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

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

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

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

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

Welcome back!


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

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!

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:

Court isn’t a social media platform.

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

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

Whoa.  Try saying that three times fast.

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

I disagree.

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

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

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

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

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

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

Then, the money quote:

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

Indeed.

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

Remember, in pleadings & arguments:

1*wA1Vc082NU82zI64lp99Sg

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

Manage expecations with candid legal advice

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

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

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

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

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

Here’s Hoffman’s Resolution 31:

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

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

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

I’ve written often on managing client expectations:

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

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

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

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

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

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