The Future of Attorney Regulation is Proactive.

Within the world of attorney regulation, there is a trend towards Proactive Management Based Regulation (“PMBR”).  In this post, the Legal Ethics Forum provided one of the more concise descriptions of PMBR that I’ve seen:

  • “With PMBR, the regulator works with lawyers to address risks to avoid problems, rather than reacting to attorney misconduct after it has occurred.”

In other words, focusing as much on preventing fires as putting them out.

To date, PMBR has been implemented in Australia and Canada.  Two states, Colorado and Illinois, have formally adopted it.  Many other states are moving towards it.

The PMBR movement received a welcome boost last week.  The ABA’s House of Delegates approved Resolution 107.   The text:

“RESOLVED: That the American Bar Association urges each state’s highest court, and those of each territory and tribe, to study and adopt proactive management-based regulatory programs appropriate for their jurisdiction, as a way to enhance compliance 4 with applicable rules of professional conduct and supplement existing disciplinary enforcement mechanisms, and to:

a. assist lawyers, law firms, and other entities in which lawyers practice law in the development and maintenance of ethical infrastructures that help to prevent violations of applicable rules of professional conduct;

b. reduce complaints to lawyer disciplinary authorities;

c. enhance lawyers’ provision of competent and cost-effective legal services; and

d. encourage professionalism and civility in the profession.”

The sponsors’ Executive Summary (page 83) urges adoption of “proactive
management-based regulatory (PMBR) programs to enhance compliance with
applicable rules of professional conduct and supplement existing disciplinary
enforcement mechanisms.”

I culled some additional statements from the Executive Summary and will present them as bullet points:

  • “PMBR programs operate separately from the disciplinary process.”
  • “PMBR programs offer a systemic preventive approach to help lawyers, and the entities where they practice law, develop ethical infrastructures to improve the delivery of competent and cost-effective legal services.”
  • “PMBR programs encourage professionalism and civility, and change for the better the relationship between the regulator and regulated.”
  • “PMBR programs provide lawyers with an array tools, including self-assessment
    checklists and online programming, to help them and the entities where they
    practice law develop ethical infrastructures and identify where they may need
    additional skills, training, and education.”
  • “PMBR programs are not one-size-fits-all, may be crafted to meet the needs of each
    jurisdiction, and are reasonable in cost.”

Here in Vermont, we’ve not formally adopted PMBR.  However, we’ve made several of its principles central to the Professional Responsibility Program’s mission.

For example, many of you know that I was disciplinary counsel from 2000-2012.  That entire time, I had a full-time deputy and we reviewed, on average, 246 new disciplinary complaints per year.  During the same period, bar counsel was half-time and responded to, on average, 234 ethics inquiries per year.

Our default, indeed our very set-up, was to react.

In 2012, under the leadership of then-chair Jan Eastman, the Professional Responsibility Board recommended that the Court reallocate resources with the PRP.  The crux: make bar counsel a full-time position, reduce deputy disciplinary counsel to a half-time position.

It worked.

FY                         Disciplinary Complaints                               Inquiries of Bar Counsel 2013                                    285                                                                                   627            2014                                    243                                                                                   750               2015                                    208                                                                                   827               2016                                    181                                                                                   1,100               2017                                    140                                                                                   1,109               2018                                    149                                                                                   1,263

(I’ve previously blogged on the inquiry process and the changes that we made in 2012.)

This is without getting into the sizeable increase in the number of continuing legal education seminars that we present, our focus on issues like civility, wellness, and tech competence, and the fact that, now, we resolve most complaints at screening without referring them to disciplinary counsel, thereby freeing up disciplinary counsel to focus on serious misconduct.

But there’s more we can do for you.

I’ve followed the programs implemented in Colorado and Illinois.  Further, I’m a member of the National Organization of Bar Counsel, one of the strongest leaders in the PMBR movement.  I’ve got some ideas.  Stay tuned.

For now, remember: the future of regulation is proactive.

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The bar exam, a lawyer shortage, Suits, and a few thoughts on leaked essay topics.

Vermont’s administration of the Uniform Bar Exam begins today.  76 aspiring lawyers will gather at a hotel in Burlington.  As made clear by this piece that ran on WCAX yesterday, we need a lot of them not only to pass, but to stay in Vermont.

If you weren’t aware, Vermont switched to the Uniform Bar Exam in 2016.  Today, the examinees will tackle the Multistate Performance Test and Multistate Essay Examination.  Then, tomorrow, one of the last bastions of the #2 pencil takes center stage: the Multistate Bar Examination, aka “the multiple choice.”

I went into the nuts & bolts of the Uniform Bar Exam in more details in this post.   Also, last February, I posted this Q&A with the examiners.  Finally, talk about a bizarre situation: this past weekend, California bar authorities discovered that the essay topics might have been inadvertently revealed.  So, as I blogged here, they sent an email to all examinees informing them what the essay topics would be.

I understand that there was no good solution.  Logistically, it was far too late to postpone the exam or draft new questions.  Sharing the topics with everyone was likely the best way to level the playing field.

A gut reaction might be “it’d be great to know the topics!” I’m not so sure.

For instance, my personal choice would have been to get my studying done by last Friday, then take the weekend to rest, relax, and get my mind right for the exam.  I’d likely not have had the discipline – or courage – to stick to my approach if, on Saturday, I’d learned what the essay topics would be.  Rather, I’d likely have felt compelled to study them, even if I’d already done enough preparation on each over the past few months.

And what about the examinee who takes my approach and then got off the grid for the weekend?

Also, the essays are intended to distinguish examinees from each other.  For many years, I graded bar exams.  In my experience, some were fantastic, some awful, and the vast majority in the vast middle. It’s difficult to perceive and assign a distinction between the many that are solidly average.  I wonder whether the fact that all examinees know the topics will result in essays that are even more difficult to differentiate than in a normal year.

Finally, I look forward to the day when we have a full-fledged discussion as to whether a two-day test is the best way to determine who gets a ticket to practice law.  Maybe it’s the Mike Ross in me.  Or, maybe it’s the fact that we have evidence – albeit in an infinitesimal sample size – that success (or a lack thereof) on the bar exam is not necessarily the only predictor of competence.

Image result for mike ross suits images


Well-Being Is An Aspect Of Competence

Two years ago, the National Task Force on Lawyer Well Being published The Path to Lawyer Well-Being: Practical Recommendations for Positive ChangeThe report issued in response to two studies that revealed alarming statistics with respect to the well-being of the legal profession.

In their letter introducing the report, the Task Force’s co-chairs noted the report’s “five central themes:

  1. identifying stakeholders and the role each of us can play in reducing the level of toxicity in our profession,
  2. eliminating the stigma associated with helpseeking behaviors,
  3. emphasizing that well-being is an indispensable part of a lawyer’s duty of competence,
  4. educating lawyers, judges, and law students on lawyer well-being issues, and
  5. taking small, incremental steps to change how law is practiced and how lawyers are regulated to instill greater well-being in the profession.”

Among other proposals aimed at furthering the third (bolded) theme, the report recommended modifying the Rules of Professional Conduct “to endorse well-being as part of a lawyer’s duty of competence.”

The Vermont Supreme Court has done exactly that.

Yesterday, the Court promulgated an amendment to Comment [9] to Rule 1.1.  The new comment reads:

  • “[9] A lawyer’s mental, emotional, and physical well-being may impact the lawyer’s ability to represent clients and to make responsible choices in the practice of law. Maintaining the mental, emotional, and physical well-being necessary for the representation of a client is an important aspect of maintaining competence to practice law.”

Two questions jump to mind: what is well-being and how does a legal professional maintain it?

As to the former, the Task Force wrote:

  • “We define lawyer well-being as a continuous process whereby lawyers seek to thrive in each of the following areas: emotional health, occupational pursuits, creative or intellectual endeavors, sense of spirituality or greater purpose in life, physical health, and social connections with others. Lawyer well-being is part of a lawyer’s ethical duty of competence. It includes lawyers’ ability to make healthy, positive work/life choices to assure not only a quality of life within their families and communities, but also to help them make responsible decisions for their clients. It includes maintaining their own long-term well-being. This definition highlights that complete health is not defined solely by the absence of illness; it includes a positive state of wellness.”

In addition, the Task Force noted that:

  • “The concept of well-being in social science research is multi-dimensional and includes, for example, engagement in interesting activities, having close relationships and a sense of belonging, developing confidence through mastery, achieving goals that matter to us, meaning and purpose, a sense of autonomy and control, self-acceptance, and personal growth. This multi-dimensional approach underscores that a positive state of well-being is not synonymous with feeling happy or experiencing positive emotions. It is much broader.”

Finally, the Task Force explained that it:

  • “chose the term ‘well-being’ based on the view that the terms ‘health’ or ‘wellness’ connote only physical health or the absence of illness. Our definition of ‘lawyer well-being’ embraces the multi-dimensional concept of mental health and the importance of context to complete health.”

With the definition in mind, how does a legal professional maintain well-being?  It strikes me that the answer depends on the individual. A place for everyone to start, however, is the ABA’s Well-Being Toolkit for Lawyers and Legal Employers.  Its 99 pages are chock full o’ helpful tips and guidance.

I can hear you now:

  • “Ummm, what’s that you say Mike? 99 pages? I don’t have that much time to work on my well-being!”

Fear not!  Besides the full toolkit, and perhaps with my law school career in mind, the ABA also created the Well-Being Toolkit Nutshell: 80 Tips For Lawyer Thriving.  It’s only 2 pages.  No excuses!

Well-being is important.  Take the time to understand what it is, how to achieve it, and how to maintain it.  As you do, try not to get caught up in “I’m only doing this because the new comment says I should.”  Rather, get caught up in the first of the Well-Being Nutshell’s 3 reasons to care about well-being:

“It’s the right thing to do.”


Image result for images of lawyer well-being



Social Media & Legal Ethics

It’s been a while since I’ve blogged, and even longer since I’ve subjected readers to the mantra upon which this blog was built:  competence includes tech competence.

With that in mind, an update!

A few weeks ago, the Commercial and Federal Litigation Section of the New York State Bar Association released its updated Social Media and Legal Ethics Guidelines.  First released in 2014, the Guidelines are one of the leading resources on a lawyer’s obligations under the rules of professional conduct with respect to social media.  While based on New York’s rules, the Guidelines cite to advisory ethics opinions from across the country. Here’s an outline distilled from the table of contents:

  1. Attorney Competence
  2. Attorney Advertising and Communications Concerning a Lawyer’s Services
  3. Furnishing of Legal Advice through Social Media
  4. Review and Us of Evidence from Social Media
  5. Communicating with Clients
  6. Researching Jurors and Reporting Juror Misconduct
  7. Using Social Media to Communicate with a Judicial Officer

There’s also an Appendix that includes a list of some of the more popular social media platforms, as well as a glossary of social media’s more commonly used words & phrases.

(no, I’m not sure that “social media’s more commonly used words & phrases” is proper grammar.  But I tend to write like I speak, and if I said it out loud, you’d know exactly what I meant.)

Anyhow, the Guidelines are a great resource.  I recommend bookmarking the link.

Finally, thank you Dave Carpenter for the h/t that the Guidelines had been updated!

Social Media

Redacting Confidential Info

In January, Paul Manafort’s lawyers made headlines for failing to take proper steps to redact a document.  Myriad outlets covered the story, including The Atlantic, BBC, and Legal Tech News.

In response, the ABA Journal posted How to redact a PDF and protect your clients.  A few days later, I recommended the ABA post in my blog Competence, Confidences and PDFs

Today, the ABA Journal published more helpful information: Redacting confidential client information: The devil is in the detailsThe post points out the risks in failing to understand how property to redact a document.  I recommend it.

One risk? Disciplinary action.  Lawyers have a duty not to disclose information relating to the representation of a client.  There’s also a duty to use reasonable safeguards to protect against unauthorized access to or inadvertent disclosure of confidential information.  In my view, employing a redaction method that fails to keep information confidential is not a reasonable safeguard.

Rather, it’s tech incompetence.

Image result for images of redacting confidential info




Pick your battles: case tossed after lawyer & client willfully violate discovery order.

My guess is we’ve yet to hear the end of this story.

As reported by Overlawyered, the Sixth Circuit recently affirmed a district court’s decision to dismiss a case due to “flagrant and repeated misconduct by the Plaintiff and his attorney.” The opinion, which is here, serves as a cautionary tale not only for lawyers whose clients undergo court-ordered independent medical examinations, but for lawyers who conflate competent representation with battling over every little thing.

Plaintiff sought damages for injuries alleged to have resulted from a fall at the railway yard where he worked.  After some jousting, the lawyers agreed that Plaintiff would attend an IME.

In anticipation of the IME, Plaintiff was asked to respond to a questionnaire related to his medical history.  Plaintiff’s Lawyer objected, arguing that the questionnaire was unnecessary given that Plaintiff had already been deposed.  More jousting ensued, with the court again having to get involved.  The court concluded that the background information was required and, pursuant to F.R.C.P. 35, ordered Plaintiff to appear at the IME “for an interview by a physician assistant and for [the doctor] to conduct an IME.”

Plaintiff appeared for the IME.  Without notifying defense counsel, Lawyer tagged along.

Long story short, Plaintiff refused to answer any of the questions asked by the physician’s assistant or the doctor. (He also refused to identify himself.) Here’s a transcript of a portion of the examination:

  • Doctor: Now I was a little confused. You’re talking in the summons of
    oil and slipping in the back of a truck but on your, when you filled out the injury
    report that day, you were saying you were walking to the front door of the truck
    and your legs gave way.
  • Plaintiff: Everything is in the deposition there.
  • Doc: Got it.
  • Plaintiff: We went over all the, all the stuff.
  • Doc: Got it.
  • Plaintiff: I’m not trying to give you a hard time.
  • Doc: I understand.
  • Plaintiff: All the information should be there.
  • Doc: I think you are smart to listen to your attorney. If your attorney, if my
    attorney told me to dye my hair red, I’d dye my hair red. You know, so if your
    attorney has told you not to …
  • Lawyer: You’re assuming I told him that.
  • Doc: to answer specific questions.
  • Lawyer: That might be his own, his own line of thinking.
  • Doc: He had told me, we had been told, eh, that . . . Well is it, let me ask you, is it
    your idea not to fill out the form?
  • Lawyer: That’s not relevant doc.
  • Plaintiff: I’m complying with the Order. They told me I had to come down here and
    be examined by you.
  • Doc: Very good. Ok I will go with the history in the chart and what you said
    when you filled out the initial report.
    Ok great. Do you want to tell me what problems you are having or would you
    rather I just look at your deposition?
  • Plaintiff: It’s all in the deposition.

Now, you might be wondering how we have a “transcript” of the IME.  If so, good wondering.  Here’s how: Lawyer surreptitiously recorded it on his phone.

Image result for oops gif

In the end, and referring to the obligation to comply with the court-ordered IME, the 6th Circuit wrote:

  • “[Plaintiff] cannot credibly claim either that he was unaware of the obligation or that he complied with it by sitting for the interview but declining to answer questions regarding his condition, his current medications, or how his injury occurred. [Lawyer] represented that he and [Plaintiff] had discussed their concerns about the interview, and [Lawyer] denied that he told [Plaintiff] what to do. The fact is, [Plaintiff] arrived for the IME with a copy of his deposition transcript and his attorney in tow, and then proceeded to repeatedly deflect questions by stating that the answers could be found in his deposition or prior medical records. Now that he is no longer represented by [Lawyer], plaintiff asserts that it ‘was unreasonable for the court to conclude that he did anything other than follow the instructions of his attorney when he attended the IME.’  But [Plaintiff] cannot escape the consequences of his own actions by laying blame on the advice of counsel. The actions that [Plaintiff] took with the support of [Lawyer] were deliberate and calculated to circumvent the order requiring him to submit to an interview as part of the IME.”

As such, the court upheld the district court’s conclusion that Plaintiff and Lawyer willfully violated a discovery order and, further, that dismissal was the appropriate remedy.  In the process, the court made an observation that lawyers – even those in so-called “one-party” states – should heed:

  • “There is no reason to doubt that [Plaintiff] knew [Lawyer] was secretly recording the visit on a hidden cell phone, which was deceitful even if not actually illegal in Wisconsin.” (emphasis added).

In Vermont, Rule 8.4(c) prohibits conduct that involves dishonesty, fraud, deceit or misrepresentation.  Here, to make matters worse, the deceit backfired in that it provided a record of the misconduct.

Finally, if the result seems unfairly to penalize Plaintiff for Lawyer’s conduct, look at the concurring opinion.  Omitting internal citations, here’s the penultimate paragraph:

  • “The law already marks a deeply grooved path for addressing the grievances of clients bilked out of good claims by bad lawyers. It’s called a malpractice lawsuit. A dismissal with prejudice predicated on lawyer misconduct would provide powerful ammunition for a client in a malpractice proceeding. By departing from our traditional rules of agency to protect plaintiffs, we may do just the opposite. If we make party misconduct a near precondition in every dismissal, we unduly complicate the inevitable malpractice action by giving the lawyer a ready defense: My client behaved just as badly as I did.”

Most lawyers know other lawyers who fight over every little thing in discovery.  Some battles aren’t worth fighting.  Here, simply following the process probably would’ve resulted in settlement.  Now, if Plaintiff is to recover anything, I assume it will be in a malpractice action.

That doesn’t strike me as worth the fight.

Cannabis Competence

For those who read yesterday’s post, I made it home safely from my mom’s.

In Vermont, the first clause in Rule 1.2(d) states that a lawyer “shall not a counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.”  It draws no distinction between state & federal crimes, or between crimes that are enforced less vigorously than others.

As such, several years ago, lawyers expressed concern that the rule prohibits a lawyer from assisting a client on cannabis-related issues that are legal under Vermont law.  Why?  Because to do so would assist the client to violate federal law.

So, in 2016, the Vermont Supreme Court amended Rule 1.2(d) to include Comment [14].  The Comment clarifies that a lawyer does not violate Rule 1.2(d) by assisting a client in conduct that the lawyer reasonably believe is legal under Vermont law, if the lawyer also advises the client of the potential consequences under federal law.

The amendment does not relieve a lawyer of obligations imposed by other rules.  Most importantly, while it is not a disciplinary violation to assist clients in conduct that is legal under Vermont law, a lawyer remains obligated to provide competent representation on the cannabis matter.  Stated differently, while not a violation to do it, it’s a violation to do it incompetently.

To me, competence includes:

  • understanding Vermont’s legal and regulatory framework;
  • keeping abreast of changes in state law, federal law, federal regulations, and enforcement policy; and,
  • knowing that cannabis, marijuana, CBD, THC, and hemp aren’t one and the same.

It’s an evolving area of the law.  My sense is that most lawyers are on top of the changes – enacted and proposed – in Vermont law.  There’s been movement at the federal level too.

For instance, last fall, the DEA reclassified certain drugs that contain cannabidiol.  Several sources, including Forbes, the American Farm Bureau Federation, and the Brookings Institution have commented the 2018 Farm Bill’s impact on hemp and CBD laws and regulations.  And, as reported by Forbes, JDSupra, and the Canna Law Blog, the Second Circuit recently issued an opinion that could spur further change. although the dissenting judge isn’t so sure.

Finally, I’d argue that competent representation includes thorough advice on money.  As Vermont Biz points out, for businesses that are otherwise legal under state law, federal law can create hurdles to financing.

Then, once financed, there’s the issue of what to do with the revenue.  At the end of May, Governing posted Despite State Support, Marijuana Banking Bill May Sink Again in Congress.  To me, the post highlights the need for attorneys – whether representing businesses or banks – to have a firm grasp of banking laws and regulations insofar as they relate to the cannabis industry.

To summarize: yes, we changed the rule to clarify that lawyers do not violate it by assisting clients in conduct that is legal under state law.  But, don’t forget, the change did not relieve lawyers of the duty to provide competent representation when doing so.

Image result for images of a cannabis leaf

Court Martials, Web Bugs, and Tech Competence

This blog was built on the idea that competence includes tech competence.  As I’ve hammered home that point over the years, I’ve touched upon the ethics issues associated with web bugs.

My most recent post on the issue is here: Don’t Let the Web Bugs Bite It discusses an advisory opinion issued by the Illinois State Bar Association. I wrote:

  • “The ISBA concluded that an attorney who uses email tracking software engages in dishonest & deceitful conduct, and impermissibly intrudes on opposing counsel’s attorney-client relationship.  As such, the use web bugs violates Rules 8.4(c) and 4.4(a). The ISBA’s conclusions track (pun intended) conclusions reached by New YorkAlaska, and Pennsylvania.”

Web bugs and legal ethics are in the news this week.  Navy lawyers prosecuting the high-profile court martials two former SEALS allegedly inserted email tracking software into emails sent to the defense team and media outlets.  The Military Times, the ABA Journal, the Guardian, and the Associated Press covered the story.

First, what’s a web bug?  For the purposes of this post, a web bug is email tracking software.

Ok, so why is that important?  Read the articles on the Navy cases.  The ABA Journal headline sums it up: “Defense lawyers accuse military prosecutor of sending them emails with tracking software.”

More specifically, imagine yourself representing one of the accused. Now, further imagine yourself receiving an email from the prosecutor.  An email that includes the type of tracking software at issue in the ISBA advisory opinion.  Per the ISBA:

  • “The present inquiry involves the use of email ‘tracking’ software, applications that
    permit the sender of an email message to secretly monitor the receipt and subsequent handling of the message, including any attachments.  The specific technology, operation, and other features of such software appear to vary among vendors. Typically, however, tracking software inserts an invisible image or code into an email message that is automatically activated when the email is opened. Once activated, the software reports to the sender, without the knowledge of the recipient, detailed information regarding the recipient’s use of the message. Depending on the vendor, the information reported back to the sender may include: when the email was opened; who opened the email; the type of device used to open the email; how long the email was open; whether and how long any attachments, or individual pages of an attachment, were opened; when and how often the email or any attachments, or individual pages of an attachment, were reopened; whether and what attachments were downloaded; whether and when the email or any attachments were forwarded; the email address of any subsequent recipient; and the general geographic location of the device that received the forwarded message or attachment.”

A few thoughts.

To date, nearly everyone agrees that it’s a violation of the Rules of Professional Conduct to insert web bugs into emails sent to an opposing party or counsel.

The SEAL story raises a perfect example of tech competence.   Earlier this month, one of the lead defense attorneys received an email from the prosecutor.  Unlike prior emails from the prosecutor, it contained an unusual logo below the prosecutor’s signature.  The logo was of a bald eagle and American flag perched on the scales of justice.  The image aroused the attorney’s suspicions.  So much so that he wrote to the prosecutor:

  • “I am writing regarding your emails from yesterday, which contained an embedded image that was not contained in any of your previous emails. At the risk of sounding paranoid, this image is not an attachment, but rather a link to an unsecured server which, if downloaded, can be used to track emails, including forwards. I would hope that you aren’t looking to track emails of defense counsel, so I wanted to make sure there wasn’t a security breach on your end. Given the leaks in this case, I am sure you can understand.”

Well, here we are.  Sometimes they are out to get you.

Finally, I want to reiterate a point I made when I first blogged about the Illinois advisory opinion.

I do not disagree with any of the four opinions that have concluded that a lawyer’s surreptitious intrusion into a privileged relationship violates the rules. However, I differ with one aspect of the Illinois opinion.

The ISBA noted that “there do not appear to be any generally available or consistently reliable devices or programs capable of detecting or blocking email tracking software.”  As I stated then, I am not certain that I agree.  Indeed, shortly after I posted my blog, several tech vendors who follow me on social media either commented on the post or reached out to me privately.  Without exception, they agreed that there are a host of reasonably available countermeasures for law firms to employ against web bugs.

Moreover, I think it’s risky for a lawyer to rely on the old “well, they shouldn’t be unethically spying on me.”

I agree, nobody should be spying on you. And, when it comes to web bugs and email traacking software, the spies might always remain one step ahead.

But that does not relieve you of the duty to stay abreast of developments in technology and to take reasonable precautions against the unauthorized access to or inadvertent disclosure of information related to the representation of a client.





Talking culture, compliance, confidences & candor.

Flashback to 1994:  I was a brand new attorney.  Another attorney in my office mentioned Shelley Hill.  I asked, “who’s Shelley Hill?”  The attorney responded, “someone you never want to hear from.”

Back then, Shelley was Vermont’s disciplinary prosecutor.  The attorney’s answer to my question was the extent of the ethics guidance I received in my first ever job as a lawyer.

Legal Ethics

We’ve come a long way.  It’s no longer taboo to talk legal ethics.  We talk it.  A lot.  Not only does it help us do better for our clients, it improves the image of the profession.  To that end, one of my goals as bar counsel is to foster an ongoing and open dialogue about legal ethics and professional responsibility that helps to build a culture of compliance that we put out there for the world to see.

Reflective of the today’s world, the conversation happens in many forums.**  Today, I woke to having been mentioned in a tweet by a lawyer who was concerned by the news that Nikolas Cruz’s public defender disclosed Cruz’s potential inheritance in a motion to withdraw from representing him in the criminal case.  The lawyer tweeted:

“i would be interested to learn the circumstances of the public defender of Nikolas Cruz disclosing to the court in Mtn to Withdraw and on the record that his client inherited $430,000 (VERY vulnerable to civil suit if not exempt) – seems a bit problematic, eh @VTBarCounsel?”

The entire string is here.

Look at us.  We are talking legal ethics in public! THAT is professional responsibility.

I’ve blogged often on client confidences and Rule 1.6.  Basically, my position is that lawyers should STFU.  Or, to borrow a quote from Thomas Edison that my Dad instilled in me as a kid:

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

Obviously, it’s far wiser to take my Dad out in public than his eldest son.

Anyhow, as indicated in my reply Tweet this morning, I don’t comment without hearing all sides to a story, not to mention that I have no idea what Florida’s rules are.  But it’s a great construct to use as a mini-refresher on Vermont’s rules.

By rule, “information relating to the representation of a client” is confidential.  The scope is broader than the privilege and includes all information related to the representation no matter the source.  Comment [3].  Such information shall not be disclosed unless:

  • the client gives informed consent to the disclosure;
  • disclosure is impliedly authorized to carry out the representation;
  • disclosure is required by paragraph (b);
  • disclosure is permitted by paragraph (c).

Returning to the Parkland case, if Vermont’s rules applied, the first possibility is that Cruz gave informed consent for his public defender to make the disclosure.

I’d be surprised if any of exceptions in paragraph (b) applied.  However, it’s possible that one of the exceptions in paragraph (c) applies.  That is, disclosure of the inheritance might be authorized by another rule.  Stay with me here.

This morning I did something rare: I did some research before I tweeted.  I learned that, as reported by the South Florida SunSentinel, a year ago Cruz’s inheritance was the subject of a hearing as to whether he qualified for public defender services.  Per the report, it appears as if it was represented to the court that Cruz stood to inherit far less than recent developments indicate.

If so, and again if Vermont’s rules applied, it’s possible that the new information required the public defender to make the disclosure pursuant to Rule 3.3.  The rule, entitled “Candor to a Tribunal,” requires a lawyer to correct a prior material statement of fact that was false.  Were the statements made in last year’s hearing on Cruz’s eligibility for public defender services “material” and “false?”  If so, one might argue that the public defender was required to make the disclosure in the motion to withdraw.

Finally, reading today’s reports left me with the impression that Cruz’s public defenders believe that, given the inheritance, the law precludes him from being eligible for their services.  Thus, it appears to me that they argued that they are required to withdraw.

In Vermont, Rule 1.16 governs withdrawal.  Perhaps most relevant here, Rule 1.16(a)(1) requires withdrawal when “the representation will result in violation of the rules of professional conduct or other law.”  So, it looks to me as if the argument is “by law, the inheritance prohibits us from representing him, thus withdrawal is required.”  The Florida courts will decide.

Aside: as some of you know from having called me or heard me speak.  When it comes to a motion to withdraw, I think it best to limit the motion to citing the text of whichever provision(s) of Rule 1.6 you’re arguing.  Then, if the court asks for more information, respond, but in such a way as to disclose no more information than is necessary to answer the court’s question.  Being mindful, the entire time, of a larger duty not to harm to your client’s interests on your way out.  Others may disagree with me, but that’s fine.

Indeed, that’s why it’s so important to continue to discuss legal ethics and professional responsibility.  The discussion makes us do better by our clients, the courts, and the profession.

Talk on.

** I couldn’t decide whether to go with “fora” or “forums.”  Flipped a coin.


Competence & ESI: Consider a Protocol

I’ve not said it in a while:  competence includes tech competence.

Almost 18 months ago, I posted Competence, ESI, and E-Discovery.  In it, I posed a question on the duty of competence that I often ask at CLEs:

  • To me, the duty includes:
    • knowing that “it” exists,
    • knowing that clients, their adversaries, and witnesses have “it;” and,
    • knowing how to protect, preserve, produce, request, review, and use “it.”
  • What is “it?

As many regular readers know, “it” is ESI, electronically stored information.

In 2015, the State Bar of California’s Standing Committee on Professional Responsibility and Conduct issued Formal Opinion 2015-193.  The opinion responds to the question “[w]hat are an attorney’s ethical duties in the handling of discovery of electronically stored information?”  Here’s the first sentence of the digest:

  • “Attorney competence related to litigation generally requires, among other things, and at a minimum, a basic understanding of, and facility with, issues relating to e-discovery, including the discovery of electronically stored information (‘ESI’).”

Four years later, I sense that the issue continues to worry some lawyers.  It should.  Our world is replete with ESI.  As such, and to the extent that the outcome of client matters turns on “information,” ESI can be incredibly important to clients and their matters.  Especially litigation matters.

Tonight, browsing through Above The Law before I divide my focus between the Red Sox and the Sweet 16, I came across 5 Advantages of Having An ESI Protocol For Your Matter.  It’s by Kelly Twigger and includes some great tips.  I suggest giving it read.  To me, the subtitle says it all:

“The exercise of thinking through everything that will be needed for your case in discovery is invaluable.”

That’s competence.

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