A lawyer’s duty to manage their caseload.

Back when I used to blog, I often posted about wellness on Wednesdays.  Thus, if you were to travel back in time and tell Younger Me that a future Wednesday would include a post about excessive workloads, I’d likely respond “that makes sense. I bet I’ll discuss the impact that an uncontrolled workload can have on wellness.” 

Like the defense in My Cousin Vinny, Younger Me would be wrong.

Today, I write to address a lawyer’s duty to control their workload. A duty that flows to clients and that existed long before the profession began to address wellness & well-being.

The impetus for this post is Colorado Bar Association Opinion 146.  I suggest reading the opinion. It goes into more detail than I will.  Here’s my summary.

The opinion begins with a reminder that the Rules of Professional Conduct:

• “create a series of obligations to ensure clients receive competent, diligent, and zealous representation. The keystone of these obligations is the principle that clients are entitled to sufficient attention to their legal matters, as well as sufficient access to their lawyers.” (emphasis added).

The highlighted sentence says it all. In short, when your workload prevents you from paying “sufficient attention” to a client’s matter, or from providing a client with “sufficient access,” it’s likely excessive.

I could stop there.

Especially since Comment [2] to Rule 1.3 of the Vermont Rules of Professional Conduct states that “[a] lawyer’s work load must be controlled so that each matter can be handled competently.”

But I won’t stop yet.  Because I can sense what you’re thinking: “Mike, are you saying that it’s unethical to be too busy?”

No, not really. (Although that’s kind of what Comment 2 to Rule 1.3 says.)

What I’m saying is this: an excessive workload puts a lawyer at risk of violating several duties that the lawyer owes to clients.  For instance, and as the Colorado opinion points out, the duties to provide a client with competent & diligent representation, the duty to communicate to the client sufficient information to allow the client to make informed decisions about the representation, and the duty to avoid conflicts of interest.[1]  Stated differently, it’s problematic when a lawyer is too busy with Clients A, B, and C to provide Client D with competent & diligent representation.

What’s “excessive?”

Good question.

The Colorado opinion stresses that “determining when a workload is excessive under the rules of professional conduct is necessarily fact specific.” Nevertheless, citing to caselaw and advisory opinions from the ABA and other jurisdictions, the Colorado opinion lays out workload “considerations” for public defenders, prosecutors, Legal Aid lawyers, and private practitioners. Rather than regurgitate those considerations here, I refer you to the section of the opinion that applies to you.

Next, the opinion pivots from a lawyer’s duty to manage their own workload to the duties owed by lawyers who supervise others. Here, the opinion reminds supervisors of their “responsibility to ensure that subordinate lawyers’ workloads are adequately regulated so that each client receives competent and diligent legal representation.”  As the opinion points out, this responsibility includes the supervision of people in the firm or office who are not lawyers but who work on client matters.[2]  Similarly, the opinion cautions lawyers who work under the supervision of another that they “may be required to alert their supervisor or managing lawyer if their workload is such that they are unable to handle the matters assigned” competently and diligently.[3]

In sum, remember, at some point, a workload becomes so excessive as to put a lawyer at risk of violating the most basic duties owed to clients.

Oh, and one other thing: while this post isn’t about wellness, I’m a firm believer that an excessive workload negatively affects wellness and, in so doing, puts both lawyers and their clients at risk.

As always, let’s be careful out there.

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[1] Vermont’s rules on competence, diligence, communication, and conflicts of interest are essentially the same as Colorado’s. 

[2] Vermont’s rules on supervising other lawyers and supervising nonlawyers are essentially the same as Colorado’s

[3] Vermont’s rule that sets out the duties of a “subordinate lawyer” is essentially the same as Colorado’s

Succession & Disaster Plans for Law Offices

My sense is that many Vermont law offices use the summer to review office practices & procedures. Whether you do or do not, it’s never a bad time to plan for disaster.

In the early days of this blog, it wasn’t uncommon for me to write about succession planning.  The posts did not focus on selling or transitioning a firm to new ownership.  Rather, he posts urged sole practitioners and lawyers in very small firms to adopt plans that would protect clients in case of a lawyer’s unavailability. Indeed, preparing for unavailability is an aspect of Rule 1.3’s duty of diligence.  Comment [5] states:

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

Of course, emergencies, tragedies, and calamities aren’t reserved for smalls and solos.  So, a few years ago, I posted Is your firm prepared for a disaster?  I did so in response to the ABA Standing Committee on Ethics and Professional Responsibility release of Formal Opinion 482: Ethical Obligations Related to Disasters.  In the post, and as I’m wont to do, I used imagery to highlight the key takeaway from the opinion:

Or, as the ABA Committee reminded us with words:

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

In March 2022, the ABA Journal posted What’s the worst that could happen? ABA Techshow attendees role play law firm disasters.   The article recounts scenarios that the presenters used during a seminar entitled “Ethically Managing Modern Emergencies: Are You Ready?” I recommend the post for any office or firm interested in exercises that might help to prepare for a variety of disasters. I’m particularly a fan of the trust account scenario.[1]

A few states require sole practitioners to file succession plans with regulators.  I’ve not yet proposed such a rule here, but I’m considering it. I’ve witnessed the chaos that can result when, for whatever reason, a lawyer is suddenly unavailable and, because everything important was stored in the lawyer’s head, nobody knows how to take even the most basic steps to protect clients.

Anyhow, I doubt the phrase originated with basketball coaches, but it’s one that we use a lot:  failing to plan is planning to fail.  The same can be said for lawyers and law firms, including when it comes to disasters.

As always, let’s be careful out there.

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[1] For more on creating a succession or disaster plan, check out the Vermont Bar Association’s Practice Resources page

The story of the 2 Florida lawyers who were suspended for misconduct associated with leaving a law firm prompts me to share some observations.

Note: this post includes a sneak peak of a future blog about my pet turtle disappearing when I was 10.

Last week, the Florida Supreme Court approved a referee’s recommendations to suspend two attorneys for misconduct associated with leaving a law firm.  The referee’s recommendations followed stipulations in which the lawyers and the Florida Bar agreed that the lawyers had violated the rules by failing to give advance notice of their departure to the firm, failing to work with the firm on a joint notification to clients, taking digital copies of confidential data with them, disabling a feature that would’ve allowed the firm to send a mass email to clients, and unilaterally contacting clients after opening their own firm. 

The ABA Journal has coverage here.  The referee’s recommendations are here and here.

I’ve previously blogged on the duties owed by the lawyer and a law firm when the lawyer departs the firm.  The first was Leaving a Law Firm: Breaking Up is Hard to Do (October 2019).  The second was Leaving a Law Firm: Update (December 2019). The update came on the heels of the release of ABA Formal Advisory Opinion 489: Obligations Related to Notice When Lawyers Change Firms.

I post today for two reasons. 

1. To share observations that are a product of having received several inquiries on this exact topic, as well as having screened at least one disciplinary complaint that followed a breakup that cannot be described as amicable.[1]
2. To wonder aloud whether Vermont should adopt a rule like Florida’s.

As I indicated, as bar counsel, I’ve been involved in several situations in which a lawyer departs a law firm. In a few, I’ve attempted to resolve/mediate disagreements between the firm and the departing lawyer(s). I understand that it’s a situation in which emotions can run high. Still, I’m always surprised that (1) the departing lawyer(s) often believe it’s okay to contact clients before informing the firm of their departure; and (2) the firm often believes it’s okay to ban the departing lawyer(s) from notifying clients of their departure.

I don’t believe that either is correct.  As the ABA opinion indicates,

• Lawyers have the right to leave a firm;
• Firms have the right to require advance notice of departure;
• Clients have the right to choose their own counsel; and,
• “Lawyers and law firm management have ethical obligations to assure the orderly transition of client matters when lawyers notify a firm they intend to move to a new firm.”

This is why I support the ABA’s guidance that lawyers and firms should work on crafting a joint letter to the departing lawyer’s clients.

To lawyers who want to notify clients before (or without) informing the firm, answer me this: why?

In my experience, the answer is most often “I want the clients to come with me.”  Trust me, I understand the answer.  Really, I get it.

But it’s not the answer that is problematic.  It’s the thought process. It’s not too different than the child/spouse who decides to do something without telling their parents/spouse. And, usually, that’s a decision born of a realization that “I don’t think that telling them will work out too well for me.” 

I’d argue that such a thought process is not consistent with “professional responsibility.”

To lawyers who learn that a lawyer is leaving and want to ban the lawyer from contacting clients, answer me this: why?

In my experience, the answer is most often “I want the clients to stay here.”  Trust me, I understand the answer. Really, I get it.

But it’s not the answer that is problematic.  It’s the thought process. It’s not too different from the spouse who asks a friend “please don’t ask my spouse if we’ll go with you.” And, usually, that’s a question born of a realization that the spouse might say “yes, we’d love to.”[4]

I’d argue that such a thought process is not consistent with professional responsibility.

Simply, lawyers and firms don’t get to choose who represents the client. The client gets to choose who represents the client.   

Whatever feelings the departure engenders between departing lawyer and firm, professional responsibility includes putting those feelings aside and complying with the obligation to communicate to the client sufficient information to allow the client to make informed decisions about the representation. 

Work together, make the transition orderly.

How?

A few years ago, the Ohio Board of Professional Conduct issued Formal Opinion 2020-06: Lawyer Departing a Law Firm.  The opinion, which tracks the opinion ABA opinion, provides helpful guidance.  Here’s my summary:

1. When a lawyer with “principal responsibility” for a client matter departs a firm, the lawyer is required to communicate the impending departure. [5]
2. Preferably, notice should come from both the firm and the departing lawyer.
3. The departing lawyer should not notify clients of the impending departure before notifying the firm.
4. Neither the departing lawyer nor the firm should state or imply that the client is the firm’s or the lawyer’s or take any action that interferes with the client’s right to choose counsel (including a new firm altogether).  Client choice remains paramount!
5. Given the prior professional relationship, both the departing lawyer and firm may indicate a willingness to continue to represent the client.
6. If no remaining lawyers can provide competent representation to the client, or if a conflict at the new firm prohibits the client from following the departing lawyer, the firm and lawyer must work to assist the client to find new counsel.

Finally, while I’ve been involved with several, I’ve never felt we needed to adopt a rule that governs departures and dissolutions.  I’ve considered the duties of diligence and communication, along with common professional sense and courtesy, to cover it.

But maybe it’d be easier – for all involved – if we had a rule like Florida’s. I don’t know.  If you’re interested in weighing in, Florida’s rule is below.

As always, let’s be careful out there.

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[1] To be precise, I’m sharing two observations.  They do not exhaust the issues that arise when a lawyer leaves a law firm.  Other issues are addressed in the links I’ve included, and might also be the subject of future posts. For instance, in today’s post, I am NOT addressing a common issue: what can the departing lawyer take with them? On that, I’ll leave it at this: if, as a departing lawyer, you’re secretly making copies or surreptitiously taking material, think about the words “secretly” and “surreptitiously.”

[4] Not to mention, do you think clients aren’t going to ask “hey, what happened to the lawyer who was working on my matter?” I don’t think that “the lawyer who was working on your case ran away and we don’t know where they went” is going to cut it. Although, when I was around 10, we came home from vacation and my pet turtle was gone. I asked my parents if they knew what had happened to it.  I confess: their answer worked until I was well into my 30s and The First Brother finally asked, “you don’t really still believe that your turtle CLIMBED OUT OF ITS TANK THAT WAS IN THE BASEMENT and ran away, do you?” 

[5] This is mainly for departing lawyers. As the Ohio advisory opinion indicates, the notification doesn’t necessarily have to go to every single client of the firm. The ABA Opinion advises notifying clients with whom the departing lawyer had “significant client contact.”  The comment to Florida’s rule suggests that “clients who should be notified of the change in firm composition include current clients for whom the departing lawyer has provided significant legal services with direct client contact.” 

Related Posts

• Leaving a Law Firm: Breaking Up is Hard to Do
• Leaving a Law Firm: Update
• Leaving your law firm? What NOT to do
• Need a refresher on leaving a law firm? A Florida jury awarded $2.3 million to a firm after an associate improperly departed with clients

Resources

• Formal Opinion 2020-06: Lawyer Departing a Law Firm, Ohio Board of Professional Conduct (September 2020)
• Formal Advisory Opinion 489: Obligations Related to Notice When Lawyers Change Firms, American Bar Association Standing Committee on Professional Responsibility and Legal (December 2019)

The Florida Rule

RULES REGULATING THE FLORIDA BAR

Rule 4-5.8 PROCEDURES FOR LAWYERS LEAVING LAW FIRMS AND DISSOLUTION OF LAW FIRMS

(a) Contractual Relationship Between Law Firm and Clients. The contract for legal services creates the legal relationships between the client and law firm and between the client and individual members of the law firm, including the ownership of the files maintained by the lawyer or law firm. Nothing in these rules creates or defines those relationships.

(b) Client’s Right to Counsel of Choice. Clients have the right to expect that they may choose counsel when legal services are required and, with few exceptions, nothing that lawyers and law firms do affects the exercise of that right.

(c) Contact With Clients.

(1) Lawyers Leaving Law Firms. Absent a specific agreement otherwise, a lawyer who is leaving a law firm may not unilaterally contact those clients of the law firm for purposes of notifying them about the anticipated departure or to solicit representation of the clients unless the lawyer has approached an authorized representative of the law firm and attempted to negotiate a joint communication to the clients concerning the lawyer leaving the law firm and bona fide negotiations have been unsuccessful.

(2) Dissolution of Law Firm. Absent a specific agreement otherwise, a lawyer involved in the dissolution of a law firm may not unilaterally contact clients of the law firm unless, after bona fide negotiations, authorized members of the law firm have been unable to agree on a method to provide notice to clients.

(d) Form for Contact With Clients.

(1) Lawyers Leaving Law Firms. When a joint response has not been successfully negotiated, unilateral contact by individual members or the law firm must give notice to clients that the lawyer is leaving the law firm and provide options to the clients to choose to remain a client of the law firm, to choose representation by the departing lawyer, or to choose representation by other lawyers or law firms.

(2) Dissolution of Law Firms. When a law firm is being dissolved and no procedure for contacting clients has been agreed to, unilateral contact by members of the law firm must give notice to clients that the firm is being dissolved and provide options to the clients to choose representation by any member of the dissolving law firm, or representation by other lawyers or law firms.

 (3) Liability for Fees and Costs. In all instances, notice to the client required under this rule must provide information concerning potential liability for fees for legal services previously rendered, costs expended, and how any deposits for fees or costs will be handled. In addition, if appropriate, notice must be given that reasonable charges may be imposed to provide a copy of any file to a successor lawyer.

(e) Nonresponsive Clients.

(1) Lawyers Leaving Law Firms. In the event a client fails to advise the lawyers and law firm of the client’s intention in regard to who is to provide future legal services when a lawyer is leaving the firm, the client remains a client of the firm until the client advises otherwise.

(2) Dissolution of Law Firms. In the event a client fails to advise the lawyers of the client’s intention in regard to who is to provide future legal services when a law firm is dissolving, the client remains a client of the lawyer who primarily provided the prior legal services on behalf of the firm until the client advises otherwise.

Comment

The current rule of law regarding ownership of client files is discussed in Donahue v. Vaughn, 721 So. 2d 356 (Fla. 5th DCA 1998), Dowda & Fields, P.A. v. Cobb, 452 So. 2d 1140 (Fla. 5th DCA 1984), and Woodson v. Durocher, 588 So. 2d 644 (Fla. 5th DCA 1991). A lawyer leaving a law firm should consult with the law firm regarding disposition of client files. Ownership of client files may be the subject of contract law and of the employment, partnership, or shareholder agreement between the lawyer and the law firm.

While clients have the right to choose counsel, that choice may implicate obligations such as a requirement to pay for legal services previously rendered and costs expended in connection with the representation as well as a reasonable fee for copying the client’s file.

Whether individual members have any individual legal obligations to a client is a matter of contract law, tort law, or court rules that is outside the scope of rules governing lawyer conduct. Generally, individual lawyers have these obligations only if provided for in the contract for representation. Nothing in this rule or in the contract for representation may alter the ethical obligations that individual lawyers have to clients as provided elsewhere in these rules.

In most instances a lawyer leaving a law firm and the law firm should engage in bona fide, good faith negotiations and craft a joint communication providing adequate information to the client so that the client may make a fully informed decision concerning future representation.

In those instances in which bona fide negotiations are unsuccessful, unilateral communication may be made by the departing lawyer or the law firm. In those circumstances, great care should be taken to meet the obligation of adequate communication and for this reason the specific requirements of subdivisions (d)(1) and (3) are provided.

Lawyers and firms should engage in bona fide, good faith negotiations within a reasonable period of time following their knowledge of either the anticipated change in firm composition or, if the anticipated change is unknown, within a reasonable period of time after the change in firm composition. The actual notification to clients should also occur within a reasonable period of time. What is reasonable will depend on the circumstances, including the nature of the matters in which the lawyer represented the clients and whether the affected clients have deadlines that need to be met within a short period of time.

For purposes of this rule, clients who should be notified of the change in firm composition include current clients for whom the departing lawyer has provided significant legal services with direct client contact. Clients need not be notified of the departure of a lawyer with whom the client has had no direct contact. Clients whose files are closed need not be notified unless the former client contacts the firm, at which point the firm should notify the former client of the departure of any lawyer who performed significant legal services for that former client and had direct contact with that former client.

Although contact by telephone is not prohibited under this rule, proof of compliance with the requirements of this rule may be difficult unless the notification is in writing.

In order to comply with the requirements of this rule, both departing lawyers and the law firm should be given access to the names and contact information of all clients for whom the departing lawyer has provided significant legal services and with whom the lawyer has had direct contact.

If neither the departing lawyer nor the law firm intends to continue representation of the affected clients, they may either agree on a joint letter providing that information to those clients, or may separately notify the affected clients after bona fide, good faith negotiations have failed. Any obligation to give the client reasonable notice, protect the client’s interests on withdrawal, and seek permission of a court to withdraw may apply to both the departing lawyer and lawyers remaining in the firm.

Most law firms have some written instrument creating the law firm and specifying procedures to be employed upon dissolution of the firm. However, when such an instrument does not exist or does not adequately provide for procedures in the event of dissolution, the provisions of this rule are provided so that dissolution of the law firm does not disproportionately affect client rights.

As in instances of a lawyer departing a law firm, lawyers involved in the dissolution of law firms have a continuing obligation to provide adequate information to a client so that the client may make informed decisions concerning future representation.

The Florida Bar has sample forms for notice to clients and sample partnership and other contracts that are available to members. The forms may be accessed on the bar’s website, http://www.floridabar.org, or by calling The Florida Bar headquarters in Tallahassee.

Lawyers involved in either a change in law firm composition or law firm dissolution may have duties to notify the court if the representation is in litigation. If the remaining law firm will continue the representation of the client, no notification of the change in firm composition to the court may be required, but such a notification may be advisable. If the departing lawyer will take over representation of the client, a motion for substitution of counsel or a motion by the firm to withdraw from the representation may be appropriate. If the departing lawyer and the law firm have made the appropriate request for the client to select either the departing lawyer or the law firm to continue the representation, but the client has not yet responded, the law firm should consider notifying the court of the change in firm composition, although under ordinary circumstances, absent an agreement to the contrary, the firm will continue the representation in the interim. If the departing lawyer and the law firm have agreed regarding who will continue handling the client’s matters then, absent disagreement by the client, the agreement normally will determine whether the departing lawyer or the law firm will continue the representation. Adopted effective January 1, 2006 (916 So.2d 655); amended November 9, 2017, effective February 1, 2018 (234 So. 3d 577); amended January 4, 2019, effective March 5, 2019 (267 So.3d 891); amended March 3, 2022, effective May 2, 2022 (SC20-1467).

In my opinion, it’s the profession’s well-being that should be non-negotiable.

NOTE: Updated April 6 to include ABA Journal link

Hello!

It’s been a while.  For too long, any attempt to draft a new post has resulted in nothing but a blank space.  So that there’s no bad blood, rest assured, it’s not you. Rather, lacking any motivation to blog, I’m the problem, it’s me.  Today, however, a story that’s related to professional responsibility has helped me to shake it off.  By now, readers who know me all too well likely have guessed the story’s topic.

That’s right: wellness.

Over the past few days, a slide from a presentation done for newer associates by an associate at a global law firm has gone viral. Among others, Law.Com, Legal Cheek, and the ABA Journal have coverage.  Here’s the slide:

As the ABA Journal reported, the firm released a statement to Law.Com indicating that “the views expressed do not reflect the views of the firm or its partners.” Nevertheless, here’s another excerpt from the ABA Journal’s post:

“Tom Sharbaugh, a former Morgan, Lewis & Bockius managing partner who’s now a professor of practice at the Pennsylvania State University’s law school, told Law.com that he thinks that messaging similar to the associate’s advice may be prevalent at many elite firms.“

“I think you’re expected to just be always available, regardless of what they say about work-life balance and wellness and all that stuff,” Sharbaugh said. “At the end of the day, you’re married to the firm.”

So far, not exactly a love story.

Reaction to the story, however, served to remind me of the good and important work that so many have done to assist law firms and legal employers to make the workplace healthier.

A few weeks ago I posted We’ve Only Just Begun To Begin.  In brief, the post argues that it’s not enough to provide assistance and resources to legal professionals in need.  In addition, we must also work to reduce the root causes of stress, anxiety, and burnout.  That is, and as Patrick Krill noted in When Our Stress Becomes Dangerous, we must “the more stubborn forces of inertia, maladaptive attitudes, entrenched business models and extrinsic motivations.” With today’s viral slide in mind, perhaps the most entrenched and stubborn of those root causes are unreasonable workloads and unreasonable work expectations.

My wellness presentations also include a slide that contains the numbers 24/7/365.  The slide follows one in which I ask this question:

“What three numbers do not appear in Rules 1.3 or 1.4 of the Vermont Rules of Professional Conduct?”

When I show the “answer” slide, I acknowledge that, yes, there will be situations that arise outside “regular” work hours that require lawyers to provide clients with immediate assistance or attention.  However, I add that the duties of diligence and communication are modified by the word “reasonable.” Further, I remind legal professionals that making time for things other than work and clients is an aspect of wellness, with wellness, in turn, an aspect competence.

More succinctly, here’s a comment that’s in the ABA Well-Being Toolkit for Lawyers and Legal Employers:

“We are happiest and healthiest when we adopt healthy work habits and lifestyle choices. Importantly, though, we won’t be successful on our own. Well-being is a team sport.”

I can sense your thoughts: “Mike, what can I do to encourage my team to adopt healthy work habits and lifestyle choices?” I’m glad you asked! 

In addition to the ABA Well-Being Toolkit, I recommend the condensed version: the ABA Well-Being Toolkit for Lawyers and Legal Employers in a Nutshell: 80 tips for Thriving.  Also, I’m a big fan of the  recommendations made by the Legal Employers Committee in the 2018 State Action Plan issued by the Vermont Commission on the Well-Being of the Legal  Profession.[1]

I don’t expect to learn that a Vermont firm or legal employer has adopted expectations that mirror those in today’s viral slide.  Still, that doesn’t mean there isn’t room for improvement.  Check out the resources.  Find one change that makes sense for you and your colleagues. When it comes to the profession’s health and well-being, every small improvement matters.

And, in my opinion, improving our health and well-being is what should be non-negotiable.

As always, let’s be careful out there.

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[1] In particular, today’s viral slide reminded me of prior posts in which I’ve referenced the Legal Employers Committee’s recommendations and shared on work/life boundaries, billable hours, making wellness an expectation of the attorney-client relationship, and the importance of valuing employees as people.

Previous Wellness & Well-Being Posts

• We’ve only just begun to begin
• Wellness Wednesday: Make Well-Being an Expectation in the Attorney-Client Relationship
• Wellness Wednesday: Pro Bono
• Wellness Wednesday: R.I.P. Ray Massucco
• Wellness Wednesday: Don’t Stresslax
• It’s healthy for legal employers to value employees as people
• Meet David Rocchio: The Move to Movies
• Wrapping up Well-Being Week: my self-report of significant bread-making violations
• The 253^rd legal ethics quiz: Emotional Well-Being & my Kentucky Derby picks
• Connect & Contribute
• I Made Bread
• Align
• Stay Strong
• With 40 Wellness tips, the ABA has at least one for everyone
• R.I.P. Charlie Kryst
• Aiming for Well-Being
• Wellness, Emotional Regulation, and the power of “What’s Important Now?”
• A lesson from my dad, Nandi, and The Foo Fighters: find & experience awe
• Ask the Question
• Wellness Wednesday: Set communication boundaries with clients & opposing counsel
• Yes, wellness includes the results of my first moot court competition
• Wellness Wednesday:  It’s okay to ask for help.  Bar Assistance will listen and support you
• Wellness Wednesday: Set communication boundaries with clients and opposing counsel
• Wellness Wednesday: Compassion Fatigue
• Wellness Wednesday: A message from Justice Eaton
• Jessica Burke: “Well People Do”
• Wellness Wednesday: Schitt$ Creek and Paddles
• Wellness Wednesday: Be Kind to Lawyers
• Civility Matters. Especially Now.
• Coping with COVID-19 Related Stress & Anxiety
• Wellness Wednesday: Unplug
• Well-Being is an Aspect of Competence
• Wellness Wednesday: Survival Skills
• Wellness Wednesday: Make time for what (and who) matters
• Wellness Wednesday: Risk & Response 
• Do summer your way
• Wellness Wednesday: Meet Alison, Shireen, Samantha, and Alison
• Reach Out, Check In
• Wellness Wednesday: Mentor Someone
• Wellness Wednesday: Joan Loring Wing
• Wellness Wednesday: Law Day & Pro Bono
• Get your sleep
• Take a Chance on Being Nice
• Attorney Wellness: We’ve Only Just Begun
• Be Kind to a Lawyer Today
• Be Nice to Someone Today
• Wellness v. Well-Being
• Wellness Wednesday: Meet Molly Gray
• Wellness Wednesday: Judge Garland & My Cousin Vinny
• Shakespeare, Pink Floyd and Wellness
• Wellness Wednesday: You are not an impostor
• Wellness Wednesday: “N O” is “O K”
• Wellness Wednesday: Stop it!
• Wellness Wednesday: Meet Jeff Messina
• Lawyers Helping Lawyers Part 2
• Lawyers Helping Lawyers: Keep it on the front burner
• Lawyer Well-Being: a call to action
• Anxiety, Stress & Work-Life Balance for Lawyers
• Make time for what matters
• Lawyer Wellness: resolve to find 6 minutes for yourself
• 108 is way too many
• Workplace Happiness
• Make Wellness a Habit
• A pledge by legal employers to focus on lawyer well-being
• Legal Ethics & the Water Cooler
• Wellness Wednesday: Island Vines
• Wellness Wednesday: on ponds, puffery and paltering
• Wellness Wednesday: Neil Diamond, the Lock Screen, and National Mental Health Day for Law Students

Need a continuance? Don’t assume it’ll be granted.

I’ll cut to the chase.  The goal of this post is to remind lawyers not to assume that a continuance will be granted. In a few paragraphs, I’ll share a cautionary tale that drives home the point. But first, a bit on what got me thinking about the general topic.

I’ve been contemplating a post on the relationship between Rule 3.2 and Comment 5 to Rule 1.2.

The former requires a lawyer to expedite litigation consistent with the interests of the client.  The comment makes clear that delay for delay’s sake is unethical. 

• “Nor will a failure to expedite be reasonable if done for the purpose of frustrating an opposing party’s attempt to obtain rightful redress or repose. It is not a justification that similar conduct is often tolerated by the bench and bar. The question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay. Realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client.”

Meanwhile, Comment [5] to Rule 1.2 addresses a lawyer’s professional responsibility upon receiving a good faith request for a continuance.  The comment went into effect on November 14 and is part of the rule that answers the question “Who decides? The client or the lawyer?”  It reads:

• “[5] It is not inconsistent with the lawyer’s duty to seek the lawful objectives of a client through reasonably available means for the lawyer to accede to reasonable requests of opposing counsel that do not prejudice the rights of the client, to avoid the use of offensive or dilatory tactics, or to treat opposing counsel or an opposing party with civility.”

In a way, each is intertwined with Rule 1.3’s duty to act with reasonable promptness and diligence when representing a client.

Looking for cases or opinions that discuss either rule, I came across the ABA Journal’s post Lawyer who missed deadline to watch son’s professional debut gets no sympathy on appeal. The story reminded me of (what I think is) a common assumption: that a continuance will be granted. Here’s what happened.

Lawyer filed a civil suit on behalf of Plaintiff.  Defendants moved to dismiss. The United States District Court for the Central District of California set a hearing on the motion for June 24, 2021.

On June 9, 2021, Lawyer filed a motion to continue the hearing. Lawyer cited his workload as well as the fact that his associate would be out of the office for several weeks for a family emergency. The court granted the request. As such, the deadline for Lawyer to file a response to Defendants’ motion to dismiss was pushed to September 3, 2021, and a hearing on the motion was scheduled for September 24, 2021.

On September 3, the date that his response was due, Lawyer filed another request for a continuance.  This time, Lawyer asserted that he could not file a timely response because he was in Illinois to watch his son’s debut as a professional baseball player.  Lawyer asked that the hearing on Defendants’ motion be pushed to October 8.  The court denied Lawyer’s motion.

On September 18, Lawyer filed a response to the motion to dismiss. It seems that Lawyer expected to appear at a hearing on the motion to dismiss on September 24.

The hearing never took place.  Rather, on September 20, the court granted Defendants’ motion to dismiss as unopposed. In so doing, the court concluded that Lawyer’s responsive motion was filed out of time.  Plaintiff’s suit was dismissed, and the hearing scheduled for September 24 cancelled.  The court’s order is here.

Lawyer appealed.  Last week, the 9^th Circuit Court of Appeals affirmed the district court’s decision.  Among other things, the 9^th Circuit stated that Lawyer’s

• “. . . excuse for not meeting a deadline that had already been extended 90 days at his request was frivolous: Counsel chose to attend a ballgame instead of timely filing his client’s response to the motion to dismiss.”

The ABA Journal quoted Lawyer as stating:

• “Look, I’ve been doing this for 38 years. Most judges would give you a pass to see your kid’s first professional baseball game.”

In addition to the ABA Journal, How Appealing reported the story here and updated it here.

I do not know what Lawyer’s mindset was. Nor am I suggesting that he assumed a continuance would be granted.

Rather, as I indicated above, the story reminds me of what I perceive to be a common feeling in the Vermont bar: that continuances will be granted. This story shows that’s not always the case.

Today’s lessons:

• Lawyers shouldn’t assume they’ll receive continuances.
• Comment [5] to Rule 1.2 vests a lawyer with the authority to agree to good faith requests from opposing counsel that do not harm the lawyer’s client’s interests.
• Rule 3.2 makes clear that delay for delay’s sake is unethical.

As always, let’s be careful out there.

Wisconsin Advisory Opinion Offers Cybersecurity Tips on Working Remotely

In late January, the Wisconsin Bar issued Formal Ethics Opinion EF-21-02: Working Remotely.  The opinion makes three important points and shares helpful and practical guidance on cybersecurity practices, training & supervision, and preparing clients.

First, the important points.

I’m a fan of the opening line of the synopsis:

• “The basic responsibilities that a lawyer owes the client – competence, diligence, communication, and confidentiality – lie at the core of lawyer’s professional obligations and remain unchanged irrespective of the lawyer’s physical location.”

That’s critical: the pandemic hasn’t lessened or diminished our professional obligations.  Our responsibilities remain the same as in 2019 when we were working in our offices.  Further, our basic obligations to clients will not change once the pandemic ends. As the opinion points out, “it is expected that lawyers, like other professionals, will continue to work remotely in some form after the pandemic.” So, the guidance, while issued in response to the pandemic, will prove valuable in an increasingly remote post-pandemic workplace.

Next, the opinion reiterates what I’ve been blogging for years: competence includes tech competence.  Pages 2 and 3 include language that I’m certain will worry lawyers.  The language, however, is important to take to heart.

• “Basic technological competence includes, at a minimum, knowledge of the types of devices available for communication, software options for communication, preparation, transmission and storage of documents and other information, and the means to keep the devices and the information they transmit and store secure and private.”

As the opinion notes, large firms likely will employ IT professionals for these issues.  Small firms and solos are reminded that they “may need to retain the services of an expert if they lack the knowledge to personally manage the technological aspects of practice.”

Finally, the conclusion ties together the first two points in an important reminder:

• “The COVID-19 pandemic has dramatically changed how lawyers work and represent their clients. Some of these changes may be temporary but others are likely part of a movement towards increased reliance on technology in the practice of law. As working remotely has become the new normal, lawyers must develop new skills and knowledge to comply with their core responsibilities.”

Indeed.

I’ll finish by cutting and pasting the guidance and practical tips that begin on page 10 of the Wisconsin opinion.  I’ve reformatted & renumbered the footnotes to endnotes.

***

General Guidance

 It is impossible to provide specific requirements for working remotely because lawyers’ ethical duties are continually evolving as technology changes. It is possible, however, to provide some guidance. Cybersecurity Practices Because working remotely relies on technology, competence in technology and cybersecurity practices are essential. The following cybersecurity practices have been recommended by a number of ethics opinions[i] and other resources. None of these practices are new: they are reasonable precautions that have helped lawyers fulfill their ethical obligations, especially the duty of confidentiality, when working in the office and when working remotely, whether at home during evenings and weekends, or during travel for work or vacation.

• Require strong passwords to protect data and to access devices. The more complex the password, the less likely that an unauthorized user will be able to access data or devices by using password cracking techniques or software.
• Use two-factor or multi-factor authentication to access firm information and firm networks. Although requiring an additional authentication step, such as a six-digit code sent to the lawyer’s phone or email, may seem inconvenient or burdensome, it is a reasonable precaution that increases protection and reduces the likelihood of unauthorized access by providing an additional layer of security beyond a strong password.
• Avoid using unsecured or public WiFi when accessing or transmitting client information. Hackers can access unencrypted information on unsecured WiFi and can use unsecured WiFi to distribute malware.
• Use a virtual private network (VPN) when accessing or transmitting client information. A VPN encrypts information and allows users to create a secure connection to another network.
• Use firewalls and secure router settings. A firewall monitors and controls incoming and outgoing network traffic based on predetermined security rules: it establishes a barrier between a trusted network and an untrusted network. A router connects multiple devices to the Internet, and connects the devices to each other.
• Use and keep current anti-virus and anti-malware software. Anti-virus and anti-malware both refer to software designed to detect, protect against, and remove malicious software.
• Keep all software current: install updates immediately. Updates help patch security flaws or software vulnerabilities, which are security holes or weaknesses found in a software program or operating system.
• Supply or require employees to use secure and encrypted laptops. All lawyers and staff should use only firm issued devices with security protections and backup systems and prohibit storage of firm or client information on unauthorized devices. All devices used by the lawyer, such as desktop computers, laptops, tablets, portable drives, phones, and scanning and copy machines, should be protected.
• Do not use USB drives or other external devices unless they are owned by the firm or they are provided by a trusted source.
• Specify how and where data created remotely will be stored and how it will be backed up.
• Save data permanently only on the office network, not personal devices. If saved on personal devices, taking reasonable precautions to protect such information.
• Use reputable vendors for cloud services. Transmission and storage of firm and client information through a cloud service is appropriate provided the lawyer has made sufficient inquiry that the service is competent and reputable.[ii]
• Encrypt emails or use other security to protect sensitive information from unauthorized disclosure. A lawyer should balance the interests in determining when encryption is appropriate.
• Encrypt electronic records, including backups containing sensitive information such a personally identifiable information.
• Do not open suspicious attachments or click unusual links in messages, email, tweets, posts, online ads.
• Use websites have enhanced security whenever possible. Such websites begin with “HTTPS” in their address rather than “HTTP,” and encrypt the communication.
• Provide adequate security for video meetings or conferences. The FBI has recommended the following steps: use the up-to-date version of the application; do not make the meetings public; require a meeting password; do not share the link to the video meeting on an unrestricted publicly available social media post; provide the meeting link directly to the invited guests; and manage the screen-sharing options.[iii] In selecting a videoconferencing platform, the lawyer should make sure it is sufficiently secure both in its structure and its contractual terms of use, especially any terms on access to user information.[iv]
• Do not have work-related conversations in the presence of smart devices such as voice assistants. These devices may listen to and record conversations.[v]

Training and Supervision

To comply with the duties required by SCR 20:5.1 and 5.3, partners, managers and supervisory lawyers should consider whether the firm’s policies and procedures are adequate to address the specific challenges that may arise when lawyers and nonlawyer assistants are working remotely.

• Establish and implement policies and procedures for cybersecurity practices. These policies and procedures should be in writing and provided to all lawyers and nonlawyer assistants, and stress compliance.
• Establish and implement policies and procedures for the training and supervision of lawyers and nonlawyer assistants in the firm’s cybersecurity practices. Training is the most basic step in avoiding a cyberattack at a law firm. In other words, it is extremely important to develop a culture of awareness. The most serious vulnerabilities of a cybersecurity system are not the hardware or software, but rather the people who use it. It is estimated that 90% of cybersecurity breaches are due to human error.[vi]
• Establish and implement policies and procedures regarding remote workspaces to mitigate the risk of inadvertent or unauthorized disclosures of information relating to the representation of clients. Remote workspaces should be private to ensure that others do not have access to phone conversations, video conferences, or case-related materials.
• Hold sufficiently frequent remote meetings between supervising attorneys and supervised attorneys, and between supervising attorneys and supervised nonlawyer assistants to achieve effective supervision.

Preparing Clients

Representing a client remotely may present challenges to competent representation.[vii] Consequently, a lawyer should carefully consider whether the lawyer can adequately prepare the client to testify or for interviews while working remotely.

• The lawyer and the client should have sufficient ability with the technology.
• The lawyer and the client should have access to relevant documents.
• The lawyer and the client have adequate time and attention to ensure the client’s comfort with the communicating by the medium that will be used.

[i] See, e.g., Wisconsin Formal Ethics Opinion EF-15-01: Ethical Obligations of Attorneys Using Cloud Computing (Amended September 8, 2017).

[ii] Wisconsin Formal Ethics Opinion EF-15-01.

[iii] https://www.fbi.gov/contact-us/field-offices/boston/news/press-releases/fbi-warns-ofteleconferencing-and-online-classroom-hijacking-during-covid-19-pandemic

[iv] Lawyers must understand that if video conferences are recorded the vendor may retain a copy under the terms of service. See INSIGHT: Zooming and Attorney Client Privilege, https://www.bloomberglaw.com/exp/eyJjdHh0IjoiQ1ZOVyIsImlkIjoiMDAwMDAxNzEtZWExYy1kMDAwLWE5N2YtZ WE3ZTkwYWMwMDAxIiwic2lnIjoidVliaWhQR3J3ZmpWcDBKeE5KY1JYV1c0RlcwPSIsInRpbWUiOiIxNTkwMjQwMzM 1IiwidXVpZCI6IndNWHUzdVFGajBEWGxkZFBKcTNSVVE9PU1ZZmVtSkhLU0hBMWtPNG8rTE50eGc9PSIsInYiOiIxIn0= ?usertype=External&bwid=00000171-ea1c-d000-a97fea7e90ac0001&qid=6912181&cti=LSCH&uc=1320042032&et=SINGLE_ARTICLE&emc=bcvnw_cn%3A7&bna_news_ filter=true

[v] For example, Google and Amazon maintain those recordings on servers and hire people to review the recordings. Although the identities of the speakers are not disclosed to these reviewers, they might hear sufficient details to be able to connect a voice to a specific person. https://www.vox.com/recode/2020/2/21/21032140/alexa-amazongoogle-home-siri-applemicrosoft-cortana-recording .

[vi] https://www.techradar.com/news/90-percent-of-data-breaches-are-caused-by-humanerror#:~:text=A%20new%20report%20from%20Kaspersky,carried%20out%20by%20cloud%20providers .

[vii] The New York County Lawyers Association Formal Opinion 754-2020 at 3.

Ethics: it’s all about the bad grades

A few weeks ago I posted C in ethics? You’re on the right track.  In it, I offered two cheat codes to stay on the right side of the rules.

The first was my own: don’t lie, cheat or steal.  Nearly every violation falls under one.

The second was Brian Faughnan’s recipe for ethical lawyering.  The recipe?  The 5 C’s:

• Competence
• Confidentiality
• Communication
• Candor
• Conflicts

Today I present a third: it’s all about the bad grades.

Alberto Bernabe is a professor at John Marshall Law School in Chicago.  Professor Bernabe teaches torts and professional responsibility.  He maintains a blog for each topic.  His torts blog is here, and his professional responsibility blog is here.  Professor Bernabe is also a frequent member of this blog’s #fiveforfriday Honor Roll in legal ethics.

In response to my post on the 5 C’s, Professor Bernabe shared a story with me.  He urges his students to remember the general principles behind the rules.  He does so by suggesting that they associate those principles with the grades that they do not want to earn in a semester:  4 C’s, 1 D, and 1 F.  That is:

• Competence
• Confidentiality
• Communication
• Conflicts
• Diligence
• Fiduciary

Professor Bernabe’s full blog post on bad grades is here.

I love the semi-mnemonic.  Diligence and the fiduciary duty to clients are as important as the 5 C’s.

Thank you Professor Bernabe for another arrow in the quiver.

• Don’t lie, cheat or steal
• Remember the 5 C’s
• Ethics: it’s all about the bad grades