Copying Clients on Emails to Opposing Counsel

As I’ve made the rounds this CLE season, one topic has proven especially provocative. While I’ve been blogging about it and mentioning it for a few years now, it has never generated as much discussion as it has lately. Here’s how I introduce it:

  • “How many of you have received an email from opposing counsel that opposing counsel copied to their client?”

Hands shoot up, heads nod vigorously, and eyes roll in exasperation.

Side note: when I introduce the topic, nearly everyone reports having received an email that opposing counsel has copied to their client. I find that somewhat amusing.  What are the odds that it’s only the recipients – and never the senders – who attend CLEs?

Anyhow, given the recent interest, here’s a post that I originally published in March.

legal ethics

******

March 23, 2022

I’ve long expressed concern about a lawyer copying a client on an email to opposing counsel.  I’m here to do so again.

A few weeks ago, Brian Faughnan posted his reaction to the Washington State Bar Association’s (WSBA) release of Advisory Opinion 202201.  I recommend Brian’s post.

Here’s the scenario presented in the WSBA opinion:

  • Lawyer A represents Client.
  • Lawyer B represents someone else in the same matter.
  • Lawyer A sends an email to Lawyer B.
  • Lawyer A copies the email to Client.

As have most to address the issue, the WSBA opinion focuses on the duties of the receiving lawyer.  That is, does the receiving lawyer violate Rule 4.2  by replying to all?  In a nutshell, the WSBA concluded:

  • “Short answer: It is the opinion of the Committee on Professional Ethics that “Reply All” may be allowed if consent can be implied by the facts and circumstances, but express consent is the prudent approach.”

In its longer answer, the WSBA set out the factors that the receiving lawyer should consider when assessing whether the sending lawyer impliedly consented to a “reply-all.”  Then, the WSBA advised:

  • “To avoid a possible incorrect assumption of implied consent, the prudent practice is for all counsel involved in a matter to establish at the outset a procedure for determining under what circumstances the lawyers involved may “reply all” when a represented party is copied on an electronic communication.”

I don’t necessarily disagree. However, I continue to believe that the sending lawyer’s duties to the client are as important to the analysis. Indeed, as Brian noted in his blog post:

  • “What the opinion does not address is the flip side of the situation – does the first lawyer who decides to loop his client directly into a conversation by cc’ing them on an email to opposing counsel run the risk of an ethical violation in doing so. Given the trend in various ethics opinions addressing the obligations of the receiving lawyer, there seems to be a good measure of safety for the sending lawyer, but I continue to believe that there is almost never a good reason outside of very limited circumstances for proceeding in this fashion.”

I agree!  Here are few reasons why sending lawyers should think twice about the client cc.

Last year, the New Jersey Supreme Court’s Advisory Committee on Professional Ethics issued ACPE Opinion 739.  I blogged about it here.  The Committee concluded:

  • “Lawyers who initiate a group email and find it convenient to include their client should not then be able to claim an ethics violation if opposing counsel uses a ‘reply all’ response. ‘Reply all’ in a group email should not be an ethics trap for the unwary or a ‘gotcha’ moment for opposing counsel. The Committee finds that lawyers who include their clients in group emails are deemed to have impliedly consented to opposing counsel replying to the entire group, including the lawyer’s client.”

The Committee went on:

  • “If the sending lawyer does not want opposing counsel to reply to all, then the sending lawyer has the burden to take the extra step of separately forwarding the communication to the client or blind-copying the client on the communication so a reply does not directly reach the client.”

Now, as far as I know, the New Jersey opinion is the only to conclude that the mere fact of copying a client on an email to opposing counsel is consent for opposing counsel to reply to all. However, other jurisdictions have cautioned that it’s not best practice.

For instance, in Opinion E-442, the Kentucky Bar Association stated:

  • “Avoiding use of ‘cc’ also prevents the client to inadvertently communicate with opposing counsel by hitting the ‘reply all.’ ”

In Ethics Opinion 2018-01, the Alaska Bar Association urged caution, advising that there are situations in which lawyers who cc their clients on emails to opposing counsel risk waiving the attorney-client privilege.

Finally, in Formal Opinion 2020-100, the Pennsylvania Bar Association agreed with Kentucky and noted:

  • “When a client is copied on email (either by carbon or blind copy), the client or its email system may default to replying to all. In doing so, the client may reveal confidential information intended only for his or her lawyer or waive the attorney-client privilege.”

The opinions include helpful examples of how the privilege might be waived. In addition, each concludes that it’s best practice for the sending lawyer not to cc the client and, instead, to forward to the client the email that was sent to opposing counsel.

Of course, I’m sure many lawyers are yelling “but Mike!!!”  I get it.  Indeed, as Brian blogged:

  • “Now transactional lawyers may be screaming at me here for my naivete, but, unless you are truly trying to mimic a situation where lawyers and clients are all sitting around the table and having a discussion, I don’t think including all of those parties on an email thread makes sense. (And, it’s 2022, if that’s what you are trying to do then use some other communications platform at this point whether that be Zoom or WebEx or Teams or something else.) Otherwise, whatever you want your client to see, just forward the email thread to them separately. Doing anything else, absent a clear agreement among the counsel involved about whether communication is permitted is simply an unnecessary risk to take.”

To be clear, I’m not stating that a lawyer violates the Rules of Professional Conduct by cc’ing a client on an email to opposing counsel.  Nor is it my role to do so. That’s a decision left to Disciplinary Counsel, a hearing panel, and, ultimately, the Vermont Supreme Court.  Also, I understand that there will be situations in which the sending lawyer impliedly consents to a reply-all or doesn’t cause any undue risk when copying a client.

Still, my role includes lending guidance. When doing so, I tend to urge lawyers to avoid risk. Hence, I agree with the numerous jurisdictions and commentators who think that it’s best practice not to copy a client on an email to opposing counsel. If only to avoid the risk of the client mistakenly replying to all.

I’ll end with this.  Many will think I’m making it up. I’m not, and I have the time stamps to prove it.

As I was drafting this post, I received an email from a criminal prosecutor.  Here’s what the prosecutor wrote:

  • “Hi Mike – I have a question about when a defense attorney cc’s a client on an email to me.  If memory serves, when responding, I should remove the client from the email chain as that could be considered contact with a represented individual.  Is that still the recommended practice?”

In my opinion, yes.  But in New Jersey? Maybe not.

More importantly, the prosecutor’s scenario demonstrates the risk in copying a client on an email to an opposing counsel.  Can you imagine if a criminal defendant mistakenly replies all and discloses information that is subsequently used against them?

As always, be careful out there.

*****

Related posts:

Advisory Opinions

The importance of setting reasonable client expectations & providing clients with candid legal advice.

It’s CLE season.  I’ve presented a few this week and am scheduled for a bunch more between now and the reporting deadline. No matter the practice area of the target audience, nearly every presentation will include two points:

  1. A lawyer should communicate reasonable expectations to clients at the outset of the representation.
  2. A lawyer has a professional obligation to provide clients with candid legal advice, no matter how unpalatable.

legal ethics

With respect to the former, I’ve long sensed that the bar’s perception is that most disciplinary complaints are rooted in a lawyer’s failure to communicate with a client.  That’s true, but not for the reason many seem to think.  That is, in my experience, not many complaints allege “my lawyer doesn’t respond to my calls or emails.” It’s far more common for a complaint to allege that the representation did not turn out as the client expected and it’s the lawyer’s fault that it didn’t. To me, that’s a communication issue.

I know what you’re wondering: “Mike – if things don’t go as the client had hoped how is that a communication issue?”

My response: “Good question. If you failed to disabuse the client of unreasonable expectations, that’s a communication issue.”

Here’s what I mean.

Imagine that Lawyer agrees to represent Client in a claim for damages.  From the outset, Lawyer is aware that Client expects to receive $100,000.  Lawyer knows that, at best, the claim is worth $25,000.  However, Lawyer doesn’t disabuse Client of their unreasonable expectation. Then, a few months after Lawyer somehow manages to resolve the matter for $50,000, Client files a disciplinary complaint alleging that Lawyer botched the case and cost Client $50,000.

The scenario spans practice areas.

For instance, the divorce client who unreasonably believes they’re going to receive all the marital assets.  Or the criminal defendant who unreasonably believes that they’ll never set foot in jail.  No matter how much their lawyer gets them in a settlement, or how little time their lawyer convinces the sentencing judge to impose, the client is not going to be happy.  All because the lawyer failed to disabuse the client of unreasonable expectations.

Now, are these disciplinary violations?  Maybe not.  Nevertheless, it’s not fun to have a complaint filed or to be sued.  Nor is it good for business to have former clients telling everyone how poorly you did. That’s why I stress the importance of setting reasonable expectations at the outset of the representation, including expectations as to:

  • the result;
  • how long it will take;
  • how much it will cost; and,
  • how often the lawyer will communicate with the client.

Which brings me to point 2: candid legal advice.

Often, setting and managing client expectations necessarily includes delivering advice that the client won’t be happy to receive.  A lawyer’s job is not to tell the client what the client wants to hear.   Rather, a lawyer’s duty is to provide the client with candid legal advice.

Rule 2.1 of the Vermont Rules of Professional Conduct is entitled “Advisor.”  The first line is:

  • “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.”

Comment [1] falls under the heading “Scope of Advice.” It makes my point better than I ever have:

  • “A client is entitled to straightforward advice representing the lawyer’s honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront.  In presenting advice, a lawyer endeavors to sustain a client’s morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid legal advice by the prospect that the advice will be unpalatable to the client.”

Also, as a reader commented in response to a similar blog that I posted last year, the failure to provide candid legal advice implicates more than Rule 2.1.  It’s an integral part of the duty of competence. Further, one might argue that sugarcoating advice is misleading.  Finally, if the reason you’re not delivering bad news is because of the potential blowback to the messenger, well, that might be a conflict.

In closing, consider what you’d expect from your auto mechanic, doctor, dentist, financial advisor, or anyone else to whom you turn for advice.  Or from your lawyer if you ever need to hire one!  You’d expect candid advice that corrects any unreasonable expectations that you might have.  The advice might not be what you hoped for or wanted, but it’s the advice that you’re entitled to receive and that you require to make informed decisions about the matter at hand.

Your clients are entitled to the same.

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!

There are reasons to consider not copying a client on an email to opposing counsel.

I’ve long expressed concern about a lawyer copying a client on an email to opposing counsel.  I’m here to do so again.

A few weeks ago, Brian Faughnan posted his reaction to the Washington State Bar Association’s (WSBA) release of Advisory Opinion 202201.  I recommend Brian’s post.

Here’s the scenario presented in the WSBA opinion:

  • Lawyer A represents Client.
  • Lawyer B represents someone else in the same matter.
  • Lawyer A sends an email to Lawyer B.
  • Lawyer A copies the email to Client.

As have most to address the issue, the WSBA opinion focuses on the duties of the receiving lawyer.  That is, does the receiving lawyer violate Rule 4.2  by replying to all?  In a nutshell, the WSBA concluded:

  • “Short answer: It is the opinion of the Committee on Professional Ethics that “Reply All” may be allowed if consent can be implied by the facts and circumstances, but express consent is the prudent approach.”

In its longer answer, the WSBA set out the factors that the receiving lawyer should consider when assessing whether the sending lawyer impliedly consented to a “reply-all.”  Then, the WSBA advised:

  • “To avoid a possible incorrect assumption of implied consent, the prudent practice is for all counsel involved in a matter to establish at the outset a procedure for determining under what circumstances the lawyers involved may “reply all” when a represented party is copied on an electronic communication.”

I don’t necessarily disagree. However, I continue to believe that the sending lawyer’s duties to the client are as important to the analysis. Indeed, as Brian noted in his blog post:

  • “What the opinion does not address is the flip side of the situation – does the first lawyer who decides to loop his client directly into a conversation by cc’ing them on an email to opposing counsel run the risk of an ethical violation in doing so. Given the trend in various ethics opinions addressing the obligations of the receiving lawyer, there seems to be a good measure of safety for the sending lawyer, but I continue to believe that there is almost never a good reason outside of very limited circumstances for proceeding in this fashion.”

I agree!  Here are few reasons why sending lawyers should think twice about the client cc.

Last year, the New Jersey Supreme Court’s Advisory Committee on Professional Ethics issued ACPE Opinion 739.  I blogged about it here.  The Committee concluded:

  • “Lawyers who initiate a group email and find it convenient to include their client should not then be able to claim an ethics violation if opposing counsel uses a ‘reply all’ response. ‘Reply all’ in a group email should not be an ethics trap for the unwary or a ‘gotcha’ moment for opposing counsel. The Committee finds that lawyers who include their clients in group emails are deemed to have impliedly consented to opposing counsel replying to the entire group, including the lawyer’s client.”

The Committee went on:

  • “If the sending lawyer does not want opposing counsel to reply to all, then the sending lawyer has the burden to take the extra step of separately forwarding the communication to the client or blind-copying the client on the communication so a reply does not directly reach the client.”

Now, as far as I know, the New Jersey opinion is the only to conclude that the mere fact of copying a client on an email to opposing counsel is consent for opposing counsel to reply to all. However, other jurisdictions have cautioned that it’s not best practice.

For instance, in Opinion E-442, the Kentucky Bar Association stated:

  • “Avoiding use of ‘cc’ also prevents the client to inadvertently communicate with opposing counsel by hitting the ‘reply all.’ ”

In Ethics Opinion 2018-01, the Alaska Bar Association urged caution, advising that there are situations in which lawyers who cc their clients on emails to opposing counsel risk waiving the attorney-client privilege.

Finally, in Formal Opinion 2020-100, the Pennsylvania Bar Association agreed with Kentucky and noted:

  • “When a client is copied on email (either by carbon or blind copy), the client or its email system may default to replying to all. In doing so, the client may reveal confidential information intended only for his or her lawyer or waive the attorney-client privilege.”

The opinions include helpful examples of how the privilege might be waived. In addition, each concludes that it’s best practice for the sending lawyer not to cc the client and, instead, to forward to the client the email that was sent to opposing counsel.

Of course, I’m sure many lawyers are yelling “but Mike!!!”  I get it.  Indeed, as Brian blogged:

  • “Now transactional lawyers may be screaming at me here for my naivete, but, unless you are truly trying to mimic a situation where lawyers and clients are all sitting around the table and having a discussion, I don’t think including all of those parties on an email thread makes sense. (And, it’s 2022, if that’s what you are trying to do then use some other communications platform at this point whether that be Zoom or WebEx or Teams or something else.) Otherwise, whatever you want your client to see, just forward the email thread to them separately. Doing anything else, absent a clear agreement among the counsel involved about whether communication is permitted is simply an unnecessary risk to take.”

To be clear, I’m not stating that a lawyer violates the Rules of Professional Conduct by cc’ing a client on an email to opposing counsel.  Nor is it my role to do so. That’s a decision left to Disciplinary Counsel, a hearing panel, and, ultimately, the Vermont Supreme Court.  Also, I understand that there will be situations in which the sending lawyer impliedly consents to a reply-all or doesn’t cause any undue risk when copying a client.

Still, my role includes lending guidance. When doing so, I tend to urge lawyers to avoid risk. Hence, I agree with the numerous jurisdictions and commentators who think that it’s best practice not to copy a client on an email to opposing counsel. If only to avoid the risk of the client mistakenly replying to all.

I’ll end with this.  Many will think I’m making it up. I’m not, and I have the time stamps to prove it.

As I was drafting this post, I received an email from a criminal prosecutor.  Here’s what the prosecutor wrote:

  • “Hi Mike – I have a question about when a defense attorney cc’s a client on an email to me.  If memory serves, when responding, I should remove the client from the email chain as that could be considered contact with a represented individual.  Is that still the recommended practice?”

In my opinion, yes.  But in New Jersey? Maybe not.

More importantly, the prosecutor’s scenario demonstrates the risk in copying a client on an email to an opposing counsel.  Can you imagine if a criminal defendant mistakenly replies all and discloses information that is subsequently used against them?

As always, be careful out there.

Related posts:

Advisory Opinions

 

Logan Lucky and how to avoid neglecting client matters for 20 years.

I watched Logan Lucky last month.  I loved it but am not sure whether it’s a caper or a heist.  I was leaning towards “heist,” but then I found this review.  If a source such as The Atlantic considers it a caper, who am I to disagree?

Anyhow, over their careers, the Logan brothers have developed the “Top Ten Rules For Robbing Banks.”  Here’s a still from the movie:

Logan Lucky 10 rules

The 10th is relevant to today’s post.  If the picture is too small, #10 is “Hang Up And Know When To Walk Away.”

Keep that in mind as you read on.

When it comes to bizarre attorney discipline cases, I’ve investigated, prosecuted, and blogged about my fair share. This one is in a category of its own.  A category that I don’t know what to name or how to describe.

Last week, the Louisiana Supreme Court suspended a lawyer for a year and a day.  A tweet from Massachusetts Assistant Bar Counsel David Kluft alerted me to the opinion.[i]

The case involved two counts.  The first paragraph related to Count I might make you wonder if there’s a typo.

  • “In 1991, Joseph Duplessis, Sr. and his three brothers hired respondent to handle an employment discrimination lawsuit against their employer. According to Mr. Duplessis, their legal matter appeared to be progressing until Hurricane Katrina in 2005. Thereafter, respondent failed to return Mr. Duplessis’ telephone calls or otherwise keep him informed of the status of the case. When respondent did speak to Mr. Duplessis, she offered what he considered to be excuses as to why the case had not progressed. In 2011, respondent sent discovery requests to the defendant but received no response. She never confirmed that the defendant was served with the discovery requests and never filed a motion to compel the defendant to respond.”

There’s no typo.  The lawyer served the discovery requests twenty years after being retained. Alas, that didn’t get the matter back on track. Thus, in 2015, the client filed a disciplinary complaint against the lawyer. Formal disciplinary proceedings followed.

Count II is as strange.  It alleges that the lawyer neglected another client’s matter for 20 years. If I’m reading the opinion correctly, it appears as the second client’s timeline was:

  • 1994: hired lawyer
  • 1995: lawyer filed lawsuits on client’s behalf in state & federal court
  • 1995: federal case dismissed for lack of jurisdiction
  • 1997: lawyer served discovery requests in state court action
  • 1998: lawyer filed a motion to set the matter for trial
  • 2002: client filed a disciplinary complaint against lawyer
  • 2004: lawyer was sanctioned by Louisiana disciplinary authorities
  • 2004: client continued to retain lawyer
  • 2012: client filed another disciplinary complaint against lawyer
  • 2016: lawyer filed a motion to compel responses to discovery requests served in 2001, 2004, 2007, 2010, and 2013.  It was the first motion filed, by either party since lawyer’s 1998 motion to set the matter for trial.

Wow.

As I blogged in June, a lawyer has a duty to provide a client with candid legal advice. The duty includes giving the client legal advice that the client does not want to receive.  Or, as stated in Comment [1] to V.R.Pr.C. 2.1:

  • “A client is entitled to straightforward advice representing the lawyer’s honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront.  In presenting advice, a lawyer endeavors to sustain a client’s morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid legal advice by the prospect that the advice will be unpalatable to the client.”

In the opinion suspending the lawyer, the Louisiana Supreme Court wrote:

  • “We do not minimize the significance of the delay in respondent’s resolution of the two legal matters at issue, which resulted in harm to her clients. Nevertheless, we recognize that respondent did not cause her clients to lose a right or remedy in their legal matters.”

In other words, it appears that neither of the lawyer’s clients had much of a case.  Among other factors, this mitigated against a longer suspension.

I don’t know how it’s possible that the lawyer’s clients’ cases languished for so long.  Therefore, I will not comment on the fact that they did.  Rather, the neglect aside, I’ll reemphasize June’s post on V.R.Pr.C. 2.1.

The duty to render candid legal advice includes informing a client of their prospects.  Might the client fire you upon receiving bad news?  Yes.  But at least you won’t end up starring in a caper that ends with your law license suspended.

Hang up and know when to walk away.

[i] Here’s to bald bar counsels!

ABA issues guidance on a lawyer’s obligations regarding language access in a lawyer-client relationship.

I used to serve as an acting judge in Chittenden Small Claims Court.  I once presided over a landlord-tenant dispute.  The tenant was represented, the landlord was not.  Neither party’s first language was English.  The tenant was fluent in English and able to communicate clearly with counsel and me.  The landlord was not at all comfortable with English and I did not know a single word of the party’s shared native language.  So, I had an interpreter present.

The hearing went fine.  Still, it left me wondering.

As bar counsel, I’m quite familiar with the duties of competence and communication.  Each is one of my 7 Cs of Legal Ethics.  After the small claims hearing, I was struck by the difficulty that the landlord – and many others involved with the judicial system – must have in finding a lawyer who can help them to understand their legal matters. That is, a lawyer who can competently communicate with them.

Earlier this week, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 500: Language Access in the Client-Lawyer Relationship.  The ABA Journal reported the opinion here.

The opening lines of the synopsis provide the upshot:

  • “Communication between lawyer a lawyer and a client is necessary for the client to participate effectively in the representation and is a fundamental component of nearly every client-lawyer relationship. When a client’s ability to receive information from or convey information to a lawyer is impeded because the lawyer and client do not share a common language, or owing to a client’s non-cognitive physical condition, such as a hearing, speech, or vision disability, the duties of communication . . . and competence . . . are undiminished.”

Next, the body of the opinion starts with the “baseline” proposition that:

  • “when a lawyer and client cannot communicate with reasonable efficacy, the lawyer must take reasonable steps to engage the services of a qualified and impartial interpreter and/or employ an appropriate assistive or language-translation device to ensure that the client has sufficient information to intelligently participate in decisions relating to the representation and that the lawyer is procuring adequate information from the client to meet the standards of competence practice.”

From there, the opinion provides guidance on:

  1. a lawyer’s obligation to assess whether a translator or interpreter or interpretive device is necessary;
  2. the qualifications to look for (and to avoid) in a person or service that translates or interprets; and,
  3. a lawyer’s obligations when supervising a translator or interpreter.

I’m not going to go through the whole opinion here.  There’s no substitute for reading it.[i]

In the end, the duties of competence and communication require a lawyer to be able to deliver and receive information to and from the client.

As always, be careful out there.

communication

[i] I will stress one point: be careful in selecting an interpreter.  From inquires I’ve received, my sense is that many lawyers use a client’s friend or family member.  That’s understandable and not necessarily inappropriate.  Still, echoing this opinion issued by the New Hampshire Bar Association in 2010, the new ABA opinion warns that there is “substantial risk that an individual in a close relationship with the client may be biased by a personal interest in the outcome of the representation.”

Maine disciplinary case addresses the duty to consult with a client prior to serving a complaint.

Today’s post focuses a lawyer’s duty to consult with the client about how the lawyer will pursue the client’s objectives.  Two rules are most relevant.

The first is V.R.Pr.C. 1.2(a). It states:

“(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decisions concerning the objectives of the representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued.  A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation.”

The second is V.R.Pr.C. 1.4(a)(2). It requires a lawyer to “reasonably consult with the client about the means by which the client’s objectives are to be accomplished.”

In my experience, most lawyers are aware of the duty, even if unable to cite to the rules or quote them verbatim.  It’s also my experience that lawyers are well-aware of the duty to maintain a client’s confidences.  With these duties in mind, consider this scenario:

  • Client meets with Lawyer to discuss getting divorced.
  • Client mentions that Client has a relief from abuse order against Spouse, but Client and Lawyer do not have a substantive discussion about the order.
  • Client expresses concern about Lawyer’s fee. Lawyer states that they can negotiate a payment plan.
  • Client and Lawyer agree to meet the next day for Client to sign the divorce paperwork.
  • Client leaves.
  • After leaving, Client has second thoughts. So, Client does not keep the appointment to sign the divorce paperwork. Instead, two days after the initial meeting, Client informs Lawyer that Client has had a change of heart and will not need Lawyer’s services.

So far, the scenario is not uncommon.  Here’s the twist.

  • On the same day that Client was supposed to meet with Lawyer to sign the paperwork, Lawyer is in court and sees Spouse. Lawyer asks Spouse if Spouse has an attorney who would accept service of divorce papers.  Until then, Spouse did not know the Client was considering divorce.
  • Upon being informed by Client that Client no longer requires Lawyer’s services, Lawyer informs Client that Lawyer had seen Spouse and asked about service.
  • Lawyer does not bill Client and they go their separate ways.

I can sense you sensing what happened next.

  • A few weeks later, Client filed a disciplinary complaint against Lawyer. In it, Client expressed concern that Lawyer put Client at risk of further harm (abuse) by informing Spouse that Client wanted a divorce.

As you might have guessed, this happened in real life.  Eventually, Lawyer was charged with violating Maine’s Rules of Professional Conduct.  Specifically,

  • Maine Rule 1.4(a)(2) by failing to reasonably consult with Client about the means (service) by which Client’s objective (divorce) would be pursued;
  • Maine Rule 1.6(a)(i) by revealing a confidence or secret without Client’s informed consent; and,
  • Maine Rule 8.4(d) by engaging in conduct prejudicial to the administration of justice.

In January, a panel concluded that Lawyer had violated each rule and reprimanded Lawyer.  The panel’s decision is here.  Lawyer appealed.  Earlier this month, a single justice of the Maine Supreme Judicial Court affirmed the panel’s decision.  The justice’s order is here.  The Legal Profession Blog reported the order here.

After seeing the headline but before reading the decision and order, I expected the matter to involve Maine’s version of Rule 1.18, the rule that sets out a lawyer’s duties to prospective clients.  In Vermont, the rule applies when a client consults with a lawyer in good faith but, for whatever reason, no client-lawyer relationship ensues.

I was wrong.  Both the panel and the court concluded that a client-lawyer relationship had formed.

For the purposes of analyzing the confidentiality issue, it’s of little consequence whether a formal relationship existed.  That is, whether a client is current or prospective, there’s a rule that prohibited Lawyer from revealing Client’s confidences. However, here’s why the conclusion that client-lawyer relationship had formed is important.

Lawyer was charged with violating Maine Rule 1.4(a)(2) by failing to reasonably consult with a client as to how the client’s objectives would be pursued.  By its plain language, the rule does not apply to prospective clients. 

So, having concluded that client-lawyer relationship had been formed, the question became whether Lawyer committed a violation by failing to consult with Client about service of the divorce paperwork. Here’s what the panel concluded:

  • “[Lawyer] testified that Ms. Doe did not mention anything about the protection order at first during their meeting, and she showed ‘no particular concern’ about it. She did not provide a copy to him, and he had no substantive discussion with her about it. He did not discuss service or how it could best be effected in light of his client’s circumstances. In the Panel’s view, however, the possible methods and timing of service of a divorce complaint should always be discussed with a client, especially one who has a protective order against an abusive spouse. Ms. Doe’s safety should have been a primary concern to [Lawyer] in agreeing to represent her in a divorce. He should have talked with her about the options and timing of service, and whether Ms. Doe felt the need to make advance arrangements for a safe place to be around the time of service should her husband react in a volatile fashion.”

Referring to the fact that Lawyer’s answer to the charges included “If I had been informed that she was fearful of physical action against her I would not have spoken to her husband but would haev simply employed a Deputy Sheriff to make service upon him,” the panel went on to state:

  • “[Lawyer] appeared to place the burden on Ms. Doe to tell him that she feared her husband so that he could have decided on another form of service . . . However, it was [Lawyer’s] duty to inquire further of Ms. Doe about the protective order and to fully discuss service, and the concerns around service, with her. Accordingly, the Panel finds that his failure to do so constitutes a violation of Rule 1.4(a)(2) of the M.R.P.C.”

On review, the Maine Supreme Judicial Court agreed, stating:

  • “The record does not indicate an exigent circumstance or an inability to consult with Ms. Doe further that could justify [Lawyer’s] failure to discuss the timing and manner of notifying her husband, especially when he was aware of the presence of domestic violence, The record supports the Panel’s finding [Lawyer] did not undertake his duty to engage in a reasonable consultation about Ms, Doe’s objectives, which necessarily would have entailed discussion about the timing and manner of service. He then took it upon himself to discuss the divorce with Jane Doe’s husband without regard to her safety concerns and objectives. The court finds no error in the Panel’s determination that [Lawyer] violated M.R.P.C. 1.4(a).”

My usual caveat: I have no idea how Vermont’s Disciplinary Counsel, Hearing Panels, or Supreme Court would analyze similar facts. 

That said, the obvious takeaway is that divorce lawyers who know that a client is an abuse victim have a duty to consult with the client before serving the abuser with a divorce complaint.  More broadly, the Maine case serves to remind all lawyers that serving a complaint or otherwise notifying the other side of a client’s claims could adversely impact the client.  And, therefore, there are situations in which the client must be consulted about service.

As always, be careful out there.

sanctions

A lawyer’s professional obligation to provide candid legal advice.

During a seminar that I did last week for Vermont Law School’s South Royalton Legal Clinic, I reminded clinicians that a lawyer’s job is not to tell the client what the client wants to hear.  A lawyer’s job is to provide the client with candid legal advice.  I said the same thing again today in a CLE for government lawyers. Indeed, it’s a tip I’ve shared for more than decade, including in the five blogposts linked below.

Typically, I deliver the message when discussing one of my 5 Cs of legal ethics: communication.  In my experience, most disciplinary complaints are not rooted in a lawyer’s failure to respond to a client’s calls or emails. Rather, they are rooted in a lawyer’s failure to communicate reasonable expectations to the client at the outset of the professional relationship. Or, stated differently, they’re rooted in a lawyer’s failure to disabuse the client of expectations that the lawyer knows are unrealistic.

communication

While I share the guidance in the context of Rule 1.4 and the duty to communicate, nowhere in the rule or its comments is it written “a lawyer shall provide clients with candid legal advice.”  As such, I’ve done a poor job communicating that my guidance is anything more than aspirational.  That ends now.  I post today to make clear that lawyers have a professional duty to render candid legal advice.

Rule 2.1 of the Vermont Rules of Professional Conduct is entitled “Advisor.”  The first line is:

  • “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.”

Comment [1] falls under the heading “Scope of Advice.” It makes my point better than I ever have:

  • “A client is entitled to straightforward advice representing the lawyer’s honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront.  In presenting advice, a lawyer endeavors to sustain a client’s morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid legal advice by the prospect that the advice will be unpalatable to the client.”

Lawyers: consider what you’d expect from your auto mechanic, doctor, dentist, financial advisor, or anyone else to whom you turn for advice.  Or from your lawyer if you ever need to hire one!  You’d expect candid advice.  It might not be what you hoped for or wanted, but it’s the advice you’re entitled to receive.  Your clients are entitled to the same.

Rendering candid legal advice is more than a tip from bar counsel.  It’s a lawyer’s professional obligation.

Related posts:

When a client insists that a lawyer advance frivolous claims.

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

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

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

Flash forward to 2021.

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

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

My position derives from the following rules:

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

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

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

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

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

As always, be careful out there.

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

Dumb and Dumber

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

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

Wisconsin Advisory Opinion Offers Cybersecurity Tips on Working Remotely

In late January, the Wisconsin Bar issued Formal Ethics Opinion EF-21-02: Working Remotely.  The opinion makes three important points and shares helpful and practical guidance on cybersecurity practices, training & supervision, and preparing clients.

astronaut-sitting-moon-laptop

First, the important points.

I’m a fan of the opening line of the synopsis:

  • “The basic responsibilities that a lawyer owes the client – competence, diligence, communication, and confidentiality – lie at the core of lawyer’s professional obligations and remain unchanged irrespective of the lawyer’s physical location.”

That’s critical: the pandemic hasn’t lessened or diminished our professional obligations.  Our responsibilities remain the same as in 2019 when we were working in our offices.  Further, our basic obligations to clients will not change once the pandemic ends. As the opinion points out, “it is expected that lawyers, like other professionals, will continue to work remotely in some form after the pandemic.” So, the guidance, while issued in response to the pandemic, will prove valuable in an increasingly remote post-pandemic workplace.

Next, the opinion reiterates what I’ve been blogging for years: competence includes tech competence.  Pages 2 and 3 include language that I’m certain will worry lawyers.  The language, however, is important to take to heart.

  • “Basic technological competence includes, at a minimum, knowledge of the types of devices available for communication, software options for communication, preparation, transmission and storage of documents and other information, and the means to keep the devices and the information they transmit and store secure and private.”

As the opinion notes, large firms likely will employ IT professionals for these issues.  Small firms and solos are reminded that they “may need to retain the services of an expert if they lack the knowledge to personally manage the technological aspects of practice.”

Finally, the conclusion ties together the first two points in an important reminder:

  • “The COVID-19 pandemic has dramatically changed how lawyers work and represent their clients. Some of these changes may be temporary but others are likely part of a movement towards increased reliance on technology in the practice of law. As working remotely has become the new normal, lawyers must develop new skills and knowledge to comply with their core responsibilities.”

Indeed.

I’ll finish by cutting and pasting the guidance and practical tips that begin on page 10 of the Wisconsin opinion.  I’ve reformatted & renumbered the footnotes to endnotes.

***

General Guidance

 It is impossible to provide specific requirements for working remotely because lawyers’ ethical duties are continually evolving as technology changes. It is possible, however, to provide some guidance. Cybersecurity Practices Because working remotely relies on technology, competence in technology and cybersecurity practices are essential. The following cybersecurity practices have been recommended by a number of ethics opinions[i] and other resources. None of these practices are new: they are reasonable precautions that have helped lawyers fulfill their ethical obligations, especially the duty of confidentiality, when working in the office and when working remotely, whether at home during evenings and weekends, or during travel for work or vacation.

  • Require strong passwords to protect data and to access devices. The more complex the password, the less likely that an unauthorized user will be able to access data or devices by using password cracking techniques or software.
  • Use two-factor or multi-factor authentication to access firm information and firm networks. Although requiring an additional authentication step, such as a six-digit code sent to the lawyer’s phone or email, may seem inconvenient or burdensome, it is a reasonable precaution that increases protection and reduces the likelihood of unauthorized access by providing an additional layer of security beyond a strong password.
  • Avoid using unsecured or public WiFi when accessing or transmitting client information. Hackers can access unencrypted information on unsecured WiFi and can use unsecured WiFi to distribute malware.
  • Use a virtual private network (VPN) when accessing or transmitting client information. A VPN encrypts information and allows users to create a secure connection to another network.
  • Use firewalls and secure router settings. A firewall monitors and controls incoming and outgoing network traffic based on predetermined security rules: it establishes a barrier between a trusted network and an untrusted network. A router connects multiple devices to the Internet, and connects the devices to each other.
  • Use and keep current anti-virus and anti-malware software. Anti-virus and anti-malware both refer to software designed to detect, protect against, and remove malicious software.
  • Keep all software current: install updates immediately. Updates help patch security flaws or software vulnerabilities, which are security holes or weaknesses found in a software program or operating system.
  • Supply or require employees to use secure and encrypted laptops. All lawyers and staff should use only firm issued devices with security protections and backup systems and prohibit storage of firm or client information on unauthorized devices. All devices used by the lawyer, such as desktop computers, laptops, tablets, portable drives, phones, and scanning and copy machines, should be protected.
  • Do not use USB drives or other external devices unless they are owned by the firm or they are provided by a trusted source.
  • Specify how and where data created remotely will be stored and how it will be backed up.
  • Save data permanently only on the office network, not personal devices. If saved on personal devices, taking reasonable precautions to protect such information.
  • Use reputable vendors for cloud services. Transmission and storage of firm and client information through a cloud service is appropriate provided the lawyer has made sufficient inquiry that the service is competent and reputable.[ii]
  • Encrypt emails or use other security to protect sensitive information from unauthorized disclosure. A lawyer should balance the interests in determining when encryption is appropriate.
  • Encrypt electronic records, including backups containing sensitive information such a personally identifiable information.
  • Do not open suspicious attachments or click unusual links in messages, email, tweets, posts, online ads.
  • Use websites have enhanced security whenever possible. Such websites begin with “HTTPS” in their address rather than “HTTP,” and encrypt the communication.
  • Provide adequate security for video meetings or conferences. The FBI has recommended the following steps: use the up-to-date version of the application; do not make the meetings public; require a meeting password; do not share the link to the video meeting on an unrestricted publicly available social media post; provide the meeting link directly to the invited guests; and manage the screen-sharing options.[iii] In selecting a videoconferencing platform, the lawyer should make sure it is sufficiently secure both in its structure and its contractual terms of use, especially any terms on access to user information.[iv]
  • Do not have work-related conversations in the presence of smart devices such as voice assistants. These devices may listen to and record conversations.[v]

Training and Supervision

To comply with the duties required by SCR 20:5.1 and 5.3, partners, managers and supervisory lawyers should consider whether the firm’s policies and procedures are adequate to address the specific challenges that may arise when lawyers and nonlawyer assistants are working remotely.

  • Establish and implement policies and procedures for cybersecurity practices. These policies and procedures should be in writing and provided to all lawyers and nonlawyer assistants, and stress compliance.
  • Establish and implement policies and procedures for the training and supervision of lawyers and nonlawyer assistants in the firm’s cybersecurity practices. Training is the most basic step in avoiding a cyberattack at a law firm. In other words, it is extremely important to develop a culture of awareness. The most serious vulnerabilities of a cybersecurity system are not the hardware or software, but rather the people who use it. It is estimated that 90% of cybersecurity breaches are due to human error.[vi]
  • Establish and implement policies and procedures regarding remote workspaces to mitigate the risk of inadvertent or unauthorized disclosures of information relating to the representation of clients. Remote workspaces should be private to ensure that others do not have access to phone conversations, video conferences, or case-related materials.
  • Hold sufficiently frequent remote meetings between supervising attorneys and supervised attorneys, and between supervising attorneys and supervised nonlawyer assistants to achieve effective supervision.

Preparing Clients

Representing a client remotely may present challenges to competent representation.[vii] Consequently, a lawyer should carefully consider whether the lawyer can adequately prepare the client to testify or for interviews while working remotely.

  • The lawyer and the client should have sufficient ability with the technology.
  • The lawyer and the client should have access to relevant documents.
  • The lawyer and the client have adequate time and attention to ensure the client’s comfort with the communicating by the medium that will be used.

[i] See, e.g., Wisconsin Formal Ethics Opinion EF-15-01: Ethical Obligations of Attorneys Using Cloud Computing (Amended September 8, 2017).

[ii] Wisconsin Formal Ethics Opinion EF-15-01.

[iii] https://www.fbi.gov/contact-us/field-offices/boston/news/press-releases/fbi-warns-ofteleconferencing-and-online-classroom-hijacking-during-covid-19-pandemic

[iv] Lawyers must understand that if video conferences are recorded the vendor may retain a copy under the terms of service. See INSIGHT: Zooming and Attorney Client Privilege, https://www.bloomberglaw.com/exp/eyJjdHh0IjoiQ1ZOVyIsImlkIjoiMDAwMDAxNzEtZWExYy1kMDAwLWE5N2YtZ WE3ZTkwYWMwMDAxIiwic2lnIjoidVliaWhQR3J3ZmpWcDBKeE5KY1JYV1c0RlcwPSIsInRpbWUiOiIxNTkwMjQwMzM 1IiwidXVpZCI6IndNWHUzdVFGajBEWGxkZFBKcTNSVVE9PU1ZZmVtSkhLU0hBMWtPNG8rTE50eGc9PSIsInYiOiIxIn0= ?usertype=External&bwid=00000171-ea1c-d000-a97fea7e90ac0001&qid=6912181&cti=LSCH&uc=1320042032&et=SINGLE_ARTICLE&emc=bcvnw_cn%3A7&bna_news_ filter=true

[v] For example, Google and Amazon maintain those recordings on servers and hire people to review the recordings. Although the identities of the speakers are not disclosed to these reviewers, they might hear sufficient details to be able to connect a voice to a specific person. https://www.vox.com/recode/2020/2/21/21032140/alexa-amazongoogle-home-siri-applemicrosoft-cortana-recording .

[vi] https://www.techradar.com/news/90-percent-of-data-breaches-are-caused-by-humanerror#:~:text=A%20new%20report%20from%20Kaspersky,carried%20out%20by%20cloud%20providers .

[vii] The New York County Lawyers Association Formal Opinion 754-2020 at 3.