Client Confidences

Court upholds order prohibiting Drew Peterson’s former lawyer from disclosing information about Peterson’s missing ex-wife

Michael 2 Comments

Prologue

This post is longer than most.  You’ve been warned.

Summary

Today’s story verges on the tabloid-esque.  Still, it includes a helpful reminder on the scope of the so-called “self-defense” exception to a lawyer’s duty of confidentiality.

Post

In May, I posted Judge orders Drew Peterson’s former lawyer not to disclose information about Peterson’s missing ex-wife.  Peterson is a former police officer who gained national attention in 2007 when his fourth wife, Stacy Peterson, disappeared. Stacy has never been found. 

Stacy’s disappearance refocused attention on the 2004 death of Kathleen Savio, Drew’s third wife. Kathleen’s death was originally ruled an accident. Then, after Stacy’s disappearance, Kathleen’s body was exhumed. Following a forensics examination, the cause of death was changed to homicide.

In 2012, a jury convicted Drew of the premeditated murder of Kathleen. He was sentenced to 38 years in prison.  .

Joel Brodsky represented Peterson at trial.  Earlier this year, Peterson filed a petition for post-conviction relief.  Among other things, the petition alleges that Brodsky lied about his experience handling murder cases, failed to provide effective assistance of counsel during the trial, and threatened to withdraw if Peterson testified.  Shortly after the PCR was filed, and as reported here, Brodsky told WGN Investigates that “maybe it’s time” to reveal Stacy’s whereabouts.  Brodsky added:

  • “It’s something that weighs on my conscience.  I would never do anything that would hurt a former client, but he’s in prison, he’s never getting out.  So, if he’s a man, he’d say ‘I’m done, here’s what happened,’ so people can have closure.” 

Brodsky went on:

  • “I know everything about both of his wives – everything. I feel bad about Drew still not taking responsibility and Stacy still being missing.  I’m thinking about maybe revealing what happened to Stacy and where she is.”

Peterson’s lawyer requested an order prohibiting Brodsky from revealing the information. A judge granted the order, stating “[t]his may be the most vile crime in the U.S. but [defendants] still have a right to speak in confidence with their attorney.” 

Unsurprisingly, Brodsky appealed.  He raised both procedural and substantive arguments.  Last week, the appellate court affirmed the lower court’s ruling.  WGN9 and the ABA Journal have coverage.  The opinion includes references to the Rules of Professional Conduct. I’m going to focus on the court’s analysis of the confidentiality rule.[1]

Brodsky argued Peterson’s allegation of ineffective assistance of counsel constituted a waiver of the attorney-client privilege that allowed Brodsky to respond. In support, he cited to Rule 1.6(b)(5) of the Illinois Rules of Professional Conduct.  The rule is identical to Vermont’s Rule 1.6(c)(4).  Both permit disclosure of otherwise confidential information when a lawyer reasonably believes that disclosure is necessary:

  • “to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.”

This is the so-called “self-defense exception” to the confidentiality rule.  What’s critical to remember, and as I often mention during CLEs, is that the exception is a narrow one.  In Vermont, Comment [14] states that the exception permits disclosure “only to the extent the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes specified.”  It also states that “a disclosure adverse to the client’s interest should be no greater than the lawyer reasonably believes necessary to accomplish the purpose.”

I’ve made this point often in different contexts. For example, let’s assume the following:

  • Lawyer represents Client.
  • Client is charged with aggravated assault.
  • Client agrees to a plea.
  • Immediately after the change of plea hearing, Client thanks Lawyer and says “unrelated, but last summer, a friend paid me to burn down his lake house as part an insurance scheme. If they find out about that, will you represent me?”
  • Later, Client isn’t so thankful.  After a few months of incarceration, he files a petition for post-conviction relief alleging that Lawyer misled him about the strength of the State’s case in the aggravated assault.

I’ve explained to lawyers that it’s possible to respond to the allegation without adding “oh, and by the way, that lake house that burned last summer?  You know, the one that they haven’t solved? Well, my client told me that a friend paid him to set it as part of an insurance fraud scheme.”

Back to Brodsky and Peterson.  The appellate court interpreted the Illinois rule in a similar manner, stating:

  • “We find clear support for a narrow waiver in the language of Rule 1.6(b)(5), stating that an attorney is permitted to respond to the extent the attorney reasonably believes necessary to establish a defense to the client’s claim. We concur with defendant’s conclusion that ‘nothing about the specific allegations of ineffective assistance of counsel made by Defendant-Appellee in his pro se petition for post-conviction relief would require Appellant to disclose any supposed inculpatory statements (especially any supposed inculpatory statements about Stacy Peterson) in order to establish a defense to such claims.’”[2]

In sum, yes, the self-defense exception permits disclosure of otherwise confidential information to respond to certain allegations from clients and former clients.  However, any disclosure made pursuant to the exception must be limited to information reasonably necessary to respond to the allegations.

As always, let’s be careful out there.

[1] The opinion also references Rule 3.6, the rule on trial publicity. In Illinois, it states that “an attorney who is participating in or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and would pose a serious and imminent threat to the fairness of an administrative proceeding in the matter.” Noting that Peterson’s PCR might result in a new trial, the appellate court wrote “Few people in the history of Illinois jurisprudence have achieved Drew Peterson’s level of notoriety. We find it nearly inconceivable that any revelation about Stacy would not taking the jury pool should Peterson receive a new trial.”  People v. Peterson, 2022 Il App (3d) 220206, p. 19, ¶56.

[2]  People v. Peterson, 2022 Il App (3d) 220206, p. 19, ¶74.

Conflicts of Interest Involving Former Clients

Michael Leave a comment

Conflicts lie at the core of many inquiries of bar counsel. They can be difficult to assess.  A particular area of difficulty is whether duties to a former client create a conflict that prohibits representation in a new matter.

Let’s use the following as our baseline:

  • Lawyer represented Former Client in Matter 1.  The representation has concluded and there is no doubt that Former Client is, as the name suggests, a former client.
  • New Client would like to hire Lawyer in Matter 2.

We begin with V.R.Pr.C. 1.9(a):

  • “A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.”

So, the key questions are:

  • Is Matter 2 the same as or substantially related to Matter 1?
  • If so, are New Client’s interests in Matter 2 materially adverse to Former Client’s?

It’s not always productive to get stuck on the rule’s language. It can be easier to remember that the Supreme Court long ago described the rule as prohibiting lawyers from “switching sides.”[1]

Still, let’s go through the analysis. 

Are the two matters the same or substantially related?

While the answer to the former is often obvious, the answer to the latter frequently isn’t.  It’s critical to remember that the answer doesn’t turn only on the nature of the matters themselves. Rather, we must consider the nature of the information that the lawyer obtained in the first representation. As Comment [3] states:

  • “Matters are ‘substantially related’’ for purposes of this rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter.” (emphasis added).

This scenario arises in many contexts. One is when a lawyer represents a client in a matter in which a former client is a witness for the other side. Often, the lawyer will have received confidential information from the former client that would materially advance the new client’s defense by undermining the former client’s credibility as a witness. Thus, while the two matters might appear on the surface to have nothing to do with each other, under the rule, they might be substantially related.[2]

One last point on the “substantially related” question: if two matters are substantially related, it’s irrelevant that the lawyer doesn’t remember anything about the first.  Knowledge of information as would ordinarily have been disclosed in the course of the representation is presumed and we will not force the former client to disclose it to protect it.[3]

Okay, so let’s assume that the two matters are the same or substantially related.  The next question is whether the new client’s interests are materially adverse to the former’s. 

Material Adversity

Last year, the ABA Standing Committee on Ethics & Professional Responsibility published Formal Opinion 497 – Conflicts Involving Materially Adverse Interests.  I blogged about it here.

Per the opinion, there are 2 situations in which material adversity is clear:

  1. Suing, litigating, or negotiating with a former client. I like the Committee’s use of two questions: in litigation, are you on the other side of the “v”? Or, in a transaction, are you sitting on the other side of the table?
  2. Attacking your own prior work or legal advice.

Next, the opinion advises that material adversity often, but not always, exists when competent representation will require a lawyer to cross-examine a former or prospective client.[4] 

Finally, the Committee notes that material adversity can exist even in the absence of direct adversity.  For instance, it

  • “may exist when the former client is not a party or a witness in the current matter if the former client can identify some specific material legal, financial, or other identifiable concrete detriment that would be caused by the current representation. However, neither generalized financial harm nor a claimed detriment that is not accompanied by demonstrable and material harm or risk of such harm to the former or prospective client’s interests suffices.”

No Conflict? Continue to Exercise Caution,

Let’s assume that the new matter is not the same as or substantially related to the former matter, and the new client’s interest are not materially adverse to the former client’s interests.  In my judgment, that’s not the end of the lawyer’s analysis.  To me, competent representation includes asking “self, do client and I want to deal with this?”  That is, conflict or not, people are (naturally) upset to find their lawyer on the other side of the v or the table.  A motion to disqualify will cost the new client time and money.  Moreover, the former client might file a disciplinary complaint.  Even if it is dismissed, it will weigh on the lawyer while pending.  Sometimes close enough is, in fact, close enough.

In closing, I remain of the opinion that when potential conflicts arise, it’s important to trust your gut. That said, I hope that today’s post provides a bit more insight into the rules.

As always, let’s be careful out there.

[1] The opinion is here.  See also, this blog post, this video, and this update to the video.

[2] Even if they aren’t substantially related, the lawyer might still have a conflict.  Rule 1.9(c) prohibits the lawyer from revealing information related to the representation of the former client, as well as from using information related to the representation to the former client’s disadvantage. If complying with that duty creates of significant risk of materially limiting the representation of the new client, the lawyer has a conflict under Rule 1.7(a)(2). 

[3] See this blog post and this video. 

[4] Here, don’t spend too long trying to convince yourself “but the conviction, testimony, or conduct relevant to my former representation is public record.”  That is NOT the standard.  As regular readers know, the fact that information relating to the representation of a former client is “public record” doesn’t necessarily mean that it’s “generally known.”  Says who?  This blogger.

ABA joins chorus, concludes that sending lawyer who includes client on electronic communication to opposing counsel impliedly consents to “reply all.”

Michael 1 Comment

Hot off the presses!

This morning, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued Formal Advisory Opinion 503: “Reply All” in Electronic Communication.  The ABA Journal reported the news, with the ABA issuing this press release.

Regular readers won’t be surprised by the conclusion:

  • ‘In the absence of special circumstances, lawyers who copy their clients on an electronic communication sent to counsel representing another person in the matter impliedly consent to receiving counsel’s ‘reply all’ to the communication.”

I find the opinion important for several reasons.

First,  it is consistent with the recent trend, with Virginia and New Jersey having reached the same conclusion within the past 18 months.

Second, it specifically rejects an approach that, frankly, hasn’t been too helpful. As I blogged here, “[f]or many years, advisory opinions cautioned against copying a client on an email to opposing counsel but stopped short of concluding that, by doing so, the sending lawyer consents to a ‘reply-all’ by the receiving lawyer.”  Jurisdictions that adopted this approach often advised that “whether consent has been implied will depend on the circumstances.”  Today’s opinion from the ABA is music to my ears, stating that the “it depends” approach “muddies the interpretation of the Rule, making it difficult for receiving counsel to discern the proper course of action or leaving room for disputes.”

Third, I like that the opinion is NOT limited to email. It deals with “electronic communications” and specifically references text messages.

Fourth, the opinion makes a point that people like Brian Faughnan and me have been making for years: While the advisory opinions focus on the receiving lawyer’s duties, a critical issue is the risk that the sending lawyer takes by including a client on an electronic communication to opposing counsel. As the ABA advises today:

  • “By copying their clients on emails and texts to receiving counsel, sending lawyers risk an imprudent reply all from their clients. Email and text messaging replies are often generated quickly, and the client may reply hastily with sensitive or compromising information. Thus, the better practice is not to copy the client on an email or text to receiving counsel; instead, the lawyer generally should separately forward any pertinent emails or texts to the client.” (internal citations omitted).

Finally, the opinion describes two situations in which consent to reply-all is not implied:

  1. When the initial communication is traditional paper sent by U.S. Mail; and,
  2. When the sending lawyer instructs the receiving lawyer that the sending lawyer has not consented to “reply-all.”

As always, let’s be careful out there.

Related posts:

Advisory Opinions

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

Michael 2 Comments

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

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

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

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

Welcome back!

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

Some basics related to the duties that apply when a lawyer or law firm handles cryptocurrency.

Michael

Blogger’s Note:  many thanks to Tom Little for sending me the Ohio advisory opinion that is referenced below and that served as the impetus for this post.

Cryptocurrency

My sense is that not many Vermont lawyers or law firms often handle cryptocurrency.  Doing so is likely to become more common, especially for lawyers and firms whose clients regularly use cryptocurrency to conduct transactions. Thus, it makes sense to highlight the professional responsibility issues most likely to arise.

Caveat: I don’t understand even the basics of cryptocurrency. So, here, I’m not going to try to explain what it is or how it works. Rather, I will limit this post to sharing guidance that others have provided.  Namely, via the following advisory ethics opinions:

The opinions discuss three distinct situations in which a client or third party might ask to transfer cryptocurrency to a lawyer or law firm:

  1. to pay for legal services that have already been rendered.
  2. as an advance against legal services that will be provided in the future.
  3. to hold in escrow pending future use by the client.[i]

For me, the opinions lend themselves to a single overarching takeaway.[ii]

On this blog and at CLEs, I’ve long argued that new things don’t necessarily require us to rewrite the Rules of Professional Conduct. 

  • No matter the mode of communication, the duty is to employ reasonable precautions against unauthorized access to or inadvertent disclosure of client information
  • Whether using a file cabinet, the storage facility on Town Line Road, or the cloud, the duty is to take reasonable precautions to safeguard client property.
  • Yes, social media has provided new ways for lawyers to get caught. It has not, however, created or caused the underlying misconduct that has always been a violation of the rules, but is more readily apparent when done in a public medium.

That’s why a section of the D.C. opinion resonates with me:

“We do not perceive any basis in the Rules of Professional Conduct for treating cryptocurrency as a uniquely unethical form of payment. Cryptocurrency is, ultimately, simply a relatively new means of transferring economic value, and the Rules are flexible enough to provide for the protection of clients’ interests and property without rejecting advances in technologies.”

In other words, just because something is new doesn’t mean it’s unethical.

Rather, take the “tech” out of it and look to fundamental principles that have long been part of the foundation upon which the Rules were constructed:

  • legal fees must not be unreasonable,
  • client property must be safeguarded,
  • risks associated with the representation must be explained to the client,
  • no matter who pays, a client’s confidences must be protected, and a lawyer’s independent judgment must not be compromised, and,
  • business transactions with a client must be transparent and fair.[iii]

With these principles in mind, I should stop.  If I don’t, my second post in 2 months would go on so long that readers would wish I’d taken a permanent vacation from blogging.

Alas, I’d be remiss not to mention the following points, each of which is made in both the Nebraska and D.C. opinions.

  • Cryptocurrency is not fiat currency. It is property and must be treated as such. 
  • Before a lawyer or firm agrees to accept cryptocurrency as an advance fee, the lawyer or firm better know how to hold it safely.
  • V.R.Pr.C. 1.5 prohibits unreasonable fees. Comment [4] states that while a lawyer may accept property as payment of a fee, “a fee paid in property instead of money may be subject to the requirements of Rule 1.8(a),” the rule that governs business transactions with a client. 
  • Indeed, the D.C. opinion concludes that Rule 1.8(a), which governs business transactions with a client, applies when (a) a client transfers cryptocurrency against which the lawyer will bill for legal services in the future; and (b) a client and lawyer agree to an ongoing relationship in which the lawyer will provide legal services in exchange for X amount of cryptocurrency per month.

Now I’ll stop.  For real.  For more, check out the opinions or give me a call.

As always, let’s be careful out there.

Related Posts

[i] The Nebraska and D.C. opinions focus on the first two, while the Ohio opinion addresses the third. 

[ii] My takeaway is not a substitute for reading the opinions themselves and may not be the same takeaway made by Disciplinary Counsel’s, a PRB hearing panel, or the Vermont Supreme Court.

[iii] In order, Rule 1.5, Rule 1.15, Rule 1.4, 1.6, and Rule 1.8.

The duty of confidentiality to former clients: judge orders Drew Peterson’s lawyer not to reveal information related to Peterson’s missing wife.

Michael 2 Comments

I like to use to imagery to make points related to legal ethics & professional responsibility. Here’s one of the images I use when discussing a lawyer’s duty of confidentiality:

1.6

What follows in today’s post invokes an image that’s similar, but with a critical distinction.  Imagine a picture in which it’s not me keeping me from disclosing confidential information. Rather, it’s a judge ordering me not to follow through on a threat to disclose a former client’s confidential information.

Last week, an Illinois judge ordered a lawyer not to disclose information related to the whereabouts of a former client’s missing wife.  Among others, the ABA Journal, WGN 9, NBC5, and the Chicago Sun-Times covered the story.

Many readers might have heard of the lawyer’s former client:  Drew Peterson.  Peterson is a former police officer who gained national attention in 2007 when his fourth wife, Stacy Peterson, disappeared. Stacy has never been found.

Stacy’s disappearance refocused attention on the 2004 death of Kathleen Savio, Drew’s third wife. Savio’s death was originally ruled an accident. Then, after Stacy’s disappearance, Savio’s body was exhumed. Following a forensics examination, Savio’s cause of death was changed to homicide.

In 2012, a jury convicted Drew of the premeditated murder of Savio. He was sentenced to 38 years in prison.  In 2016, he was sentenced to an additional 40 years after being convicted of soliciting the murder of the prosecutor in the Savio case.

Joel Brodsky represented Drew in the Savio trial. Last week, and as reported here, Brodsky told WGN Investigates that “maybe it’s time” to reveal Stacy’s whereabouts.  Referring to Drew, Brodsky added:

  • “It’s something that weighs on my conscience. I would never do anything that would hurt a former client, but he’s in prison, he’s never getting out.  So, if he’s a man, he’d say ‘I’m done, here’s what happened,’ so people can have closure.”

Brodsky went on:

  • “I know everything about both of his wives – everything. I feel bad about Drew still not taking responsibility and Stacy still being missing.  I’m thinking about maybe revealing what happened to Stacy and where she is.”

According to WGN 9, Brodsky’s statements came in response to Drew Peterson’s recent request for post-conviction relief in which he argues that Brodsky failed to provide effective assistance of counsel. Drew’s lawyer requested an order prohibiting Brodsky from revealing the information. A judge granted the order, stating “[t]his may be the most vile crime in the U.S. but [defendants] still have a right to speak in confidence with their attorney.”

Brodsky appears not to agree with the judge’s decision. During the hearing, Brodsky argued that Drew’s allegations of ineffective assistance allowed Brodsky to disclose client confidences.  Following the hearing, WGN reports that “Brodsky said the question of whether he’ll reveal what happened to Peterson’s former wives is not ‘if’ but ‘how.’ He said: ‘That’s going to happen.’”

Wow.

I don’t suppose it’s likely that a Vermont attorney will find themselves similarly situated to Brodsky.  Still, I’m going to use the Brodsky story as a segue to review the duty of confidentiality that Vermont lawyers owe to former clients.

You are a lawyer admitted to practice law in Vermont.  Let’s assume you represented me in a trial in which I was convicted of the 2014 murder of X, my first wife.  Let’s also assume that Y, my second wife, has been missing since 2015 and that some suspect me to have been involved in Y’s disappearance. Finally, let’s assume that when you represented me in X’s matter, I told you what happened to Y.

The duty of confidentiality that you owe to me is set out in V.R.Pr.C. 1.9(c).  The rule states that a lawyer shall not:

“(1) use information relating to the representation to the disadvantage of the former client except as these rules would permit or require with respect to a client, or when the information has become generally known; or

(2) reveal information relating to the representation except as these rules would permit or require with respect to a client.”

As I interpret the rule, my statement about Y is information related to your representation of me in X’s matter.  If my interpretation is correct, I’m entitled to the protection afforded by Rule 1.9.

Indeed, Brodsky does not seem to argue that Drew isn’t a former client to whom he owes a duty of confidentiality.  Rather, he argues that the gag order violates his First Amendment rights and, further, that Drew’s claims of ineffective assistance of counsel authorize Brodsky to disclose otherwise confidential information.

Returning to the hypo in which you represent me in Vermont, if you were to make an argument like Brodsky’s, you’d argue as follows:

  • Rules 1.9(c)(1) and (2) allow you to use or reveal my confidential information as permitted by other rules; and,
  • Rule 1.6(c)(3) permits you to disclose information related to your representation of me.

Now, I know what you’re thinking:  what’s that Mike? How does Rule 1.6(c)(3) permit me to disclose information about you, my former client?

Short answer:  if you’re thinking of disclosing my involvement in Y’s disappearance, I’m not sure that it does.

V.R.Pr.C. 1.6(c)(3) sets out Vermont’s so-called “self-defense” exception. It permits a lawyer to disclose information related to the representation of a client if the

  • “lawyer reasonably believes that disclosure is necessary to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.”

So, your argument would be:

  • Mike is a former client to whom I owe a duty of confidentiality.
  • Rule 1.9(c) prohibits me from using or disclosing information related to my representation of Mike, except as authorized by other rules.
  • Mike alleges that I provided ineffective assistance of counsel while representing him in the matter in which he was charged with the murder of X.
  • In that Mike has made allegations about my representation of him, Rule 1.6(c)(3) authorizes me to disclose his involvement in the disappearance of Y.

Here’s why I, as your former client, would beg to differ.

Comment 14 to Rule 1.6 states that paragraph (c) permits disclosure “only to the extent the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes specified.”  It also states that “a disclosure adverse to the client’s interest should be no greater than the lawyer reasonably believes necessary to accomplish the purpose.”

I get it.  Yes, I’m alleging that you didn’t know what you were doing when you represented me in the case in which I was convicted of murdering X.  But what I told you about Y has nothing to do with what you did for me in X’s case. The fact that I’m in jail for life isn’t an exception to the duty of confidentiality you owe to me.  That is, “what’s one more life sentence” isn’t among the exceptions listed in Rule 1.6.  You can defend against my allegations without mentioning a single thing about Y.

I’ve made this point often in different contexts. For example, it’s not uncommon for someone convicted of a crime to allege that their lawyer failed to explain the collateral consequences of a conviction before the client agreed to a plea deal. Assuming the client pled guilty to something other than possession of child porn, I’ve explained to lawyers that it’s possible to respond to the allegation without adding “oh, and by the way, my client once told me that he has child porn on his phone.”

Finally, and back to the hypo in which you represented me, I’d likely file a disciplinary complaint against you for even suggesting that you might disclose what happened to Y. In so doing, you’re basically stating that I know what happened to Y, and that I admitted my involvement in confidence.

In closing, I’ll repeat what I’ve often stated at CLEs and in response to ethics inquiries.  Yes, V.R.Pr.C. 1.6(c)(3) authorizes lawyers to respond to certain allegations related to their representation of a former client. The response, however, should be limited to the disclosure(s) necessary to respond to the allegations.  That is, I do not view the rule as license to reveal the entire basket of a former client’s dirty laundry.

For some, the Brodsky/Peterson matter might ring familiar.  Indeed, it wasn’t far from here that, almost 50 years ago, two New York lawyers learned in confidence the location of two of their client’s victims.  You can read more about the so-called “dead bodies case” in the ABA Journal’s 2007 article The Toughest Call. The New York lawyers took a different approach than Brodsky.

Finally, given today’s environment, I wonder how far we are from the day when certain clients are deemed unworthy of the protections of Rule 1.6 and the attorney-client privilege.  I understand that each of us must do what allows us to sleep at night. That’s fine.  As long as we understand that a consequence of sleeping might be waking up without a license to practice law.**

As always, let’s be careful out there.

legal ethics

** Caveat 1: To be clear, I don’t know what the rules are in Illinois.  I have no idea whether Stacey’s disappearance was an issue in the Savio trial or whether Stacy’s disappearance is related to Drew’s allegations that Brodsky provided ineffective assistance in the Savio matter.  My thoughts on the duties that Vermont lawyers owe to their former clients are limited to the application of the Vermont Rules of Professional Conduct to the hypo involving X, Y, and me.

** Caveat 2: Brodsky’s license to practice law in Illinois has been suspended since 2019 as a result of misconduct in unrelated matters.

A quick recap of the 7 Cs of Legal Ethics

Michael 2 Comments

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.

Michael 1 Comment

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

 

Client Confidences, Motions to Withdraw, and Responding to Subpoenas for Client Information

Michael 1 Comment

“Of course I’m okay! God didn’t make me Irish for nothing you know!!”

~ Katherine Flynn, aka Aunt Kate

**********************

I’ll get to subpoenas and motions to withdraw in a bit.  First, I’m going to share a story, if only because Aunt Kate would roll in her grave if I failed to acknowledge the day.

I bought my condo in 2018.  When I moved in, I found it a bit curious that the previous owners had installed flagpole mounts on both sides of the garage door.  Don’t get me wrong: I’m a fan of flags, have a bunch of them, and love to fly them as appropriate.  Still, when would I ever need to fly two flags at the same time?

Today!

As most readers know, I’m a fan of all-things Irish and most-things basketball, with the opening weekend of the NCAA tournament among my favorite basketball things. Today, then, is quite a day: the magical and rare alignment of cosmos and calendar that results in March Madness opening on St. Patrick’s Day. Frankly, Younger Me would be shocked to learn that we’re working this morning.

It gets better.

Another of my favorite basketball things is UVM basketball. Tonight, Vermont plays a winnable game in the NCAA tournament.  That alone is something that would’ve fried Younger Me’s brain.  Combine it with playing on Day 1 of the tournament on St. Patrick’s Day?  Well, frankly, Younger Me would be even more shocked to learn that it was only half & half in our coffee this morning.

All that said, I’m sure you’ve figured out what this has to do with flags. Today I’m flying two: my Irish flag and my UVM flag.  So, I’ll transition to the legal ethics portion of this post with an Irish toast to the prior owner who had the foresight to install two pole mounts:

Sláinte and Go Cats Go!

Now, back to our regularly scheduled programming.

Motions to Withdraw & Subpoenas to Disclose Client Information

Over the past few months, I’ve noticed an uptick in inquiries on each of these questions:

  1. How much can I disclose in a motion to withdraw?
  2. How do I respond to a subpoena to produce a former client’s file or to give testimony about my representation of that client?

Here’s the nutshell version of my guidance:

  1. Very little. Cite to whatever provision of V.R.Pr.C. 1.16 applies, then go from there.
  2. Very carefully. Absent client consent to produce or disclose, I suggest raising all non-frivolous defenses against production or disclosure in a motion to quash.  Then, go from there.

After responding to these inquiries, I email these blog posts to the inquirers:

  1. Stop Making Noise.
  2. Subpoenaed to Disclose Client Info?

Now, I can sense that my mother’s French-Canadian mother is not only rolling in her grave, but she’s stomping her feet and smashing her fists.  She’s realized that today’s post is not original, but a rehashing of blogs I posted years ago.  She’s blaming the laziness on my Irish gene.  Nanny, Papa’s wife, has a point.

Nevertheless, since the questions continue to come, I thought I’d share this refresher.

When moving withdraw, remember that “I want to withdraw” is not among the exceptions to V.R.Pr.C. 1.6’s prohibition on disclosing information relating to the representation of the client. That’s why I think it’s best practice for a lawyer to limit a withdrawal motion to citing whatever provision(s) of V.R.Pr.C. 1.16 apply.  Then, if the court orders further disclosure, V.R.Pr.C. 1.6(c) permits a lawyer to respond.  Stop Making Noise includes a cautionary tale of a Tennessee lawyer who clearly had grounds to withdraw, but who was sanctioned for disclosing too much in a motion to do so.

Similarly, “I’ve been subpoenaed” is not among the exceptions to V.R.Pr.C. 1.6’s prohibition on disclosing information relating to the representation of a client.  So, absent the client or former client’s consent to produce the file or to give testimony, I think best practice is to raise all non-frivolous arguments against production/disclosure in a motion to quash. Then, if a court compels production or disclosure, V.R.Pr.C. 1.6(c) permits a lawyer to comply with the court order.[1]  My blog post links to ABA Formal Opinion 473: Obligations Upon Receiving a Subpoena or Other Compulsory Process for Client Documents or Information.

As always, let’s be careful out there.

Happy St. Patrick’s Day!

UVM and Irish

[1] Note: this post assumes that the subpoena issues in a matter that does not involve an allegation involving the lawyer’s representation of the client.  The analysis likely would change if the subpoena issues in connection with a case or controversy involving the lawyer’s representation of the former client.  See, V.R.Pr.C. 1.6(c) or contact me.

Tech Competence, Screen Sharing, and Client Confidences.

Michael 1 Comment

Around 1PM, it felt like (another) day without a blog post.  Then, I went to lunch.

My office is in downtown Burlington.  Today, and despite the heat, I chose to walk to Beansie’s.

Beansies

Waiting for my cheeseburger topped with peppers & onions, I checked my email.  There, I found the first of two stories to post.  Perusing my phone while I ate my burger in the shade[1], I found the second.  Each involves technology.  As we know, a lawyer’s duty of competence includes tech competence.

Story 1

A Vermont lawyer forwarded me an email from another lawyer in the same firm.  The co-worker wrote:

  • “I’m in a deposition – other attorney’s email notifications keep popping up on screen share.  Seems like that could risk divulging attorney-client privileged information.”

Yes. Yes, it could.

I can sense some of you disagreeing.  You’re thinking “what could be privileged about an email notification?”

Well, I don’t know.  That’d be for a court to decide in the context of an attempt to compel disclosure.

But I do know this.

Rule 1.6 of the Vermont Rules of Professional Conduct prohibits a lawyer from disclosing information relating to the representation of a client. As I’ve oft stated in this space, Comment [3] makes clear that the rule’s prohibition is broader than the privilege.  The comment notes that the privilege applies “in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client.”  It goes on to state:

  • “The rule of confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for example, applies not only to matters communicated in confidence by the client, but also to all information relating to the representation, whatever its source.  A lawyer may not disclose information except as authorized or required by the Rules of Professional Conduct or other law.”

Neither the Rules nor other law include an exception for “it popped in while I was sharing my screen.”

The internet includes a plethora of resources on the various ways to avoid this problem.

I present a lot of CLEs via Zoom, WebEx, and Teams and often share my screen throughout a presentation.[2]  I’m petrified of having an email notification pop up and disclose (to some extent) a confidential inquiry of bar counsel.  So, I go old-fashioned.  When presenting, I close Outlook and all chats functions.

As always, be careful out there.

menu

Note: In that I strive to avoid TLDR in the comments, Story 2 will follow later today or early tomorrow.  Stay tuned.

[1] Many readers know my preference for summer over winter. I suppose this week’s weather has some considering whether to ask, “how do you like summer now?”  Just as much as I did before!  Because in January, I wouldn’t be able to walk over to Beansie’s in shorts and t-shirt and enjoy my lunch outside.

[2] I also make sure that the only screen open is the one that I intend to share and that I choose that particular window instead of “screen 1” when I start the share.