Manage expecations with candid legal advice

In November 2017, I posted The 50 Original Rules.  It’s a recap of the history of the conduct rules that apply to lawyers.

As best as I can tell, the earliest record of guidelines for attorney conduct in the United States is David Hoffman’s 1836 publication of his Fifty Resolutions in Regard to Professional Deportment.  My post includes each of Hoffman’s 50 resolutions.

182 years later, it’s somewhat fascinating to me how many of Hoffman’s resolutions continue to resonate.  Many are embedded in the rules and our collective professional conscience.  Given my fascination, I’ve resolved to blog about the continued relevance of Hoffman’s resolutions, taking them one at a time.  So far:

  1. Don’t be a jerk.
  2. Don’t switch sides.
  3. Don’t overcomplicate trust accounting.
  4. Deliver the file
  5. Resolve to be a mentor
  6. Be Diligent

Today’s tip: manage expectations by providing candid legal advice.

Here’s Hoffman’s Resolution 31:

  • “All opinions for clients, verbal or written, shall be my opinions, deliberately and sincerely given, and never venal and flattering offerings to their wishes or their vanity. And though clients sometimes have the folly to be better pleased with having their views confirmed by an erroneous opinion than their wishes or hopes thwarted by a sound one, yet such assentation is dishonest and unprofessional. Counsel, in giving opinions, whether they perceive this weakness in their clients or not, should act as judges, responsible to God and man, as also especially to their employers, to advise them soberly, discreetly, and honestly, to the best of their ability, though the certain consequence be the loss of large prospective gains.”

I’m using the exact quote.  To be clear, I’m not suggesting that competent representation includes being responsible to God or any other deity.  Again, I was simply quoting Hoffman.

The rest of Resoluton 31 is as relevant today as it was in 1836.  Candid legal advice is always a better option than telling the client what the client wants to hear.

I’ve written often on managing client expectations:

In my experience, the lawyer who fails to set reasonable expectations at the outset of the representation should expect to have the client file a disciplinary complaint.

False hope leads to disappointment.  Even if the result is as good as the client should have expected from the outset, the client likely will be disappointed if the result pales in comparison to what the lawyer suggested the outcome would be.  Don’t fall into that trap.  As Hoffman said, “[a]nd though clients sometimes have the folly to be better pleased with having their views confirmed by an erroneous opinion than their wishes or hopes thwarted by a sound one, yet such assentation is dishonest and unprofessional.”

Better to thwart unreasonable hopes with sound advice than to nurture their growth.

Manage expectations by providing candid legal advice.  If you don’t, the client will insert your name into the Blank Space on a disciplinary complaint.

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

Image result for taylor swift blank space images

 

 

 

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

 

 

 

ABA Addresses an Attorney’s Obligations in Response to a Data Breach

I’ve blogged often on a lawyer’s duty to act competently to safeguard client data.  Generally, an attorney must take reasonable precautions to protect against inadvertent or unauthorized disclosure of client information.  Some of my posts:

Last month, the ABA’s Standing Committee on Ethics & Professional Responsibility issued Formal Opinion 483.  It sets out a lawyer’s obligations following an electronic data breach or cyber attack.

The opinion is detailed and technical.  It’s worth reading, or, at the very least, sharing with your IT support staff.  Also, various outlets have reported on the opinion, including The National Law Review, Louisiana Legal Ethics, and The ABA Journal.  I suggest each.

I’m going to try to stick to a summary.

  •  Prior to a breach, a lawyer has a duty to act competently to safeguard client property and information.  This likely includes adopting an “incident response plan” that will kick in once a breach occurs.
  • The duty includes an obligation “to monitor the security of electronically stored client property and information.”  In other words, there’s a duty to take reasonable efforts to monitor for and detect unauthorized access. This includes reasonable steps to ensure that vendors act in accordance with the lawyer’s professional obligations.
  • A breach is not necessarily evidence that the lawyer failed to act competently to safeguard client information.
  • If a breach occurs, a lawyer must take reasonable steps to stop it and mitigate the damage that results.
  • If a breach occurs, a lawyer must assess its scope.  This includes determining what information, if any, was lost or accessed.
  • A lawyer must notify current clients if the breach:
    • involves material, confidential client information; or,
    • impairs or prevents the lawyer from representing the client. For example, as would be the case in a ransomware attack.
  • Lawyers must be aware that their ethical obligations are independent of any post-breach obligations imposed by law.  Compliance with professional obligations is not necessarily compliance with other law, and vice versa.

Again, the full opinion is here.

As usual, I like to analogize to non-tech issues.  For instance, when it comes to paper files, most lawyers probably know that there’s a duty to take reasonable safeguards to protect them.  Locked file cabinets.  Locked rooms.  Secure office space.

If a lawyer arrives at work and realizes that the office has been broken into, I imagine the lawyer would intuitively understand the need to determine what, if anything, was viewed or taken.  Then, as appropriate, will notify clients. I also imagine that the lawyer would replace the broken locks, doors, and windows.

Thus, in my view, the ABA opinion clarifies that very standards that most of us already apply to clients’ paper files also applies to their electronic files.

Image result for images of a data breach

 

 

 

 

Joint Representation of Multiple Clients

I’m guessing that many lawyers can relate to Athos.

In general, people only ask for advice, [Athos] said, that they may not follow it or if they should follow it that they may have someone to blame for having given it.”

~ Alexandre Dumas, The Three Musketeers

Image result for the 3 musketeers book

Still, there are times when advice is required no matter how it will be received.  One such time is prior to undertaking to represent multiple clients in the same matter.  Indeed, when it comes to joint representation, a lack of timely communication on the lawyer’s part could lead to the exact opposite of “All for one and one for all.”

Today, I’m NOT talking about representing multiple clients who have agreed to waive a conflict.  Rather, I’m talking about a joint representation that does not involve a conflict of interest.

The discussion flows from the New York City Bar Association’s Committee on Professional Ethics Formal Opinion 2017-7.  The opinion outlines the disclosures that a lawyer should make when a joint representation does not involve a conflict.

And there’s the first important point: even if no conflict exists, there are still disclosures that should be made prior to undertaking a joint representation.  Why? Because Rule 1.4(b) requires a lawyer to “explain a matter to the extent reasonably necessary for the client to make informed decisions regarding the representation.”

You might ask “well if there’s no conflict, what do the clients need to know before agreeing that I can represent both of them?”

How about this? Whether to agree to the joint representation in the first place.

Before I move on, let’s clarify “joint representations in which there is no conflict.”  Per the opinion, a “joint representation” refers to “a lawyer or law firm’s representation of two or more clients in a single matter on a coordinated basis.”  For example:

  • representing more than one plaintiff or defendant in the same matter;
  • representing 2 or more people who are forming a LLC;
  • representing spouses in their estate planning; or,
  • representing co-lenders or co-investors.

So, what disclosures are required?  Per the opinion, “it depends.”

I’d joke about the answer, but it’s the exact answer I’ve provided countless times both in this space and at my “live” seminars.  The nature of the joint representation will drive the disclosures that should be made up front.  Still, there are certain disclosures that likely should be made in any joint representation.   And, not only are they listed in the NYCBA advisory opinion, they’re outlined in Comments 29 thru 33 to Vermont Rule 1.7.

The disclosure/discussion includes:

An explanation from the lawyer as to how the lawyer will treat information communicated by any single one of the multiple clients.  On this, both the opinion and Comment 31 to Vermont’s rule are clear:

  • “the lawyer should, at the outset, of the common representation . . . advise each client that information will be shared and that the lawyer will have to withdraw if one client decides that some matter material to the representation should be kept from the other.”

As the opinion notes, while Comment 31 is directed at a situation in which a lawyer obtains informed consent to represent clients with conflicting interests, “ensuring that the joint clients understand this is no less important where the lawyer concludes at the outset that the joint clients’ interests do not and are not likely to differ.”

Why is this important?  Two reasons: the attorney-client privilege & conflicts.

Attorney-Client Privilege.  Per Comment 30 to Vermont Rule 1.7, “the prevailing rule is that as between commonly represented clients, the privilege does not attach.” In other words, as stated in the NYCBA opinion, “the lawyer must be satisfied that the joint clients understand that information that would otherwise be protected by the attorney-client privilege as against third parties will not be protected by the attorney-client privilege as between the clients if they later become adverse to each other.”

Conflicts.  A lawyer has a conflict whenever there’s a significant risk that the representation of one client will be materially limited by duties to another. For instance, you likely have a conflict if, while representing multiple clients in the same matter, one asks you to keep from the other information related to the matter.

Which brings me to the next & final disclosure: how a conflict will be resolved.  Joint clients should understand that if a conflict arises you might be required to withdraw from representing both.  As Comment 29 to Vermont Rule 1.7 states: “[o]rdinarily, the lawyer will be forced to withdraw from representing all of the clients if the common representation fails.”  Key point here: if one client quits or fires you, that client is now a former client whose interests might be materially adverse to the client who kept you.  If so, Rule 1.9(a) might knock you out.

Again, depending on the circumstances, there might be other disclosures that a lawyer should make to ensure that clients have enough information to make an informed decision as to whether to agree to a joint representation.  At the very least, the disclosures should include:

  1. An explanation from the lawyer as to how the lawyer will treat information communicated by any single one of the multiple clients.
  2. A reminder that information related to a joint representation might not be protected by the attorney-client privilege if the joint clients end up adverse to each other.
  3. A reminder that information from one will be shared with the other.
  4. A reminder that the lawyer may have to withdraw if one asks the lawyer to keep information from the other.

Finally, when should the disclosures be made? In my view, prior to the formation of the joint client relationship.  How can a client make an informed decision to agree to a joint representation without the information?  Thus, when giving advice on the pros & cons of joint representation, it’s probably best not to imitate Athos.

Why?  Because:

“He never gave his advice before it was demanded and even then it must be demanded twice.”

~ Alexandre Dumas, The Three Musketeers

The information necessary to make informed decisions about the representation is not info that a client need demand even once.  It’s info that Rule 1.4 requires a lawyer to provide.

Image result for athos 3 musketeers

Social Clients

Earlier this month, the ABA Journal posted a blog in its “ethics” section: Celebrity attorneys face challenges, ethical pitfalls.   I enjoyed it as much from the pop culture slant as I did from the “it’s my job” slant.

However, speaking of the “it’s my job” slant, I want to mention three things.

First, over the past year, the news has been filled with lawyers making public statements about their clients and former clients.  So much so that several times I’ve been asked what I think about it.

Regular readers know what I think it.  I’m a big believer in two concepts:

  1. Hey Lawyers! STFU!!!
  2. Can’t Keep Quiet? Try Harder.  

As Thomas Edison said:

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

(aside: choosing not to blog is probably one of the opportunities of which I should take advantage.)

Second, despite my big belief that silence is a virtue, I was intrigued by two arguments in the ABA Journal’s post.  Specifically, the arguments that (1) at times, the duties of competence & diligence require a lawyer to speak out in a client’s defense;  and (2) the rules prohibiting such conduct run afoul of the First Amendment.  Alas, I can count on 2 fingers the number of Rule 3.6 complaints we’ve received in the past 15 years.  So, I am not so intrigued to do more than mention my intrigue.

Finally, there’s a little nugget in the article that, in my view, is great advice not just for lawyers who represent celebrities, but for lawyers who represent, well, clients.

Referring to lawyers who represent famous people, the article says:

  • “Client and entourage use of social media can compromise a defense. Ethically, attorneys have to make sure their clients and their team understand ground rules and place limitations on social media use related to the case.”

Trust me, I understand that very few of my readers represent the Vinny Chases of the world.  Nonetheless, I think the second sentence is critically important even for lawyers whose clients don’t have their own versions of E, Turtle, and Johnny Drama.

Why?

Because these days, entourage or not, what client isn’t on social media???  And that’s where the very next paragraph in the ABA Journal post comes in.  Quoting Ann Murphy, a professor at Gonzaga University School of Law, the post notes:

  • ” ‘Attorneys, as part of their ethical duties, must now counsel their clients on the use of social media,’ Murphy says. ‘Once it is out there, it is out there. Even if someone deletes a Facebook post—it likely has been saved as a screenshot and is of course subject to discovery,’ she adds. ‘Personally, I think the best advice is tell the client that any posts about his or her case must be viewed in advance by the attorney.’ “

That’s a fantastic tip.  Professor Murphy – if perchance you find this blog, In Few I Trust. Go Zags! 2019 national champs!

See the source image

Now, I can hear some of you now – “mike, am I supposed to know what my client puts on social media?”

Well, opposing counsel will.  So unless you’re comfortable finding out about that damning tweet or post at deposition or in mediation, then my response is:

See the source image

At the very least – and by “very least” I mean “barest of bare minimums” – I think lawyers have a duty to communicate to their clients the risks associated with posting info to a public forum.

Hmm…I guess this is where I can finally reference Hall & Oates.  When it comes to advising clients on the risks of posting too much to social media, it might be this:

  • Private eyes, they’re watching you.  They see your every move.  And they definitely see what you put out there to be seen.

Anyhow, while the ABA Journal article focuses on the risks associated with representing famous clients, it includes a tidbit that applies to any lawyer who has a client on social media: what happens on social media rarely stays on social media.

Tech competence.  It’s a thing.

By the way, among my friends, I’m definitely E.  My brother is almost definitely Drama.  Alas, while we have several candidates for Turtle, not many for Vinny.   And at risk of offending my friends, the “many” in that previous sentence?  It’s pronounced with a silent “m.”

Hint: this post doesn’t mention Ari Gold.  Which means his name might be of utmost importance later in the week.

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SCOTUS: defense counsel cannot concede guilt over a client’s objection.

In January, I blogged on a case that was pending before the United States Supreme Court. The issue: in a criminal case, can a lawyer concede a client’s guilt over the client’s objection?

As reported by the ABA Journal, the Supreme Court issued its opinion yesterday.  The answer: no.

The case is State of Louisiana v. Robert Lee McCoy.  From the SCOTUS opinion, a quick recap:

“Petitioner Robert McCoy was charged with murdering his estranged
wife’s mother, stepfather, and son. McCoy pleaded not guilty to first degree
murder, insisting that he was out of State at the time of the
killings and that corrupt police killed the victims when a drug deal
went wrong. Although he vociferously insisted on his innocence and
adamantly objected to any admission of guilt, the trial court permitted
his counsel, Larry English, to tell the jury, during the trial’s guilt
phase, McCoy “committed [the] three murders.” English’s strategy
was to concede that McCoy committed the murders, but argue that
McCoy’s mental state prevented him from forming the specific intent
necessary for a first-degree murder conviction. Over McCoy’s repeated
objection, English told the jury McCoy was the killer and that
English “took [the] burden off of [the prosecutor]” on that issue.
McCoy testified in his own defense, maintaining his innocence and
pressing an alibi difficult to fathom. The jury found him guilty of all
three first-degree murder counts. At the penalty phase, English
again conceded McCoy’s guilt, but urged mercy in view of McCoy’s
mental and emotional issues. The jury returned three death verdicts.
Represented by new counsel, McCoy unsuccessfully sought a new
trial. The Louisiana Supreme Court affirmed the trial court’s
ruling that English had authority to concede guilt, despite McCoy’s
opposition.”

A 6-3 majority held that a criminal defendant has a constitutional “right to insist that counsel refrain from admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty.”

The Court’s opinion is rooted in the Sixth Amendment’s guarantee of effective assistance of counsel.  The Court held that the guarantee includes the right “to decide that the objective of the defense is to assert innocence.”  Indeed, “some decisions . . .  are reserved for the client—notably, whether to plead guilty, waive the right to a jury trial, testify in one’s own behalf, and forgo an appeal.”

Nevertheless, defense counsel does not remain at the whim of the client.  As the Court noted, “[t]rial management is the lawyer’s province: Counsel provides his or her assistance by making decisions such as ‘what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence.’ ”

In the end, the Court concluded that the decision to maintain innocence during the guilt phase of a trial is not a choice about tactics, but a choice that goes to the very objective of the representation.  As such, the Sixth Amendment reserves it for the client.

So do the Rules of Professional Conduct.  In fact, the opinion interests me because it’s related to legal ethics.

In Vermont, Rule 1.2(a) of the Rules of Professional Conduct requires lawyers to “abide by a client’s decisions concerning the objectives of [the] representation.”  The rule goes on to state that “[i]n a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, and whether the client will testify.” Louisiana’s rule tracks Vermont’s; each tracks the Sixth Amendment.

Mr. McCoy’s objective was to be found not guilty. His lawyer conceded that he did not abide by his client’s objective. Here’s an excerpt from an affidavit that lawyer filed in one of the post-trial proceedings:

  • “I became convinced that the evidence against Robert McCoy was overwhelming ․ I know that Robert was completely opposed to me telling the jury that he was guilty of killing the three victims and telling the jury that he was crazy but I believed that this was the only way to save his life. I needed to maintain my credibility with the jury in the penalty phase and could not do that if I argued in the guilt phase that he was not in Louisiana at the time of the killings, as he insisted. I consulted with other counsel and was aware of the Haynes case and so I believed that I was entitled to concede Robert’s guilt of second degree murder even though he had expressly told me not to do so. I felt that as long as I was his attorney of record it was my ethical duty to do what I thought was best to save his life even though what he wanted me to do was to get him acquitted in the guilt phase. I believed the evidence to be overwhelming and that it was my job to act in what I believed to be my client’s best interests .”

Alberto Bernabe is a professor at John Marshall Law School.  Professor Bernabe teaches torts & professional responsibility. He’s also a regular on this blog’s #fiveforfriday Honor Roll.  Here’s a portion of a blog that Professor Bernabe posted last fall after SCOTUS granted cert in the McCoy case:

  • “In this case, the defendant, Robert Leroy McCoy, refused his lawyer’s suggestion to accept a plea deal, and objected when the lawyer informed him he planned to concede guilt.  He also protested at trial, after the lawyer conceded guilt during the opening statement.  According to an article in the ABA Journal, ‘the lawyer maintained the concession was necessary because he had an ethical duty to save McCoy’s life.’  There is only one problem.  There is no such ethical duty.The duty of the lawyer is to represent the client and this includes following the client’s instructions as to the goals of the representation.”

At least insofar as it relates to the Sixth Amendment, the Supreme Court agrees.

(Professor Bernabe posted several links to the case’s history: they’re here.)

The decision to maintain innocence is the defendant’s.  It is a decision that is fundamentally different from the decisions about which witnesses to depose, which motions to file, and which arguments to make.

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ABA Addresses Duty to Inform Clients of Mistakes.

Two days ago, the ABA’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 481.  The opinion concludes that the rules “require a lawyer to inform a current client if the lawyer believes that he or she may have materially erred in the client’s representation.”  The ABA Journal reported the opinion.

Per the opinion, the duty to inform a current client of a material error is rooted in the duty to communicate.  Rule 1.4(b) requires a lawyer to “explain a matter to the extent reasonably necessary to permit the client to make an informed decisions regarding the representation.”

So, what’s a “material error?’

Agreeing with advisory ethics opinions issued by several state bar associations, the ABA opinion recognizes that errors occur “along a continuum.”  Some errors are so serious as to require disclosure in order for the client to decide what to do next, including whether to find a new lawyer.  Meanwhile, others “may be so minor or easily correctable with no risk of harm to the client” as not to require disclosure. Many errors fall in between and, as noted by the North Carolina State Bar, “may or may not materially prejudice the client’s interests.”

Again, what’s a “material error?”

Per the ABA Opinion, “an error is material if a disinterested lawyer would conclude that it is (a) reasonably likely to harm or prejudice a client; or (b) of such a nature that it would reasonably cause a client to consider terminating the representation even in the absence of harm or prejudice.”

If an error is material, the opinion indicates that the lawyer must promptly notify the client. The opinion suggests that some errors might be so grave as to require a lawyer to notify the client before the lawyer (a) attempts to correct the error; or (b) consults with counsel or the lawyer’s liability carrier.

Interestingly, the opinion limits the duty to disclose material errors to current clients.  The Committee concluded that, generally, the rules do not impose a duty to communicate with former clients.  As such, no “duty of disclosure exists under the Model Rules where the lawyer discovers after the termination of the attorney-client relationship that the lawyer made a material error in the former client’s representation.”

I only read the ABA opinion this morning. I’ve not yet had time to fully digest it or to think about the issues it addresses.  That being said, my gut reaction is that there are likely many scenarios in which a lawyer’s failure to disclose a material error to a former client might cause harm to that former client.

Indeed, I know that many readers ascribe to the theory that the rules are the floor, not the ceiling.  In that sense, there’s always a difference between doing something because the rules require you to and doing something because it’s the right thing to do.

 

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Client communication in a social age: it’s still important to manage expectations.

I’ve worked in the Professional Responsibility Program since 1998.  I’ve reviewed approximately 4,000 disciplinary complaints.

There’s a common misconception that most complaints are rooted in “my lawyer doesn’t return my calls or e-mails.” Sure, we get some of those.

It’s more common, however, to receive complaints whose genesis is a lawyer’s failure to set reasonable expectations at the outset of the professional relationship.  The failure can take many forms, but four types arise more often than others:

  1.  failure to set a reasonable expectation as to the outcome;
  2.  failure to set a reasonable expectation as to how long it will take to reach an outcome;
  3. failure to set a reasonable expectation as to how much it will cost the client to reach an outcome; and,
  4. failure to set a reasonable expectation as to how often the lawyer will communicate with the client.

When expectations aren’t met, clients complain.  A complaint does not mean that a lawyer violated the rules.  Still, it’s good to avoid complaints.  One way to avoid complaints is to set & manage expectations.

I’ve blogged often on this topic:

The lesson I’ve tried to impart is no different in the digital age.

Last week, I spoke at a CLE for new attorneys.  I asked how many communicate via text with clients.  Many hands went up.

That’s fine.  Texting with clients is perfectly okay. But here’s what I told the lawyers at the CLE:  be careful.  Texting makes you incredibly available.  Before you agree to text with a client, consider how available you want to make yourself.

Which brings me to a recent post on the fantastic blog Associates Mind.

Keith Lee runs the blog.  A few days ago, Keith posted How Do Lawyers Want To Communicate With Their Clients?  In the post, Keith referred to a debate that emerged on another of his sites, LawyerSmack.  

The debate?  How do lawyers prefer to communicate with their clients? Keith tweeted the results:

  • E-mail  62%
  • phone  26%
  • Text/SMS Messaging 5%
  • Indifferent: 7%

Again, the blog, which includes the results, is here.

I like what Keith wrote about lawyers who text their clients.  He started with:

  • “Most lawyers were really down on texting. But many consumer-facing lawyers (particularly PI) were in favor of it. Which is unsurprising. It might seem odd to older folks but I have a newsflash for you: email is the medium of business and olds.”

Then, he pointed out:

  • “Younger people don’t rely on email that much. They prefer texting or messaging      apps for communication. Which is undoubtedly why Consumer facing lawyers that  cater to this demographic were in favor of texting with their clients.”

Keith went on to list the advantages that texting provides, but also noted something similar to what I mentioned during last week’s CLE for new lawyers:

  • “But texting also has the downside of folks thinking you’re constantly available. I have friends who are divorce lawyers who will never text with their clients, even if the clients want to. Why? They used to text with their clients. But after repeatedly getting texts at 2am on a Saturday inquiring about the status of their divorce, they switched back to phone calls.”

He’s right.  Whether in our work or personal lives, when we text, we’re constantly available. So, think about that before agreeing to text with a client. The rules require you to provide a client with competent & diligent representation, to respond to reasonable requests for information, and to keep a client reasonably informed about the status of a matter.  The rules do not require you to be available 24/7.

(Of course, as Keith points out, communicating by text is almost the norm.  So, there might be business reasons for a lawyer to decide to text with a client.)

Finally, I’d caution against deciding to text a client for no other reason than it’s easier than having to talk to the client on the phone.  Why?

There’s a regular reader of this blog who is also a frequent member of the #fiveforfriday Honor Roll.  She’s exceedingly adept at texting me with what appears to be a legit question, only to call within a nanosecond of my reply.  In other words, her texts are but a pretext to ascertain whether my phone is in my hand, leaving me no choice but to answer.

Back to Keith’s blog – here’s the next to the last paragraph:

  • “What really matters is regular communication with clients. Clients frequently mistake lack of news about their case as indifference or neglect. Poor attorney-client communications is the most frequent complaint Bar Grievance boards receive.”

And there’s the last:

  • “Having a plan, managing client expectations, and delivering on your communications will satisfy clients and make them feel like you are on top of their case.”

Great advice.

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Tuesday Morning Answers – Holiday Quiz

You know this blog has established itself when, on Christmas Day, my mom somewhat ruefully notes that she wishes she hadn’t given me a Runner’s World calendar, but a Taylor Swift one instead.

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

Swift Christmas

Honor Roll

Answers

Question 1

Attorney represents Egg and Nog.   They’ve been charged with criminal conspiracy to face unafraid the plans that they’d made.

Undeterred by Comment 23 to Rule 1.7 (conflicts), but motivated by a desire to comply with Rules 1.1 (competence) and 1.3 (diligence), Attorney tracks down a key witness: Parson Brown.  Parson Brown agrees to an interview, but only if it’s outside.

What’s Parson Brown made of?

Snow.  Parson Brown is a character in Walking in a Winter Wonderland.

Question 2

My posts on legal ethics & marijuana are here.

Having secured an acquittal for Egg & Nog by successfully employing the “but it was just a dream by the fire!” defense, Attorney is back at it: representing new co-defendants.   Tommy and Marin have been charged with possession of extraordinarily large quantities.

Upon concluding an initial interview with Tommy and Marin, Attorney called me with an inquiry about Attorney’s duties under Rule 1.14 (client with diminished capacity.) Here’s our exchange:

  • Attorney – Mike, i don’t want my license to go up in smoke.  I’ve got co-defendants, Tommy & Marin.  Tommy thinks that Santa is a band! When I told him Santa isn’t a band, he thought maybe Santa was a Motown singer.  When I asked him how he didn’t know who Santa is, he replied ‘yeah, well, I’m not from here, man. Like, I’m from Pittsburgh, man. I don’t know too many local dudes.’
  • Me – Interesting.
  • Attorney:  And Marin isn’t much better.  He kinda knows who Santa is.
  • Me – Kinda?
  • Attorney.  Yeah.  He thinks that Santa and Mrs. Claus used to live in his neighborhood before getting evicted and  moving up north to start a commune with some of their friends.  Marin told me that Mrs. Claus used to make the best brownies in the neighborhood. He also thinks that Santa shut down the commune so as not to risk getting stopped at the border and found with the ‘magic dust’ that he feeds to his reindeer.

Who are Attorney’s clients better known as?

Cheech & Chong.  See, Santa Claus and his Old Lady

Question 3

Lawyer represents Client.  Client is charged with kidnapping Clarice and assaulting a gallant suitor who attempted to free her.  Client is also charged with the felony murder of one Yukon Cornelius.  Yukon is presumed dead.  He disappeared off a cliff during the daring rescue mission of Clarice and her suitor that Yukon carried out with an heretofore incompetent dentist.

But lo’ and behold, the prosecutor learns that Yukon is alive and well!  As required by Rule 3.8(d), prosecutor notifies Lawyer and, then, as required by Rule 3.1, dismisses the felony murder charge.

Lawyer works diligently to convince prosecutor to drop the remaining charges.  After all, despite a monstrous reputation, Client is winning in the court of public opinion.  If only because Client’s physical stature comes in handy during the holidays.

Who is Lawyer’s client?

Bumbles bounce! Bumble the Abominable Snow Monster

Bumble

Question 4

Attorney represents Michael Scott’s co-workers.  They have filed a civil suit against him & Dunder Mifflin.  The suit makes various tort claims related to the undisputed fact that, in the middle of the The Office’s holiday party, Michael unilaterally changed its format.

Attorney is mindful of the duties imposed by Rule 1.8(g). (aggregate settlement in a matter involving 2 or more clients.)

In any event, the party format was advertised as, and actually began as, “Secret Santa.” Upset with how things were going, Michael switched it to a different format.

Name the format.

Yankee Swap

Gifts

Question 5

Lawyer called me with an inquiry.  Lawyer’s questions related to Rule 1.18 (prospective clients) and Rule 3.1 (meritorious claims).  Per Lawyer:

  • Lawyer:  Mike, last week, I met with Cady Heron.  She wants to sue to expand the holiday season so that it officially begins on October 3.
  • Mike:  Wait.  What?
  • Lawyer:  Umm, exactly.  She said that’s the day that her crush, Aaron, first talked to her.
  • Mike:  Wow. I don’t know what to say.
  • Lawyer:  Well, maybe I’ll just ignore her.  I mean, she’s not very nice.  Plus, I refused to take a retainer.
  • Mike:  Because her claim is frivolous?
  • Lawyer: No.  Because she wanted to pay by credit card and I told her that I don’t take The Plastic.

Sadly, this scene didn’t make it past the cutting room floor.  Had it, I wouldn’t be here today.

Name the movie.

Mean Girls

October 3rd.jpg

Protecting Client Data

Next week, the Professional Responsibility Board will review several proposed amendments to the Vermont Rules of Professional Conduct, including proposals to change the rules that relate to the duty to act competently to protect client data.

I’ve blogged often on this issue.  Nevertheless, it bears re-visiting.

Rule 1.1 requires a lawyer to provide a client with competent representation.  I’ve asked the Board to recommend that the Court follow the ABA’s and add the underlined & bolded language to Comment [6]:

  • [6] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

Per Robert Ambrogi’s Law Sites Blog, 28 states have adopted a duty of tech competence.

Rule 1.6 prohibits the disclosure of information relating to the representation of a client.  A few years ago, the ABA amended Model Rule 1.6 to include the following language:

  • “A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”

I’ve asked the Board to recommend that the Court do the same.

I view Rules 1.1 and 1.6 as creating an affirmative duty to act competently to safeguard client information, including client information that is transmitted or stored electronically.

Now, if the proposals are adopted, will a lawyer need to know how to create an encryption key? Of course not.  Just like, right now, a lawyer does not have duty to know how to build a lock, a file cabinet, or a fob that opens & closes a keyless door.  But, a lawyer probably has a duty to understand the risks and benefits associated with leaving client files in a box that’s in a shared hallway, as opposed to in a locked file cabinet that’s in a room behind a keyless door to which only 2 firm employees have fobs.

Similarly, will a hack or data breach automatically lead to a disciplinary sanction? No. Again, if a lawyer has taken reasonable precautions to protect client data, whether by encrypting e-mail or exercising due diligence in choosing a cloud vendor, the fact of a breach likely is not a violation.

However, I believe we’re rapidly approaching, if we haven’t passed, the day when it will no longer be considered reasonable not to have encrypted email.  Further, if you’re considering a move to the cloud, while you don’t know how to build your own cloud server, the duty of tech competence includes a duty to know what you don’t know.

For example, let’s say you ask a potential cloud vendor whether your clients’ data will be encrypted.  The vendor replies “yes, we use a BTTF flux capacitor to encrypt data at rest.  For data in transmission, we guarantee it will make the Kessel Run in 12 parsecs or less.”

What’s your response?

To read more about a BTTF flux capacitor click HERE.  An update on the Kessel Run and parsecs (which are units of distance, not time) is HERE.

Finally, if adopted, my hope is that the new language in Rules 1.1 & 1.6 leads us away from re-evaluating the ethical duty with each technological advance that gives us a new method of transmitting and storing data.

As I’ve written, today’s cloud-based practice management systems are not much different than the businesses that lease storage units on the outskirts of damn near every town.  Before storing client information on or at either, a lawyer must review whether each affords reasonable precautions against unauthorized access and disclosure.

No, the question should not be “is this new way of storing information ethical?”  Nor should it be “is it okay to use smoke signals to communicate with my client?”  Rather, whenever the next big thing comes along, the question should be “does this means of transmitting and storing client information provide reasonable precautions and safeguards against unauthorized access and disclosure.”

For related posts:

cyber-security