Vermont’s Professional Responsiblity Program

Back to basics today.

The Professional Responsibility Program remains somewhat mysterious to many Vermont lawyers. In a sense, the fact that most attorneys lack first-hand experience with the Program is a good thing.  Nevertheless, since the PRP is funded by attorney licensing fees, it’s good for lawyers to know what the PRP does and the resources that it makes available.

Here’s an overview.

The Vermont Constitution vests the Supreme Court with exclusive “disciplinary authority concerning all judicial officers and attorneys at law in th State.”  Vt. Const., Ch. II, §30.  In its exercise of that authority, the Court has promulgated and adopted (1) Permanent Rules Governing Establishment and Operation of the Professional Responsibility Program; and, (2) Vermont Rules of Professional Conduct.  The former is more commonly known as “A.O. 9,” while the latter are the ethics rules.

A.O. 9 delegates responsibility for, and supervision of, the PRP to the Professional Responsibility Board.  The Board consists of 7 members.  By rule, 3 must be lawyers, 3 must be non-lawyers, and 1 must be a judge. The current members:

The Board meets between 4 and 5 times per year.  The Board does not direct investigations or prosecutions. It plays no role in the adjudication of disciplinary cases.  Each year, the Board issues an Annual Report.  The most recent is HERE.

A.O. 9 creates two positions to administer the PRP’s daily operations: Bar Counsel and Disciplinary Counsel.  I have been bar counsel since 2012.  I was disciplinary counsel from 2000 thru June of 2012.   Now, Sarah Katz is disciplinary counsel.  She started in April 2017. Our offices are in the Costello Courthouse in Burlington.  We have separate and independent roles within the Program.  Rules 3 and 9 of A.O. 9 defines those roles.

Bar Counsel

My responsibilities include:

  1. responding to ethics inquiries;
  2. providing education & outreach on legal ethics;
  3. administering the non-disciplinary dispute resolution program; and
  4. screening ethics complaints filed against attorneys

An ethics inquiry is when someone contacts me for guidance related to the Rules of Professional Conduct.  The key word is “guidance.”  I do not provide legal advice or formal advisory ethics opinions.  Rather, I share my views on the issue, and try to direct the person to the proper rule, decision, or opinion in order to frame the analysis so that the person can make his or her own decision.  Inquiries are confidential and I do not share the fact of the inquiry or its content with anyone, including disciplinary counsel.

Last fiscal year, I received 1106 inquiries.  999 came from attorneys, judges, law students, or law professors. The rest came from non-attorneys.  The topic most often raised in the inquiry process is conflicts of interest.  Additional detail on the inquiries I received will be available in the annual report that the Board will publish this fall.

Education & outreach are self-evident.  Among other things,  I frequently appear at continuing legal education seminars and I use this blog as a form of outreach.

I will discuss the non-disciplinary dispute resolution program later in this post.

Screening complaints.  By rule, bar counsel screens ethics complaint.  A.O. 9, Rule 10. The screening process involves a limited investigation in which I determine whether a complaint (1) should be dismissed; (2) can be resolved without referral to disciplinary counsel; or (3) should be referred to disciplinary counsel for an investigation.

If I dismiss a complaint at screening, the complainant has 30 days to file an appeal with the Chair of the Board.  The Chair either upholds my decision or refers the complaint for an investigation by disciplinary counsel.

Once a complaint is referred for an investigation, my involvement ends.  The respondent has 21 days to file a written response.  Exception: trust account overdrafts. Years ago, the Board decided trust account overdrafts go straight to disciplinary counsel and that a lawyer will have 5 days to respond.

Disciplinary Counsel

As disciplinary counsel, Sarah Katz investigates and litigates all disciplinary and disability matters. Sarah does not have a full-time investigator, but, in certain cases, the Board authorizes her to contract with an investigator.

Once Sarah receives an attorney’s response to a complaint, she investigates.  Upon concluding an investigation, Sarah has 3 options:

  1. dismiss the complaint;
  2. recommend formal disciplinary or disability charges; or,
  3. refer the complaint to the non-disciplinary dispute resolution program.

If Sarah dismisses a complaint, there is no appeal.  By contrast, she cannot unilaterally file formal disciplinary charges against a lawyer.  Rather, if Sarah decides to file formal charges, the rules require her to requesting a hearing panel to review her decision for probable cause.  The request is in the form of an affidavit outlining her investigation and a memorandum arguing why the respondent violated the rules  It is an ex parte process. If probable cause is found, Sarah must file formal charges against the lawyer.

There are 9 standing hearing panels.  By rule, each consists of 2 lawyers and 1 non-lawyer.  Member of the Board are not allowed to sit on hearing panels.

Once charges are filed, the respondent has 20 days to answer, followed by 60 days in which disciplinary counsel and the respondent can conduct discovery. At a hearing, disciplinary counsel must prove a violation of the Rules of Professional Conduct by clear and convincing evidence.

Not every case begins with formal charges filed by disciplinary counsel.  The rules authorize disciplinary counsel and a respondent to file stipulated facts with a hearing panel.  If a case is presented by stipulated facts, the parties can join to recommend a particular sanction, or, can present argument as to sanction.

Hearing panels are not required to accept stipulated facts.  The rules authorize a panel to reject stipulated facts and return a case to disciplinary counsel.  Similarly, if a panel accepts stipulated facts, the rules do not require the panel to accept a joint recommendation as to sanction.  Rather, a panel is free to impose its own sanction.

No matter how a case is presented, a hearing panel must issue a written decision.  If a panel concludes that the evidence or the stipulated facts clearly and convincingly establish a violation of the rules, the panel must impose a sanction.  The potential sanctions:

  • Admonition (does not identify the lawyer or impact the lawyer’s privilege to practice)
  • Reprimand (identifies the lawyer, but doesn’t impact the lawyer’s privilege to practice)
  • Suspension (identifies the lawyer and suspends the lawyer’s privilege to practice)
  • Disbarment (identifies the lawyer and suspends the lawyer’s privilege to practice)

Once a panel issues a decision, disciplinary counsel and the respondent have 30 days to appeal to the Vermont Supreme Court.  Even if neither appeals, the Court may order review on its own motion.  If no appeal is taken and the Court does not order review, a hearing panel decision becomes final and has the full force & effect of a decision of the Supreme Court.  Disciplinary decisions can be found here.

Vermont does not have permanent disbarment.  In Vermont, disbarment is for 5 years.  A disciplinary suspension must be for at least 1 day, but cannot be longer than 3 years.  If a lawyer is suspended for less than 6 months, the lawyer may return to practice when the suspension expires. A lawyer who is disbarred or suspended for 6 months or longer, must petition for reinstatement.

A reinstatement case is one which the lawyer bears the burden of proving that the lawyer should be allowed to return to practice. Reinstatement cases are heard by hearing panels, with the decision subject to the same appellate process as in a disciplinary prosecution.

Finally, disciplinary counsel has options other than a disciplinary prosecution.  Among them, petitions for interim suspensions and petitions for transfers to disability inactive status.  Those are bit too far into the weeds for this post.

Non-Disciplinary Dispute Resolution

The rules authorize bar & disciplinary counsel to refer complaints to an “assistance panel” or any other dispute resolution program.  The PRP has both informal and formal dispute resolution.

Informal dispute resolution is bar counsel resolving the dispute.  Typically this involves me asking a lawyer to do something simple like call a client or return a client’s file.

Formal dispute resolution is resolution by an “assistance panel.”  By rule, an assistance panel must include 3 people.  Each panel must include at least 1 lawyer, at least 1 non-lawyer, and at least 1 member of the Professional Responsiblity Board.  The program has approximately 30 volunteers who have agreed to serve as assistance panel members.

The AP process is set out in Rule 4 of A.O. 9.  In short, assistance panels work to provide a forum for the non-disciplinary resolution of ethics complaints.  The process is confidential and the resolution cannot and does not result in a sanction being imposed against the lawyer’s license.

While we do not receive many fee complaints, the rules authorize us to refer fee complaints to the VBA’s Committee for the Abitration of Fee Disputes.   In my view, the Vermont Lawyers Assistance Program is a “dispute resolution program” and I have referred matters to the LAPVT. Complaints against judges are referred to the Judicial Conduct Board.

Other

That’s the program in a nutshell.

As I mentioned, I became bar counsel in June 2012.  Prior to June 2012, I was full-time disciplinary counsel and I had a full-time deputy.  The bar counsel position was half-time.

In 2012, recognizing the value in allocating resources to the prevention of misconduct, as opposed to the response to misconduct, the Board and the Court made bar counsel a full-time position and reduced the deputy disciplinary counsel position to part-time.  The position of deputy disciplinary counsel has since been eliminated.

From May 2014 to May 2017, and due to a staff vacancy, I was responsible for administering the daily operations of the Board of Bar Examiners, the Character & Fitness Committee, and the Continuing Legal Education Board.  That included administering the bar exam and the constant flow of applications for admission without examination.  In May 2017, the Court hired Andy Strauss as full-time Licensing Attorney.

With Andy on board, I’ve returned to focusing solely on my duties as defined in Rules 3 and 9 of A.O. 9 .  My goal is to move the program further towards a proactive system of regulation.  Soon, I will post on proactive attorney regulation.  For now, please visit this FAQ issued by the National Organization of Bar Counsel for more on the topic.

Legal Ethics

 

 

Monday Morning Answers #81

Nothing like a little Jay-Z to get people to enter the quiz!

Friday’s questions are HERE.  Today, the answers are below the Honor Roll.

Honor Roll

Answers

Question 1

Not all rules were created equal.  If an attorney’s duties under the rules conflict, which duty is usually viewed as trumping all others?

  • A.   Duty of zealous advocacy to clients
  • B.   Duty of fairness to opposing counsel & opposing parties
  • C.   Duty to provide competent, conflict-free representation
  • D.   Duty of candor to the courts; See generally, V.R.Pr.C. 3.4 Per the Reporter’s Notes, “if the interests of client and tribunal conflict with regard to candor, the interest of the tribunal prevail.”  Also, Comment 11 makes it clear that the duty of candor to the court prevails even in the face of causing “grave consequences” to a client by disclosing the client’s false testimony.

Question 2

Competence.  Conflicts.  Candor.  There’s another word that begins with “C” that is a serious violation of the rules.  However, the word doesn’t appear in any of the rules, notable in its absence from the trust accounting rules and the rule on safekeeping client property.

What’s the word?

Commingling

Question 3

This comes up in approximately 30% of the inquiries I receive. So, about 330 times per year.

Imagine I’m speaking at CLE.  You hear me say “the idea is that we’re not going to put a client to the ‘Hobson’s Choice’ of having to disclose a confidence in order to protect it.”

What general topic am I discussing?

Conflicts/Withdrawal

It is not uncommon for lawyers who encounter former client conflicts to tell me “but Mike, I don’t remember anything about the prior case.”  That may be true, but it’s not the standard under Rule 1.9(a).  As the Vermont Supreme Court has explained, if the new client’s matter is the same as or substantially related to the former client’s matter, the Court will presume that the former client shared confidential information with the attorney.  Why? 

  • “[t]he purpose of the presumption is to avoid “ ‘putting theformer client to the Hobson’s choice of either having to disclose his privileged information in order to disqualify his former attorney or having to refrain from the disqualification motion altogether.’ ” In re Crepault, 167 Vt. 209, 216-17 (citations omitted).

Question 4

Lawyer called me with an inquiry. I listened, then said,

  • “Okay.  Since you and Attorney don’t work in the same firm, it is only allowed if  you  do one of two things.  And, since it sounds like Attorney doesn’t want to do any work on Client’s matter, that means that the first option is out. So, your only option is that you each assume joint responsibility for the representation of Client. Otherwise, the rule prohibits it.“

What is “it” that Lawyer called to discuss, and that Lawyer and Attorney propose to do.

Fee Sharing.   See, this post.

Question 5

As another school year approaches, imagine an aspiring 1L heading to law school.  Law student is cruising down the highway with the tunes blaring.  All of sudden, there are blue lights in the rear view. In the ensuing encounter with police, the law student says to the officer:

  • “Well my glove compartment is locked, so is the trunk in the back
    And I know my rights, so you gon’ need a warrant for that.”

Problem 1:  The situation at hand for our erstwhile law student.

Problem 2:  Future issues with the Character & Fitness committee upon applying for admission?

Problem 3: If law student’s statement is based on advice from a lawyer, the lawyer didn’t exactly provide competent & ethical advice.

Your problem: Name the artist & song that was blaring just before law student was pulled over.

Jay-Z, 99 Problems.

Jay Z

 

Pro Bono: How is Vermont Doing? Stay Tuned

Last month, the ABA’s Standing Committee on Pro Bono & Public Service provided Vermont’s Access to Justice Coalition with A Report on the Pro Bono Work of Vermont’s Lawyers.  Lawyers from 24 states participated in a survey, with the data serving as the basis for state-specific reports.

The A2J Coalition is reviewing the Vermont report.  Soon, the Coalition hopes to receive a national report that reflects the aggregate data from the states that  participated.  Once the national report is available, we’ll have something to compare to Vermont.  I’m not positive, but I expect that the Coalition will disseminate the report after having time to digest and compare.

I’ve seen a draft of the Vermont report.   The results suggest that Vermont lawyers have questions about the relationship between pro bono & legal ethics.  To that end, I thought I’d re-post a blog that I authored last October.  It includes some of my thoughts on the section of the Vermont Rules of Professional Conduct that addresses pro bono.   Check it out HERE for a primer/refresher.

 

Otherwise, stay tuned.  Soon we’ll have a better idea of how we’re doing and what we can do better.  For now, here’s a relatively new opportunity that you might have missed: Vermont Free Legal Answers.

Oh . . . and here’s a sneak preview that happens to double as my favorite part of the report.   Given a long list of factors that may or may not motivate lawyers to do pro bono work, Vermont lawyers ranked “Helping People in Need” as the top motivator.

Isn’t that what it’s all about.

pro bono

 

Anxiety, Stress, and Work-Life Balance for Lawyers

Last month, and in response to the New York Times piece The Lawyer, The AddictI posted Lawyers Helping Lawyers – Keep it on the front burner.

Earlier this week, the ABA Journal posted Jeena Choo’s thoughts in response to The Lawyer, The Addict: Talking about the elephant in the room – social anxiety.  It’s an interesting post on the critical importance of work-life balance, in particular for lawyers who cope with stress-induced issues.   I love Jeena’s closing analogy:

  • “Finally, remember: ‘Secure your own oxygen mask before assisting others.'”

I’ll have more on this topic soon.   Later today, the National Task Force on Lawyer Well-Being is scheduled to release its report on The Path to Lawyer Well-Being.  In the meantime, give Jeena’s blog a read.  Or, for a fun-filled stress-reliver, give this week’s #fiveforfriday legal ethics quiz a try!

work life balance

Five for Friday #81

Welcome to Five for Friday #81!

Sadly for 81, it’s a deficient number.   A number is deficient if the sum of its divisors is less than the number.  Here, 1+3+9+27 = 40.   40 < 81.   Hence, 81 is a deficient number.But, don’t blame 81.  With few exception, not only are most odd numbers odd, they’re deficient.

Hopefully today’s quiz will remedy any deficiencies you might have in legal ethics!

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 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

Not all rules were created equal.  If an attorney’s duties under the rules conflict, which duty is usually viewed as trumping all others?

  • A.   Duty of zealous advocacy to clients
  • B.   Duty of fairness to opposing counsel & opposing parties
  • C.   Duty to provide competent, conflict-free representation
  • D.   Duty of candor to the courts

Question 2

Competence.  Conflicts.  Candor.  There’s another word that begins with “C” that is a serious violation of the rules.  However, the word doesn’t appear in any of the rules, notable in its absence from the trust accounting rules and the rule on safekeeping client property.

What’s the word?

Question 3

This comes up in approximately 30% of the inquiries I receive. So, about 330 times per year.

Imagine I’m speaking at CLE.  You hear me say “the idea is that we’re not going to put a client to the ‘Hobson’s Choice’ of having to disclose a confidence in order to protect it.”

What general topic am I discussing?

Question 4

Lawyer called me with an inquiry. I listened, then said,

  • Okay.  Since you and Attorney don’t work in the same firm, it is only allowed if  you  do one of two things.  And, since it sounds like Attorney doesn’t want to do any work on Client’s matter, that means that the first option is out. So, your only option is that you each assume joint responsibility for the representation of Client. Otherwise, the rule prohibits it.

What is “it” that Lawyer called to discuss, and that Lawyer and Attorney propose to do.

Question 5

As another school year approaches, imagine an aspiring 1L heading to law school.  Law student is cruising down the highway with the tunes blaring.  All of sudden, there are blue lights in the rear view. In the ensuing encounter with police, the law student says to the officer:

  • “Well my glove compartment is locked, so is the trunk in the back
    And I know my rights, so you gon’ need a warrant for that.”

Problem 1:  The situation at hand for our erstwhile law student.

Problem 2:  Future issues with the Character & Fitness committee upon applying for admission?

Problem 3: If law student’s statement is based on advice from a lawyer, the lawyer didn’t exactly provide competent & ethical advice.

Your problem: Name the artist & song that was blaring just before law student was pulled over.

the-quiz

 

 

 

Monday Morning Answers

Congrats to my mom! I had a feeling that Question 5 would draw her into the fray . . . and it did.  As a result, her first ever appearance on the Honor Roll.

You see, when I was a kid, my mom was huge fan of the Cincinnati Reds.  So much so that we’d go see Reds when they played in Montreal and would kind of stalk look for the players in the restaurant at the team hotel.  One time, my mom plopped herself down in a booth with Joe Morgan, Sparky Anderson, and Johnny Bench and asked for autographs.  It was either Anderson or Bench who replied “no.”  When my mom asked why – “I don’t give autographs to people who are sitting on my jacket.”

I’ve never seen my mom move so quickly as she did to get off that jacket.

Friday’s quiz is HERE.  The answers follow today’s Honor Roll.

Honor Roll

Answers

Question 1

Good to know for all lawyers, but perhaps particularly relevant to Vermont lawyers who visit Canada .  .  .  what’s at the heart of the legal ethics issue related to border crossings that recently has drawn attention from bar counsel types?

Question 2

Which is most accurate?

The duty to maintain the confidentiality of information relating to the representation of a client:

  • A.   Applies only to information acquired from the client
  • B.   Applies only to a client’s “confidences and secrets” that would prove embarrassing or detrimental if disclosed
  • C.   Does not apply to information that is in a public record
  • D.  Applies to information acquired before the representation began and after it ended.  See, Rule 1.6, Reporter’s Notes, (The rule “imposes a duty of confidentiality concerning information relating to the representation regardless of whether it is acquired before or after the relationship existed.”)

I’ve blogged often on Rule 1.6 and how it applies to “information relating to the representation,”  whatever the source.  In that sense, the is much broader than the privilege. See, Comment [3].

Further, Rule 1.6 refers to “information relating to the representation.” It does not mention “confidences and secrets.”  We dropped that language when we switched from the Code to the Rules in 1999.

Finally, as I’ve often blogged, Rule 1.6 includes several exceptions to the prohibition against the unauthorized disclosure of information relating to the representation.  “It’s public record” is NOT one of them. Indeed, when analyzing whether a lawyer violated Rule 1.9(c) by disclosing information related to the representation of a former client without the former client’s consent,  courts around the country have almost uniformly held that the fact that information is public record does not mean that it’s “generally known.”

Question 3

Which is most accurate?  In Vermont,

  • A.   All conflicts are waivable
  • B    All conflicts are waivable, but must be waived in writing
  • C.   If Lawyer currently represents A, Lawyer may not represent B in a matter adverse to A, even if the two matters are unrelated and both A & B give informed consent.
  • D.   If Lawyer currently represents A, Lawyer is not necessarily precluded from representing B in a matter where B is adverse to A.  See, Rule 1.7Rule 1.7.

Here, A&B are clearly wrong.  As Rule 1.7(b) makes clear, not all conflicts are waivable.

C is wrong because Lawyer may continue if Lawyer complies with Rule 1.7(b).

D is most accurate. It’s actually mentioned in the last sentence to Comment 6, the first sentence to Comment 24, and addressed throughout each.

That being said – THINK TWICE. While A & B might be happy up front, if things go bad later on, they’re going to look for someone to blame and Lawyer makes a convenient target. Also, Rule 1.7(b)(3) is quite clear, as is Rule 1.7(b)(1).  With respect to the latter, what seemed “reasonable” at the time, might not seem so reasonable when examined in the harsh light of a disciplinary investigation.

Question 4

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

  • “here’s the deal: you can’t unilaterally resolve the dispute.  if the dispute involves a client & you, you’re supposed to suggest means for prompt resolution.  if it’s a dispute between your client and a third person, a comment to the rule indicates that you may consider filing an action asking a court to resolve the dispute.”

In that my response referred to the Rules of Professional Conduct, what is the most likely subject of the “dispute” that Attorney called to discuss?

Disputed property, likely funds.  The dispute could be between client & third person, or client and lawyer.  See, Rule 1.15(e), Comment [4].

Question 5

Attorney John Dowd is part of President Trump’s legal team.  Nearly 30 years ago, he authored the famed “Dowd Report;” a report that led to a star pro athlete effectively being “disbarred” from the athlete’s sport.  Ever since, the athlete has sought reinstatement.

Two years ago, Dowd appeared on a radio station and said that, in the 70’s, the athlete had sex with minors.   Last year, the athlete sued Dowd for defamation.  Neither Dowd’s comments nor the lawsuit generated much media coverage until this week . . . when Dowd’s defense team introduced a sworn statement from a woman stating that she had sex with the athlete when she was 14 years old, and he was 34.

Identify the athlete who, now, appears unlikely ever to be reinstated from the “disbarment” that followed the Dowd Report.

Pete Rose.

big red machine

Was That Wrong? That’s what makes this so difficult.

Was That Wrong is a semi-regular column on Ethical Grounds. The column features stories of the absurd & outrageous from the world of legal ethics and attorney discipline. My aim is to highlight misconduct that I hope you’ll instinctively avoid without needing me to convene a CLE that cautions you to do so.

The column is inspired by the “Red Dot” episode of Seinfeld. In the episode, George Costanza has sex in his office with a character known only as “the cleaning woman.”  His boss finds out.  Here’s their ensuing exchange :

(Scene) In the boss’ office.

  • Boss: I’m going to get right to the point. It has come to my attention that you and the cleaning woman have engaged in sexual intercourse on the desk in your office. Is that correct?
  • George: Who said that?
  • Boss: She did.
  • George: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know, cause I’ve worked in a lot of offices and I tell you people do that all the time.
  • Boss: You’re fired.
  • George: Well you didn’t have to say it like that.

The full script is HERE.  The scene is HERE.

Today’s story comes thanks to Joe Patrice at Above the Law: Attorney Forges Judges’ Signatures Over 100 Times.  Earns Jail, Sick Burn.  Yesterday, the attorney was sentenced to 364 days in jail, and 10 years probation, for forging judges’ signatures on 114 structured settlements and filing them with the court clerk.

As regular readers know, this is the point in the column where, using the same structure as the “was that wrong” conversation between Costanza and his boss, I’d draft an imaginary colloquy between the attorney-forger & the judge who sentenced him.

Not today.

No, today’s story reminds me more Bizarro Jerry, the episode in which Kramer is fired from a job that he doesn’t even have.  The relevant segment:

  • Leland (the boss):  Well, I’m sorry.  There’s just no way that we could keep you on.
  • Kramer:  I don’t even really work here!
  • Leland:  That’s what makes this so difficult.

The scene is HERE.  The full script is HERE.

Returning to today’s story, as Patrice wrote on the ATL blog,

  • “It remains one of the most baffling cases of professional misconduct we’ve covered at Above the Law for the simple reason that Camacho seemingly garnered no advantage at all from his actions. The settlements would’ve earned a rubber stamp had he submitted them to the court.  He just… didn’t.”

Here’s how I envision it in Bizarro world:

  • Judge:  Well, I’m sorry.  There’s just no way we can condone lawyers forging judges’ signatures on settlements.  I sentence you to 364 days in jail.
  • Lawyer:  But they’d have been approved even if I didn’t forge them!
  • Judge:  That’s what makes this so difficult.

 

Kramer

 

Five for Friday: #80

80!

Miracle

It is indeed a miracle that the quiz has made it this far.

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 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

Good to know for all lawyers, but perhaps particularly relevant to Vermont lawyers who visit Canada .  .  .  what’s at the heart of the legal ethics issue related to border crossings that recently has drawn attention from bar counsel types?

  • A.    The Disclosure of Confidential Client Information
  • B.    The Unauthorized Practice of Law
  • C.    The Ethics of Advising Clients to Comply w State Laws that Violate Federal Law
  • D.    Candor to Government Officials

Question 2

Which is most accurate?

The duty to maintain the confidentiality of information relating to the representation of a client:

  • A.   Applies only to information acquired from the client
  • B.   Applies only to a client’s “confidences and secrets” that would prove embarrassing or detrimental if disclosed
  • C.   Does not apply to information that is in a public record
  • D.  Applies to information acquired before the representation began and after it ended

Question 3

Which is most accurate?  In Vermont,

  • A.   All conflicts are waivable
  • B    All conflicts are waivable, but must be waived in writing
  • C.   If Lawyer currently represents A, Lawyer may not represent B in a matter adverse to A, even if the two matters are unrelated and both A & B give informed consent.
  • D.   If Lawyer currently represents A, Lawyer is not necessarily precluded from representing B in a matter where B is adverse to A.

Question 4

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

  • “here’s the deal: you can’t unilaterally resolve the dispute.  if the dispute involves a client & you, you’re supposed to suggest means for prompt resolution.  if it’s a dispute between your client and a third person, a comment to the rule indicates that you may consider filing an action asking a court to resolve the dispute.”

In that my response referred to the Rules of Professional Conduct, what is the most likely subject of the “dispute” that Attorney called to discuss?

Question 5

Attorney John Dowd is part of President Trump’s legal team.  Nearly 30 years ago, he authored the famed “Dowd Report;” a report that led to a star pro athlete effectively being “disbarred” from the athlete’s sport.  Ever since, the athlete has sought reinstatement.

Two years ago, Dowd appeared on a radio station and said that, in the 70’s, the athlete had sex with minors.   Last year, the athlete sued Dowd for defamation.  Neither Dowd’s comments nor the lawsuit generated much media coverage until this week . . . when Dowd’s defense team introduced a sworn statement from a woman stating that she had sex with the athlete when she was 14 years old, and he was 34.

Identify the athlete who, now, appears unlikely ever to be reinstated from the “disbarment” that followed the Dowd Report.

the-quiz

 

 

 

 

 

Crossing the Border? Consider Bringing Only What You Really Need.

There’s a lot going on in Montreal.

The city is celebrating its 375th anniversary.  The Impact and Alouettes have opened their seasons.  Guns N’ Roses plays Parc Jean Drapeau in a few weeks, and hopefully things go better than at the Big O in 1992.  The Museum of Fine Arts has Revolution.  The Lachine Rapids are a great way to beat the August heat.

Whatever draws you north, think twice about bringing electronic devices that contain client information.

A few weeks ago, I posted an update on protecting client information while returning to the U.S. from abroad.  In it,  I included this quote from another blogger: “I wish I could conclude this post with easy answers, but it appears that there are none at the moment.”

Moments change.

On July 27, the New York City Bar Association issued Formal Opinion 2017-5.  In short, and as reported by the ABA Journal, lawyers should take reasonable precautions to avoid disclosure of client information during a border crossing.

Here are some highlights from the NYC Opinion:

  • Rules 1.1 (competence) and 1.6 (confidences) impose a duty to act competently to safeguard client information.
  • The duty includes taking reasonable precautions against disclosing information that should not be disclosed.
  • The duty requires “attorneys to make reasonable efforts prior to crossing the U.S. border to avoid or minimize the risk that government agents will review or seize client confidences that are carried on, or accessible on, electronic devices that attorneys carry across the border.”
  • What are reasonable efforts/precautions? It’ll depend on a variety of factors.
  • Those factors suggest “that an attorney should not carry clients’ confidential information on an electronic device across the border except where there is a professional need to do so.”
  • The factors also suggest that “attorneys should not carry clients’ highly sensitive information except where the professional need is compelling.”

The opinion goes on to provide some detail on how to evaluate the risk that confidential information will be reviewed at the border. (It’s low).  The opinion also sets out safeguards to implement, with “the simplest option with the lowest risk [being] not to carry any confidential information across the border.”  (emphasis mine)

Importantly, the opinion suggests that an attorney does not violate New York’s rules by complying “with a border agent’s demand, under a claim of lawful authority, for an electronic device containing confidential information during a border search.”   Key, however, is that the opinion stresses that an attorney must first undertake “reasonable efforts to dissuade border agents from reviewing clients’ confidential information or to persuade them to limit the extent of their review.”

Finally, the opinion states that if client information is reviewed during a border crossing, Rule 1.4’s duty of communication requires the lawyer to inform each affected client.

I cannot give you “yes” or “no” answers for every conceivable possibility related to client information, electronic devices, and border searches.  I’ll leave it at this: if devices containing client information are searched – and that’s a big if – will you sleep easier knowing that you took precautions against it happening?

Remember, not every unauthorized access creates ethics liablity for the attorney.  “Reasonable precautions” does not mean “fool-proof.”  However, the failure to take precautions might be viewed as clear & convincing proof of foolishness – a determination that might lead to sleepless nights.

Whatever you do before you travel to Canada with devices that contain client information, do whatever will help you (and your clients) sleep best after you return.

Electronic Devices

 

Discovery Sanction: Costs (of pizza)

Given that it’s 84 degrees, without a hint of humidity, but with bright sun & clear blue skies as we approach 5:00PM, I doubt many people are reading this blog, or any legal ethics blog.

Seems like the perfect time for this post.

Perusing Above The Law, I ran across Joe Patrice’s post Pro Se Plaintiff Asks For Expenses For A Pizza Party As Discovery Sanction, Gets Them.

It speaks for itself.

Now, stop reading this, and enjoy the fantastic weather! It won’t be long until the weather ain’t so fantastically enjoyable!

Pizza