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.

Wellness Wednesday: a message from Justice Eaton.

I would ask you to remember that incivility is not advocacy, nor is it effective lawyering.”

~ Harold Eaton, Associate Justice, Vermont Supreme Court

********

I’ve blogged & spoken often on the connection between civility and attorney well-being. Recently, I’ve expressed concern that an erosion of the former is negatively impacting the latter.

Last week, the Vermont Supreme Court held its annual admission ceremony. Following the administration of the attorney oath, Justice Eaton delivered remarks that touched upon civility, attorney well-being, and the impact one has on the other. In short, a reminder that we must take care of ourselves, take care of each other, and that civility & courtesy are at our endeavor’s core.

The YouTube video of the ceremony is here.  Justice Eaton begins at the 9:33 mark.   Otherwise, the full text of the speech is below.  It would bode well for our collective well-being if even those of us no longer new to Vermont’s legal profession took time to consider Justice Eaton’s message.

wellness

*****

Thank you, Chief and welcome to all the admittees, their families and friends. The Justices of the Supreme Court are very pleased to be with you today, even though we must do so remotely. We extend our warm welcome to the legal profession to those of you who have recently been admitted, and to the Vermont bar for you and for any attorneys previously admitted in other states. On behalf of the entire Supreme Court, I congratulate all of you on your great achievement. We wish could be with you in person, but the challenges of these times make that impossible. We hope to meet each of you soon under sunnier skies.

As new lawyers, you are entering the profession at a time unlike any other. This is a period of great challenge, great change and great adaptation in the world and in our profession. As attorneys, it is up to us to meet those challenges and make the changes and adaptations necessary to protect and preserve the rule of law and the system of justice which is built upon it. It is a heavy responsibility, but I know that you will each do your part.

I am sure few of you know the exact path your legal career will take. Regardless of what your path may be, you have the opportunity, whether actively practicing law or not, to make a difference on big stages and on small ones. Especially in these times, in the face of a global pandemic and when it seems that the rule of law is and has been under attack, there is so much to be done. This is such an important time for lawyers, as we work to preserve our legal system and our country’s and the world’s respect for it.

I hope that you will never forget the exhilaration you felt when you learned you passed the bar exam, the joy of that moment and of this day, and, as importantly, the awesome responsibility that comes with being a lawyer. When times get tough reflect on the sacrifices you and your family have made to get you to this place. It is no small achievement.

It has been my privilege to be a member of the Vermont bar for over forty years. During that time, I have made some observations, some of which I would like to share with you in the hope you may find them useful.

Vermont is a small state with a small bar.  The anonymous lawyer is a rarity here. You will become known in your community and in the legal profession. As you start with clean slates, you get to write the first chapter in your “I’m a Vermont attorney” book; make it one which sets the tone for the chapters to be written in the years to come—many of which will be penned by others based upon their dealings with you.

Vermont’s small size can work to your advantage. Ask questions of experienced lawyers you meet. You will find most, if not all of them, very willing to share their knowledge with you.

Learn from your experiences. One of the best things about being an attorney is the opportunity to continue to learn and to grow. Your legal education is never completed, there is always something new to learn. The day you think you’ve “got it” about being an attorney is probably the first day you begin to “lose it.”

In order to win the trust of your clients or your employers it is not necessary that you have all the answers. What is important is that you know what you know and recognize what you do not know. A good lawyer doesn’t have all the answers at their fingertips but has the ability to find the answers and the humility to know when research is necessary. Despite your best efforts, you will make mistakes. When you do, learn from them. Strive to be a better lawyer tomorrow than you were today.

You have received a bar admission which reads that you are an “attorney and counsellor at law.”  Your counselling role with your clients is just as important, if not more so, than your substantive knowledge. What you can do for a client is often different from what you ought to do for them or what they are at first urging you to do. Part of what you bring to your clients is your judgment, not just your legal acumen. Although the final decision may be your client’s, do not withhold your counsel, even when it may not be what the client wants to hear.

The legal system has been called an adversary system. But being a good advocate for your client does not mean that you can write a more stinging rebuke than your opposing counsel. The lawyer who gets the best results for the client is not necessarily the one who knows or uses the most adjectives.

The electronic world has changed the practice of law in many good ways and in a few bad ones. It remains to be seen what the impact of remote hearings and yes, even remote trials, will be. When we come out of this pandemic one thing is certain—-the practice of law will be different than it was when we went into to it. We communicate so often now by rapid and remote means, rather than in person. This lends itself well to incivility, which has become more prevalent in recent years. I would ask you to remember that incivility is not advocacy, nor is it effective lawyering.  The Vermont Bar Directory contains the Guidelines of Professional Courtesy which the Bar Association membership adopted in 1989. I commend them to you.

If you are in a contested matter, learn to win with humility and to lose with grace. Remember: the other side feels as strongly about their position as you and your client do about yours.

As you start this chapter of your legal career, challenge yourself to be good stewards of the law. Our legal system works because people put their trust in it. Make it your goal to uphold that trust and to further it, so that many years from now, upon your retirement, people will say that you were a good lawyer and an honest person.

Being a lawyer is difficult; the work is hard, and the demands are many. The Supreme Court, in connection with the VBA, continues to work on important issues concerning attorney wellness. We see all too often lawyers neglecting their own physical, emotional or mental well-being, often with sad, if not disastrous, results. Keep a distance between your client’s problems and your personal life. You cannot serve your clients or your profession if you do not take care of your own mental and physical health.

That starts with taking the time to decompress. The practice of law is as draining as it is rewarding. You have to keep sacred the time to do the things you enjoy and the things that help you to relax. Believe it or not, in the not-too-distant past, there was a time without cell phones. Remember to turn yours off from time to time. It is not your responsibility to be available to your clients 24/7 even if they think that it is. If, despite your best efforts you find yourself becoming overwhelmed, reach out to the Bar Association’s lawyer assistance program or to a colleague for help.

Justice must always mean more than who can shout the longest or the loudest. We all must ensure that the weak as well as the strong are heard; that the poor as well as the rich have a playing field that is level for everyone; and that we as attorneys do no falsehood nor delay any person for lucre or malice. These are the things which serve to maintain public confidence in the legal system. It is our responsibility and our duty to fight for these things with all our combined strength every day of our legal career. The challenges of today will give way to the challenges of tomorrow, but we must always rise to meet them, whatever they may be.

The legal profession in all its varied aspects is bigger than any one of us, but its vitality, and the public’s confidence in it depends upon all of us. Each of us as attorneys have a shared responsibility to make the legal profession all that it can be and all that it needs to be.

As you begin your career as a Vermont attorney, I leave you with this quote from “A Commencement for Scoundrels” by Samuel Hazo:

I wish you what I wish

myself: hard questions

and the nights to answer them,

the grace of disappointment

and the right to seem the fool

for justice. That’s enough.

Cowards might ask for more.

Heroes have died for less.

Thank you, welcome to the Vermont bar, and good luck to you all.

Federal Court enjoins enforcement of Pennsylvania rule prohibiting the knowing manifestation of bias, prejudice, discrimination, or harassment in the practice of law.

Proofing this post, I realized that I’d buried the lede.  So, here’s today’s point:

Last week, a judge in the United States District Court for the Eastern District of Pennsylvania issued a preliminary injunction enjoining enforcement of Rule 8.4(g) of the Pennsylvania Rules of Professional Conduct.  The judge concluded that the rule regulates speech that is “entitled to the full protection of the First Amendment” and “consist[s] of unconstitutional viewpoint discrimination in violation of the First Amendment.” 

The decision is here. Those reporting on the decision included the ABA Journal, Law360Bloomberg Law and The Volokh Conspiracy (here and here).

Now, the information under which the lede previously found itself.

In Vermont, like most states, the disciplinary rules are based on the ABA Model Rules of Professional Conduct. Like the ABA Model Rules, many jurisdictions have long made it professional conduct for lawyers to harass or discriminate based on protected class status. Vermont first adopted such a rule in 1986.

In 2016, the ABA House of Delegates amended Model Rule 8.4(g) as follows:

“It is professional misconduct for a lawyer to:

(g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination  on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.”

At the time, the Civil Rules Committee, not the Professional Responsibility Board, was responsible for proposing amendments to the Vermont Rules of Professional Conduct. In response to the ABA’s move, the Committee proposed that the Supreme Court amend Vermont’s version of Rule 8.4(g).  The proposal was adopted and took effect in September of 2017.  We were the first in the nation to follow the ABA’s lead and amend the rule.

As amended, V.R.Pr.C. 8.4(g) now reads:

“It is professional misconduct for a lawyer to:

****

(g) discriminate against any individual because of his or her race, color, religion, ancestry, national origin, sex, sexual orientation, place of birth or age, or against a qualified handicapped individual, in hiring, promoting or otherwise determining the conditions of employment of that individual. engage in conduct related to the practice of law that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, creed, color, sex, religion, national origin, ethnicity, ancestry, place of birth, disability, age, sexual orientation, gender identity, marital status or socioeconomic status, or other grounds that are illegal or prohibited under federal or state law. This paragraph does not limit the ability of a lawyer to accept, decline, or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these rules.

Nationally, attempts to adopt versions of the Model Rule have proven controversial. While a handful of states have done so, many others have specifically decided not to.  I’ll try to summarize the competing arguments.  In the next paragraph, anything in italics is emphasis I’ve added.

Citing the First Amendment, many opposed to the ABA Model Rule argue that “conduct related to the practice of law” is overly broad and puts a lawyer at risk of being sanctioned for engaging in protected speech made outside the practice of law. For example, Comment [4] to the Vermont rule states that “conduct related to the practice of law includes . . . participating in bar association, business, or social activities in connection with the practice of law.”  Opponents also argue that whether conduct violates the rule turns solely on the subjective view of the disciplinary prosecutor and disciplinary tribunal.  Earlier this summer, The Volokh Conspiracy posted this critique in response to Pennsylvania’s decision to adopt a version of Model Rule 8.4(g). The critique summarizes the bloggers’ long-standing criticism of the Model Rule and is representative of arguments against the rule.

The competing position is that inclusivity and diversity matter, and that a license to practice is not a license to harass or discriminate.  The position is perhaps best stated in ABA Formal Advisory Opinion 493. The ABA’s Standing Committee on Ethics and Professional Responsibility issued the opinion in July.  The opinion offers a defense of the rule and then uses five hypotheticals to provide guidance as to how it should be applied. In short, the Committee stated that:

“Discriminatory and harassing conduct, when engaged in by lawyers in connection with the practice of law, engenders skepticism and distrust of those charged with ensuring justice and fairness. Enforcement of Rule 8.4(g) is therefore critical to maintaining the public’s confidence in the impartiality of the legal system and its trust in the legal profession as a whole.”

If you’re interested in learning more, here are representative samples of each side of the debate:

  • Thomas Wilkinson is a former president of the Pennsylvania Bar Association and has extensive experience with legal ethics and professional responsibility.  Tom’s also a regular member of this blog’s Five for Friday Honor Roll in Legal Ethics.  Tom has often been quoted in defense of both the Model Rule and the Pennsylvania rule, including here, here, and here.
  • Alberto Bernabe is also a regular member of this blog’s Five for Friday Honor Roll. In this post, Professor Bernabe argues that Illinois’ version of Rule 8.4(g) is better than the Model Rule.  Professor Bernabe has blogged often on Rule 8.4(g). His posts are here.
  • short video in which UCLA’s Professor Eugene Volokh argues against the rule.
  • the Louisiana Attorney General’s opinion that a court would likely find the rule unconstitutional.
  • a post on The Federalist Society blog that reports on the Montana Legislature’s resolution declaring the rule unconstitutional. 
  • an ABA Journal post that lays out various opinions on the constitutional issues involved.
  • post in which the Dennis Rendleman of the ABA’s Center for Professional Responsibility responds to criticism of the rule.
  • resolution from the Philadelphia Bar Association supporting the Pennsylvania rule. 
  • an article in which NYU Professor Stephen Gillers argues in favor of the rule.

As far as I know, there’s not a single disciplinary complaint under investigation in Vermont in which the conduct, if it happened, would violate V.R.Pr.C. 8.4(g). Thus, at least in the disciplinary context, there does not appear to be a looming challenge to Vermont’s rule. 

Of course, the Pennsylvania ruling did not arise in the disciplinary context.  Rather, and as reported by the ABA Journal, the underlying case is one in which the lawyer who is challenging the rule alleges that he often gives speeches at law-related events in which he makes comments that could be construed as endorsing bias and harassment.

Something tells me that the Pennsylvania decision is not the last that Rule 8.4(g) will be in the news.

Legal Ethics