  

Still, lawyers are allowed to change jobs and “[a]n agreement restricting the right of lawyers to practice after leaving a firm not only limits their professional autonomy but also limits the freedom of clients to choose a lawyer.”[6] In other words, when it comes to minimum notice requirements, what might be reasonable for a firm to expect from one departing lawyer, might be excessive – or unreasonable – if imposed upon a different departing lawyer.

As always, let’s be careful out there.

[1] This post discusses “notice” and links to two others that do the same.

[2] American Bar Association, Standing Committee on Ethics & Professional Responsibility, Formal Opinion 489, Obligations Related to Notice When Lawyers Change Firms (December 2019).  I was surprised (but pleased) to learn that the opinion remains publicly available for free.  Many of the ABA’s formal opinions eventually are removed from the public domain.  However, there remains a live link to FO 489 in this article in which the ABA Journal announced the opinion’s release.

[3] In reaching its conclusion, the Texas opinion cites two sources. The first is Rule 5.06 of the Texas Rules of Professional Conduct.  The rule is identical to V.R.Pr.C. 5.6.  Both prohibit employment agreements that restrict a lawyer’s right to practice following the termination of the employment agreement.  Per the Texas opinion:

  • “Enforcement of a minimum departure notice requirement beyond a reasonable period serves only to prevent the departing lawyer from competing and unduly interferes with the rights of clients to join that lawyer at a new practice if they decide to do so.”

[4] I’ve not done exhaustive research on this topic. Still, as far as I recall, the Texas opinion is the first advisory opinion I’ve read that concludes that a specific length of notice as “ordinarily defensible.”  As opposed to court decisions issued after parties have litigated the reasonableness of the notice that a departing lawyer provided.

[5] Texas Opinion 699, p. 2.

[6] V.R.Pr.C. 5.6, Cmt. [1].

RELATED RESOURCES

                Advisory Ethics Opinions

Blog Posts by Kennedy

Other

States that have Adopted Rules

Monday Morning Honors #298

Michael Leave a comment

Happy Monday!

Friday’s questions are here.  Many thanks to all who sent stories of things we no longer collect!  I’ll share a list later this week. The answers follow today’s Honor Roll.

Honor Roll

  • Karen Allen, Karen Allen Law
  • Matt Anderson, Pratt Vreeland Kennelly Martin & White
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Law Professor, UIC Law
  • Kristen Connors, Montroll Oettinger & Blanquist
  • Andrew Delaney, Martin Delaney & Ricci Law Group
  • Robert Grundstein
  • Glenn Jarrett, Jarrett/Hoyt
  • The Honorable Pam Marsh, Probate Judge, Addison County
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeffrey Messina, Flynn Messina Law
  • Keith Roberts, Darby Kolter & Roberts
  • Jim Runcie, Olivette & Runcie
  • Joe Strain, Marsicovetere & Levine Law Group
  • Jonathan Teller-Elsberg, Staff Attorney, New Hampshire Legal Assistance
  • Jason Warfield, Jason Warfield Family Law & Mediation
  • Peter Young, General Counsel, Vermont Rail System
  • Brendan Walsh, Quantum Leap Capital
  • Thomas Wilkinson, Jr., Cozen O’Connor

ANSWERS

Question 1

A comment to a rule states that “information acquired in a prior representation may have been rendered obsolete by the passage of time, a circumstance that may be relevant in determining whether two matters are substantially related.”

Which two of the 7 Cs of Legal Ethics does the rule address?

Conflicts & Confidentiality, See, V.R.Pr.C. 1.7, Cmt. [3]

Question 2

The word “client” is not one of my 7 Cs of Legal Ethics.  I suppose it should be!

Anyhow, there are several rules whose titles reference specific types of clients.  Which is NOT a type of client specifically mentioned in the title to a rule?

  • A.           Current.
  • B.           Deceased.
  • C.           Former.
  • D.           Prospective.

The others are mentioned in, respectively, Rules 1.7, 1.9, and 1.18.

Question 3

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

“There are 3 exceptions.  One is if the testimony relates to an uncontested issue. Another is if the testimony relates to the nature and value of legal services rendered in the case.  The last is if disqualification will result in substantial hardship to the client.”

Given my response, Attorney contacted me because Attorney __________:

  • A.  reasonably believed that they had become a necessary witness.  See, V.R.Pr.C. 3.7
  • B.  mid-trial, learned that a former client would be the next witness to testify for the opposing party.
  • C.  had been subpoenaed to give evidence against a former client.
  • D.  All the above.  The rule mentions each scenario.

Question 4

Vermont has a rule that is not in the ABA Model Rules of Professional Conduct. Following the ABA’s lead, most jurisdictions have either decided not to adopt the rule or repealed it.  Jurisdictions that do not have the rule typically prosecute the conduct that the Vermont rule prohibits – basically, extortion – under a rule that prohibits a lawyer from engaging in conduct that is related to a crime.

Here is a comment to the Vermont rule.  Fill in the blanks. A different word goes in each.

It’s Rule 4.5 – Threatening Criminal Prosecution.  The question refers to Comment [1].

“The civil adjudicative process is primarily designed for the settlement of disputes between parties, while the criminal process is designed for the protection of society as a whole.”

Question 5

Like most jurisdictions, Vermont has a rule that prohibits a lawyer from having a sexual relationship with a client.  There is an exception for sexual relationships that pre-date the attorney-client relationship.

Last summer, in the second season of a popular show, a lawyer named Mickey danced around the rule.  After having a brief sexual relationship with Lisa – a chef & restaurant owner – Mickey represented Lisa when she was charged with murder.  After a jury found Lisa “not guilty,” Lisa “fired” Mickey so that they could resume their personal relationship.

From the Netflix show and the series of books on which it is based, we know that Mickey has no problem taking on tough cases but has one hard & fast rule related to client selection: he will never represent someone who has hurt a child.

Name the Netflix show in which Mickey is an attorney who has an unconventional “office.”

The Lincoln Lawyer

Five for Friday #298

Michael 2 Comments

Happy Friday!  And welcome to the 298th legal ethics quiz![1]

Last week’s intro generated a fantastic response. I loved learning about your collections, including those that, for various reasons, were disposed of by someone else without notice to you. Indeed, next week, as part of Well-Being Week in Law, I intend to share a list of the things that readers collect and used to collect.

With your responses fresh in mind, I was struck by a thought as I cleaned my house & garage last weekend.  Specifically, that in addition to our cherished collections, our lives also include “collections” of things that we never wanted or meant to keep.  The thought popped into my head as, yet again, I found myself sweeping and vacuuming pine needles.

When it comes to Christmas trees, I’m decidedly old school. I will never ever get together with an artificial tree. I prefer the real thing and find them spectacular.

I’m also decidedly rigid on my Christmas tree rules.

  • My trees remain in my garage for a minimum of two days after being purchased, thereby assuring they’ve fallen out before I start to decorate. 
  • They go into my house at least two weeks before Christmas, thereby giving me sufficient time to get into the spirit of the season.  
  • The “Drummer Boy” ornament that my mom gave me when I was a young child goes on first and gets the most prominent spot. 
  • No stars or angels for me: the tree is capped by a Boston Celtics stocking. 
  • Finally, to assure I remain in the spirit of the season as long as possible without creating a fire hazard, my tree remains up at least until the College Football National Championship Game, which is usually the 2nd Monday in January.

Back to pine needles.

I fully understand that dragging a real tree in and out of my house will leave needles behind. I’m also aware that needles will fall off throughout the month (or so) that the tree is up. 

What drives me bonkers, however, is how long after Christmas I continue to find needles when I clean!

Am I the world’s best housekeeper? Not even close.  But, trust me, I can sweep, I can vacuum, and it’s not like I go weeks without doing either. Still, as I did every other time I cleaned so far this year, I found pine needles last weekend. They’re something I manage to collect, without having any desire to do so.

Which, with last week’s intro in mind, made me wonder, what else do I have that I never meant to accumulate?

Fortunately, not much. As I’ve aged and moved, I’ve gotten better at ridding myself of the useless and extra.[2] That said, when I took a break from cleaning to make another pot of coffee, I realized that I have an absurd number of coffee mugs.  Nineteen to be exact. 

19!! Coffee mugs!! I live alone and never invite people over for coffee![3]

So why do I have 19 mugs?  To me, it’s a mystery. To Papa, it’d be ridiculous.

Anyhow, if this moves you to share whatever it is that you wish you didn’t have so many of, feel free. I’d love to learn! 

In the meantime, onto the quiz![4]

Rules

  • None.  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honestly.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply.
  • Please do not post answers as a “comment” to this post.
  • E-mail answers to michael.kennedy@vtcourts.gov
  • Team entries welcome, creative team names even more welcome.
  • 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

A comment to a rule states that “information acquired in a prior representation may have been rendered obsolete by the passage of time, a circumstance that may be relevant in determining whether two matters are substantially related.”

Which two of the 7 Cs of Legal Ethics does the rule address?

Question 2

The word “client” is not one of my 7 Cs of Legal Ethics.  I suppose it should be!

Anyhow, there are several rules whose titles reference specific types of clients.  Which is NOT a type of client specifically mentioned in the title to a rule?

  • A.            Current.
  • B.            Deceased.
  • C.            Former.
  • D.            Prospective.

Question 3

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

“There are 3 exceptions.  One is if the testimony relates to an uncontested issue. Another is if the testimony relates to the nature and value of legal services rendered in the case.  The last is if disqualification will result in substantial hardship to the client.”

Given my response, Attorney contacted me because Attorney __________:

  • A.  reasonably believed that they had become a necessary witness.
  • B.  mid-trial, learned that a former client would be the next witness to testify for the opposing party.
  • C.  had been subpoenaed to give evidence against a former client.
  • D.  All the above.  The rule mentions each scenario.

Question 4

Vermont has a rule that is not in the ABA Model Rules of Professional Conduct. Following the ABA’s lead, most jurisdictions have either decided not to adopt the rule or repealed it.  Jurisdictions that do not have the rule typically prosecute the conduct that the Vermont rule prohibits – basically, extortion – under a rule that prohibits a lawyer from engaging in conduct that is related to a crime.

Here is a comment to the Vermont rule.  Fill in the blanks. A different word goes in each.

“The ______ adjudicative process is primarily designed for the settlement of disputes between parties, while the                   process is designed for the protection of society as a whole.”

Question 5

Contains a spoiler!!

Like most jurisdictions, Vermont has a rule that prohibits a lawyer from having a sexual relationship with a client.  There is an exception for sexual relationships that pre-date the attorney-client relationship.

Last summer, in the second season of a popular show, a lawyer named Mickey danced around the rule.  After having a brief sexual relationship with Lisa – a chef & restaurant owner – Mickey represented Lisa when she was charged with murder.  After a jury announced a “not guilty” verdict, Lisa “fired” Mickey so that they could resume their personal relationship.

From the Netflix show and the series of books on which it is based, we know that Mickey has no problem taking on tough cases but has one hard & fast rule related to client selection: he will never represent someone who has hurt a child.

Name the Netflix show in which Mickey is an attorney who has an unconventional “office.”

[1] For those of you signed up for automatic notifications, I apologize for this morning’s exceedingly rare non-quiz Friday post.

[2] Of course, I still have the following souvenirs from my childhood: my baseball gloves, hockey stick, aluminum baseball bat, tennis racket, and Wiffle Ball bat.  Why do I have them? Who knows.  Every time I endeavor to get rid of them, I tell myself “Self, you never know when you might want to use this.” And I always agree with myself.

[3] I’m embarrassed to add that it’s not at all uncommon for my dishwasher or kitchen sink to have 5 or 6 dirty mugs. Apparently, I’m incapable of using the same mug as I did for the previous cup.

[4] PS: While I like Fierceness to win and think that Honor Marie and Just a Touch will run well, I’m not making Kentucky Derby picks this year. Last year, my 3 picks didn’t fare too well. Two scratched, and the third finished 7th.  Meanwhile, former VBA President Elizabeth Kruska’s picks finished 1st, 3rd, and 4th. Now that’s competence! Anyhow, this ABA Journal story about the Debry interested me. By analogy, it’s akin to the client of a lawyer whose license has been suspended asking for a court order allowing the lawyer to appear.

Ethics inquiries. What are they? Who makes them?

Michael 3 Comments

Last night, I realized that I often mention “inquiries.” It struck me that people might not know what an “inquiry” is.  So, I thought I’d explain.

The rules that govern the Professional Responsibility Program include this language:

  • “A. Legal Ethics Inquiries. In response to an inquiry related to the Rules of Professional Conduct, law practice management, or a lawyer or judge’s professionalism or professional responsibilities, Bar Counsel will provide the inquirer with: (1) the appropriate referral, educational materials, or guidance; or (2) the preventive advice and information necessary to assist lawyers and judges to achieve, maintain, and enhance professional competence and professional responsibility.”

When I use the phrase “ethics inquiry,” I am referring to a lawyer who contacts me for guidance on an issue that involves the Rules of Professional Conduct.  For example, an attorney who asks “Mike, do you think I have a conflict?”

My policies on inquiries are here.  By rule, inquiries are confidential. Absent the inquirer’s consent, I do not share information related to an inquiry with anyone. Further, I am exempt from the mandatory reporting rule.  That said, I am not the inquirer’s lawyer, and I provide guidance, not legal advice.

In my opinion, the two most important aspects of the inquiry process are two that, at times, frustrate lawyers.

First, I do not respond “yes, you can do that” or “no, you can’t do that.”  Yes, I will share my thoughts on the pros & cons of a particular choice.  And, yes, I will point the inquirer to a relevant advisory ethics opinion or decision from the Vermont Supreme Court. In the end, however, lawyers must make their own decisions.[1]

Second, every month, I receive one or two inquiries in which a lawyer asks me if opposing counsel (or another lawyer) has violated the Rules of Professional Conduct. I do not offer an opinion. It’s not fair to the other lawyer and it is not my job.

A few other tidbits.

I keep records but not substantive notes.  My records show the inquirer’s name, date of the inquiry, date the inquiry was resolved, general inquiry topic, and, for inquiries from lawyers, the type of office in which the lawyer works. Tracking inquiry topics and the type of lawyers who contact me helps me to craft relevant CLE presentations.

From 2019 thru 2023, I received, on average, just over 1200 inquiries per fiscal year.  To provide a sense of who contacts me and what we discuss, here are some stats from calendar year 2024.

From January 1 thru April 30, I received 362 inquiries.[2] 

Who contacts you?

327 of the 362 were from lawyers. The others were from judges, law students, and people who are not lawyers.

What do they ask about?

I track the 5 most common topics per month.  For the 4 months so far this year, here is how often a topic has appeared in the Top 5 for a particular month:

Conflicts of Interest4
Confidentiality4
Trust Account Management/Safeguarding Funds3
Withdrawal from Representation2
Communicating with a Represented Person2
Unauthorized Practice of Law2
Competence1
Client Communication1
Wellness1

Where do lawyers who make inquiries work?

Of the 327 inquiries from lawyers, here’s where those lawyers work:

Private Practice: 0-2 lawyers116
Private Practice: 3-5 lawyers               42
Private Practice: >5 lawyers81
State Prosecutor28
Public Defender27
Other State Government18
Federal Government1
In-House/Non-profit14

These stats are consistent with prior years. 

If you have an inquiry, don’t hesitate to reach out.  802-859-3004 or Michael.Kennedy@vtcourts.gov

As always, let’s be careful out there.

[1] There are rare exceptions to the “I don’t say ‘yes you can’ or ‘no you can’t’” policy. For instance, an inquirer might ask “can I deposit my own money into my IOLTA?”  I’ll respond: “Yes. Rule 1.5(b) allows you to deposit your own money into trust, but only in amount reasonably necessary to cover service charges or fees.”  I will not offer an opinion on whether a proposed deposit is reasonably necessary to cover service charges or fees.

[2] The fiscal year runs from July 1, 2023, thru June 30, 2024. FY24 inquiries are running a bit lower than in previous years. I think this is because, from October through December, lawyers weren’t certain that I was still working.

Experiment in Well-Being! Even “mini” experiments might be good for you!

Michael Leave a comment

Next week is Well-Being Week in Law (WWIL).  This year’s theme:

The theme “embodies two key ideas: (1) a clean slate to start/restart our well-being action plans and (2) behavior change toward greater well-being.”

I’m focusing on the word “start.” The website is chock full of activities designed to spur a reboot. However, as I blogged last week, the goal shouldn’t be to choose an activity that gives us something to do during WWIL.  Rather, the goal should be to find something that will serve as a starting point towards building healthy habits with which we engage long after WWIL concludes.

To that end, each day during WWIL will focus on a discreate component of well-being.  In turn, each day’s programming will include activities designed “to support sustainable change.”  Specifically, “Well-Being Mini Experiments to try out each day that may spark insight and inspiration to make long-term, positive change.”

Call me an optimist, but anything that “may spark insight and inspiration to make long-term positive change” seems like a good thing!

For each day’s theme and suggested “Mini-Experiments,” go here.  There are SO MANY to choose from!  From using the acronym “DREAM” to improve your sleep, to trying something new, to engaging in “Bursts of Benevolence,” to the benefits of adding even the tiniest bit of variety to your daily routine.  There’s something for everyone.

Please consider trying even just one mini-experiment. 

Who knows?

If you do, maybe by the time next year’s WWIL rolls around, you’ll have made well-being a habit.

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