E-mail Ethics

This issue continues to arise.

• Lawyer represents Client.  Lawyer copies Client on an e-mail to Opposing Counsel.

As the South Carolina Bar concluded earlier this year, it is well-settled that “the mere fact that a lawyer copies his own client on an email does not, without more, constitute implied consent to a ‘reply to all’ responsive email.”   The opinion is here.  It’s the most recent (that I know of) to address the issue.  It came out shortly after I posted a blog entitled CC, BCC, and a lawyer’s duty of competence.

To those of you who copy your clients on emails to opposing counsel, be wary!  Yes, the opinion says that your “cc” isn’t necessarily permission for opposing counsel to reply to your client.  However, it also makes clear that, depending on the circumstances, the fact that you copy your client might imply that you consent to opposing counsel responding to your client.

But that’s not why I’m blogging.  I’m blogging because of a footnote in the South Carolina opinion.

You’d be surprised how many lawyers have informed me that it drives them batty to receive an e-mail from another attorney that the other attorney has copied to his or her client.  Per the reports i receive, when they ask the other attorney to stop, the attorney replies with something like “i’ll copy my client if I damn please.”

Of course you will.

And you’ll do so at your own risk. Because, what happens if your client accidentally uses “reply-all” to send what was intended to be a confidential and privileged communication for your eyes only?*

That’s where the footnote comes in.  Here’s what it says:

• “[1] Although not before the Committee, the practice of copying one’s client – by either ‘cc’ or ‘bcc’ – when emailing with opposing counsel poses some risks. With a ‘cc’, a lawyer is disclosing his client’s email address, and with both ‘cc’ and ‘bcc’, the lawyer risks having the client ‘reply to all’ and potentially disclose confidential or other information. See, e.g., N.Y. State Bar Ass’n Comm. on Prof’l Ethics, Op. 1076 at ¶¶10 – 13. It is also not uncommon for a recipient of a group email to ‘reply to all’ unintentionally or without knowing the identity of each recipient, which in this context might expose the client to what were intended to be lawyer-to-lawyer communications. For these reasons, it is generally unwise to ‘cc’ a client on email communications to opposing counsel.”

As always, let’s be careful out there.

 

* I’d completely forgotten that Sheena Easton sang the theme song.  She remains the only musician ever to appear on-screen in the opening to a Bond movie.

 

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Is your firm prepared for a disaster?

Earlier today, the American Bar Association announced that its Standing Committee on Professional Responsibility & Ethics had issued guidance on a lawyer’s ethical duties before, during, and after a natural disaster.  The guidance comes via Formal Opinion 482.

I’d say that the key takeaway from the opinion is this:

Or, as the Committee elaborated:

• “Lawyers must be prepared to deal with disasters. Foremost among a lawyer’s ethical obligations are those to existing clients, particularly in maintaining communication. Lawyers must also protect documents, funds, and other property the lawyer is holding for clients or third parties. By proper advance preparation and taking advantage of available technology during recovery efforts, lawyers will reduce the risk of violating professional obligations after a disaster.”

The opinion delvesin into the details of a lawyer’s duty to:

• communicate with clients following a disaster;
• continue to provide competent representation following a disaster;
• take steps, in advance, to ensure continued access to client information & funds following a disaster;
• take steps, in advance, to protect the confidentiality of client information should a disaster strike;
• withdraw if, for whatever reason, a disaster leaves a lawyer unable to provide competent representation;
• notify clients of property lost or destroyed in a disaster; and,
• be mindful of the solicitation rules if offering to provide legal services to prospective clients impacted by a disaster.

Don’t think it can’t happen here.  It has.  And, as a result, the Vermont Bar Association developed disaster planning resources for lawyers.  I urge you to review them.

Finally, for lawyers who practice alone or in very small firms, do you have a succession plan?  You should.  Not just in case of a natural disaster, but in case disaster, of any type, strikes you.

Rule 1.3 requires lawyers to act with reasonable diligence and promptness when representing a client.  The rule does not specifically mandate a succession plan. However, Comment [5] says:

• “To prevent neglect of client matters in the event of a lawyer’s death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer’s death or disability, and determine whether there is a need for protective action.”

Lawyers often advise clients to plan for disasters.  Lawyers should do the same.

Social Clients

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

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

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

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

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

As Thomas Edison said:

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

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

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

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

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

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

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

Why?

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

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

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

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

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

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

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

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

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

Tech competence.  It’s a thing.

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

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

 

 

Cybersecurity for Lawyers: learn from other professions

I’ve blogged often on tech competence and the duty to safeguard client data.  In short, lawyers have a duty to take reasonable precautions against the inadvertent disclosure of or unauthorized access to confidential client information.

So, people often ask “what are reasonable precautions?”

It depends.

Nobody likes that answer.  But it’s correct.

For instance, do you mean “what are reasonable precautions when it comes to cloud storage?”  Or, are you asking whether a lawyer has a duty to encrypt e-mail? Wait, maybe you’re talking about your duties when crossing the border? No, no, I get it now:  you’re asking if a lawyer has a duty to disable auto-complete. Oh my gosh, no – you’re referring to the hallmarks of trust account scams.

No matter the mode of communication, no matter the place that information is stored, a lawyer must safeguard client information. And, as I explained here, it makes perfect sense not to get into the habit of re-evaulating a lawyer’s duty with every new technology.  Whatever the next new thing is, a lawyer’s duty will remain the same: to take reasonable precautions against the inadvertent disclosure of or unauthorized access to client information.

But, as this post in the ABA Journal points out, lawyers and law firms aren’t sailing into uncharted waters.  There are lessons to be drawn from other professions.  Per the post, those lessons include:

• Encryption is important.  I’d even venture to opine that if it isn’t already, we aren’t long for the day when the failure to encrypt is tantamount to a failure to take reasonable precautions.
• Partners and more senior lawyers have to follow the same rules as everyone else. “I don’t do tech” isn’t reasonable. It’s no different from saying “I don’t do ‘protecting client information.’ “
• Employees and 3rd party vendors need to be trained on the importance of data security.

There’s a great quote in the article. It’s from Michael Mason, chief of security for Verizon Communications: law firms should foster, grow, and ” ‘develop a culture of security.’ ”

A culture premised on “we hope it doesn’t happen to us” is not a culture of security.

With “it” being a breach, the dreaded “it” has happened not just to lawyers and law firms, but to many other professions.  As the ABA Journal suggests, lawyers would be wise to take heed of the lessons learned by those other professions.

A Competent Cease & Desist Letter. (And Beer!)

Regular readers know that I preach the duty of competence.  They also know that I’m a big believer in lawyer wellness.  In my view, competence includes being well enough to practice, and wellness includes maintaining a sense of humor whenever possible.  It’s also my view that lawyers can use levity & humor without necessarily sacrificing competence.

Case in point: this story in the ABA Journal about the cease & desist letter that In-N-Out Burger sent to Seven Stills Brewery & Distillery.

The story speaks for itself.  But let me back up.

Local readers might not know it, but In-N-Out Burger is FANTASTIC!  I’d never been to one until 2016.  That February, I went to San Diego for the mid-year meeting of the National Organization of Bar Counsel.  One of my best friends, Pat Camp, lives in Temecula, a town about 50 miles from San Diego.  Once the conference ended, I spent a night with Pat and his wife.

The next day, Pat drove me from Temecula to Huntington Beach for a marathon I’d entered.  On the way, he took me to an In-N-Out Burger, telling me that I HAD to try it.  I kind of rolled my eyes. (sorry Patrick).  But, he was absolutely right.  IMHO, In-N-Out is the best fast food burger joint in the land.  #animalstyle

Anyhow, back to our story.

Seven Stills recently announced a new product: In-N-Out Stout.  Per the ABA Journal post, it’s a self-described “Neapolitan milkshake stout.”  The brewery promoted the stout on Instagram and tagged In-N-Out Burger. The promotion didn’t go unnoticed.  In-N-Out’s general counsel responded with this cease & desist letter.

I think the letter is funny.  The use of “ales” reminds me of my UVM days.  And, I think the letter is proof that humor isn’t inconsistent with an attorney’s duty of competence.

The only thing that would have made it better?  Well, given the brewery’s name, I think it’d have been awesome if the cease & desist letter had opened with “Seven Stills: For What It’s Worth, Stop!“

By the way, Neapolitan Milkshake Stout?  No thank you.  I’m not opposed to becoming more efficient.  In the abtract, then, I understand the merit of combining dessert and a post-dinner drink into a single step.  Sounds like something Kramer would’ve conceived.  But a dessert flavored beer?  I’ll pass.  However, as huge fan of session IPA’s, you can sign me up for Son of Hop 8 days a week!

The Vermont Bar Exam

As I’ve often blogged, the VERY FIRST RULE in the Rules of Professional Conduct requires lawyers to provide clients with competent representation. For good or bad, the profession’s initial measure of competence is the bar exam.

Today, just over 70 applicants for admission to the bar of the Vermont Supreme Court will gather in a conference room at the Burlington Hilton and sit for the Vermont administration of the Uniform Bar Exam.

Vermont adopted the Uniform Bar Exam (“UBE”) in 2016.  Many of you might not know what it entails.  So, to mark the day, here’s a revised version of a blog that I posted in February 2017.

*****

In February 2016, the Vermont Supreme Court adopted new Rules of Admission.  The rules went into effect on April 18, 2016.  Among the most significant changes:

• adopting the Uniform Bar Exam
• eliminating the so-called “clerkship”
• requiring successful examinees to complete Vermont-specific CLE and a “mentorship”

The Uniform Bar Exam

Vermont administers the Uniform Bar Exam (“UBE”).  What’s that mean? Most notably, it means that there are no Vermont-specific essays.

For many of you, the bar exam included 6 essay questions drafted by the Board of Bar Examiners that tested Vermont law.  No more. Now, the Vermont exam is, well, uniform. That is, an examinee who sits in Vermont takes the exact same exam as an examinee who sits in one of the 25 other UBE jurisdictions.

Essays have not disappeared altogether.  It’s just that the essay questions are the same in each UBE jurisdiction.

On the morning of Day 1, examinees take the Multistate Performance Test.  The MPT is best described HERE.

On the afternoon of Day 1, examinees take the Multistate Essay Examination.  The MEE is best described HERE.

MPT and MEE questions are drafted by the National Conference of Bar Examiners. (“NCBE”).  Answers, however, are graded by members of Vermont’s Board of Bar Examiners.

In another twist for those of you who, umm, are the opposite of “new” timers, over 90% of the examinees who sit today will take the MPT and MEE via laptop.  Each examinee brings his or her own laptop.  Each examinee will have downloaded softwared that (1) stores and uploads their essay answers directly to the NCBE; and, (2) blocks access to all other software & application on the laptop. The NCBE prints the answers and sends them Andy Strauss, Vermont’s licensing attorney, for distrubution to the graders.  As a former grader, I assure you that this is a good development.

Day 2 of the exam should be familiar to all: the Multistate Bar Examination.  You probably know it better as “the multiple choice.”

Scoring has changed a bit as well.  Over the past several years, examinees received an MBE score and an essay score.  To pass, an examinee had to score at least 135 on both the MBE and the essay.  The overall total did not matter.  Thus, an examinee who scored 135 on the MBE and a 135 on the essay passed, but an examinee who scored 170 on the MBE and 134 on the essay did not.

Now, examinees receive a UBE score that is a single number.  Members of the Board of Bar Examiners grade the written portions (MPT & MEE) and report the “raw scores”to the NCBE.  The NCBE scales an applicant’ raw scores on the written portions to the applicant’s score on the multiple choice (MBE).  Then, the NCBE calculates an applicant’s UBE score that is:

• 50% MBE
• 30% MEE
• 20% MPT

The NCBE reports scores back to each jurisdiction.

Each jurisdiction is allowed to set its own passing score. In the parlance, a passing score is referred to as a jurisdiction’s “cut score.”  Vermont’s cut score is 270.  If an applicant to the Vermont bar scores 270 or higher, the applicant’s application is forwarded to the Character & Fitness Committee for review.

UBE scores are portable.  In other words, a score is good in every UBE jurisdiction.  Like all UBE jurisdictions, Vermont allows examinees to apply for “admission by transferred  UBE score.”  For example, New Hampshire is a UBE jurisdiction. Odds are that someone who is taking today’s exam in New Hampshire will apply for admission in Vermont.  As long as the person scores at least a 270, the person is eligible for admission in Vermont, even having taken the exam in New Hampshire.

Important!  Achieving a 270 in another jurisdiction is NOT an automatic ticket into the Vermont bar. Applicants who score at least 270 in another UBE jurisdiction must still go through Vermont’s Character & Fitness review.

Elimination of the Clerkship

Many of you remember the “3-month clerkship.”  Some of you might remember the clerkship.  For some, it was 3 months.  For others, 6. Each was a pre-admission requirement.  Each has been eliminated.

CLE & Mentorship

The clerkship has been replaced by post-admission CLE and mentorship requirements.

An applicant is admitted to the Vermont bar upon passing the Uniform Bar Examination, passing the Multistate Professional Responsibility Examination, and being approved by the Character & Fitness Committee.  Then, the applicant has 1 year to:

• complete 15 hours (at least 6 of which must be “live”) of continuing legal education in Vermont practice & procedure that has been approved by the Continuing Legal Education Board and certified by the Board of Bar Examiners; and,
• complete a mentorship.

Failure to complete the CLE or mentorship results in an administrative suspension that can only be cured by completion.

The current list of approved CLE courses is HERE.  An outline of the mentorship program is HERE.

So, that’s how the bar exam works.

The Interwebs

Good morning!

So, later today, I’m presenting a CLE to the Washington County Bar Association.  The august group’s leaders asked that I talk about some of the ethical issues that arise from lawyers’ failure to understand use of social media.

Prepping for the seminar, I was struck by two things.

Some of you are quietly hoping they were both lightning bolts.   Nope.

Rather, I realized that for all I write about tech competence, (1) in college, I bought a Betamax, siding with Sony in the Format War against VHS; and (2) more recently, I thought Blockbuster would squash that little upstart called Netflix.

Anyhow, for those of you interested in the topic, the folks over at Internet for Lawyer maintain this great list of the various advisory ethics opinions on social media.  As for me, I’ve blogged often on the subject  This post – Friends, Followers, and Legal Ethics – sums up my thoughts.

Finally, at the CLE, I’m going to mention this opinion from the titanic clash of Oracle v. Google.  As I reviewed it yesterday afternoon, I wondered whether the judge considered ending the opening sentence after the words “trial lawyers.”

• “Trial judges have such respect for juries — reverential respect would not be too strongto say — that it must pain them to contemplate that, in addition to the sacrifice jurors make for our country, they must suffer trial lawyers and jury consultants scouring over their Facebook and other profiles to dissect their politics, religion, relationships, preferences, friends, photographs, and other personal information.”

 

Competence & Woodsheds

In the summer, I like to get up very early and drink coffee on my steps.  Mainly, I like the quiet.  Today, there was an added bonus to my routine: I learned something new.

Until about 5:40 AM this morning, I’d never heard of the term “woodshedding.”  My initial exposure came by way of this ABA Journal post: Rethinking Woodshedding: Trust clients and let them speak freely, but carefully, when testifying.

Initially, I intended to craft a blog that linked to the post and discussed it in the terms of a lawyer’s duty of competence.  That is, what used to be considered an aspect of competent representation – woodshedding – might no longer be the best approach.  So, I decided to do a little research into “woodshedding.”

I’m glad I did.  Turns out, it’s a practice that, when taken too far, can be a violation of the Rules of Professional Conduct.

In the simplest of terms, “woodshedding” is the process of preparing a witness to testify.  The ABA post – again, it’s here – suggests that it’s time to rethink the practice.  Not because it’s unethical or inappropriate, but because, strategically, it might be a choice that causes more harm than good.

That’s where “competence” ends and we turn towards the ethics risks of taking woodshedding too far.

At some point, woodshedding crosses the line and becomes impermissible “coaching.”   A leading case on point is Ibarra v. Baker.  It’s an unpublished decision in which the U.S. Court of Appeals for the 5th Circuit affirmed, in part, a district court’s decision to sanction two attorneys who had crossed the line.  For an excellent summary of the case, check out this blog post from the law firm of Mouledoux, Bland, Legrand & Brackett.

In short, in a civil action against police officers, lawyers for the plaintiff became suspicious of deposition testimony by experts for the defendants.  They seemed to use certain words & phrases an awful lot.  The trial court shared their concerns and fined each defense lawyer $10,000 for improper coaching.

On appeal, the defense lawyers argued that they’d done what any competent lawyer would do: prepped their clients & experts for depositions.  The 5th Circuit disagreed.  The appellate court affirmed the sanctions, noting:

• “An attorney enjoys extensive leeway in preparing a witness to testify
  truthfully, but the attorney crosses a line when she influences the witness to
  alter testimony in a false or misleading way.”

I found another case that’s much more extreme.  The ABA Journal reported it here.  Essentially, two New York attorneys were suspended for 9 months after “explaining” the law in such a way to a client as to allow her to pursue a fraudulent claim.

Tom Wilkinson is a frequent member of this blog’s #fiveforfriday legal ethics honor roll.  He’s an expert in professional responsibility & ethics, in particular ethics in litigation.  Tom’s also the former co-chair of ABA Litigation Section’s Committee.  Tom was quoted in this post that the ABA Litigation Section ran on the New York case that resulted in the 9 month suspension.  His comments are instructive.  When it comes to explaining the law to clients and witnesses, Tom says:

• “That’s what lawyers do. However, if you explain the law with a wink, to suggest that the client should change the facts to conform to the law, that’s improper.”

So, woodshedding.  For one thing, there might be a more effective approach.  For another, even if a lawyer continues to use the old approach, the lawyer must remain cognizant not to cross the line to a shed too far.

 

Avoid the Oopsies: Reply to Some, not All

Last September, I posted on the perils of autocomplete.   The post was prompted by the story of a lawyer who accidentally disclosed confidential client information to a reporter for the Wall Street Journal. How?  By failing to realize that the reporter’s email address had been added to a distribution list.  The ABA Journal has the story here.

Has that happened to you?

Today, I came across a post on Robert Ambrogi’s LawSites blog.  I love the title:

Created By A Lawyer, ReplyToSome Helps Prevent Email Oopsies

Give it read.  It discusses “ReplyToSome,” an add-in to Microsoft Outlook that was created by a lawyer to help lawyers avoid email mistakes.

 

Social Media Posts Trip-Up Lawyer

I went to GW Law. It’s in D.C. When I was there, Washington didn’t have a major league baseball team.  But, Baltimore did.

Early in my 2L year, the Red Sox played a day-night double-header against the Orioles. My buddy Tom and I made the trek to the old Memorial Stadium.  (aside: it’s depressing to realize that my law school days pre-date Camden Yards. It didn’t open until the fall of my 3L year.)

I remember two things about the game.  The first is that Roger Clemens pitched & dominated.  Don’t take my word for it: per the magic of the interwebs, the box score is here.

The second thing I remember is that I skipped class to go.  I have no recollection of doing so, but it wouldn’t shock me if, during the game, I made a stupid, off-hand comment to Tom along the lines of “if a foul ball lands near us, I hope the professor isn’t watching on tv!”

These days, Tom and I are both quite active on Instagram.  Had it been around then, we’d undoubtedly have posted pictures of ourselves reclining with beers in a near empty upper deck as The Rocket mowed down the O’s.  And, quite possibly, my professor would’ve seen.

Which brings me to today’s story.  It comes courtesy of the ABA Journal and Lawyer Ethics Alert Blog.

Last month, a federal district judge issued this order sanctioning a lawyer.  The lawyer had filed a request to extend a deadline, citing a family emergency that required the lawyer to be in Mexico for over two weeks.  In fact, the lawyer was not in Mexico as claimed. Rather, the lawyer was in both New York City and Miami, and was on vacation for at least some of the time.

How’d the lawyer get caught?

That’s right, opposing counsel saw pictures the lawyer posted on Instagram.

#busted

 

At CLEs, I’ve often said that the duties of competence & diligence include (1) reviewing an opposing party’s publicly available social media; and (2) advising a client that the other side is looking at the client’s.  Now I suppose I can add:

(3) someone is checking yours.

 

p.s. – today’s story is so 2009.