Ethics Inquiries of Bar Counsel

Last summer I posted this outline of the Vermont Professional Responsibility Program.  Today I’d like to spend a few moments outlining an aspect of the program: ethics inquiries of bar counsel.

Two rules apply, with each appearing in Supreme Court Administrative Order 9.  The first is A.O. 9, Rule 3(B).  It states that bar counsel “shall . . respond to inquiries from lawyers regarding ethics and law practice.” The second is A.O. 9, Rule 9.  It’s entitled Prevention and Education and says:

  • “Inquiries from attorneys regarding ethical issues or practice questions shall be referred to bar counsel, who may provide referrals, educational materials, preventive advice and information to assist attorneys to achieve and maintain high standards of professional responsibility.”

In short, an “inquiry” is me trying to help you navigate a particular situation.

The Judiciary’s fiscal year ended on June 30.  In FY18, I received and responded to 1,263 inquiries.  The Court converted the position of bar counsel to full-time in June 2012.  That’s when I switched from disciplinary counsel to bar counsel.  Since then, inquiries have risen each year.

Fiscal Year Inquiries
2018 1,263
2017 1,109
2016 1,100
2015 827
2014 750
2013 627

While the topic areas span the gamut of the Rules of Professional Conduct, questions about conflicts predominate.   In FY18, 34% of the inquiries I received involved conflicts of interest.  That’s consistent with prior years.

When responding to an inquiry, I don’t tell someone what to do or what not to do.  That’s the lawyer’s choice. I view my role as providing guidance: pointing out the relevant rule, hearing panel decision, Supreme Court opinion, or advisory ethics opinion. Also, having learned the hard way as a younger bar counsel, I NEVER respond “yes, what you just said that other attorney did or did not do is unethical.”  Rather, I respond “I’d need to hear both sides, but the relevant rule/decision/opinion is ________.”

Inquiries are confidential.  I cannot share the information with anyone, including disciplinary counsel.  Most are resolved in a day or two.

Finally, while both Rule 3 and Rule 9 refer to inquiries from lawyers, I respond to inquiries from non-lawyers as well.  Of the 1,263 I received last year, here’s who made them:

Source Inquiries
Lawyer 1,049
Non Lawyer 170
Media 15
Law Student 14
Judge 7
Law Professor 6
Legislator 2

So, that’s the inquiry process.  Feel free to contact me anytime.

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Specializing in Anonymity

Our nation’s long national nightmare is over: I’ve returned from my blogging hiatus.

Welcome to Monday!  I hope your summer is going well.  And, for those of you who followed the World Cup, let’s not forget that Scott Mapes predicted 3 of the final four.  Now that’s competence!

Today I’m going to discuss an oft misunderstood rule: Rule 7.4.

By way of background, last week, someone sent me copies of several pages from the “Lawyers” section of the Yellow Pages.  I’m not going to tell you the geographic area.  The sender chose to remain anonymous: no return address, no cover letter, no sticky note with a name.  The sender used a highlighter to call my attention to a few ads that indicate that various lawyer “specialize in” certain areas of law.

I assume the sender thinks the highlighted ads violate the rules.  Absent a cover letter, I don’t know.

I’m not a fan of anonymous complaints.  If you think another lawyer’s ad violates the rules, make a complaint or an inquiry and we’ll let you know.

Back to Rule 7.4.  The rule does not ban any & all use of “specializes” or its variants.  Here’s what the relevant sub-part says:

  • “(d) a lawyer shall not state of imply that a lawyer is certified as a specialist in a particular field of law, unless:
    • (1) the lawyer has been certified as a specialist by a named organization, provided that the communication clearly states that there is no procedure in Vermont for approving certifying organizations, unless the named organization has been accredited by the American Bar Association to certify lawyers as specialists in a particular field of law; and
    • (2) the name of the certifying organization is clearly identified in the communication.”

Comment [1] is instructive.  Per the Comment,

  • “[a] lawyer is generally permitted to state that the lawyer is a ‘specialist,’ practices a ‘speciality,’ or ‘specializes in’ particular fields of law, but such communications are subject to the ‘false and misleading’ standard applied in Rule 7.1 to communications concerning a lawyer’s services.”

In other words, if it’s true, Vermont’s rule appears to allow a lawyer to advertise that the lawyer specializes in a particular area of law.

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Monday Morning Answers: #123

Welcome to Monday!

If you’re reading this, your WiFi didn’t melt!  Small victories are still victories!

Friday’s questions are here.  The answers follow today’s honor roll.

Honor Roll

Answers

Question 1

The phrase “in the same or a substantially related matter” is most often used in connection with a rule on:

  • A.  conflicts.  See, Rule 1.9(a).
  • B.  advertising
  • C.  trust accounting
  • D.  sharing fees with a lawyer in another firm

Question 2

Which doesn’t belong with the others?

  • A.  Don’t state or imply that you’re disinterested
  • B.  Don’t contact her unless the clerk has certified that her term is complete
  • C.  If she misunderstands your role, correct the misunderstanding.
  • D.  If her interests are likely to conflict with your client’s, don’t give her any legal advice other than the advice to secure counsel.

B is part of Rule 3.5 and refers to contacting jurors.  A, B, & D are part of Rule 4.3, the rule that applies when a lawyer deals with an unrepresented person.  

Question 3

Client sued Lawyer for malpractice.  Lawyer offered to settle the claim.  The offer included (1) a monetary payment to Client; and (2) an agreement not to handle any cases of the type Lawyer handled for Client.

True or False.

The settlement offer violates the Rules of Professional Conduct.

True: see, Rule 5.6(b).

Question 4

Yesterday, Lawyer received a letter indicating that Disciplinary Counsel had selected Lawyer for a “compliance exam.”   Compliance with what?

  • A.   the CLE requirements
  • B.   the trust accounting rules.  See, Rule 1.15A(b)
  • C.  the rule on malpractice insurance
  • D.  the rule that requires reasonable precautions against unauthorized access to electronically stored information

Question 5

Speaking of lawyers and soccer, who doesn’t belong with the others?

  • A. Vincent Gambini
  • B.  Jerry Callo
  • C.  Jerry Gallo
  • D.  Cristiano Ronaldo

Ronaldo is one of the best soccer players in the world.  He’s the star of the Portuguese national team.  On Saturday, Portugal lost to Uruguay in the round of 16 in the World Cup.  The other 3 – Gambini, Callo, and Gallo – are characters or people mentioned in My Cousin Vinny.    

You know, Jerry Gallo, the big attorney.

“Jerry Gallo’s dead!”

Kudos to Penny Benelli for getting the “most” correct answer!

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Five for Friday #123: The World Cup

Welcome to #123!

Late post today.  Sorry about that! Did you think I retired? I didn’t.  That was the other Kennedy.  As Shaggy say, it wasn’t me.

Anyhow, as for 1-2-3, I didn’t feel like writing about the Jackson 5 song.  So, instead of focusing on the number, I’m tying this week’s intro to the World Cup.  And, to do that, I don’t think there’s anyone more suited to discuss the A-B-C’s of legal ethics and soccer than Vermont’s own Scott Mapes.  Scott is a lawyer and long-time high school soccer coach.  He was kind enough to respond to my pathetic attempts to frame soccer in terms of legal ethics.

And, as an aside, if there’s a lawyer who is more competent at gardening than Scott, I’d be shocked.  If his house isn’t on the home tour for flower gardens, it should be!

MK:  Scott – I often blog & speak about Rule 1.1 and a lawyer’s duty of competence.  Lately, some in the profession have expressed concern about declining competence.  In soccer, two of the world’s most competent national teams – Italy & Germany – didn’t make it to the knock out stage at the World Cup.  Italy didn’t even qualify for the tournament!  Does that reflect a decline in those nation’s competence or, perhaps, is the rest of the world that much better now?  In other words, in the soccer world, is it akin to there being more good lawyers than there used to be?

Scott:  You are spot on……the rest of the world (but perhaps USA) are getting much better.   Look at Saudi Arabia, Egypt, Morocco, Iran, Tunisia, Nigeria, Senegal, Korea and ICELAND – some of those countries do not even have professional leagues let alone stadiums!   Germany is out because they could not score.

Mike: Not scoring is not competent!  Ok, conflicts of interest are always a hot topic in legal ethics.  Speaking of conflicts, I drive by your house on my way home from work.  I’ve lost track of the number of nation’s flags I’ve seen flying on your porch. Who exactly are you rooting for??

Scott:  Well it was Germany – but now I am rooting for great games!

Mike:  For the most part, the games have been great.  But, an author just released a book that details corruption at the highest levels of FIFA, soccer’s governing body.  The scandal, coupled with reports that FIFA and Russia colluded to bring the World Cup to Russia and, again, to cover-up doping by Russian soccer players, leaves me wondering: as great as the product is on the turf, are you bothered by the perception that it’s run by a bunch of unethical folks who should face the equivalent of disbarment? Or, is it like anything else: show me billions of dollars in play and I’ll show you unethical conduct?

Scott: Money, unfortunately, talks. FIFA is the largest sports organization in the world. It is, and has been, above any country’s ability to fully govern.  That said, FIFA is the only entity to carry out two World Cups every 4 years (men’s and women’s).  No other entity could do it.  I think great attention is being paid to the ethical concerns we all hear about.  But for a few players running afoul with potential doping, few at this high a level do.  Mainly due to the risk of being banned.

Mike: Sanctions are a deterrent to misconduct! Ok.  The Rules of Professional Conduct include a rule that prohibits conduct that is discourteous, undignified, and degrading to a tribunal.  Some soccer players seem ready to win Academy Awards for their antics in response to the slightest touch from an opponent. I think Neymar barrel-rolled 8 or 9 times yesterday after being tripped.  Thoughts on such conduct?

Scott:  First and foremost, the “antics” you point out are about toughest aspect of the game to regulate or officiate.  I can tell you it hurts getting stepped on by cleats, kicked in the shins or ankle (ouch) where there is NO protection, or getting bounced when you least expect it – so many of these situations are true displays of great discomfort – yes short-lived – but nonetheless painful.  That said, there are also an equal number of situations where players seek to bait a call with their “antics”.  If in the referee’s opinion that is what is happening, the player risks verbal admonishment, a yellow card for unsporting behavior, or potential a red if deemed an attempt to truly mislead the outcome the game.  Aside from maybe a shin guard, these athletes are hurling themselves at ball and opposing players (it is a contact sport) at full speed while having to run 10-15 kilometers over 90 minutes.  You can appreciate these are feats few athletes in most other teams sports endure, perhaps aside from basketball.

Mike: Speaking of yellow cards, Japan & Senegal tied for 2nd in their group.  Japan advanced, because it had fewer yellow cards than Senegal. Is that like winning a trial because the court granted a higher percentage of your objections than were granted for the other side?

Scott: I would look at it like this: in the soccer tie breaker world,what aside from wins, goals for, and goals against should be rewarded? Fewer “cards” is always a compliment.  Therefore, if a tie-break is needed, it seems appropriate.  The analogy I would make in the legal arena is, say, a jury that tends to side with the arguments, demeanor and presence of one attorney over the other. It’s that kind of intangible where we reward good, positive, and redeeming behavior.

Mike: Good point.  So, on positive & redeeming behavior, like me, you played & coached.  When I coached high school basketball, we fought like hell to beat each other’s teams, but rival coaches were (and are) among my closest friends.  Once the final horn sounded, we’d be breaking bread together, hanging out together.  A few weeks ago, I blogged that I couldn’t imagine my life without the people in it, most of whom I know through coaching. I’m not positive, but I’m fairly certain that you were the same way with the guys you coached against.  Lawyers don’t seem to treat each other the same way.  Could we, as lawyers, learn something from high school coaches?

Scott: OMG ABSOLUTELY!  In my 18 years at BHS (12 as assistant and the last 6 as head coach) I had the most awesome pleasure of coaching against some of my life long and dearest friends, who I i had only been introduced to through soccer.  To this day, while all are mostly out of the game, we still hold “Coaches Meetings”.  Dan Shepardson was at CVU (teammate from Norwich); Dave Bahrenburg was at Colchester (best friend I was his assistant at BHS); David “Moon” Martin at SBHS (he was my assistant for my last 6 years at BHS varsity); Chris Conte (a teammate in high school) was at Enosuburg; Jim Hubbard (a teammate in high school) at MVU. We all played together for years on the same men’s league team.  And for the most part I have not found or experienced any of that kind of camaraderie in the legal profession.

Mike: Harder to deal with: the client who non-stop calls/complains, or, the parent who non-stop emails/complains?

Scott: As you probably know, the answer lies in 1) your ability to communicate and 2) your ability to communicate.  If you are good at it, you will likely received fewer of those calls/emails/complaints. I returned to coaching at BHS the last two years at the JV level.  Last year,  I carried 29 kids, fashioned a JV A team and a JV B team, and I had every parent and kid remarking how positive the experience was for them mostly as a result of my communications being frequent, and repeating what everyone needed to know as far as team philosophy, team rules, and expectations.

Mike:  Exactly! Set and manage clear expectations!  Ok, last question: understanding that I just linked to a blog that suggests that lawyers should not predict specific outcomes for clients, but should manage expectations, who do you predict will win the World Cup?

Scott: Belgium, Spain, Croatia or France.

Mike: Good job! I’ll expect the winner to come from that group!  Thank you Scott!

Onto the quiz!

RULES

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Even question 5!
  • 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
  • Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

The phrase “in the same or a substantially related matter” is most often used in connection with a rule on:

  • A.  conflicts
  • B.  advertising
  • C.  trust accounting
  • D.  sharing fees with a lawyer in another firm

Question 2

Which doesn’t belong with the others?

  • A.  Don’t state or imply that you’re disinterested
  • B.  Don’t contact her unless the clerk has certified that her term is complete
  • C.  If she misunderstands your role, correct the misunderstanding.
  • D.  If her interests are likely to conflict with your client’s, don’t give her any legal advice other than the advice to secure counsel.

Question 3

Client sued Lawyer for malpractice.  Lawyer offered to settle the claim.  The offer included (1) a monetary payment to Client; and (2) an agreement not to handle any cases of the type Lawyer handled for Client.

True or False.

The settlement offer violates the Rules of Professional Conduct.

Question 4

Yesterday, Lawyer received a letter indicating that Disciplinary Counsel had selected Lawyer for a “compliance exam.”   Compliance with what?

  • A.   the CLE requirements
  • B.   the trust accounting rules
  • C.  the rule on malpractice insurance
  • D.  the rule that requires reasonable precautions against unauthorized access to electronically stored information

Question 5

Speaking of lawyers and soccer, who doesn’t belong with the others?

  • A. Vincent Gambini
  • B.  Jerry Callo
  • C.  Jerry Gallo
  • D.  Cristiano Ronaldo

 

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Ghostwriting as Access

I ain’t afraid of no ghost!

As such, in December 2016, I argued that ghostwriting is one tool at the profession’s disposal in the battle to increase to access to justice.  The post is here.  A quick recap:

  • Rule 1.2(c) authorizes lawyers to enter into limited representation agreements;
  • While ghostwriting used to be frowned upon, the trend is to conclude that it’s a permissible form of limited representation;
  • undisclosed ghostwriting does not provide a self-represented litigant with an unfair advantage;
  • undisclosed ghostwriting does not constitute misrepresentation by omission;
  • lawyers who “ghostwrite” must abide by the Rules of Professional Conduct while providing limited services; and,
  • lawyers should be aware of court rules that require self-represented litigants to disclose having received assistance from a lawyer.

Last week, the Mississippi Bar issued Ethics Opinion 261.  The opinion addresses two questions:

  1. Is it ethical for a lawyer to prepare documents for pro se litigants?
  2. If the answer to question 1 is yes, is the preparing lawyer required to disclose either the name of the preparer or that the document was prepared by a lawyer?

Here’s a summary of the Mississippi Bar’s conclusions.

On the first question:

  • limited representation “is an important means of providing access to justice for all persons regardless of financial resources;”
  • as long as doing so is reasonable and the client fully understands the limitation, limiting a representation to writing or preparing a document is a permissible; and
  • lawyers who provide limited representation must abide by “the full panoply of ethical obligations.”

As to the second question:

  • the preparing lawyer is not required to disclose having provided assistance;
  • undisclosed assistance does not constitute misrepresentation by omission; and,
  • undisclosed assistance does not provide an otherwise self-represented litigant with an unfair advantage.

Sounds familiar.

The Mississippi Bar added a few notes of caution.

First, the opinion stresses the importance of ensuring that the client understands what it means to receive “limited representation” in the form of ghostwriting.

  • “For example, if the lawyer only drafts a motion for summary judgment but does not appear at the hearing, the client will have to present the motion and respond to questions from the court that the client may be unable to answer.”

Second, the opinion makes clear that a limited representation is exactly that: limited.  It’s likely unethical for a lawyer to use a limited scope representation as cover to participate actively & substantially in the matter on an ongoing basis. That would be deceptive.

Finally, the opinion alerts lawyers to the fact that, like this blog, it’s limited to an analysis under the Rules of Professional Conduct. Other law, including court rules, might require disclosure.

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The Interwebs

Good morning!

So, later today, I’m presenting a CLE to the Washington County Bar Association.  The august group’s leaders asked that I talk about some of the ethical issues that arise from lawyers’ failure to understand use of social media.

Prepping for the seminar, I was struck by two things.

Some of you are quietly hoping they were both lightning bolts.   Nope.

Rather, I realized that for all I write about tech competence, (1) in college, I bought a Betamax, siding with Sony in the Format War against VHS; and (2) more recently, I thought Blockbuster would squash that little upstart called Netflix.

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Anyhow, for those of you interested in the topic, the folks over at Internet for Lawyer maintain this great list of the various advisory ethics opinions on social media.  As for me, I’ve blogged often on the subject  This post – Friends, Followers, and Legal Ethics – sums up my thoughts.

Finally, at the CLE, I’m going to mention this opinion from the titanic clash of Oracle v. Google.  As I reviewed it yesterday afternoon, I wondered whether the judge considered ending the opening sentence after the words “trial lawyers.”

  • “Trial judges have such respect for juries — reverential respect would not be too strongto say — that it must pain them to contemplate that, in addition to the sacrifice jurors make for our country, they must suffer trial lawyers and jury consultants scouring over their Facebook and other profiles to dissect their politics, religion, relationships, preferences, friends, photographs, and other personal information.”

Social Media

 

Puffery & Ethics of Settlement Negotiations

Last week’s word was “woodshedding.”  This week’s: “puffery.”

As I blogged, at some point, woodshedding crosses the line.  What about puffery?  Is there a point when a lawyer violates the rules by intentionally misstating a client’s bottom line?

As most of you know, the rules prohibit dishonesty.  Indeed, Rule 4.1 states

  • “[i]n the course of representing a client a lawyer shall not knowingly make a false statement of material fact to a third person.”

With the rule in mind, here are two scenarios:

  • the plaintiff’s attorney who knows her client will accept $100,000 but who states to defense counsel that her client “won’t go below $200,000.”
  • the criminal defense attorney who knows his client will take a plea that includes jail time, but who tells a deputy state’s attorney “if your offer is anything more than probation, we’re going to trial.”

In each,  didn’t a lawyer knowingly make a false statement to a third person?

Maybe.  Or maybe not.

Per Comment [2] to Rule 4.1:

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

I’ve often kidded, but only half-jokingly, that the rule makes it unethical to mislead others, but the Comment makes it okay to mislead other lawyers.

There’s also Rule 8.4(c), which prohibits lawyers from engaging in conduct involving dishonest, deceit, misrepresentation, and fraud.  And don’t forget about the duty of candor to a tribunal imposed by Rule 3.3.

Here’s an interesting advisory ethics opinion from the State Bar of California.  Some outlets are touting the opinion as giving the green light to puffery in negotiations.  I suppose that’s a fair reading of an aspect of the opinion. However, if that’s your only takeaway, it’s a reading that ignores the first two sentences of the opinion’s digest:

  • “Statements made by counsel during negotiations are subject to those rules prohibiting an attorney from engaging in dishonesty, deceit or collusion. Thus, it is improper for an attorney to make false statements of fact or implicit misrepresentations of material fact during negotiations.”

The opinion begins by presenting a fact pattern. Then, it describes various scenarios that might arise from the fact pattern. Finally, for each scenario, the opinin provides an “answer.”  Give it a read.  If you don’t have time, I’ve pasted in some excerpts below. Otherwise, that’s the end of this blog.

Remember:

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The fact pattern presented in the California Advisory Opinion is as follows:

  • “Plaintiff is injured in an automobile accident and retains Attorney to sue the other driver (Defendant). As a result of the accident, Plaintiff incurs $50,000 in medical expenses and Plaintiff tells Attorney she is no longer able to work. Prior to the accident Plaintiff was earning $50,000 per year. Attorney files a lawsuit on Plaintiff’s behalf. Prior to any discovery, the parties agree to participate in a court-sponsored settlement conference that will be presided over by a local attorney volunteer. Leading up to and during the settlement conference, the following occurs:

Scenario 1.  In the settlement conference brief submitted on Plaintiff’s behalf, Attorney asserts that he will have no difficulty proving that Defendant was texting while driving immediately prior to the accident. In that brief, Attorney references the existence of an eyewitness to the accident, asserts that the eyewitness’s account is undisputed, asserts that the eyewitness specifically saw Defendant texting while driving immediately prior the accident, and asserts that the eyewitness’s credibility is excellent. In fact, Attorney has been unable to locate any eyewitness to the accident.

Answer:  Attorney’s misrepresentations about the existence of a favorable eyewitness and the substance of his expected testimony. Attorney’s misrepresentations about the existence of a favorable eyewitness and the substance of the testimony the attorney purportedly expects the witness to give are improper false statements of fact, intended to mislead Defendant and his lawyer. Attorney is making representations regarding the existence of favorable evidence for the purpose of having Defendant rely on them. Attorney has no factual basis for the statements made. Further, Attorney’s misrepresentation is not an expression of opinion, but a material representation that “a reasonable [person] would attach importance to . . . in determining his choice of action in the transaction in question . . .” (Charpentier v. Los Angeles Rams Football Co., Inc. (1999) 75 Cal.App.4th 301, 313 [89 Cal.Rptr.2d 115] quoting Rest.2d Torts, § 538). Thus, Attorney’s misrepresentations regarding the existence of a favorable eyewitness constitute improper false statements and are not ethically permissible. This is consistent with Business and Professions Code section 6128(a), supra, and Business and Professions Code section 6106, supra, which make any act involving deceit, moral turpitude, dishonesty or corruption a cause for disbarment or suspension.

Scenario 2.  While the settlement officer is talking privately with Attorney and Plaintiff, he asks Attorney and Plaintiff about Plaintiff’s wage loss claim. Attorney tells the settlement officer that Plaintiff was earning $75,000 per year, which is $25,000 more than Client was actually earning; Attorney is aware that the settlement officer will convey this figure to Defendant, which he does.

Answer: Attorney’s inaccurate representations to the settlement officer which Attorney intended be conveyed to Defendant and Defendant’s lawyer regarding Plaintiff’s wage loss claim. Attorney’s statement that Plaintiff was earning $75,000 per year, when Plaintiff was actually earning $50,000, is an intentional misstatement of a fact. Attorney is not expressing his opinion, but rather is stating a fact that is likely to be material to the negotiations, and upon which he knows the other side may rely, particularly in the context of these settlement discussions, which are taking place prior to discovery. As with Example Number 1, above, Attorney’s statement constitutes an improper false statement and is not permissible.

Scenario 3.  While talking privately outside the presence of the settlement officer, Attorney and Plaintiff discuss Plaintiff’s “bottom line” settlement number. Plaintiff advises Attorney that Plaintiff’s “bottom line” settlement number is $175,000. When the settlement officer asks Attorney for Plaintiff’s demand, Attorney says, “Plaintiff needs $375,000 if you want to settle this case.”

Answer:  Attorney’s inaccurate representation regarding Client’s “bottom line” settlement number. Statements regarding a party’s negotiating goals or willingness to compromise, as well as statements that constitute mere posturing or “puffery,” are among those that are not considered verifiable statements of fact. A party negotiating at arm’s length should realistically expect that an adversary will not reveal its true negotiating goals or willingness to compromise. Here, Attorney’s statement of what Plaintiff will need to settle the matter is allowable “puffery” rather than a misrepresentation of fact. Attorney has not committed an ethical violation by overstating Plaintiff’s “bottom line” settlement number.

Scenario 4. In response to Plaintiff’s settlement demand, Defendant’s lawyer informs the settlement officer that Defendant’s insurance policy limit is $50,000. In fact, Defendant has a $500,000 insurance policy.

Answer:  Defendant’s lawyer’s representation that Defendant’s insurance policy is for $50,000 although it is really $500,000. Defendant’s lawyer’s inaccurate representations regarding Defendant’s policy limits is an intentional misrepresentation of fact intended to mislead Plaintiff and her lawyer. (See Shafer v. Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone (2003) 107Cal.App.4th 54, 76 [131 Cal.Rptr.2d 777] [plaintiffs “reasonably relied on the coverage representations made by counsel for an insurance company”].) As with Example Number 1, above, Defendant’s lawyer’s intentional misrepresentation about the available policy limits is improper.

Scenario 5. Defendant’s lawyer also states that Defendant intends to file for bankruptcy if Defendant does not get a defense verdict. In fact, two weeks prior to the mediation, Defendant consulted with a bankruptcy lawyer and was advised that Defendant does not qualify for bankruptcy protection and could not receive a discharge of any judgment entered against him. Defendant has informed his lawyer of the results of his consultation with bankruptcy counsel and that Defendant does not intend to file for bankruptcy.

Answer:  Defendant’s lawyer’s representation that Defendant will file for bankruptcy if there is not a defense verdict. Whether Defendant’s lawyer’s representations regarding Defendant’s plans to file for bankruptcy in the event that Defendant does not win a defense verdict constitute a permissible negotiating tactic will hinge on the specific representations made and the facts known. Here, Defendant’s lawyer knows that Defendant does not intend to file for bankruptcy and that Defendant consulted with bankruptcy counsel before the mediation and was informed that Defendant is not legally eligible to file for bankruptcy. A statement by Defendant’s lawyer that expresses or implies that Defendant’s financial condition is such that he is in fact eligible to file for bankruptcy is therefore a false representation of fact. The conclusion may be different; however, if Defendant’s lawyer does not know whether or not his client intends to file for bankruptcy or whether his client is legally eligible to obtain a discharge.

Scenario 6.  The matter does not resolve at the settlement conference, but the parties agree to participate in a follow-up settlement conference one month later, pending the exchange of additional information regarding Plaintiff’s medical expenses and future earnings claim. In particular, Attorney agrees to provide additional information showing Plaintiff’s efforts to obtain other employment in mitigation of her damages and the results of those efforts. During that month, Attorney learns that Plaintiff has accepted an offer of employment and that Plaintiff’s starting salary will be $75,000. Recognizing that accepting this position may negatively impact her future earnings claim, Plaintiff instructs Attorney not to mention Plaintiff’s new employment at the upcoming settlement conference and not to include any information concerning her efforts to obtain employment with this employer in the exchange of additional documents with Defendant. At the settlement conference, Attorney makes a settlement demand that lists lost future earnings as a component of Plaintiff’s damages and attributes a specific dollar amount to that component.

ANSWER:  Plaintiff’s instruction to Attorney to conceal material facts from Defendant and Defendant’s lawyer prior to the follow-up settlement conference. This example raises two issues: the failure to disclose the new employment, and Plaintiff’s instruction to Attorney to not disclose the information.

First, as to the underlying fact of employment itself, it is assumed that Plaintiff would not be entitled to lost future earnings if Plaintiff found a new job. As such, including in the list of Plaintiff’s damages a separate component for lost future earnings is an implicit misrepresentation that Plaintiff has not yet found a job. This is particularly true because Plaintiff agreed to show documentation of her job search efforts to establish her mitigation efforts, but did not include any documentation showing that she had, in fact, been hired. Listing such damages, then, constitutes an impermissible misrepresentation. (See, e.g., Scofield v. State Bar, supra, 62 Cal.2d at 629 [attorney who combined special damages resulting from two different auto accidents in separate claims against each defendant disciplined for making affirmative misrepresentations with the intent to deceive]; Pickering v. State Bar (1944) 24 Cal.2d 141, 144 [148 P.2d 1] [attorney who alleged claim for loss of consortium knowing that plaintiff was not married and that her significant other was out of town during the relevant time period violated Business and Professions Code section 6068(d)].)

Second, Attorney was specifically instructed by Plaintiff not to make the disclosure. That instruction, conveyed by a client to his attorney, is a confidential communication that Attorney is obligated to protect under Rule 3-100 and Business and Professions Code section 6068(e). While an attorney is generally required to follow his client’s instructions, Rule 3-700(B)(2) requires withdrawal if an attorney’s representation would result in a violation of the ethical rules, of which a false representation of fact or implicit misrepresentation of a material fact would be. When faced with Plaintiff’s instruction, Attorney should first counsel his client against the misrepresentation and/or suppression. If Plaintiff refuses, Attorney must withdraw under Rule 3-700(B)(2), as Attorney may neither make the disclosure absent client consent, nor may Attorney take part in the misrepresentation and/or suppression. (California State Bar Form. Opn. No. 2013-189; 7 8/ see also Los Angeles County Bar Association Opn. 520).

Five for Friday #122

Welcome to #122!

I’ve got nothing clever to tie to the number 122.  However, breaking it into 12 & 2, I’ve got something to say.

Counting this weekend, 12 weekends gets us to September 7.  That’s 4 days after Labor Day.

2 months from today is August 22nd.  School will be about to start.  Area high schools’ fall sports team will have started practice.  The Champlain Valley Fair, the traditional end of summer in Chittenden County, will be 2 days from starting.

My message: don’t let 12 and 2 go by without doing something non-lawyerly.  Make time for yourself.  Make time for your family.  Make time for what matters.  You never know, the time you make for what matters might just earn you a mention in this blog.

How so? Here’s how.

Daron Raleigh is a deputy state’s attorney in Rutland County.  A few weekends ago, Daron Raleigh got out and did something non-lawyerly.  She ran the Crowley Brothers Half-Marathon.  Not only did she run it, she won it!  Now that’s what I’d call making time for what matters AND satisfying the duty of competence! Great job Daron!

#WellLawyer

Onto the quiz!

RULES

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Even question 5!
  • 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
  • Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

Per a particular rule, Lawyer takes direction from Lawyer’s client, acting through client’s duly authorized constituents.

Thus, which is most accurate? Lawyer represents:

  • A.   The defendant in a criminal case
  • B.   A juvenile defendant in a criminal case
  • C.   An estate
  • D.   An organization

Question 2

When it comes to lawyer advertising, which is most accurate in Vermont?

  • A.   a lawyer may not advertise prior results.
  • B.   a truthful report of prior results is not a violation of the rules.
  • C.   a truthful report of prior results might violate the rules if it presented so as to lead a reasonable person to form an unjustified expectation that the similar results could be obtained in a different matter.
  • D.   citing the First Amendment, the PRB has recommended that the Court repeal the advertising rules

Question 3

This morning, Lawyer and Client agreed to a nonrefundable flat fee.  Client advanced the fee to Lawyer.  Lawyer has yet to do any work for Client.

What additional information do you need in order to determine which account – trust or operating – Lawyer must deposit the fee?

  • A.   the amount of the fee.
  • B.   the type of case.
  • C.   whether the agreement was (or soon will be) confirmed in a writing that describes the scope of the services that Client will receive.
  • D.  All of the above.

Question 4

Attorney called me with an inquiry. I listened, then I asked, “will the harm be to the actor or to someone else?”  What specific issue did Attorney call to discuss?

  • A.  Disclosing confidential information related to the representation of a client.
  • B.  Reporting another lawyer’s misconduct.
  • C.  Reporting a judge’s misconduct.
  • D.  Whether to allow a client to testify in a criminal case.

Question 5

The Lawyer and Uncle Jack are characters in a television show.  It is the longest running  live-action sitcom in American television history.

Both The Lawyer and Uncle Jack have ethical issues. Uncle Jack is flat out incompetent.  So, his nephew, Charlie, often pretends to be lawyer, assuming he can do better than his uncle.  When pretending to be a Lawyer, Charlie specializes in bird law. He and The Gang spend much of their time at Paddy’s Pub.

In one episode, Charlie & The Gang went to The Lawyer for help getting patents for things they’d invented. The Lawyer tricked them into signing a contract that gave him all of their profits and included a restraining order against them.  To try to get out of the contract, Mac ate it.   The Lawyer, however, had made 100s of extra copies.

That same season, Charlie challenged The Lawyer to a duel.  The Lawyer accepted.

Lawyer spends much of his time representing the estate of Dennis & Sweet Dee’s grandmother.  However, and speaking of bird-law, The Lawyer’s eye was gouged out at a recent trial.  Gouged out by a bird that excaped from under his client’s father’s hat.

Name the tv show.

the-quiz