Tech Competence and . . . flipping the bird?

It’s been a while since I’ve posted.  I love easing my way back into blogging with quick hitters.  So, without further ado:

Tip #1.   During a remote hearing, whether angry at yourself, opposing counsel, the court, or a screen that’s blank, frozen, or otherwise not working properly, don’t “flip the bird” at your camera.

Tip #2.  If you forget Tip #1, be honest when the court asks you what it just saw.

Today’s post comes thanks to a tip from Catamount Law’s Samantha Lednicky.  Last week, Sam sent me this order issued by the Michigan Court of Appeals.  The ABA Journal and Detroit Free Press have coverage.

I leave further reading to curious minds.

Flip the Bird

Related Posts:

Preparing for a remote hearing? Maybe check your client’s screen name

Tech Competence & Cats

Tech Competence Posts:

Go here for all my posts categorized or tagged as “tech competence.”

When a client insists that a lawyer advance frivolous claims.

Last year, I ran the “Professional Responsibility Madness” challenge.  Modeled on the “March Madness” brackets associated with the NCAA basketball tournament, I seeded 64 concepts associated with professional responsibility & legal ethics into the bracket.  Round-by-round, lawyers voted.  The concepts (and their category) that advanced to the Final Four were:

  • Candor to the Tribunal (Duties to Others)
  • Former Client Conflicts: Substantially Related? (Conflicts & Confidences)
  • Who Decides? Lawyer or Client? (Duties to Clients)
  • Did you say “Utes?” (My Cousin Vinny)

I was surprised by the interest in “Who Decides? Lawyers or Client?”  Until then, it was an issue rarely raised in ethics inquiries.

Flash forward to 2021.

In the past month, two different lawyers have made inquiries that boiled down to the same question: “what do I when the client insists on presenting a claim that I think is frivolous?”

In short, my position is that the lawyer decides which facts and arguments will be advanced, and that the lawyer, not the client, decides which facts and arguments are frivolous.  Then, if the client insists that the lawyer present frivolous claims, the lawyer must move to withdraw. In responding to each inquiry, I cautioned the lawyers that there is a difference between a frivolous claim and one that has little chance of prevailing.[i]

My position derives from the following rules:

  • Rule 1.2(a), which leaves the objectives of the representation to the client and how those objectives are pursued to the lawyer’s discretion, in consultation with the client;
  • Rule 1.4(a)(5), which requires a lawyer to “consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law;”
  • Rule 3.1, which prohibits a lawyer from bringing a claim or asserting a position “unless there is a basis in law or fact for doing so that is not frivolous;”
  • various provisions of Rule 1.16, most notably Rule 1.16(a)(1), which requires a lawyer to withdraw when continued representation will result in a violation of the rules; and,
  • the general duties of fairness to the opposing party and candor to the court.

Doing some follow-up research, I came across Ethics Opinion 1214 from the New York State Bar Association. Issued January 11, 2021, the opinion answers a question from a lawyer assigned to represent a person who had filed a pro se petition to vacate a judgment of foreclosure.  Upon reviewing the filing, the lawyer concluded that the person lacked a non-frivolous basis in law or fact to vacate the judgement.  The opinion concludes as follows:

  1. The lawyer may not argue or advance frivolous arguments.
  2. If the person insists, the lawyer may move to withdraw pursuant to:
    1. New York’s Rule 1.16(c)(4). The rule permits withdrawal when a “client insists on taking action with which a lawyer has a fundamental disagreement;”[ii] or,
    2. any other rule mandating or permitting withdrawal.
  3. In moving to withdraw, the lawyer must not disclose confidential information.[iii]
  4. If a motion to withdraw is denied, the lawyer must continue to represent the client, but without presenting frivolous claims.

Here’s the key language on the final point.  Even when withdrawal is not allowed, the lawyer:

  • “may still not engage in ‘frivolous conduct’ at the direction or behest of the homeowner. A client has no right to instruct a lawyer to violate a Rules of Professional Conduct, and a lawyer has no right to follow an instruction that the lawyer violate a Rule. Thus, the inquirer must find a means to competently represent the homeowner without putting forth frivolous arguments.”

As always, be careful out there.

[i] I suppose this might be referred to as the “Dumb & Dumber Corollary.”

Dumb and Dumber

[ii] Vermont’s Rule 1.16(b)(4) includes the same language.

[iii] For more on this issue, see my post Stop Making Noise. It discusses the peril of “noisy withdrawal.”

Forging signatures? Bad idea.

I’m in a blogging slump.  Only two posts since June 22nd.  Perhaps writing about a lawyer who may someday end up in a Was That Wrong? column will help to break me out of my slump.

The story comes via the ABA Journal.  Click later.  For now, imagine this:

  • You’re a criminal defense lawyer.
  • In January, the court issues a Bond Order that requires your client to wear an Electric Home Monitoring (EHM) device.
  • On March 9, a modified Bond Order issues.  Your client no longer has to wear the EHM! The modified Bond Order includes signatures that purport to be yours, the prosecutor’s, and the judge’s.
  • On March 10, the court, sue sponte, holds a conference call to discuss concerns that the prosecutor has raised about the modified Bond Order.  Specifically, the prosecutor informed the court that she never agreed to modify the Bond Order and that the signature isn’t hers.
  • You reply by conceding that you signed the prosecutor’s name.

At this point, readers likely realize that things aren’t going too well for you.

Alas, you realize that things are about to get a whole lot worse.  Well, now, it’s time to share what you and I know with the readers.

Here’s language from the order that the court issued after the conference call:

  • “This Court also has concerns about what is purported to be its signature. The signature does not resemble this Court’s signature. The Court does not recall signing the Order. The date the Order was purportedly signed, March 4, 2020, the undersigned was not in the circuit and was unavailable to sign the Order.”

I think readers are starting to understand how bad things are getting for you.

  • “Defense Counsel . . . stated in the conference call that he presented the Order to the Court on Monday. The Court understood that [Defense Counsel] was referring to Monday March 2, 2020.  Out of an abundance of caution, this Court had the security tapes reviewed for Monday, March 2 and Monday, March 9, 2020.  [Defense Counsel] was not seen in court on either of those days.”

Drawing on my basketball experiences, coaches sometimes respond to a player’s mistake by saying “good idea, poor execution.” Yet, as with today’s story, there were also times when a player’s mistake was not only in the execution, but in the idea itself.  In that situation, a coach begins by asking “what were you thinking?”


The transcript of the conference call the final document available at this link.

Denver criminal defendants no longer must pay for ankle monitors


A lawyer’s duty upon learning that a client or witness presented false evidence.

Earlier this month I presented CLEs for both the Defender General’s Office and the VBA’s Bankruptcy Section.  At each, we discussed Rule 3.3 and a lawyer’s duty of candor to the tribunal.

A quick search of this site shows that I often include questions on the rule in the #fiveforfriday quiz.  Substantive posts, however, are exceedingly rare, limited, it seems, to this post on Rule 3.3(d) and the duty of candor in an ex parte proceeding.

While not often a topic I address, it’s a topic I hear about, whether by formal inquiry of bar counsel or by questions posed at CLEs.  The inquiries & questions boil down to this: “having learned that a client or witness lied, what do I do?”

When I get the question at CLEs, I respond by asking the audience “what’s the first thing you have to do?”  Two answers are common:

  • “Withdraw.”
  • “Inform the court.”

In my view, neither is the right answer.

Let’s look at Rule 3.3(a)(3).  The section relevant to this post states that “a lawyer shall not knowingly:

  • offer evidence that the lawyer knows to be false. If the lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.” (emphasis added)

Stated differently, the rule does not say that

  • “If the lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know its falsity, the lawyer shall withdraw/inform the tribunal.”

So, what are “reasonable remedial measures?”  The comments provide guidance.  Specifically, Comments [10] and [11].

Here are a few key lines from Comment [10]:

  • “In such situations, an advocate’s proper course is to remonstrate with the client confidentially, advise the client of the lawyer’s duty of candor to the tribunal and seek the client’s cooperation with respect to the withdrawal or correction of the false statements or evidence.”

The use of “remonstrate” is telling.  I’m not bright enough to know whether, in the comment, “remonstrate” is a transitive or intransitive verb.  No matter which, it’s clear that it means more than “chatting” with the client.

Per Merriam-Webster, as an intranstive verb it means “to present and urge reasons in opposition.”  With an object receiving it – for instance, a client – it means “to say or plead in protest, reproof, or opposition.” To me, the duty, then, is to protest against the false evidence having been offered, present the client with reasons to correct it, and urge the client to do so.

The Comment goes on:

  • “If that fails, the advocate must take further remedial action.  If withdrawal from the representation is not permitted or will not undo the adverse effect of the false evidence, the advocate must make such disclosure to the tribunal as is reasonably necessary to remedy the situation, even if doing so requires the lawyer to reveal information that otherwise would be protected by (the confidentiality rule).”

Harsh?  Yes.  The opening sentence to Comment [11] makes that clear:

  • “The disclosure of a client’s false testimony can result in grave consequences to the client, including not only a sense of betrayal but also loss of the case and perhaps a prosecution for perjury.”

Why so harsh?  The next sentences provide the answer:

  • “But the alternative is that the lawyer cooperate in deceiving the court. thereby subverting the truth finding process which the adversary system is designed to implement . . . Furthermore, unless it is clearly understood that the lawyer will act upon the duty to disclose the existence of false evidence, the client can simply reject the lawyer’s advice to reveal the false evidence and insist that the lawyer keep silent.  Thus the client could in effect coerce the lawyer into being a party to fraud on the court.”

I don’t know how often this arises in practice.  For now, if it does, remember: upon learning that a client or witness has provided false evidence, neither “withdraw” nor “inform the court” is the first step.

Remonstrate, remonstrate, remonstrate.

Image result for remonstrate



Talking culture, compliance, confidences & candor.

Flashback to 1994:  I was a brand new attorney.  Another attorney in my office mentioned Shelley Hill.  I asked, “who’s Shelley Hill?”  The attorney responded, “someone you never want to hear from.”

Back then, Shelley was Vermont’s disciplinary prosecutor.  The attorney’s answer to my question was the extent of the ethics guidance I received in my first ever job as a lawyer.

Legal Ethics

We’ve come a long way.  It’s no longer taboo to talk legal ethics.  We talk it.  A lot.  Not only does it help us do better for our clients, it improves the image of the profession.  To that end, one of my goals as bar counsel is to foster an ongoing and open dialogue about legal ethics and professional responsibility that helps to build a culture of compliance that we put out there for the world to see.

Reflective of the today’s world, the conversation happens in many forums.**  Today, I woke to having been mentioned in a tweet by a lawyer who was concerned by the news that Nikolas Cruz’s public defender disclosed Cruz’s potential inheritance in a motion to withdraw from representing him in the criminal case.  The lawyer tweeted:

“i would be interested to learn the circumstances of the public defender of Nikolas Cruz disclosing to the court in Mtn to Withdraw and on the record that his client inherited $430,000 (VERY vulnerable to civil suit if not exempt) – seems a bit problematic, eh @VTBarCounsel?”

The entire string is here.

Look at us.  We are talking legal ethics in public! THAT is professional responsibility.

I’ve blogged often on client confidences and Rule 1.6.  Basically, my position is that lawyers should STFU.  Or, to borrow a quote from Thomas Edison that my Dad instilled in me as a kid:

“You will have many opportunities
to keep your mouth shut.
You should take advantage
of everyone of them.”

Obviously, it’s far wiser to take my Dad out in public than his eldest son.

Anyhow, as indicated in my reply Tweet this morning, I don’t comment without hearing all sides to a story, not to mention that I have no idea what Florida’s rules are.  But it’s a great construct to use as a mini-refresher on Vermont’s rules.

By rule, “information relating to the representation of a client” is confidential.  The scope is broader than the privilege and includes all information related to the representation no matter the source.  Comment [3].  Such information shall not be disclosed unless:

  • the client gives informed consent to the disclosure;
  • disclosure is impliedly authorized to carry out the representation;
  • disclosure is required by paragraph (b);
  • disclosure is permitted by paragraph (c).

Returning to the Parkland case, if Vermont’s rules applied, the first possibility is that Cruz gave informed consent for his public defender to make the disclosure.

I’d be surprised if any of exceptions in paragraph (b) applied.  However, it’s possible that one of the exceptions in paragraph (c) applies.  That is, disclosure of the inheritance might be authorized by another rule.  Stay with me here.

This morning I did something rare: I did some research before I tweeted.  I learned that, as reported by the South Florida SunSentinel, a year ago Cruz’s inheritance was the subject of a hearing as to whether he qualified for public defender services.  Per the report, it appears as if it was represented to the court that Cruz stood to inherit far less than recent developments indicate.

If so, and again if Vermont’s rules applied, it’s possible that the new information required the public defender to make the disclosure pursuant to Rule 3.3.  The rule, entitled “Candor to a Tribunal,” requires a lawyer to correct a prior material statement of fact that was false.  Were the statements made in last year’s hearing on Cruz’s eligibility for public defender services “material” and “false?”  If so, one might argue that the public defender was required to make the disclosure in the motion to withdraw.

Finally, reading today’s reports left me with the impression that Cruz’s public defenders believe that, given the inheritance, the law precludes him from being eligible for their services.  Thus, it appears to me that they argued that they are required to withdraw.

In Vermont, Rule 1.16 governs withdrawal.  Perhaps most relevant here, Rule 1.16(a)(1) requires withdrawal when “the representation will result in violation of the rules of professional conduct or other law.”  So, it looks to me as if the argument is “by law, the inheritance prohibits us from representing him, thus withdrawal is required.”  The Florida courts will decide.

Aside: as some of you know from having called me or heard me speak.  When it comes to a motion to withdraw, I think it best to limit the motion to citing the text of whichever provision(s) of Rule 1.6 you’re arguing.  Then, if the court asks for more information, respond, but in such a way as to disclose no more information than is necessary to answer the court’s question.  Being mindful, the entire time, of a larger duty not to harm to your client’s interests on your way out.  Others may disagree with me, but that’s fine.

Indeed, that’s why it’s so important to continue to discuss legal ethics and professional responsibility.  The discussion makes us do better by our clients, the courts, and the profession.

Talk on.

** I couldn’t decide whether to go with “fora” or “forums.”  Flipped a coin.


Ghost Posts. Or are yours real?

To borrow a phrase from Larry David and Teri Hatcher, my blog posts are real and they’re spectacular!  Apparently not all law blogs can truthfully say the former.

Last month, the ABA Journal posted Ghostwriting for law blogs? Ethics are murkyIt’s a topic that’s new to me, one not raised in any of the ethics inquiries or formal disciplinary complaints that I’ve responded to and reviewed over the years.  The ABA Journal post includes insight from some of the more well-known voices on both professional responsibility and tech ethics.

But let’s back up for a moment.  You might be asking your self: “self, what is Mike even talking about?”  Good question.

The ABA’s post references this article that Kailee Goold posted to Ohio + Legal Ethics in June 2014. In it, Attorney Goold wrote:

  • “What are We Talking About?

    The ghost-blogging I’m talking about is when an attorney pays someone else (a non-attorney) to write articles published under the attorney’s name on the attorney or law firm’s website. As a result, the world thinks the attorney wrote it when the attorney had little to no part in its creation.”

Again, not an issue I’ve encountered.  But, an issue that raises ethics concerns.

Many law blogs are part of a lawyer’s website.  Websites communicate information about the services that the lawyer provides. Per V.R.Pr.C. 7.1,

  • “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.  A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement as a whole not materially misleading.”

The final sentence of Comment [1] is “whatever means are used to make known a lawyer’s services, statements about them must be truthful.”

Also, V.R.Pr.C. 8.4(c) prohibits a lawyer from engaging in conduct that involves “dishonesty, fraud, deceit or misrepresentation.”

So, let’s say that a firm focuses on Practice Area.  And let’s say that the firm’s website includes a blog dedicated to Practice Area.  Does the firm violate the rules by paying a content developer to ghostwrite the posts and then posting them under the “byline” of one of the firm’s lawyers?

My gut reaction was “is it really THAT misleading?” But then I paused.  Because whenever we start asking whether something “is really THAT misleading,” we’ve established that it is, in fact, misleading.

In that it never arises, I don’t want to belabor the issue.  Suffice to say, if your website or blog includes posts that you paid someone else to ghostwrite, check out the articles referenced above.

Finally, I proof read by reading aloud.  Reading this blog about law blogs aloud reminded me of two things.

First, it reminded me of Elizabeth Kruska & Wesley Lawrence, perennial members of the #fiveforfriday Honor Roll in Legal Ethics.

Why them?

Because, like me, I know they’re fans of the second thing that reading today’s post aloud reminded me of: the world’s greatest law blog – The Bob Loblaw Law Blog.

See the source image


Candor in an Ex Parte Proceeding

I’ve not once had this arise in 20 years of reviewing disciplinary complaints.  Maybe, however, it’s because you can’t complain about something you don’t know.

Here’s the issue: a lawyer’s duty of candor in an ex parte proceeding.

Like apps, there’s a rule for that.  It’s Rule 3.3(d).

Generally, it’s not a lawyer’s job to make the other side’s case.  Yes, rule 3.3(a)(2) prohibits a lawyer from knowingly failing “to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.”  However, in most adversary proceedings, the rules do not require a lawyer to disclose or introduce facts that help the adversary more than the client.

Rule 3.3(d) makes clear that an “ex parte proceeding” is a bit different.   Here’s the rule:

  • “In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.”

Comment [14] addresses the rule:

  • “Ordinarily an advocate has the limited responsibility of presenting one side of the matter that a tribunal should consider in reaching an informed decision; the conflicting position is expected to be presented by the opposing party.  However, in any ex parte proceeding, such as an application for a temporary restraining order, there is no balance of presentation by opposing advocates.  The object of an ex parte proceeding is nevertheless to yield a substantially just result. The judge has an affirmative responsibility to afford the absent party just consideration.  The lawyer for the represented party has the correlative duty to make disclosures of material fact known to the lawyer and that the lawyer reasonably believes are necessary to an informed decision.”

In 1999, Vermont replaced the Code of Professional Responsibility with the Rules of Professional Conduct.  At the time, Rule 3.3(d) was brand new. There was no corollary in the old Code.

Now, many of you likely never participate in ex parte proceedings.  If so, that’s fine. I won’t be offended if you stop, or have already stopped, reading. However, this blog tracks exactly how far you read.  And while I won’t be offended, I won’t forget.

Just kidding!  This blog tracks no such thing!!!

Back to my post.

The rules do not define “ex parte proceeding.”  Other than the mention of applications for temporary restraining orders in Comment [14], there’s no guidance as  to when Rule 3.3(d) applies.

Last month, the New York City Bar Association provided guidance in the form of Formal Opinion 2019-01.  New York’s 3.3(d) and Comment [14] track Vermont’s verbatim.  So, while we’re not bound by the NYCBA opinion, it’s helpful.  Here’s the summary.

  • Rule 3.3(d) applies in limited circumstances.
  • It does not apply when a pro se party is absent by choice.
  • It applies to proceedings in which only one side receives an opportunity to present its case.
  • It applies to applications for temporary restraining order when one side has not been provided with notice or an opportunity to appear & be heard on the application.
  • It applies to proceedings in which “interested parties are not permitted to receive notice and participate,” for instance, search warrant applications.

The opinion notes that there are two ways to define an “ex parte proceeding.” Narrowly, only applying to emergency applications for temporary relief.  Or, more broadly, to any matter in which, for whatever reason, one side is absent.  The opinion rejects each extreme and settles on middle ground.  Specifically concluding that:

  • “The rule applies only to proceedings in which, for practical or legal reasons, only one side has an opportunity to present its case.”

Again, I’ve never dealt with this issue in the form of a complaint or an ethics inquiry. However, I’ve practiced under the rule.

I was disciplinary counsel from 2000 – 2012.  In Vermont, upon completing an investigation and concluding that a lawyer violated the rules, disciplinary counsel is not free simply to charge the lawyer with misconduct.  Rather, by rule, before filing a formal petition of misconduct, disciplinary counsel’s charging decision must be reviewed for probable cause by a hearing panel of the Professional Responsibility Board.  Typically, this involves an affidavit summarizing the investigation and a memorandum of law outlining the rule violations.

I filed dozens of probable cause requests. The process is definitely “ex parte.”  That is, the subject lawyer has no right to participate and is not invited to participate.  Thinking back to my days as the prosecutor, I’m not sure I even knew about Rule 3.3(d), even though it clearly applied to me as I filed the pc requests.  Thankfully, my practice was to include a copy of the lawyer’s response to the disciplinary complaint with each pc request that I filed.


See the source image

Ethics: it’s all about the bad grades

A few weeks ago I posted C in ethics? You’re on the right track In it, I offered two cheat codes to stay on the right side of the rules.

The first was my own: don’t lie, cheat or steal.  Nearly every violation falls under one.

The second was Brian Faughnan’s recipe for ethical lawyering.  The recipe?  The 5 C’s:

  • Competence
  • Confidentiality
  • Communication
  • Candor
  • Conflicts

Today I present a third: it’s all about the bad grades.

Alberto Bernabe is a professor at John Marshall Law School in Chicago.  Professor Bernabe teaches torts and professional responsibility.  He maintains a blog for each topic.  His torts blog is here, and his professional responsibility blog is here.  Professor Bernabe is also a frequent member of this blog’s #fiveforfriday Honor Roll in legal ethics.

In response to my post on the 5 C’s, Professor Bernabe shared a story with me.  He urges his students to remember the general principles behind the rules.  He does so by suggesting that they associate those principles with the grades that they do not want to earn in a semester:  4 C’s, 1 D, and 1 F.  That is:

  • Competence
  • Confidentiality
  • Communication
  • Conflicts
  • Diligence
  • Fiduciary

Professor Bernabe’s full blog post on bad grades is here.

I love the semi-mnemonic.  Diligence and the fiduciary duty to clients are as important as the 5 C’s.

Thank you Professor Bernabe for another arrow in the quiver.

  • Don’t lie, cheat or steal
  • Remember the 5 C’s
  • Ethics: it’s all about the bad grades

See the source image         Image result for images of d and f grades      Image result for images of f grade




Wellness Wednesday: on ponds, puffery & paltering.

It’s Wellness Wednesday!

Remember – wellness is about much more than the staggering rates at which lawyers are afflicted with behavioral health problems.  Wellness is also about taking action to be well.  For instance, making time for what matters, taking 6-minutes a day for yourself, and making wellness a habit.

Last week, I debuted “Wellness Wednesday” with this post congratulating the lawyers who ran in the Island Vines 10K. This week: some thoughts on the ethics of puffery & paltering, but only after a big thank you to Jennifer Emens-Butler!

Jennifer is the VBA’s Director of Communication and Education. She’s a staunch ally in the quest to encourage lawyers to be well.  Among other things, Jennifer pens Pursuits of Happiness, a regular column in the VBA Journal, and she is commited to including wellness components at the VBA’s conferences & meetings.

For example, at last weeks’ annual meeting in Manchester, Jennifer organized an early morning walk on the trails at the Equinox Preserve.  Not even a little rain could keep Jennifer & me from starting the day with wellness!


Now, the ethics part of this post: paltering.

The night before the morning walk, I had the privilege of joining Andrew Manitsky and Tad Powers on a CLE panel.  Our topic was puffery and the ethics of negotiation.

One of my favorite parts of the program (we’ve presented it before) is a piece that Andrew does on “paltering.”  A person palters by actively using the truth to deceive.  As this piece in the Washington Post points out, many consider “the behavior of someone who paltered in a negotiation as being just as unethical or untrustworthy as the person who outright lied with a known falsehood.”

Remember: when representing a client, Rule 4.1 prohibits misrepresentations of fact or law to a third person.  Per Comment [1], “[m]isrepresentations can also occur by  partially true or misleading statements or omissions that are the equivalent of affirmative false statements.”

So, what’s this got to do with Wellness Wednesday? I’m glad you asked.

On our walk, Jennifer & I set out on the Pond Trail.  We never found the pond.  Either it evaporated or it’s so small as to be indistinguishable from the rain puddles we encountered on the trail.

Later, throughout the morning at the conference, several people asked if I’d hiked to the pond.  Normally I proudly display my Chittenden County roots. However, not wanting to admit that a kid born & raised by the airport couldn’t find a damn pond in Southern Vermont – even while hiking on “the pond trail” – I replied:

“we took the Pond Trail. It was terrific.”

True statements indeed.  But, I paltered.

Enjoy Wellness Wednesday! Do something for yourself, even if it’s only for 6 minutes!



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.


See the source image


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).