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

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

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

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

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

Welcome back!


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

High School Basketball and an Order Imposing Sanctions for Incivility

My high school basketball coach expressed displeasure in various ways.  There was one method that we feared the most. He didn’t use it often, but when he did, it was often the last time he had to use it with the offending player.  Here’s how it worked.

Imagine that I did something egregious at practice.  “Egregious” in the behavioral sense, not because I missed yet another shot or made a typically errant pass.  Coach would make me sit on the stage while my teammates ran sprints because of my egregious behavior.  As they ran, Coach would bring me water and go overboard to make sure I was comfortable. 

Most players in my predicament desperately pled to be allowed to run in their teammates’ stead.  Or, at the very least, begged to join them in serving the punishment.  Nope.  Coach insisted on me resting while my teammates paid the price of my conduct.

Being made an example of worked. I don’t remember a single player having it happen more than once.

Yesterday I read an order issued by a New York trial court in response to a motion for sanctions.  It reminded me of Coach’s tactic. The order is here.[i] Here’s my summary.

Following a deposition in a civil suit, counsel for the defense moved for sanctions against plaintiff’s counsel and an attorney who represented the witness.  According to the court,

  • “The deposition transcript of 175 pages speaks for itself and need not be repeated. Suffice it to say that [Attorney 1], counsel to the witness, interjected 187 times with improper speaking objections and/or colloquy, while [Attorney 2], counsel for plaintiff, interjected 114 times with improper speaking objections and/or colloquy. Counsel instructed the witness not to answer 30 questions without any lawful basis.” (internal citation omitted).

The court noted:

  • “Improper deposition behavior not only thwarts the deposition but tarnishes the profession. Offensive and abusive language by attorneys in the guise of zealous advocacy is plainly improper, unprofessional, and unacceptable.”

In the end, the court sanctioned the lawyers. It ordered them to conduct themselves in a civil manner going forward, pay attorney’s fees associated with the deposition and the motion for sanctions, and make monetary payments to New York’s Client Security Fund. 

In addition, and most pertinent to this post, the court ordered the attorneys to attend a CLE on civility within 30 days and to attest to the court that they’d attended and read the “standards of civility.”  The court included this footnote:

  • “Counsel are referred to the NYS Bar Association which sponsors a regular CLE on civility taught by Vince Syracuse, Esq. The transcript in this matter, with appropriate redactions, will be shared with Mr. Syracuse for use in his seminar as an example of uncivil sanctionable behavior.”

Given the court’s language, it’s possible that the CLE at which the transcript of their deposition will be used “as an example of uncivil sanctionable behavior” is not the same CLE that they are required to attend. Still, on the chance that it might be the same CLE, it reminded me of Coach. 

In basketball, nobody wanted to be that player that Coach sent to the stage while the others ran.

Similarly, in law, nobody wants to be that lawyer who I’m using as an example at my next CLE. But who am I to disregard a court order?

As always, let’s be careful out there.

Related Posts


[i] I can’t remember how or where I came across it. 

Virginia Lawyer Reprimanded for Vulgar E-Mail to Witness.

Of the 7 Cs of Legal Ethics, civility can be the most vexing. After all, while there are rules that specifically govern the other six, nothing in the Vermont Rules of Professional Conduct mandates civility.

Still, beginning with 2017’s Don’t Be a Jerk, I argued that civility has been a professional obligation of lawyers since our professional obligations were first reduced to writing.  Over the years, and as I’ve spoken around the state to various groups, I’ve learned that most agree. I’ve also learned – especially since the onset of the pandemic – that many Vermont lawyers perceive a lack of civility to be contributing to the stress and anxiety that, left unaddressed, morph into the burnout that threatens to drive people from the profession.

I’ve been candid that I’m not certain of the Professional Responsibility Program’s role in responding to incivility. For instance, how many lawyers must make confidential inquiries of bar counsel about the same rude & offensive lawyer before I contact the lawyer to discuss the behavior and potential enrollment in the Bar Assistance Program?

Even upon reaching the magic number, is diversion appropriate? Some would argue “no,” that nothing short of a formal complaint should invoke the diversion process.  Others would argue that diversion is inappropriate for the opposite reason – that it’s time to prosecute the chronically offensive and rude, if for no other reason than to put the bar on notice that donkeys will be dealt with.

My sense is that other states are having similar debates.  That said, over the past year, I’ve noticed a slight uptick in the number of jurisdictions that are prosecuting incivility. Rarely do such cases involve isolated instances of inappropriate behavior.  Rather, most are in response to a pattern of extreme, persistent, and pernicious conduct that almost everyone would agree merits a disciplinary response.

That might be changing.

legal ethics

Last week, the Legal Profession Blog and the ABA Journal reported that a district subcommittee of the Virginia State Bar Disciplinary Board publicly reprimanded a lawyer for a rude and offensive email.  According to the decision, the lawyer represented a client charged with a probation violation. The probation officer miscalculated the client’s sentence. Two days before a hearing, the probation officer sent the lawyer an email acknowledging the mistake and apologizing. The lawyer replied, thanking the probation officer, and suggesting that lawyer did not have a problem with the probation officer.

The lawyer’s conduct at the hearing suggested otherwise.  While cross-examining the probation officer, the lawyer became “angry and aggressive.” Then, the day after the hearing, the lawyer sent this email to the probation officer:

  • “Don’t f— around with me or one of my clients again. I will always be the best f—ing attorney in the court room. Try and pull that kind of s— again and you will be begging to get off the witness stand.”

The probation officer filed a complaint with the Virginia State Bar. Eventually, the lawyer stipulated to discipline.  The subcommittee accepted the stipulation, concluding that the lawyer’s conduct violated three of Virginia’s disciplinary rules. The rules that:

  • “a lawyer shall not file a suit, initiate criminal charges, assert a position, conduct a defense, delay a trial, or take other action on behalf of the client when the lawyer knows or when it is obvious that such action would serve merely to harass or maliciously injure another;”
  • “in representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person;” and,
  • “it is professional misconduct for a lawyer to commit a criminal or deliberately wrongful act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness to practice law.”

Only the second is on the books in Vermont. It’s Rule 4.4 – Respect for Rights of Third Persons.

In addition to the email itself, here’s what caught my attention.

  • Nothing in the reprimand suggests that there was any more to the incident than the cross-examination and the email.
  • Nothing in the reprimand suggests that the lawyer had previously been disciplined.

Moreover, the lawyer provided the ABA Journal with the following statement:

  • “I respect the decision of the bar, and I ultimately agreed to a public reprimand because I did not wish to put my wife and children through anything further. Around the time the email was sent, I was working long hours at my previous firm, coming home to a sick child, running off of little to no sleep, and my wife had recently went through her third miscarriage, on top of other factors that led to my overreaction. Although that is no excuse for the harsh language that was used towards Ms. Woods, I acted completely out of character, and for that, I apologize. That email is not a reflection of me as an attorney or as a person.”

I wonder if perhaps a line has been drawn. Even a single “out of character” incident by a lawyer without a disciplinary history will result in public discipline.  If so, lawyers who make conduct like this their standard operating procedure should be on alert.

I’ll conclude with a message for those who interpret my posts on civility as me stating that the rules prohibit advocacy and require lawyers to play nicey-nicey 24/7.  I’ve never argued such things.

Rather, and to borrow from the Virginia lawyer’s email, I’ve argued that it’s possible to provide effective, competent, and diligent representation without being “the biggest f—ing donkey in the room.”

As always, let’s be careful out there.

Related Posts

 

 

A quick recap of the 7 Cs of Legal Ethics

Welcome to Friday!

I’m taking a week off from the quiz. Still, I don’t want to leave anyone without their weekly refresher in legal ethics & professional responsibility!  So, motivated by last night’s huge win by the Cs, I’m sharing a video in which I provide a brief (9:39) overview of the 7 Cs of Legal Ethics.

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

Enjoy the weekend!

Illinois board recommends 3-year suspension for lawyer who sent abusive and harassing emails.

Last week, a reader sent me this Report and Recommendation in which a hearing board of the Illinois Attorney Registration Disciplinary Commission recommended that a lawyer be suspended from practicing for 3 years.  The lawyer had been charged with directing “numerous insulting and threatening communications towards other attorneys.”

legal ethics

I’m blogging about the report for two reasons.

  1. To reiterate my message that there is a line that, once crossed, incivility morphs to a violation of the Rules of Professional Conduct.
  2. To set up a future blog in which I will comment on aspects of the board’s legal analysis that interest me and that lend the Report and Recommendation far more than just shock value.

Yes, to me, the facts of the Illinois case are shocking.  I won’t do them justice and urge you to read them for yourselves. Among other things, the lawyer sent emails in which the lawyer:

  • threatened other lawyers with baseless civil, criminal, and disciplinary charges, including, with one, a threat to “flay you on a public pillory for all to see so as to discourage scum like yourself” if the other lawyer did not “resign and plea to the FBI.”
  • referred to other lawyers as “scum”, members of “scum bag firms,” “scammers”, “crooks,” “active criminal,” “counsel/perp,” and “co-perp.”
  • addressed other lawyers by altered versions of their names. For instance, referring to an Attorney Schmeltz as “Schmaltz” and “Schmuchz” and referring to an Attorney Sanfelippo as “Sanscamfelippo” and “Sanliarippo.”

Believe it or not, I could go on and on.

Most readers know my feelings on what I perceive to be a rise in incivility among lawyers. I don’t like it and I believe that it negatively affects attorney well-being. But I’ve struggled to define whether and when it’s appropriate for the Professional Responsibility Program to get involved.  More specifically, while I hope that lawyers will take heed of the resolution Don’t be a Jerk, what rule does extreme incivility violate?

The Illinois case has the answer: Rule 4.4(a).

Vermont’s version of the rule is entitled “RESPECT FOR RIGHTS OF THIRD PERSONS.”  Paragraph (a) states:

  • “In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.”

The Illinois hearing board concluded that the lawyer violated the rule by using numerous opportunities to communicate professionally with others “as an excuse to bombard [other lawyers] with insults and threats.”  The board also concluded that the mere fact that the emails were sent in connection with a pending matter “does not mean that they had a valid purpose.”  In short, the Report and Recommendation is clear: there is a line where, once crossed, incivility becomes unethical.

In Vermont, it’s the conduct that falls just short of the line that flummoxes me. I’ve wondered whether the Bar Assistance Program’s non-disciplinary dispute process is an appropriate forum to address a lawyer who repeatedly approaches the line – perhaps keeping the lawyer from continuing down the path that the Illinois lawyer followed.

I know that some of you think that I’m espousing a sort of speech code.  I’m not.  I’ve not once argued that the Rules of Professional Conduct should be applied to prohibit legitimate advocacy.  Nor have I ever argued that the practice of law is nothing but rainbows and unicorns with nary a moment in which even a raised voice is appropriate.

What I’ve argued is this.

  1. The Rules of Professional Conduct are the floor. There’s no reason that we can’t aspire for better. That’s the point I tried to make in Don’t be a Jerk.
  2. Rule 4.4(a) has been on the books since 1999 and it has always prohibited conduct that has no substantial purpose other than to embarrass, delay or burden a third person. Vitriolic threats, harassing conduct, and abusive name-calling violate the rule.

Vermont lawyers continue to share that abusive conduct from opposing counsel affects their health to the extent that they are considering whether to leave the profession.

As such, I will continue to share posts like this one.

A civility oath for lawyers.

This part 2 of a two-part series I’m doing today on civility.  Part 1 is here.

Civility is one of my 7 Cs of Legal Ethics.  I regularly address it in blog posts and CLE seminars, making clear my opinion that incivility contributes to the stress and anxiety endemic in the legal profession. The topic was central to our discussion on emotional intelligence during Well-Being Week in Law.  For more on the discussion, here are the preview and recap videos.

I’ve often noted that several judges have indicated that lawyers who think they’re scoring points by filing motions replete with name-calling and accusations against opposing counsel are misguided.  Related, during our discussion on emotional intelligence, a consensus emerged that practicing lawyers believe that judges should be more proactive in calling out (and squelching) incivility. The consensus echoes a refrain that has emerged from nearly every seminar I’ve done on civility: we need to do something about it.

Here’s something West Virginia is doing about it. 

On Monday, the West Virginia Supreme Court of Appeals issued a release announcing that the Chief Justice had “signed an order provisionally adopting and releasing for public comment the addition of a civility pledge to the oath lawyers take when they are admitted to the practice of law.”  Here’s the West Virginia oath, with the new language underlined:

  • ““I do solemnly swear or affirm that: I will support the Constitution of the United States and the Constitution of the State of West Virginia; that I will honestly demean myself in the practice of law; that I will conduct myself with integrity, dignity and civility and show respect toward judges, court staff, clients, fellow professionals and all other persons; and to the best of my ability, execute my office of attorney-at-law; so help me God.”

According to the release, once the order was signed, all 5 justices took it, along with the President of the West Virginia State Bar and the President of the West Virginia Board of Bar Examiners.  As reported by the West Virginia Metro News and the ABA Journal, the Chief Justice remarked:

  • “West Virginia’s judiciary wants to be a leader and the leadership here is in promoting civility. You can look across the country and around the world that we need a very healthy dose of civility today.”

Indeed. 

Civility

Ps: Here’s the Vermont Attorney Oath.  A few years ago, we started the tradition of the Chief Justice re-administering the oath to all lawyers in attendance at the VBA Annual Meeting.

Lawyers admonished for making baseless allegations of incivility against opposing counsel.

Civility is one of my 7 Cs of Legal Ethics.  I regularly address it in blog posts and CLE seminars, making clear my opinion that incivility contributes to the stress and anxiety endemic in the legal profession. The topic was central to our discussion on emotional intelligence during Well-Being Week in Law.  For more on the discussion, here are the preview and recap videos.

I’ve often noted that several judges have indicated that lawyers who think they’re scoring points by filing motions replete with name-calling and accusations against opposing counsel are misguided.  Related, during our discussion on emotional intelligence, a consensus emerged that practicing lawyers believe that judges should be more proactive in calling out (and squelching) incivility. The consensus echoes a refrain that has emerged from nearly every seminar I’ve done on civility: we need to do something about it.

I post today to share two updates.  This part 1 and should serve to remind lawyers to think twice before accusing opposing counsel of being “unhinged.”

Earlier this month, a federal judge admonished a lawyer and law firm for making baseless allegations of incivility against opposing counsel.  The opinion is here.  As reported by the ABA Journal, the opinion issued in a lawsuit that “alleged that military personnel providing security for Exxon facilities in Indonesia sexually assaulted, kidnapped and tortured nearby residents.”

Following the deposition of an ExxonMobil general counsel, defense counsel moved for sanctions against plaintiffs’ counsel.  Upon reviewing the motion, the court ordered defense counsel to show cause why they shouldn’t be sanctioned.

Why?

Because the court determined that several of defense counsel’s allegations against plaintiffs’ counsel had no support in the record.  Specifically, the allegations that plaintiffs’ counsel:

  • had become “agitated and combative;”
  • “was indignant and adversarial;”
  • “became unhinged . . . and repeatedly attacked and baselessly threatened to

seek sanctions against the witness and counsel;” and,

  • “demonstrated a general lack of respect towards a professional adversary.”

Responding to the show cause order, defense counsel apologized and acknowledged contributing to a “breakdown of civility that occurred during and after [the] unfortunate deposition.”  Nevertheless, after examining the record, the court concluded that plaintiffs’ counsel hadn’t acted as described by defense counsel and, in fact, hadn’t acted inappropriately at all.  Disturbed by defense counsel’s failure to watch the video of the deposition before filing the motion, the court concluded

  • “Both should have known better than to impugn another attorney’s character without reviewing the entire record. And neither should have made those accusations without evidentiary support. The court cannot allow such misconduct to occur without at least rebuking counsel.”

Now, maybe this has less to do with civility than it does with filing baseless motions.  Still, name-calling for name-calling’s sake can – and should – result in a sanction.

I’ll post part II later this afternoon.

Oops

Civility & Decorum: a courtroom scene.

And….action!

I’ve lost track of the number of times I’ve blogged or spoken on civility.  I’m sure many are tired of it.

However, I’m equally certain that Vermont’s judges have supported my efforts.  The judge to whom I owe the most thanks for supporting me on this front often uses a saying that captures the heart of my message far more succinctly than I:

“You are free to disagree.  You are not free to be disagreeable.”

Today’s post honors that judge.

The story comes via AL.com and the ABA Journal.  Respectively, the headlines are:

  • “Judge told Alabama defendant ‘I’ll bust your ass’ complaint alleges.”
  • “Judge is accused of threatening to bust butt of traffic defendant, claiming she likes to ‘flim-flam’ people.

Cutting to the chase: the conduct complaint filed against the judge by Alabama’s Judicial Conduct Commission is here.

From the headlines, and the fact that the judge has been charged, I suspect you’ve already reached the same conclusion as I: it is unlikely history will reflect as kindly on this Alabama courtroom scene as it does on those in To Kill a Mockingbird and My Cousin Vinny.

Here’s what happened.

In 2018, Kimberly Farranto’s car was hit while parked at the restaurant where she worked.  The driver fled, but Farranto was able to determine from a credit card receipt that a passenger’s last name was “Price.” She was not able to determine who was driving.

Flash forward to February 2020.

Farranto appeared in court on a charge of driving with a suspended license.  Waiting for her case to be called, she noticed that the judge’s last name was “Price.” Apparently using her cell phone to investigate, she learned that the judge was likely the father of the passenger in the car that hit hers. Once her case was called, Farranto asked the judge if the passenger was his son.  When the judge answered “yes,” Farranto asked the judge to recuse himself.  When asked why, Farranto told the story and explained that she might sue the judge’s son to provide the name of the driver.

In the end, the judge recused himself.  It’s the colloquy along the way that is relevant to this post.  For a full description, read paragraphs 13-24 of the conduct complaint.  Among other things, the complaint alleges:

  • “Judge Price interrupted Ms. Farranto and was very very angry. He screamed at her that, if she went after his son, he would ‘sue her ass.’”

Then,

  • “Continuing in a loud voice, Judge Price responded ‘Oh yeah, I know who you are. You’re the lady who likes to flim-flam people.’”[i]

Later, after being told that Farranto might sue his son:

  • “Judge Price yelled at her threateningly. ‘If you sue my son, I will bust your ass.’ Judge Price’s face was very red.”

As, the “discussion” continued:

  • “Judge Price yelled at Ms. Farranto, ‘You’re a G*d D**n liar.”

It went on from there, with more of the same. Eventually, the judge gave Farranto both the driver’s name and a new court date with a different judge.

I am not aware of a Vermont judge ever reacting like this.  Still, lawyers, let’s use it as a teachable moment.  If this were to happen to you, how should you respond?

The answer: exactly as Ms. Farranto did.

Rule 3.5(d) of the Vermont Rules of Professional Conduct prohibits discourteous conduct that is degrading or disruptive to a tribunal.  A comment to the rule states that “[a] lawyer may stand firm against abuse by a judge but should avoid reciprocation; the judge’s default is no justification for similar dereliction by an advocate.”

According to the conduct complaint, “[throughout the entire exchange . . . Ms. Farranto did not get upset, raise her voice, or act rudely.”  In other words, it appears that Farranto stood firm without reciprocation or similar dereliction. That is, while she disagreed with the judge’s behavior, Ms. Farranto was not disagreeable in response.

Nor am I aware of any matter in which a Vermont judge presided over a hearing at which a litigant indicated an intent to sue the judge’s child.  Judges, if that happens, here’s a primer on judicial recusal.  I suggest the ABA approach instead of Judge Price’s.  Again, the maxim matters: when it comes to recusal, you may disagree with the request, but you should not be disagreeable in response.

Which brings me to my favorite line in this unfortunate episode.

After Ms. Farranto left the courtroom, Judge Price said to the Chief Magistrate, “Ms. Roberts, I think I might have lost my cool.”

The Chief Magistrate replied, “You think?”

And Scene GIFs - Get the best GIF on GIPHY

[i] Until reading this, I did not know what “flim-flam” meant or that it could be a verb.  Per Dictionary.com, when used with an object, “flim-flam” means “to trick, deceive, swindle or cheat.”

Five for Friday #223: Judge Peter Hall.

Welcome to Friday and the 223rd legal ethics quiz.

Today, I urge readers to pause for a moment and remember Peter Hall.  Judge Hall passed away yesterday morning.  The Rutland Herald has the story here.

I first met Judge Hall when he was in private practice in Rutland. At the time, I was a young attorney and new to my role as the deputy disciplinary prosecutor.  Back then, Judge Hall’s practice included representing lawyers under disciplinary investigation & prosecution.

I will be forever grateful for the opportunity to have had Judge Hall as opposing counsel.  Unsure how to act while investigating and prosecuting fellow lawyers, I expected I’d have to be aggressive and antagonistic.  Judge Hall helped me to learn that effective advocacy requires no such thing.  By example, he showed me how to do my job without being a jerk and proved to me that every single one of us can do the same.  In retrospect, Judge Hall’s civility, grace, and temperment make referring to him as “opposing” counsel feel inappropriate.

An exceedingly effective advocate for his clients, Judge Hall’s approach to practice will always remind me of Aesop’s Fable of The North Wind and The Sun.   To me, the moral of having had the privilege to work with Judge Hall is that, even in the law,

“Gentleness and kind persuasion win where force and bluster fail.”

Like his friend Joan Wing, Judge Hall influenced my development as a lawyer and, later, guided my decision to run for a seat on the Vermont Bar Association’s Board of Managers. Reflecting today, I’m sad that two titans of the bar who so positively affected me (and many others) are no longer with us.

Lately, I’ve often noted my concern at the rise of incivility in the profession. As the Herald article notes, during his tenure on the Board of Managers, Judge Hall was instrumental in the VBA’s development and adoption of Guidelines of Professional Courtesy.  We’d all be well-served to review them. Not only today, but as often as possible. To honor Judge Hall, we’d be even better served to follow his lead and practice what he preached.

The Guidelines:

  • In fulfilling his or her primary duty to the client, a lawyer must be ever conscious of the broader duty to the legal system.
  • A lawyer should act with candor, diligence and utmost respect.
  • A lawyer should act with courtesy and cooperation, which are necessary for the efficient administration of our system of laws.
  • A lawyer should act with personal dignity and professional integrity.
  • Lawyers should treat each other, their clients, the opposing parties, the courts, and members of the public with courtesy and civility and conduct themselves in a professional manner at all times.
  • A client has no right to demand that counsel abuse the opposite party or indulge in offensive conduct. A lawyer shall always treat adverse witnesses and parties with fairness and due consideration.
  • In adversary proceedings, clients are litigants and though ill feelings may exist between clients, such ill feelings should not influence a lawyer’s conduct, attitude, or demeanor towards opposing lawyers.
  • A lawyer should not harass opposing counsel or counsel’s clients.
  • Lawyers should be punctual in communications with others and in honoring scheduled appearances. Neglect and tardiness are demeaning to fellow lawyers and to the legal system.
  • If a fellow attorney makes a just request for cooperation, or seeks scheduling accommodation, a lawyer shall not arbitrarily or unreasonably withhold consent.
  • Effective advocacy does not require antagonistic or obnoxious behavior. Lawyers should adhere to the higher standard of conduct which judges, fellow attorneys, clients, and the public may rightfully expect.

 To Judge Hall.

peter-hall-610x407

Onto the quiz.

Rules

  •  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to 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

A client’s failure to abide by the terms of a fee agreement:

  •  A,  is not grounds for a lawyer to move to withdraw.
  •  B.  permits the lawyer to move to withdraw.
  •  C.  relives the lawyer of any obligation to continue working on the client’s matter..
  •  D. automatically excuses the lawyer from delivering the file.

 Question 2

Lawyer called me with an inquiry.  My response included the following words and phrases: “knowledge,” “violation,”  “substantial question,”  and “honesty, trustworthiness, fitness.”

It’s most likely that Lawyer called to discuss whether to _________

  • A.  inform the court that a client had testified falsely in a civil matter.
  • B.  inform the court that a criminal defense client had testified falsely.
  • C.  withdraw from representing a client.
  • D.  report another lawyer’s misconduct.

Question 3

Lawyer called me with an inquiry. I replied “here’s the rule: don’t state or imply that you’re disinterested.  If the person misunderstands your role, correct the misunderstanding.  If the person’s interests are likely to conflict with your client’s, don’t give the person any legal advice other than the advice to secure counsel.”  Given my response, the person is most likely:

  • A.  Suffering from a diminished capacity.
  • B.  Lawyer’s client’s spouse.
  • C.  Paying for Lawyer to represent Lawyer’s client.
  • D.  Unrepresented.

Question 4

Fill in the blank.  Hint: it’s 2 words.

Several rules require a lawyer to receive ___________   _________.   The rules define ________ _______ as “an agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

Question 5

March 12, 1894, marked the first day that a specific product was ever sold in a bottle. Asa Candler had developed the recipe for the product and owned its rights.  Candler lived in Atlanta.

In 1899, Candler sold the bottling rights to the product to Benjamin Thomas and Joseph Whitehead.  Whitehead was a lawyer.  Apparently, he was also a good businessman. The contract he negotiated required he and Thomas to pay only $1 and left them with the bottling rights forever.  Supposedly, he and Thomas never paid Candler the $1.

I have no idea if Candler was represented in the transaction or if Whitehead took unfair advantage of an unrepresented person.

The product remains well-known to this very day.  Name the product.

Court isn’t a social media platform.

It’s the rare inquiry that involves the rule that addresses trial publicity.  Alas, in that it’s becoming more and more rare to find a lawyer not on social media, I think today’s message bears mentioning.

Rule 3.6 is the trial publicity rule.  It prohibits “extrajudicial statements that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”

Whoa.  Try saying that three times fast.

Anyhow, lately I’ve sensed a general feeling that arguments made in pleadings and court are seeping into lawyers’ social media posts, thereby raising Rule 3.6 concerns.

I disagree.

Based on the information I’ve reviewed when responding to inquiries and screening complaints over the past few years, I believe that the accepted norms of social media posts are seeping into pleadings and arguments.

I don’t say that with admiration for those causing the seepage.

Court is court.  It’s not the kitchen table, the town square, the bar, or Facebook. Give it the respect it deserves. Or, read Rule 3.5(d).

Last week, Professor Bernabe blogged about a Texas lawyer and client who were “’sanctioned $150,000 for the client’s ‘outright lies’ in litigation and ‘mountain of evasiveness’ in discovery.”  His post is here.  It links to this ABA Journal story, which, in turn, cites to a post on Law.com.

I’m not going to get into the misconduct that resulted in the sanction. For those interested in learning more about it, the court’s order imposing the sanction is here.

Rather, I want to highlight a statement made by the other lawyer.  Per the ABA Journal, “Opposing counsel Foster Johnson told Law.com that he hoped that the sanctions would be a warning to other lawyers.”

Then, the money quote:

  • “ ‘Lawyers at times forget filing motions and pleadings is not like using Twitter,’ Johnson said. ‘You can’t just say anything you want when you file a complaint. You can’t say anything you want when you file a summary judgment motion.’”

Indeed.

To paraphrase this blog’s muse, “say it in a Tweet it’s a knockout, but you say it in a court you’ll be kicked out.”

Remember, in pleadings & arguments:

1*wA1Vc082NU82zI64lp99Sg

Don’t say I didn’t say I didn’t warn ya.