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

 

 

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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.

 

Image result for images of us supreme court

 

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.

Image result for appearances matter

 

 

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.

Buckland.jpg

 

2017’s Most Read: Conflicts & Lawyer Wellness

Like any self-respecting publication, Ethical Grounds will spend the final days of 2017 recapping the year’s most popular posts.  And, by “popular”, I mean “most read.”

Oddly, a single post was the most read every month from April thru November, and, by far, the most read of the year.  It was my post on Alternative Litigation Financing.  Now, I pay for the free version of WordPress, so I don’t have advanced analytics.  So, I’m only guessing when I say that it’s odd that the post was the most read for the year.  Still, here’s my guess.

I posted it in December 2016.  It went virtually unread until April, when its popularity skyrocketed.  Nothing about the topic of Alternative Litigation Financing changed appreciably between December and April.  However, in April 2017, the analytics reflect that hits on the post from searches for “ALF” went through the roof.   Something tells me that most who landed on the post did so not intending to reada about the legal ethics of Alternative Litigation Financing.

At the end of the November, I removed the “ALF” tag.  The result: almost nobody has read the post this month.  This tends to confirm my suspicion that the thousands of readers who ended up landing on the post didn’t really want to be there.

The upshot: while it was read 5 times more often than any other post this year, I’m not counting it in the Top 5.

Now, without further adieu, let’s get to the Top 5.

IMG_2644.JPG

Coming in at #5, my post Lateral Transfers: Is VT’s Rule too strict? Part 2.  The post addresses the fact that Rule 1.10 operates to disqualify an entire firm in certain situations in which a conflict follows a new hire from the new hire’s old firm.  Give it a read.  Earlier this month, the Professional Responsibility Board voted to recommend that the Vermont Supreme Court amend Rule 1.10  to allow nonconsensual screening even if a new hire participated personally & substantially in a matter in which the new firm represents a client who is adverse to a client represented by the new hire’s old firm.

Wellness

Next, the 4th most read post of the year was Lawyers Helping Lawyers – Keep it on the front burner.   The profession’s struggle with substance abuse & mental health issues is one that we must keep talking about.  As I’ve often written, it’s an access issues.  To ensure access to legal services, we must do our best to ensure access to a full complement of healthy & competent lawyers.

Since I posted the blog, the National Task Force On Lawyer Being issued a report entitled The Path To Lawyer Well-Being: Practical Recommendations for Positive Change. In response, the Vermont Supreme Court has approved the Chief Justice’s idea to create a commission to address lawyer well-being in Vermont.  You should expect to hear more about the commission in the near future. In short, it will consist of representatives from each of the stakeholder groups identified in the report from the National Task Force.  The stakeholders will analyze the recommendations aimed at them and report back to the full commission.

I’ll post #3 and #2 tomorrow.

Thanks for reading this year!

Tuesday Morning Answers – Holiday Quiz

You know this blog has established itself when, on Christmas Day, my mom somewhat ruefully notes that she wishes she hadn’t given me a Runner’s World calendar, but a Taylor Swift one instead.

Friday’s quiz is here.  The answers follow today’s Honor Roll.

Swift Christmas

Honor Roll

Answers

Question 1

Attorney represents Egg and Nog.   They’ve been charged with criminal conspiracy to face unafraid the plans that they’d made.

Undeterred by Comment 23 to Rule 1.7 (conflicts), but motivated by a desire to comply with Rules 1.1 (competence) and 1.3 (diligence), Attorney tracks down a key witness: Parson Brown.  Parson Brown agrees to an interview, but only if it’s outside.

What’s Parson Brown made of?

Snow.  Parson Brown is a character in Walking in a Winter Wonderland.

Question 2

My posts on legal ethics & marijuana are here.

Having secured an acquittal for Egg & Nog by successfully employing the “but it was just a dream by the fire!” defense, Attorney is back at it: representing new co-defendants.   Tommy and Marin have been charged with possession of extraordinarily large quantities.

Upon concluding an initial interview with Tommy and Marin, Attorney called me with an inquiry about Attorney’s duties under Rule 1.14 (client with diminished capacity.) Here’s our exchange:

  • Attorney – Mike, i don’t want my license to go up in smoke.  I’ve got co-defendants, Tommy & Marin.  Tommy thinks that Santa is a band! When I told him Santa isn’t a band, he thought maybe Santa was a Motown singer.  When I asked him how he didn’t know who Santa is, he replied ‘yeah, well, I’m not from here, man. Like, I’m from Pittsburgh, man. I don’t know too many local dudes.’
  • Me – Interesting.
  • Attorney:  And Marin isn’t much better.  He kinda knows who Santa is.
  • Me – Kinda?
  • Attorney.  Yeah.  He thinks that Santa and Mrs. Claus used to live in his neighborhood before getting evicted and  moving up north to start a commune with some of their friends.  Marin told me that Mrs. Claus used to make the best brownies in the neighborhood. He also thinks that Santa shut down the commune so as not to risk getting stopped at the border and found with the ‘magic dust’ that he feeds to his reindeer.

Who are Attorney’s clients better known as?

Cheech & Chong.  See, Santa Claus and his Old Lady

Question 3

Lawyer represents Client.  Client is charged with kidnapping Clarice and assaulting a gallant suitor who attempted to free her.  Client is also charged with the felony murder of one Yukon Cornelius.  Yukon is presumed dead.  He disappeared off a cliff during the daring rescue mission of Clarice and her suitor that Yukon carried out with an heretofore incompetent dentist.

But lo’ and behold, the prosecutor learns that Yukon is alive and well!  As required by Rule 3.8(d), prosecutor notifies Lawyer and, then, as required by Rule 3.1, dismisses the felony murder charge.

Lawyer works diligently to convince prosecutor to drop the remaining charges.  After all, despite a monstrous reputation, Client is winning in the court of public opinion.  If only because Client’s physical stature comes in handy during the holidays.

Who is Lawyer’s client?

Bumbles bounce! Bumble the Abominable Snow Monster

Bumble

Question 4

Attorney represents Michael Scott’s co-workers.  They have filed a civil suit against him & Dunder Mifflin.  The suit makes various tort claims related to the undisputed fact that, in the middle of the The Office’s holiday party, Michael unilaterally changed its format.

Attorney is mindful of the duties imposed by Rule 1.8(g). (aggregate settlement in a matter involving 2 or more clients.)

In any event, the party format was advertised as, and actually began as, “Secret Santa.” Upset with how things were going, Michael switched it to a different format.

Name the format.

Yankee Swap

Gifts

Question 5

Lawyer called me with an inquiry.  Lawyer’s questions related to Rule 1.18 (prospective clients) and Rule 3.1 (meritorious claims).  Per Lawyer:

  • Lawyer:  Mike, last week, I met with Cady Heron.  She wants to sue to expand the holiday season so that it officially begins on October 3.
  • Mike:  Wait.  What?
  • Lawyer:  Umm, exactly.  She said that’s the day that her crush, Aaron, first talked to her.
  • Mike:  Wow. I don’t know what to say.
  • Lawyer:  Well, maybe I’ll just ignore her.  I mean, she’s not very nice.  Plus, I refused to take a retainer.
  • Mike:  Because her claim is frivolous?
  • Lawyer: No.  Because she wanted to pay by credit card and I told her that I don’t take The Plastic.

Sadly, this scene didn’t make it past the cutting room floor.  Had it, I wouldn’t be here today.

Name the movie.

Mean Girls

October 3rd.jpg

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

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