Monday Morning Answers: #112

Good morning! Friday’s questions are here.  Aunt Kate would’ve needed her sunglasses as she walked east on Pearl to Abernathy’s this morning.  Alas, and sadly, even though it’s April 9, she also would’ve need her hat, scarf, and mittens.

Spoiler alert: the answers follow today’s Honor Roll.

Honor Roll

(hyperlinks when available.  lack of a link doesn’t reflect a lesser score or lower honors)

Answers

Question 1

Which is a rule?

When lawyers are associated in a firm:

  • A.  only one may have signature authority on a trust account.
  • B.  each is professionally liable for the misconduct of any other.
  • C.  none of them has a duty to report the misconduct of any other.
  • D.  none of them shall knowingly represent a client when any one of them would be prohibited from doing so by the conflict rules, unless the conflict is a personal one and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.  

That is Rule 1.10(a).

Question 2

Many lawyers advertise.   Indeed, an exception to a rule allows a lawyer to “pay the reasonable costs of advertisements.”   It’s one of the exceptions to the rule that prohibits a lawyer from:

  • A.  Giving anything of value to a person for recommending the lawyer’s services.
  • B . Direct contact with prospective clients.
  • C.   Using a misleading firm name.
  • D.  All of the above

Option A is an exception to Rule 7.2(b)’s prohibition on giving anything of value to a person for recommending the lawyer’s service.  Choices B & C are in different rules.

This is a good time to post this reminderReferral Fee? Think Thrice.

Question 3

Fill in the blank. (verbatim)

There’s a rule that prohibits a lawyer involved in the investigation or litigation of a matter from making “____________________ 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.”

  • A.   Any statement
  • B.   An extrajudicial statement
  • C.   A statement during jury selection
  • D.  A social media post.

Rule 3.6(a).  The key word is “extrajudicial.”   

.Question 4

Attorney represents Client in matter vs. Litigant.  Litigant is self-represented and does not have a lawyer.

The matter is close to resolving.  Attorney has reduced a proposed settlement to writing.  Attorney shows it to Litigant.  Litigant asks Attorney what paragraph 2 means.

True or False:  Vermont’s rules authorize Attorney to explain Attorney’s view of the proposed settlement and Attorney’s view of the underlying legal obligations created by paragraph 2.

TRUE.  See, Rule 4.2, Comment [2] (“So long as the lawyer has explained that the lawyer represents an adverse party and is not representing the person, the lawyer may inform the person of the terms on which the lawyer’s client will enter into an agreement or settle a matter, prepare documents that require the person’s signature, and explain the lawyer’s own view of the meaning of the document or the lawyer’s view of the underlying legal obligations.”)

Question 5:

Alan Page was elected to the Minnesota Supreme Court in 1992 and served until reaching mandatory retirement age in 2015.  When first elected, Page had been working for several years as an Assistant Attorney General in Minnesota.

I often blog on the duty of competence.  Prior to becoming a lawyer, Page excelled in a different profession.  Indeed, as a member of the famed “Purple People Eaters,” Page was among the most competent ever to do that particular job.

What was Page’s job prior to becoming a lawyer.

Alan Page was a professional football player. He was the NFL MVP in 1971 and is in the Pro Football Hall of Fame.  Page was a defensive lineman for the Minnesota Vikings (and, at the end of his career, for the Chicago Bears.)  The “Purple People Eaters” were the defensive line for the Vikings teams that went to 4 Super Bowls in the 70’s.

See the source image

 

See the source image

Monday Morning Answers: Carvel & WPIX

Wow!  I had no idea that a post about Carvel & WPIX would resonate with so many.   Thank you readers for sharing your thoughts! I’ve pasted some of them in below the answers.

Friday’s questions are here.  The answers follow the Honor Roll.

Honor Roll

  • Karen Allen, Esq.
  • Matthew AndersonPratt Vreeland Kennelly & White
  • Evan Barquist, Montroll, Backus, & Oettinger
  • Penny Benelli, Dakin & Benelli
  • Leslie Black, Black & Govoni
  • Robert Grundstein, Esq.
  • Gregg Harris, Assistant Attorney General, Buildings & General Services
  • Glenn Jarrett, Jarrett & Luitjens
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy, JB Kennedy Associates
  • Shannon LambPratt Vreeland Kennelly & White
  • John LeddyMcNeil, Leddy, & Sheahan
  • Michael Lipson, Esq.
  • Lon McClintockMcClintock Law Offices
  • Jeffrey MessinaBergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Herb Ogden, Esq.
  • Nancy Rogers, Chamberlin Elementary School
  • James Runcie, Ouimette & Runcie
  • Jay Spitzen, Esq.
  • Allison Wannop, Esq.
  • Thomas Wilkinson, Jr., Esq, Cozen O’Connor
  • Carole Zangla, Grafton County (N.H.) Senior Citizens Council
  • Peter Zuk, Kyocera Copiers, PRB hearing panel member

 

Answers

Question 1

What’s Vermont’s rule?  A lawyer shall:

  • A.  Charge a reasonable fee.
  • B.   Not charge an unreasonable fee.
  • C.   Not charge or collect an unreasonable fee.
  • D.   Not make an agreement for, charge, or collect an unreasonable fee.  V.R.Pr.C. 1.5(a).

Question 2

Fill in the blank.

The third comment to a particular rule defines __________ ___________ as involving “the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representationw would materially advance the client’s position in the subsequent matter.”

It’s the definition of:

  • A.  when matters are “substantially related”.  V.R.Pr.C. 1.9(a), Comment [3].
  • B.   what type of information qualifies as a “client confidence”
  • C.   a concurrent conflict of interest
  • D.  a non-waivable conflict of interest

Question 3

Which is different from the others?

  • A.  Friending an adverse & represented party.
  • B.  Reviewing a potential juror’s Twitter account.
  • C.  Advising a client to “take down” social media posts.
  • D.  Crowdfunding litigation.

“A” is most likely to be a rules violation.  Violations including contacting a represented party and engaging in dishonest conduct.  For more, see these advisory opinions from the District of Columbia, New Hampshire & Massachusetts.

Reviewing a juror’s public Twitter feed is not a violation. Arguably, the duty of competence requires it.  

Crowdfunding is not a violation. I’ve blogged about it here.

Advising a client to “take down” social media posts is not, in and of itself, a violation.  For example, see these advisory opinions from Florida and Pennsylvania

Question 4

Isaiah meets with Lawyer to discuss a potential claim against Lonzo.  Isaiah mentions that Attorney represents Lonzo   Attorney and Lawyer are married to each other.

Which is most accurate in Vermont?

  • A.   Lawyer is prohibited from representing Isaiah.
  • B.   Lawyer is prohibited from representing Isaiah unless Isaiah provides informed consent that is confirmed in writing.
  • C.  Lawyer is prohibited from representing Isaiah and the conflict is imputed throughout Lawyer’s firm.
  • D.  Both Isaiah & Lonzo are entitled to know of the Attorney/Lawyer marriage and, ordinarily, Attorney & Lawyer may not continue unless each client gives informed consent.  V.R.Pr.C. 1.7, Comment [11]

Question 5

A woman named Linda passed away earlier this week.  She was 76 and grew up in Topeka, Kansas.  I don’t know whether anyone who reads this blog ever met her.  But, I’m positive that nearly every single person who reads this blog & who went to law school read about her in class.

What was Linda’s last name?

Linda Brown was 8 years old when she was turned away from Sumner  Elementary School in Topeka.  4 years later, the U.S. Supreme Court issued its decision in Brown v. Board of Education.  Linda’s passing was covered by many outlets, including NPR, the Huffington Post, the Chicago Tribune, and the New York Times.

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*************************************************************************************Comments on WPIX & Carvel’s Ice Cream

  • Your post today brought back some fond memories for me as well, I grew up in Northern NJ and used to watch channel 11 regularly.  As for the Carvel commercials and can still hear “Cookie Puss” and “Fudgie the Whale” in my mind if I close my eyes…
  • Get Smart was a silly favorite of mine.
  • How could you forget the classic (and now most politically incorrect!) F Troop?!  Sgt. O’Rourke, Cpl. Agarn, the Hekawi’s.  Only 65 episodes
  • Carvel’s was almost closest to my house; not as high quality as Marcus Dairy, out on Rt. 7, but closer…and we always had a craving for their “Flying Saucers”, wonderful ice cream sandwiches with crispy chocolate wafers! Bought them by the dozen to put in the freezer. I even remember “Mr. Carvel” who did the tv ads…can’t remember the pitch, but he was an “old guy” with a mellifluous voice.
  • What about The Mod Squad!?!?  Linc was the best! Peggy Lipton won an Emmy!
  • WPIX – Home of the Yankees.  My sister’s roommate in college was Cindy Rizzuto, The Scooter’s daughter.  “Holy Cow, can you believe that?”  AND …..There was nothing I wanted more on my birthday than a Carvel Ice Cream Cake.
  • Did you actually watch Yankee games on WPIX?  How did your Dad allow that?
  • Wow, that Magic Garden song made me laugh out loud. 
  • I did live near a Carvel – and yes – that was a treat – BUT, what I recall was going to a place called Jahn’s  Ice Cream Parlor.  They had “everything but the kitchen sink”  and it served at least 8.  It was served in a mini kitchen sink – with all flavors.  Kind of disgusting, actually.  They also had a .02 cent plain.  This was a glass of seltzer.  I love how your intros each week bring back memories.
  • Your blog on Carvel and WPIX brought back so many memories.  Hours spent watching Abbott and Costello reruns, Superman, Batman and not to mention Chiller Theater.  It was the only station on TV that regularly got me into trouble.  My mom thought Batman was way too violent and Chiller was beyond the pale.  That being said, she had no objections to watching The Bells of St. Mary’s or John Wayne in the Quiet Man, movies that ran almost monthly on WPIX.  Between WPIX in the afternoon and MAD magazine, I expressed my grade school rebellion. Oh those days. 
  • Love your blog this am,Especially since I grew up in Queens and Carvel was the height of taste bud heaven. To this day, I love ice cream! And who says ice cream doesn’t help one’s bp? Here’s to Carvel and WPIX!

Avoid hot water by understanding Hot Potatoes

Ever consider dropping a client so as to be able to represent a different client?  It happens more often than you might think.

Figuratively, dropping a client like a hot potato can lead a lawyer into hot water.

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For the purposes of conflicts, the rules identify three types of clients.  Respectively,

The rules don’t treat all client conflicts equally.  The rule on current clients is more strict than the rule on former clients, which, in turn, is more strict than the rule on prospective clients.

For example, Rule 1.7(a)(1) states that it is a conflict for a lawyer to take any action that is directly adverse to another client.  The rule ensures that lawyers remain loyal to clients.

With respec tot the duty of loyalty, Rule 1. 7 is much broader than “a lawyer can’t represent both sides to the same action.”  As Comment [6] states, “absent consent, a lawyer may not act as an advocate in one matter against a lawyer the person represents in some other matter, even when the matters are wholly unrelated.” 

By contrast, the duty of loyalty to a former client is somewhat more relaxed.  Rule 1.9 prohibits a lawyer from representing someone who is adverse to a former client “in the same or a substantially related matter.”

So, imagine this scenario:

  • Lawyer represents Client A in Matter 1.
  • Client B asks Lawyer to sue Client A in Matter 2,
  • Matters 1 & 2 are wholly unrelated to each other.

Clearly, Rule 1.7(a)(1) prohibits Lawyer from suing a current client (A) on behalf of another client (B) even if the matters are wholly unrelated.

However, what if Lawyer “fires” A as a client?  Rule 1.7 would no longer apply since A would no longer be a “current client.”  Further, Lawyer would argue that Rule 1.9, the rule on former client conflicts, doesn’t apply since Matter 2 is not “the same as or substantially related” to Matter 1.

This is the so-called “hot potato” doctrine.  That is, Lawyer dropped Client A like a “hot potato.”

There’s been a lot written on the “hot potato” doctrine.  As Attorney Bill Freivogel noted in this this post, most courts will disqualify Lawyer from representing B against A.

In 2009, the Philadelphia Bar Association’s Professional Guidance Committee issued “The Hot Potato Rule and Conflicts of Interest.”  Analyzing a situation quite similar to the hypo that I presented above, the Committee concluded:

  • “Absent compliance with Rule 1.7(b), which includes informed consent from both clients, the inquirer can not represent Company A because the matter is directly adverse to the interests of the inquirer’s current client, Company B.  Moreover, the ethical violation cannot be avoided by the inquirer terminating his representation of Company B.  As noted in International Longshoremen’s Ass’n. Local Union 1332 v. International Longshoremen’s Ass’n., 909 F.Supp. 287, 293 (E.D. Pa. 1995), ‘[A]n attorney may not drop one client like a ‘hot potato’ in order to avoid a conflict with another, more remunerative client.’ ”

There are exceptions to the “hot potato” doctrine.  One is the so-called “thrust upon” exception.  That is, if a conflict is “thrust upon” a lawyer through no fault of the lawyer’s, it’s okay to drop a client like a hot potato.  Both the New York City Bar Association and the D.C. Bar Association have issued advisory opinions on the “thrust upon” exception.

In conclusion, think twice before you drop a client like a hot potato in favor of another client.

Why?

Because no matter what Snoop might say, when it comes to clients, it’s not always a good idea to drop ’em like they’re hot.

 

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Conflicts: are there lessons in sports?

As most of you know, the vast majority of the inquiries that I receive involve conflicts of interests.  Conflicts (and potential conflicts) can be tricky to assess.  Last week, I urged lawyers to keep conflicts simple by trusting their guts. I also blogged on a Supreme Court opinion that reminds us that, in some cases, appearances matter.

Last night, I found myself considering conflicts & wondering whether professional sports might provide lessons, or useful analogies.  Here are a few of my thoughts.

Former Client Conflicts:  James Harrison

James Harrison is a professional football player.  He spent the bulk of his career playing for the Pittsburgh Steelers.  As a Steeler, he won 2 Super Bowls and was the 2008 NFL defensive player of the year.  He’s the Steelers’ all-time leader in quarterback sacks.

In December, the Steelers cut Harrison. A few days later, he signed with the New England Patriots.

The Patriots and Steelers are bitter rivals.  6 days before the Steelers cut Harrison, they lost to the Patriots in one of the most-controversial endings in recent memory.  Many experts and fans expected the Patriots and Steelers to meet again in the AFC Championship Game.  Instead, the Steelers lost their first playoff game and did not advance to the AFC Championship.

When Harrison signed with New England, Steeler fans felt betrayed. Anticipating the rematch that never came, many feared that Harrison would provide inside information to the Patriots that would help them defeat Pittsburgh again.  ESPN, NBC Sports, and ProFootballTalk covered the potential for Harrison to share Steeler secrets.

In a sense, that’s how your former clients might feel if you end up taking a case against them.

Here’s what I hear all the time:  “It was long ago, I haven’t looked at the file in years, and I don’t remember anything about the case.”  Fine.  But that’s not the rule.  Further, as a policy matter, the Supreme Court has said that Rule 1.9(a) is “prophylactic” and that we aren’t going to force clients to disclose confidences in order to protect them.

I get it: James Harrison is not a licensed professional who is bound by any sort of code of professional conduct.  Still, if you’re a sports fan, and if one of your team’s players has ever joined a rival, keep that in mind when considering whether to enter an appearance on behalf of a new client whose interests are adverse to those of a former client.

Appearances of a Conflict – Derek Jeter

Derek Jeter is a former professional baseball player.  He spent his entire career playing for the New York Yankees and is in the Hall of Fame.  I wouldn’t be surprised if the top 3  results for a word association game with “Derek Jeter” are “New York, “Yankees,” and “New York Yankees.”

Last September, Major League Baseball approved the sale of the Miami Marlins to an ownership group that includes Jeter.  Jeter owns a small stake in the franchise.  He is also the Chief Executive Officer of the Marlins.

When Jeter assumed his role as Marlins CEO, the team had a player named Giancarlo Stanton.  Last year, Stanton won the award as the Most Valuable Player in the National League.  He is 28 years old and is in the prime of his career. He has been, is, and will continue to be one of the best baseball players in the entire world.

Within months of taking over the Marlins, Jeter traded Stanton.

To the New York Yankees.

In exchange for 2 low-level prospects who might never make the majors.

Conflict?  I guess not.  MLB approved the trade and nothing in its rules or bylaws prohibits a former player from running a team different from the one he played for.

But it sure looks like one.  Business Insider might have said it best when it described the trade as “baffling.”

Again, I blogged last week that appearances matter.  My post included this statement:

  • “when talking about conflicts, it’s not uncommon for me to say two things:
  1. the rules prohibit actual conflicts, not the appearance of a conflict; and,
  2. even if you decide you don’t have a conflict, do you want to deal with the appearance? The other side will almost certainly file a motion to disqualify or a disciplinary complaint.  Either can be costly and aggravating.”

So, the Jeter lesson might be this: maybe you don’t have an impermissible conflict.  But it sure looks sketchy.  Do you want to deal with that?

Current Clients – Tom Brady & Jimmy Garoppolo

Rule 1.7 addresses concurrent conflicts of interest.  Section (a)(1) indicates that a concurrent conflict exists whenever representation of one client will be directly adverse to another client.

Tom Brady is the quarterback for the New England Patriots.  For many years, Jimmy Garoppolo was Brady’s back-up.  Earlier this season, the Patriots traded Garappolo to the San Franciso 49’ers. Brady and Garoppolo share the same agent.  The agent is a lawyer.

Michael McCann is a law professor. He founded the Sports & Entertainment Law Institute at UNH School of Law.  He is a legal analyst and writer for Sports Illustrated.  A few weeks ago, SI ran a piece by McCann:  Analysis: Brady and Garoppolo’s Sharing of an Agent Adds to Patriot Intrigue.

I find the post fascinating.  As most of you know, I love sports and I work in legal ethics. McCann’s piece is the only sports article I’ve read that not only cites to, but quotes, one of the rules of professional conduct.  Worlds colliding in such a way as to make music to my ears.   Give it a read.

Conclusion

This column might be of little help to you.  Arguably, it was nothing but a thinly-veiled excuse for me to write about sports.  Nevertheless, I’m going to continue to try to find different ways to visualize and present conflicts.

On a personal level, this picture best describes the conflict of interests that I encounter in athletics:

IMG_2090

 

 

Can a lawyer concede a client’s guilt over the client’s objection?

Updated on January 26, 2018

Question: in a criminal case, can a lawyer concede a client’s guilt over the client’s objection?

As reported by the ABA Journal, the question lies at the heart of an argument that the United States Supreme Court heard last week.  Outlets to report on the argument include The New York Times, Reuters, and USA Today.

The case is State of Louisiana v. Robert Lee McCoy.  In 2008, Mr. McCoy was charged with 3 counts of first degree murder.  In 2010, he hired a lawyer to replace the public defenders initially assigned.  Upon entering an appearance, the lawyer admitted that he was not certified to try death penalty cases, but that he expected to assemble a team of lawyers who were.  No such team was ever assembled.

In July 2011, two days before jury selection, the lawyer informed the court that Mr. McCoy wanted to fire him.  At a hearing, Mr. McCoy stated that he and his lawyer disagreed on trial strategy, with his lawyer insisting that he take a plea and not go to trial.  The court denied the motion as untimely.

Trial opened a month later.  During his opening statement, Mr. McCoy’s lawyer informed the jury “I’m telling you Mr. McCoy committed these crimes.”  He argued, however, that the evidence would show that his client suffered from such severe emotional issues that the jury ought to consider second degree murder.

Against the advice of counsel, Mr. McCoy testified.  Essentially, he testified that he had been framed.

The jury convicted Mr. McCoy of 3 counts of first degree murder.  Mr. McCoy was sentenced to death on each count.

Mr. McCoy appealed.  Among other things, he argued that he had been denied effective assistance of counsel and that his lawyer improperly conceded guilt over his objection. The Louisiana Supreme Court affirmed the convictions and death sentences.

In Vermont, Rule 1.2(a) of the Rules of Professional Conduct requires lawyers to “abide by a client’s decisions concerning the objectives of [the] representation.”  The rule goes on to state that “[i]n a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, and whether the client will testify.” Louisiana’s rule tracks Vermont’s.

To me, Mr. McCoy’s objective was to be found not guilty. His lawyer did not pursue that objective.  Indeed, the lawyer doesn’t dispute that. Here’s an excerpt from an affidavit that lawyer filed in one of the post-trial proceedings:

  • “I became convinced that the evidence against Robert McCoy was overwhelming ․ I know that Robert was completely opposed to me telling the jury that he was guilty of killing the three victims and telling the jury that he was crazy but I believed that this was the only way to save his life. I needed to maintain my credibility with the jury in the penalty phase and could not do that if I argued in the guilt phase that he was not in Louisiana at the time of the killings, as he insisted. I consulted with other counsel and was aware of the Haynes case and so I believed that I was entitled to concede Robert’s guilt of second degree murder even though he had expressly told me not to do so. I felt that as long as I was his attorney of record it was my ethical duty to do what I thought was best to save his life even though what he wanted me to do was to get him acquitted in the guilt phase. I believed the evidence to be overwhelming and that it was my job to act in what I believed to be my client’s best interests .”

Alberto Bernabe is a professor at John Marshall Law School.  Professor Bernabe teaches torts & professional responsibility. He’s also a regular on this blog’s #fiveforfriday Honor Roll.  Here’s a portion of a blog that Professor Bernabe posted last fall after SCOTUS granted cert in the McCoy case:

  • “In this case, the defendant, Robert Leroy McCoy, refused his lawyer’s suggestion to accept a plea deal, and objected when the lawyer informed him he planned to concede guilt.  He also protested at trial, after the lawyer conceded guilt during the opening statement.  According to an article in the ABA Journal, ‘the lawyer maintained the concession was necessary because he had an ethical duty to save McCoy’s life.’There is only one problem.  There is no such ethical duty.

    “The duty of the lawyer is to represent the client and this includes following the client’s instructions as to the goals of the representation.”

I tend to agree.

Per the ABA Journal, before the Supreme Court, the State of Louisiana “argued that lawyers should be able to ignore their client’s wishes in ‘a narrow class of death penalty cases’—when the client wants to pursue a strategy that is ‘a futile charade’ that defeats the objective of avoiding the death penalty.

Perhaps echoing Mr. McCoy’s argument, and as reported by The New York Times, Justice Kagan remarked “[t]here’s nothing wrong with what this lawyer did, if the goal is avoiding the death penalty.  The problem that this case presents is something different. It’s the lawyer’s substitution of his goal of avoiding the death penalty for the client’s goal.”

On the one hand, as a lawyer, it’s a dilemma I’d never want to face.  Indeed, “dilemma” is far too weak to describe the position in which the lawyer found himself.

On the other hand, should I ever be charged with a crime, I can’t imagine exercising my right to hold the government to its proof, only to have my own lawyer, against my express instruction, concede my guilt his opening statement.  It strikes me as the functional equivalent of my lawyer waiving my right to trial, waiving my right to testify, and pleading me out without my consent.  That’d be Kafka-esque.

Most media outlets that covered the argument reported that the Supreme Court appeared inclined to grant Mr. McCoy a new trial. However, as reported by Reuters,           “[t]he ruling could be a narrow one, with justices concerned about a broad decision that would limit the ability of lawyers to make strategic decisions during trials.”

I’m intrigued by one potential outcome: what if the Court holds that the lawyer reasonably, albeit erroneously, believed that the Constitution required him to concede his client’s guilt over the client’s objection? Is that an absolute defense to a 1.2(a) violation? Stated differently, wouldn’t we find it absurd for a lawyer to say something like “yeah, I know the Constitution required it, but it violates the ethics rules, so I didn’t do it.”

Or how about this – what if the lawyer’s gambit had worked?  Obviously doesn’t change the Rule 1.2(a) issue, but likely mitigates the sanction.  And, would the Court still be inclined to find ineffective assistance if Mr. McCoy had been convicted of 2nd degree murder and spared the death penalty?

I’ll revisit this matter when the Supreme Court issues an opinion.

 

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Conflicts: In some cases, appearances matter.

Last week, the Vermont Supreme Court issued an opinion in which it addressed this question:

  • “whether a court may terminate parents’ parental rights following a hearing in which, over an objection, the State was represented by the same lawyer who had previously represented the children in the same matter.”

Short answer: no.  The opinion is here.

The Court’s opinion relies on an analysis of Rule 1.9 of the Vermont Rules of Professional Conduct.  As such, I think it’s a natural for this blog. That being said, as was the Court, I want to be crystal clear: I am not suggesting that the State’s lawyer should face a disciplinary sanction.

By way of background, of the inquiries I receive, no topic comes up more often than conflicts of interest.  I rarely, if ever, say “yes, you have a conflict” or “no, you don’t.” Rather, I cite lawyers to the relevant rules, comments, and opinions, then leave the decision to the lawyer.

Similarly, if a lawyer asks whether opposing counsel has a conflict, I never provide a definitive answer.  It’s impossible to do so without hearing from opposing counsel. Again, I cite the lawyer to the relevant rules, comments, and opinions. I also offer to discuss the matter with opposing counsel.

That being said, when talking about conflicts, it’s not uncommon for me to say two things:

  1. the rules prohibit actual conflicts, not the appearance of a conflict; and,
  2. even if you decide you don’t have a conflict, do you want to deal with the appearance? The other side will almost certainly file a motion to disqualify or a disciplinary complaint.  Either can be costly and aggravating.

Which gets me to the Court’s recent opinion: at least in TPR cases, appearances matter.

I don’t want to bore you or make this blog too long.  Plus, the Court writes better than I do anyway.  So, I suggest reading the opinion.

Still, here’s a synopsis:

  • throughout a CHINS proceeding, Lawyer represented 4 children;
  • then, Lawyer represented the State in the subsequent TPR;
  • a guardian ad litem consented to Lawyer representing the State;
  • citing Rule 1.9, Mother’s attorney notified the trial court of concerns about Lawyer’s appearance for the State;
  • Lawyer argued that there was no conflict due to the State & children both taking the position that termination was warranted and, further, that the guardian had waived any conflict;
  • the trial court had “no concern” given that the State and children had the same interest (termination) and that the guardian had consented to Lawyer appearing for the State;
  • parents’ rights were terminated with respect to 3 of the children; and,
  • parents appealed.

When a lawyer has formerly represented a client in a matter, Rule 1.9 prohibts the lawyer from representing anyone in the same or a substantially related matter whose interests are materially adverse to the former client’s.  Exception: the former client gives informed consent that is confirmed in writing.

On appeal, the Court “decline[d] to parse the State’s and children’s specific positions in this case to evaluate whether they are actually materially adverse.”  Rather, the Court noted that:

  • “given the myriad issues in play in juvenile proceedings, the potentially dynamic nature of the parties’ positions, and the difficulty in discerning the children’s interests, determining whether the parties’ interests are truly aligned is a potentially complex undertaking.”

Thus, the Court concluded:

  • “as a matter of law that the potential conflict inherent in representing different clients in the same matter should be treated as an actual conflict for the purposes of determining whether counsel in an abuse-and-neglect case should be disqualified from subsequent representation of a different party in that same matter.”

In essence, then, the Court established a bright-line rule regarding disqualification in abuse & neglect cases, but recognized that the bright-line rule “is broader than the strict requirements of the ethical rule as applied in disciplinary proceedings.”

Finally, the Court noted that a lawyer’s prosecution of a TPR after having represented the children in the same matter “undermines the integrity of the judicial process . . . creates an appearance of impropriety and may be inconsistent with the lawyer’s role as a representative of the State – factors that are particularly significant in the context of abuse-and-neglect proceedings.”

In short, for disqualification purposes in abuse & neglect cases, appearances matter.

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Conflicts of Interest: keep it simple, trust your gut.

Conflicts are tough.

But not so tough that you shouldn’t trust your gut.

As most of you know, I provide lawyers with guidance on the Rules of Professional Conduct.   Over the past few years, I’ve averaged 1100 inquiries per year.  About 40% of those have been on conflicts of interest.

Inquiries on conflicts share one thing in common: lawyers almost always know the answer before they contact me.  Why?  Because if you feel the need to call me, text me, or e-mail me about a conflict, you probably have one.

Although my job is to know the rules inside & out, I don’t like getting lost in them. After all, they were written by lawyers.  I’ve been at this job for about 20 years.  To me, the rules are a perfect example of lawyers being lawyers and making the simple complicated.

It’s very simple.  As a lawyer, you owe duties to your client.  If any other duty or allegiance tugs you in a direction other than that which your client is headed, you might have a conflict. The “any other duty or allegiance” could be to another client, a former client, the court, a third person, or yourself.  The one that seems to arise most often: the duty to keep confidential any & all information relating to the representation of a former client.

I try to simply things.  Some of you think I’m overly simplistic.

Guilty as charged.

But, sometimes, simplification leads to realization.

Look back a few paragraphs. I used the word “tugs” for a reason.  The reason is because I think we’re all familiar with the game that, at least when I was a kid, was called “tug-o-war.”  As I blogged here, if you ever feel like the piece of red tape, you likely have a conflict.

Or, as those of you who were in Montreal know, if this picture reminds you of a tension you feel between duties to your client and duties to someone/something else, you probably have a conflict:

IMG_2644

For those of you upset that this blog didn’t contain a link to, or quote from, a single rule or case, fine.  My next few posts on conflicts will be more lawyerly.

Or not.

For now, let’s keep it non-lawyerly simple: if ANYTHING ever tugs you, however slightly, in a different direction than that in which your client is headed, stop and consider whether you have a conflict. Then, if you think you do, trust your gut.

And, after that, call me.  I can count on less than one hand the number of times that I’ve said “no you don’t” when someone has called me to say “mike, I think I have a conflict.”

 

 

 

 

Supreme Court Adopts Sex Rule

Yesterday, the Vermont Supreme Court issued an order amending Rule 1.8 of the Vermont Rules of Professional Conduct.  The amendment reads:

  • “A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.”

The Court’s order is HERE.

The Professional Responsibility Board proposed the amendment last fall.  As I noted at the time,

“the Board’s position is that the imbalance of power inherent in the professional relationship between lawyer and client necessitates an absolute ban on a sexual relationship between the two.” 

The amendment goes into effect on March 12, 2018.

Related posts:

Legal Ethics

Monday Morning Answers

Go Dawgs!

Georgia

Friday’s questions are here.  Today’s answers follow the honor roll.

HONOR ROLL

ANSWERS

Question 1

How long are lawyers required to keep records of funds held in trust?

  • A.   The rules are silent.  A Supreme Court opinion holds that records must be kept for at least 3 years from the termination of the representation.
  • B.   2 years from the termination of the representation.
  • C.   6 years from the termination of the representation.  Rule 1.15(a)(1).
  • D.   The rules set out different retention periods based on the nature of the case that gave rise to the representation.

Question 2

Obviously, a lawyer should always take steps to protect a client’s interests.

However, there is one rule that specifically states that “_______________________, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests . . ..”

(This is not a “fill in the blank,” but if I were to fill in the blank, it would give away the answer to the question.)

It’s the rule on:

  • A.  Competence
  • B.  Diligence
  • C.  Client Under a Disability
  • D.  Declining or Terminating Representation (Withdrawal).  Rule 1.16(d).

Question 3

Lawyer called me with an inquiry.  I listened, then responded:

“Only if it’s reasonable to believe that you can provide competent & diligent representation to each, it’s not prohibited by law (whatever that means), they aren’t adversaries in the same case, and each provides informed consent, confirmed in writing.”

What general issue did Lawyer call to discuss?

Whether a concurrent conflict of interest can be waivedRule 1.7(b).

Question 4

This week, the Department of Justice made an announcement that, arguably, has ethical implications for Vermont attorneys.  The announcement concerned:

  • A.   Immigration
  • B.   Privacy
  • C.  Marijuana.  Vermont lawyers do not violate V.R.Pr.C. 1.2(b) by providing advice on marijuana-related matters that are legal under Vermont state law.  For more, see this post. Whether providing such advice violates federal law is a question beyond the scope of the Rules of Professional Conduct.
  • D.  Electronically Stored Information

Question 5

Even if you’ve never heard of Ted Buckland, Dr. Kelso, The Gooch, or New Sacred Heart Hospital, if you know a of clothing that’s common in a hospital, you can make an educated guess at this question.

Ted Buckland is in-house counsel at New Sacred Heart Hospital. He’s also one of the most pathetic and least competent lawyers in TV history.  Among other things,

  • Ted lived at home with his mother well into his adult life;
  • Although a lawyer, Ted’s mother thinks that he is a doctor;
  • He failed the bar exam 5 times, before passing it in Alaska;
  • Ted’s low self-esteem & chronic anxiety often leave him unable to provide Dr. Kelso, the hospital’s Chief of Medicine, with any legal advice, not to mention competent legal advice;
  • Once, a patient slipped & fell at the hospital.  Ted is so incompetent that his immediate response was to blame the fall on the patient’s slippers . . . not realizing that the patient was wearing hospital-supplied booties.
  • Ted is in a band.  It’s name is The Worthless Peons.
  • The Gooch broke Ted’s heart.
  • In one episode, Ted warned the hospital’s staff:

Finally, doctors, if there is a mistake, don’t admit it to the patient. Of course, if the patient is deceased – and you’re sure – you can feel free to tell him or her… anything.

The reason Ted’s mother thinks that he is doctor is because, once, he came home from work wearing a type of clothing that’s common in a hospital.  He told her he’d saved someone’s life that day.

Name the show on which Ted Buckland is in-house counsel at New Sacred Heart Hospital.

Scrubs.

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