Don’t Switch Sides.

Last month, I posted The 50 Original Rules.  It’s a post that briefly recaps the history of the conduct rules that apply to lawyers.  Best I can tell, the earliest record of guidelines for attorney conduct in the United States is David Hoffman’s 1836 publication of his Fifty Resolutions in Regard to Professional Deportment.  My post includes each of Hoffman’s 50 resolutions.

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

I don’t know how long it’ll take me to get through all 50.  No matter, if even one of the resolutions resonates with but one of you, this endeavor will have been a success.

To date, I’ve blogged that Hoffman’s first resolution can be summarized as Don’t be a JerkActually, looking back, the first 6 resolutions fall under that title.  Today I want to focus on Resolution #8.  It addresses conflicts of interest and is simple: don’t switch sides.

Aside –  talk about conflicts! As I write this, I just learned that the Miami Marlins traded Giancarlo Stanton to the New York Yankees. The Marlins executive who greenlit the trade is Derek Jeter who, of course, is Mr. Yankee.  I have a great imagination.  Nevertheless, not even I can imagine a situation in which a lawyer does something akin to retiring from the Yankees, taking a job running the team that has one of the Top 3 players in baseball, then immediately trading that player to the Yankees.  Whatever the scenario, it’d certainly end in disbarment.  Lest I violate the maxim “Don’t Be a Jerk,” I won’t say anything further.

Back to Resolution #8. Here it is:

  • 8.    If I have ever had any connection with a cause, I will never permit myself (when that connection is from any reason severed) to be engaged on the side of my former antagonist. Nor shall any change in the formal aspect of the cause induce me to regard it as a ground of exception. It is a poor apology for being found on the opposite side, that the present is but the ghost of the former cause.

Compare that to Rule 1.9(a):

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

Conflicts can be difficult to assess.  As you work your way through them, try to distill them to the most basic level.  181 years later, Hoffman’s resolution provides excellent guidance: don’t switch sides.

Back to Jeter – I guess he didn’t switch sides.  Indeed, that’s the problem.  As a Marlin, he’s still a Yankee!  Serenity now!

conflict

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Comment Period on Proposed Sex Rule Closes on December 18

In October, the Supreme Court published for comment proposed amendments to Rules 1.7 and 1.8 of the Vermont Rules of Professional Conduct.  The comment period closes on December 18.

The Court published the proposed rule upon the recommendation of the Professional Responsibility Board.  31 states specifically prohibit client-lawyer sexual relationships. Vermont does not.  At least 18 of Vermont’s other licensed professions have adopted rules that specifically ban sexual relationships between a licensee and a client, patient, or person with whom the licensee has a professional relationship.

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 Board supports a “bright-line” rule that recognizes the serious risk to a client’s interest in receiving candid, competent, and conflict-free legal advice that is presented when the professional relationship turns sexual.

A quick summary:

  • Proposed Rule 1.8(j) adds a specific prohibition on sexual relations between a lawyer and client unless a consensual sexual relationship existed when the client-lawyer relationship commenced.
  • Proposed Comment [17] to Rule 1.8 clarifies that the rule applies to all sexual relationships formed after the commencement of the professional client-lawyer relationship, including consensual sexual relationships and sexual relationships in which there is no prejudice to the client’s interests in the matter that is the subject of the professional relationship. In such instances, a lawyer would have to withdraw from continued representation.  See, Rule 1.16(a)(1).
  • Proposed Comment [18] provides guidance on sexual relationships that pre-date the commencement of the client-lawyer relationship.
  • If adopted, the conflict created by Rule 1.8(j) is personal and not imputed to other lawyers in the firm.  See, Rule 1.8(k); Rule 1.10(a).

Comments can be emailed to me at michael.kennedy@vermont.gov

For further reading, here are my previous posts on the issue:

Ethics

Confidences, Conflicts & Electronically Stored Information

To answer ATCQ, this is the scenario:

  • Lawyer works at Firm and represents Kennedy.
  • No other attorney at Firm works on Kennedy’s matter.
  • Lawyer leaves Firm.
  • Kennedy decides to go with Lawyer.
  • Firm sends hard copy of Kennedy’s file to Lawyer.

Ok.  That’s the easy part and isn’t very complicated.  Since easy & uncomplicated make for boring blogs, let’s add this:

  • Lawyer represents Kennedy in matter against Brady.
  • Brady seeks to retain Firm.
  • Kennedy v. Brady is the same or substantially related to a matter in which Lawyer represented Kennedy while working at Firm.

Can Firm represent Brady?

The fact that the matter is the same or substantially related to a matter in which Lawyer represented Kennedy while working at Firm does not end the analysis.  Nor does the fact that Firm delivered the paper file to Lawyer.

Rule 1.10 applies.  Subsection (b) says:

  • “When a lawyer has terminated association with a firm, the firm is not thereafter prohibited from representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless:
    • (1) the matter is the same or substantially related to that in which the formally associated represented the client; and,
    • (2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter.”

In the hypo, Firm will argue that none of its lawyers has information protected by Rules 1.6 and 1.9(c) because (1) none of them worked on Kennedy matters; and, (2) Firm delivered the file when Lawyer left.

But do they?

What if an electronic version of Kennedy’s file (or a portion of thereof) remains on Firm’s servers?  If the information is “material” to the matter, does Firm “have” that information as contemplated by Rule 1.10(b)?

Here’s an opinion from New Jersey.  The answer is “maybe.”  Essentially,  the court said that Firm “has” the information if a remaining lawyer has actual knowledge of the information and has accessed substantive portions of the electronic file.  The court, however, indicated that limited access made to investigate a potential conflict is not necessarily disqualifying.

If you’re interested, give the opinion a read.  Also, to avoid this dilemma, it might be worth a self-assessment as to how your firm handles electronically stored information when clients follow a departing lawyer.

By the way, if you missed it yesterday, here are the results of the poll question: Who is on your Mt. Rushmore of U.S. Supreme Court justices?  The post includes this week’s question: your top 3 fiction novels focused on the law or a lawyer/lawyers.

Laptop-and-computer-file-folders

 

 

Monday Morning Answers – My Cousin Vinny

You’ve spoken.  My Cousin Vinny is not only your favorite movie, it’s the most popular topic upon which I’ve ever blogged.

And if there’s one thing my readers know, it’s magic grits.

Friday’s questions are here.  Spoiler alert: the answers appear below today’s Honor Roll. However, before I get to the Honor Roll & answers, I’m trying something new that I hope turns into its own column.

For those of you who follow me on Twitter, you know that last night I posted this link to all my posts on the topic of Lawyers Helping Lawyers.  I posted at 5:30 PM in reaction to my realization that “whoa! it’s pitch dark and it’s only 5:30.”

Winter is long.  Darkness can be tough.  And, as the numbers show, we’re a profession that struggles to cope with stress, anxiety, substance abuse and mental health issues.  We must promote wellness and work-life balance, and we must encourage lawyers to make time for what matters.  In other words, let’s focus on ensuring that light shines in our personal & professional lives.

One way to let the light in is to do things that have nothing to do with the law. For example, yesterday, I ran a race with my mom.  She ran the 5K, I did the half marathon. One of us won her age division, I did not.  Here’s us post-race, pre-brunch.

IMG_2933

As we enter the months where the days arehort, it’s as important as ever to keep light in our lives.  To encourage that, send me your pictures of you doing something non-lawyerly.  It doesn’t have to be running a race.  It could skiing, playing with your kids or grandkids, reading, posing outside a show you’re about to attend.  If this catches on, each week, I’ll post the pictures, highlighting lawyers who, every now & then, go lawyerly-lite to keep the light on.

Honor Roll

Answers

Question 1

The rules include a special rule on conflicts for a certain type of lawyers.  What type?

Former & Current Government Officers & Employees.  Rule 1.11

Question 2

Pick the exact word or phrase that most accurately fills in the blank.

For the purposes of the confidentiality provisions of Rules 1.6 and 1.9(c), information that is a matter of public record is not necessarily __________:

  • A.   “Waived”
  • B.   “Privileged”
  • C.    “Confidential”
  • D.    “Generally known.”

Demonstrating my lack of competence, the original version of the quiz had two correct answers:  A – disclosable, and D – generally known.  Once I caught it, I edited the blog, but not before some people had answered and, anyway, it doesn’t edit the email that goes to people who have signed-up to follow the blog.

In the revised version, the answer is “generally known.”  See generally, Rule 1.9(c)(1).  I will blog on this issue later this week.

Question 3

Attorney called with an inquiry.  I listened, then responded “the rule doesn’t say ‘solely to obtain an advantage.’ It says ‘to obtain an advantage.’  We dropped ‘solely‘ back in 1999.”

What did Attorney call to discuss?

  • A.  Contacting an opposing party’s expert witness
  • B.  Contacting a prospective juror
  • C.  Threatening criminal charges in a civil matter.  See, Rule 4.5
  • D.  Interviewing an employee of a represented organization, without the permission of the organization’s lawyer

Question 4

Lawyer called me with an inquiry. I listened, then responded “Well, given the traditional limitation on permitting a non-lawyer to direct a lawyer’s judgment, if any the activities  will include the practice of law, you can’t do it.”

What did Lawyer call to discuss?

  • A.  Forming a partnership with a non-lawyer. See, Rule 5.4(b)
  • B.  Someone other than a client paying for Lawyer to represent that client
  • C.  Sharing a referral fee with an attorney in a different firm
  • D.  Implementing a cloud-based practice management system

Question 5

In the trial in My Cousin Vinny, one of the key moments is Vinny’s cross-examination of an eye-witness.  The witness testified that Vinny’s clients must have been in the Sac-O-Suds (the convenience store where the murder took place) for 5 minutes. On cross, Vinny asked:

“Well, I guess the laws of physics cease to exist on top of your stove. Were these ___________________? Did you buy them from the same guy who sold Jack his beanstalk beans?”

Fill in the blank. Hint: it’s 2 words

Magic Grits.   The scene is here and is worth re-watching.  It’s a fantastically competent cross-examination of an eye-witness. And it’s funny.  #lawyerlight 

Vinny

 

A Sex Rule

Earlier this week, the Professional Responsibility Board forwarded to the Vermont Supreme Court its recommendation that the Court amend Rule 1.8 of the Vermont Rules of Professional Conduct as follows:

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

31 states have a specific ban on client-lawyer sexual relationships.  As of now, Vermont does not.

Rather, in Vermont, for a sexual relationship with a client to be an ethics violation, the lawyer must do something else wrong. That is, disciplinary counsel would have to prove, for example, that the relationship created an impermissible conflict of interest under Rule 1.7(a)(2). The conflict being the risk that the relationship would materially limit the lawyer’s duties to the client.

The notion that a sexual relationship crosses the line only if leads to another violation is codified in Comment [17] to the current version of Rule 1.8:

  • “The relationship between the lawyer and client is a fiduciary one in which the lawyer occupies the highest position of trust and confidence.  The relationship is almost always unequal; thus, a sexual relationship between and client can involve unfair exploitation of the lawyer’s fiduciary role, in violation of the lawyer’s basic ethical obligation not to use the trust of the client to the client’s disadvantage.  In addition, such a relationship presents a significant danger that, because of the lawyer’s emotional involvement, the lawyer will be unable to represent the client without impairment of the exercise of independent professional judgment.  Moreover, a blurred line between the professional and personal relationships may make it difficult to predict to what extent client confidences will be protected by the attorney-client evidentiary privilege, since client confidences are protected by privilege only when they are imparted in the context of the client-lawyer relationship.  For all of these reasons, lawyers are cautioned that sexual relations with a current client could give rise to claims of incompetence under Rule 1.1, of lack of diligence under Rule 1.3, of a conflict with the lawyer’s personal interests under Rule 1.7(a)(2), of using client information to the client’s disadvantage under Rule 1.8(b), of conduct involving dishonesty or the like under Rule 8.4(c), or of conduct prejudicial to the administration of justice.”

The PRB disagrees.  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.  At least 19 other of Vermont’s licensed professions have just such a ban.

The Court will consider the Board’s proposal at its next administrative meeting.  After that, the proposal might be published for notice & comment.  If you are interested in the topic, please keep an eye on the memos to the bar that the State Court Administrator sends via e-mail. Proposed rules are published in those memos.

For further reading, here are my previous blogs on the issue:

salt-n-pepa

Monday Morning Answers: #88

I apologize for not posting this earlier.

Friday’s questions are HERE.  Spoiler alert, the answers follow this week’s Honor Roll.

Apparently, not many of my readers are NASCAR fans.  Kudos to Penny Benelli, Beth DeBernardi, and Erin Gilmore for recognizing that Friday’s picture was of Dale Earnhardt, Jr. and me.  Junior drives the 88.

Junior 88

Honor Roll

  • Laura Anderson, Nursing Supervisor, Mt. Ascutney Hospital & Health Center
  • Matt AndersonPratt Vreeland Kennelly Martin & White
  • Penny Benelli, Dakin & Benelli
  • Alberto BernabeLaw Professor, John Marshall Law School
  • Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labor
  • Erin GilmoreRyan Smith & Carbine
  • Robert Grundstein
  • Aileen LachsMickenberg, Dunn, Lachs & Smith
  • Samantha LednickyDowns Rachlin & Martin
  • Kevin LumpkinSheehey Furlong & Behm
  • Lon McClintockMcClintock Law Office
  • Hal Miller, First American
  • Robyn SweetCore Registered Paralegal, Cleary Shahi & Archer

Answers

Question 1

Prospective Client consults in good faith with Lawyer, with an eye towards retaining Lawyer.  However, Client chooses not to retain Lawyer.  Client notifies Lawyer of the decision.

Per the rules, Lawyer continues to owe Prospective Client a _____________, but in a somewhat relaxed fashion as compared to a former client.

  • A.   Duty of Loyalty
  • B.   Duty to Maintain Client’s Confidences
  • C.   Neither A nor B
  • D.  Both A & B

I don’t think I phrased the question well.  Here’s what I was trying to help people to think about.

Rule 1.18 sets out the duties that a lawyer owes to a “prospective client.”  A prospective client is one who consults with a lawyer in good faith and with an eye towards retaining the lawyer, but who, for whatever reason, does not retain the lawyer.

The duty to maintain the prospective client’s confidences continues to apply and IS NOT relaxed.  Rule 1.18(b) says:

  • “Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.6 would require or permit or as Rule 1.9 would permit with respect to information of a former client.”

In other words, I read the duty to maintain the prospective client’s confidences to apply to the same extent & degree as it would apply if the client was a former client.

Further, I read the rule as relaxing, however little, the duty of loyalty as compared to the duty of loyalty owed to a former client.

With respect to a former client, Rule 1.9(a) makes it clear that a lawyer cannot represent someone whose interests are materially adverse to those of a former client in the same or a substantially related matter unless the former client gives informed consent, confirmed in writing.

Rule 1.18 is different.  Specifically, Rule 1.18(c) states that “a lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d).”  (emphasis added).  There’s no such proviso in Rule 1.9, the rule that applies to former clients.

In other words, as I read the rule, it’s not as strict as Rule 1.9 and applies only if the lawyer received information that could be significantly harmful to the prospective client. And, even then, paragraph(d) permits a firm to screen the lawyer who consulted with the prospective client.  Normally, a former-client conflict under Rule 1.9 is imputed to all other lawyers in the firm by Rule 1.10 and, therefore, screening is not allowed. That’s another reason why I consider Rule 1.18 to relax the duty of loyalty.

Question 2

Which must a lawyer keep for 6 years following the termination of a representation?

  • A.   The file
  • B.   Client confidences
  • C.   Complete records of funds held in trust and other property
  • D.  Electronic communications with the client

The rules require the file to be delivered upon the termination of the representation.  Rule 1.16(d).  There is no duty to keep a copy. Of course, it’s a good idea to do so and, odd are, your liabilit insurance requires you to.

 Confidences must be kept forever, unless a client consents to disclosure or the information has become “generally known.”  See, Rule 1.9(c). 

Electronic communications are part of the file and there is no independent rule requiring them to be kept.

Rule 1.15(a)(1) requires lawyers to follow the trust account rules and prohibits commingling.  It states that “[c]omplete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of six years after termination of representation.”

Question 3

Attorney called me with an inquiry.  I listened, then said:

  • “Client hasn’t paid in 8 months? Assuming nothing crucial is imminent, my position is that you’re permitted to file the motion.  Whether the court grants it is another question.  The question will be whether there will be a material adverse effect on your client.”

What type of motion?

Motion to Withdraw, See V.R.Pr.C 1.16(b)

Question 4

Attorney represents Irving in the civil matter Irving v. James.   Lawyer represents James and has retained Expert Witness.

Whether Attorney can contact Expert Witness without Lawyer’s permission is likely governed by:

  • A.  Rule 4.2 (the no-contact rule)
  • B.  Rule 1.6 (information relating to the representation)
  • C.  The Rules of Civil Procedure
  • D.  The Rules of Evidence

An expert witness is not represented by the lawyer who represents the party or person for whom the witness will be testifying. So, Rule 4.2 does not apply.

However, Rule 26 of the Rules of Civil Procedure limits the ways in which discovery may be obtained from an expert witness.  Contacting that witness informally might not be one of them.  Thus, in the hypo, Rule 26 answers the question. And, remember, a violation of the Rules of Civil Procedure might rise to the level of a violation of Rule 3.4(c) of the Rules of Professional Conduct.

Question 5

When we first met Mike Ross, he hadn’t gone to college or law school, but was earning money by taking (and passing) the LSAT for others.  Then, to earn money to pay for his grandmother’s medical care, Mike agreed to deliver marijuana for a friend.  Somehow he managed not to be arrested in the ensuing sting and, almost impossibly, ended up with a job interview at a law firm.

He was hired.  As a lawyer. Even though Harvey, the partner who interviewed him, knew that Mike had not taken the bar exam or been admitted to practice.

After several years in practice, Mike was charged criminally with fraud & the unauthorized practice of law.  While the jury deliberated, Mike agreed to a plea offered by Anita, the U.S Attorney who was prosecuting him.

After serving a prison stint, Mike passed the bar, with only review by the Character & Fitness Committee standing between him and admission.  Yikes! Guess who bribed her way onto the committee charged with reviewing his application??? Anita!!  She did so not only to keep Mike out, but to try to prove her theory that Harvey (and others) had known all along that Mike wasn’t a lawyer!

Amazingly, Mike was admitted and spent the show’s most recent season as a duly licensed member of the New York State Bar.

Name the tv show.

Mike Ross is a lawyer in Suits.  

Ross Suits

 

 

 

Monday Morning Answers – #84

Happy Labor Day!

Friday’s questions are HERE.  The answers follow today’s Honor Roll

Thanks to all who offered encouragement in Saturday’s race.  It went well and the Clemson game was fantastic.  Watching the Tigers “touch the rock” and run down the hill for the first time since last year’s national championship was electric.   And we didn’t have bad seats:

IMG_2512

Honor Roll

Answers

Question 1

The rules do not require lawyers to have succession plans. However, a comment to a particular rule suggests that it’s a violation for a sole practitioner not to have a plan that designates another lawyer to review the solo’s files and contact the solo’s clients in the event of the solo’s death, disability, or unavailability.  It’s the rule on:

I used this question as a reminder following Hurricane Harvey.  Remember – there are many ways in which a solo might become unavailable.  Seminars often focus on the doom & gloom of death or disability.  Yes, those things happen.  But, if you’re traveling and a weather emergency keeps you from getting home for a few extra days, can your clients make it without you?

Question 2

Valerie and Eddie divorced many years ago.  Eddie is over a year in arrears on court-ordered spousal maintenance payments.

Valerie asks Lawyer to represent her in a motion to enforce the order.   She cannot afford Lawyer’s fee and asks Lawyer to take the case on a contingent fee basis.  Lawyer agrees.  You may assume that Lawyer does not have any conflicts that prohibit Lawyer from representing Valerie.

Which is most accurate?

  • A.   If the contingent fee agreement is reasonable & reduced to writing, it does not violate the rules.  V.R.Pr.C. 1.5(d)(1)(i)
  • B.   Lawyer has violated the rules.  Contingent fees are banned in domestic cases.
  • C.   There will not be a violation unless or until Lawyer attempts to collect a contingent fee from Valerie.
  • D.   There is no violation because it was Valerie, the client, who proposed the contingent fee.

Here’s a very simple way to help provide access to legal services: the rules clearly allow contingent fees in certain post-judgment family cases.  Rule 1.5(d)(1)(i) allows them in cases involving past due maintenance & property division, while subsection d(1)(ii) allows contingent fees, with court approval, when child support is past due.

DO NOT say to me “but Mike, I’ll never make a difference with access by taking a post-judgment spousal maintenance case on a contingent fee.”   You will make a difference to that client.  And, while this is likely best addressed in a blog of its own, my opinion is that, as a profession, we too often let perfect be the enemy of the good.  Instead of forming commission after study commission after blue-ribbon commission, we should strive make a  difference whenever and wherever we can, no matter how small “whenever and wherever” seems.  Like to the one client who you represent on a contingent fee basis in a post-judgment matter where court-ordered spousal maintenance is past due.

Question 3

Lawyer represents Organization.  Lawyer leaves Organization for private practice.

True or false:   Lawyer’s general knowledge of Organization’s practices and procedures ordinarily will preclude Lawyer from representing a party adverse to Organization.

False.  See, V.R.Pr.C. 1.9, Comment [3].  As Professor Alberto Bernabe puts it, “being familiar with the organization’s ‘playbook’ does not typically disqualify the lawyer.”

Question 4

Rule 8.4 prohibits some types of conduct that do not involve the practice of law.  Although it no longer appears in the text of the rule, what’s the 2-word term used to draw the distinction between non law-related conduct that violates the rules and non law-related conduct that does not? Conduct involving ” ________  ___________.”

“Moral Turpitude.”  V.R.Pr.C. 8.4, Comment [2].  A phrase that drove me nuts in the old days!  Professor Bernabe has some great posts on the continued use of the phrase in the rules.

Question 5

This is a fictional scenario.  A prop device, if you will.  Play along.

I received an ethics complaint from a woman complaining how her brother was treated in a criminal case.  The thrust of her complaint was that her brother was framed for the murder of his best friend, Andy, who had just confessed to an affair with her brother’s “cheatin’ wife.”

Referring to her brother’s defense attorney, she wrote that her brother never should’ve “trusted his soul to no backwoods southern lawyer.”  She alleged that the proceeding was “a make believe trial” and that the “judge in this town has got blood stains on his hands.”

Interestingly, her brother WAS framed! In fact, the sister is the one who did it! Not only did she admit to killing Andy, she wrote that her brother’s “cheatin’ wife had never left town and that’s one body that’ll never be found.” It’s the first complaint I’ve ever received in which the complainant confessed to a crime.

Anyhow, Vermont’s Professional Responsibility Program and Judicial Conduct Board don’t have jurisdiction over the defense attorney and judge.

Name the state to which I referred the complainant.

Georgia.  The question refers to the AM smash The Night Light The Lights Went Out in Georgia.  After Liza Minelli and Cher turned it down, one-hit wonder Vicki Lawrence took it to #1.  As a few readers mentioned, once the title-line gets in your head, good luck getting it out.

Finally, Friday’s questions included a reference to Johnny I Hardly Knew Ye by The Irish Rovers.  My apologies to the (several) readers who prefer The Dropkick Murphys’ version.

 

So A Lawyer & Judge Are Facebook Friends . . .

So a lawyer & judge are Facebook friends.

So what?

The ABA Journal has the story of an appellate court’s decision that a Facebook friendship with a lawyer, without more, is not a sufficient basis to disqualify a judge.   The order is here.

This makes sense to me.  As with almost everything tech-related, I try to use analogies to non-tech stuff.  For example, if you learned that a lawyer who regularly appeared before a judge belonged to the same health club, or went to the same church, or was in the same law school class as the judge my guess is that you wouldn’t reflexively yell “conflict! disqualify the judge!”

No, you might ask something as simple as, “do they actually know each other? If so, how well? Do they do stuff together?”

In my view, Facebook is no different.  Florida’s Third District Court of Appeal agrees. (there’s no “s” – maybe the court only hears one case at at time).  The opinion presents a fantastic analysis of what it means, if anything, to be Facebook friends with someone.

Here are my favorite paragraphs from the ABA Journal’s post.  They include a quote from the opinion.

“Though a Facebook friendship may have once given the impression of a close friendship, that’s no longer the case, the Third District Court of Appeal said in explaining its disagreement with the other appeals court. Facebook uses data mining and network algorithms to suggest potential friends, and many Facebook users have thousands of friends, the appeals court said.

“ ‘To be sure,’ the opinion said, ‘some of a member’s Facebook ‘friends’ are undoubtedly friends in the classic sense of person for whom the member feels particular affection and loyalty. The point is, however, many are not. A random name drawn from a list of Facebook ‘friends’ probably belongs to casual friend, an acquaintance, an old classmate, a person with whom the member shares a common hobby, a ‘friend of a friend’ or even a local celebrity like a coach.’ ”

Ab, yes. A local celebrity.  Like a coach.  Music to my ears.

Monday Morning Answers #83

Friday’s questions are HERE.

Spoiler alert: the answers follow today’s Honor Roll in 5, 4, 3, 2, 1……if you don’t know, now you know.

Honor Roll

Answers

Question 1

There’s only ONE thing that the rules require Vermont lawyers to keep for a period of years.  What is it?

  • A.   Copies of advertisements for 2 years after they first run.
  • B.   Client’s file for 7 years following the termination of the representation of Client.
  • C.   Trust account records of funds held for Client for 6 years following the termination of the representation of Client.  Rule 1.15(a)(1).
  • D.   Client’s confidences & secrets for 7 years following the termination of the representation of client.

Notes:  A is incorrect because the rule was repealed years ago.  B is NOT CORRECT.  The file must be delivered upon the termination of the representation.  See, Rule 1.16(d).  It’s a good idea to make a copy for yourself, but the rules do not require you to do so.  Your carrier probably does though.  Finally, D is not correct.  We stopped using the word “secrets” in 1999.  Also, information relating to the representation of a former client is governed by Rule 1.9(c) and is not subject to a 7-lear limit.

Question 2

Attorney called.  Among other questions on a single topic, she asked me whether the rules define “person of limited means.”  What general topic did Attorney call to discuss?

The pro bono rules.  Per rule 6.1, a majority of the 50 hours should go to providing representation to persons of limited means, or, to organizations that primarily address the needs of persons of limited means.  For more, including the definition of “persons of limited means” see this blog post.

Question 3

Speaking of encrypting email, if there is a duty to encrypt, it flows from two duties set out in the rules. One is the duty to maintain the confidentiality of information related to the representation.  What’s the other?  The duty to:

  • A.  Safeguard client property & funds
  • B.  Provide a client with diligent representation
  • C.  Provide a client with competent representation.  See, Rule 1.1.  Also, the link to my blog on encrypting email was included with the questions.  It outlines how the duty of competence dovetails with the duty to maintain confidences to include a duty to act competently to safeguard information relating to the representation of a client.
  • D.  Communicate with a client

 

Question 4

Lawyer represents Client.   Shortly before trial, opposing party discloses Witness. Lawyer determines that he has a conflict that prohibits him from representing Client in a matter in which Witness will testify for Opposing Party.

Lawyer moves to withdraw and discloses the conflict in both his motion and the argument on the motion.  The court denies the motion and Lawyer represents Client at trial.  Witness testifies, Lawyer cross-examines Witness.

True or False: Lawyer violated the Vermont Rules of Professional Conduct by representing Client at trial and cross-examining Witness.

False.  Rule 1.16(c).  (“When ordered to do so by a tribunal, a lawyer shall continue representation nothwithstanding good cause for terminating the representation.)

Question 5

I’m not making this up.

In Vermont, V.R.Pr.C. 3.1 is the equivalent of civil rule 11.  It prohibits lawyers from asserting a position unless there is a non-frivolous basis for doing so.

I’m not making this part up either.

In 2014, a New York lawyer was sued for allegedly helping a client to fraudulently transfer assets.  Let’s call the lawyer “Defendant.”

In 2015,  Defendant filed a motion in which he requested the he and plaintiff either have a duel or “trial by combat.”  When questioned by the media, he responded that “”I have a good-faith belief that this is still part of our state constitution. I want the law to be clear on this issue, and I have every right to ask for this.”

What’s Defendant’s favorite television show?

Game of Thrones.

The lawyer’s request was denied.  In an article on the denial, Staten Island Live has a fascinating quote from Attorney Richard Luthmann:

  • “I believe that the court’s ruling is based upon my adversaries’ unequivocal statement that they would not fight me,” said Luthmann, who’s based in Castleton Corners.  “Under my reading of the law, the other side has forfeited because they have not met the call of battle. They have declared themselves as cowards in the face of my honorable challenge, and I should go to inquest on my claims.”

Trial by Combat

 

 

 

The More Things Change…

Since becoming bar counsel in June 2012, I’ve handled 4,421 ethics inquiries.  By far, the most common inquiry topic has been conflicts of interest.  Questions relating to conflicts have accounted for slightly more than half of all inquiries, with “former client” conflicts constituting the largest subset within the category.  Common questions:

  • Can I take a case against a former client?
  • I represent Buyer. I’ve known Seller for years.  She wants me to represent her. Can I?
  • For the past 10 years or so, I’ve represented a couple. Business stuff, some trusts, a small PI claim, nothing that either doesn’t know about.  They’re getting divorced.  Can I represent Wife?

This morning I realized that I needed to post today.  I was too busy watching the early coverage of The British Open to concentrate, so I figured I’d cheat with a “Throwback Thursday” post.

In between putts & wayward drives, I wondered what issues bar counsel types were dealing with 50 years ago.  So, I searched “legal ethics 1967.” I figured I’d find something simple, and post “here’s what was going on a long time ago.”

The top result was a compendium of the ethics opinions issued by the Indiana State Bar Association in 1967.

Opinion 1 is the genesis of this post’s title.

(Apparently, in 1967, lawyers had yet to resolve to use 37 words when 1 would do.  So, here’s the opinion, in its entirety.)

Opinion No. 1 of 1967
Lawyer Not Forever Barred From
Taking Case Against A Former Client

The Committee was asked its opinion by an attorney whose present
client wished to bring suit against a person who at one time had
been a client of the attorney.

Mr. Henry S. Drinker, in his book Legal Ethics, at page 112, stated:
“One may sue a former client if his representation is ended and. the
matter does not involve confidential communications.” An attorney
is not forever barred from suing a former client, so long as the present
matter was not connected with, and did not arise out of, the former
employment, and so long as there is no breach of confidential information
obtained during the former attorney-client relationship.

The opinion mirrors today’s rule.

Rule 1.9 prohibits a lawyer from representing a person:

  • in the same or a substantially related matter in which the lawyer represented a former client and in which the person’s interests are materially adverse to the interests of a former client, unless the former client gives informed consent, confirmed in writing.

Even if the matters are not the same or substantially related, Rule 1.9(c) prohibits a lawyer from using or revealing information relating to the representation of a former client.

Nothing has changed.

Next, I wondered what Vermont’s hot  topics in ethics were back in the day.  The Vermont Bar Association publishes advisory ethics opinions.  The earliest available are from 1978.  (As regular reader Hal Miller knows, it was a year that shall forever live in infamy on this blog.  More on that tomorrow.)

The VBA released 3 advisory ethics opinions in 1978.  They dealt with conflicts, conflicts, and conflicts.  Two of the three involved questions I continue to receive to this day.

Opinion 78-04 concluded that it is improper to represent both buyer & seller in real estate transaction.  I agree with the conclusion.

Opinion 78-03 concluded that it is improper for a lawyer who has represented a couple to represent one in a divorce if the issues in the divorce are substantially related to the former representation of the couple.  Again, I agree.  Comment 3 to Rule 1.9 addresses this very question.

I’m not complaining. If you have questions about a potential conflict, don’t hesitate to call, text, or e-mail.  I bring it up only because I’m struck by the fact that conflicts always have been and likely always will be the most common, but trickiest, ethics issue confronted by lawyers.

Actually, let’s be honest: I bring it up mainly I needed to post a blog about something- anything! – to drive traffic towards tomorrow’s #fiveforfriday quiz.

conflict