When a client insists that a lawyer advance frivolous claims.

Last year, I ran the “Professional Responsibility Madness” challenge.  Modeled on the “March Madness” brackets associated with the NCAA basketball tournament, I seeded 64 concepts associated with professional responsibility & legal ethics into the bracket.  Round-by-round, lawyers voted.  The concepts (and their category) that advanced to the Final Four were:

  • Candor to the Tribunal (Duties to Others)
  • Former Client Conflicts: Substantially Related? (Conflicts & Confidences)
  • Who Decides? Lawyer or Client? (Duties to Clients)
  • Did you say “Utes?” (My Cousin Vinny)

I was surprised by the interest in “Who Decides? Lawyers or Client?”  Until then, it was an issue rarely raised in ethics inquiries.

Flash forward to 2021.

In the past month, two different lawyers have made inquiries that boiled down to the same question: “what do I when the client insists on presenting a claim that I think is frivolous?”

In short, my position is that the lawyer decides which facts and arguments will be advanced, and that the lawyer, not the client, decides which facts and arguments are frivolous.  Then, if the client insists that the lawyer present frivolous claims, the lawyer must move to withdraw. In responding to each inquiry, I cautioned the lawyers that there is a difference between a frivolous claim and one that has little chance of prevailing.[i]

My position derives from the following rules:

  • Rule 1.2(a), which leaves the objectives of the representation to the client and how those objectives are pursued to the lawyer’s discretion, in consultation with the client;
  • Rule 1.4(a)(5), which requires a lawyer to “consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law;”
  • Rule 3.1, which prohibits a lawyer from bringing a claim or asserting a position “unless there is a basis in law or fact for doing so that is not frivolous;”
  • various provisions of Rule 1.16, most notably Rule 1.16(a)(1), which requires a lawyer to withdraw when continued representation will result in a violation of the rules; and,
  • the general duties of fairness to the opposing party and candor to the court.

Doing some follow-up research, I came across Ethics Opinion 1214 from the New York State Bar Association. Issued January 11, 2021, the opinion answers a question from a lawyer assigned to represent a person who had filed a pro se petition to vacate a judgment of foreclosure.  Upon reviewing the filing, the lawyer concluded that the person lacked a non-frivolous basis in law or fact to vacate the judgement.  The opinion concludes as follows:

  1. The lawyer may not argue or advance frivolous arguments.
  2. If the person insists, the lawyer may move to withdraw pursuant to:
    1. New York’s Rule 1.16(c)(4). The rule permits withdrawal when a “client insists on taking action with which a lawyer has a fundamental disagreement;”[ii] or,
    2. any other rule mandating or permitting withdrawal.
  3. In moving to withdraw, the lawyer must not disclose confidential information.[iii]
  4. If a motion to withdraw is denied, the lawyer must continue to represent the client, but without presenting frivolous claims.

Here’s the key language on the final point.  Even when withdrawal is not allowed, the lawyer:

  • “may still not engage in ‘frivolous conduct’ at the direction or behest of the homeowner. A client has no right to instruct a lawyer to violate a Rules of Professional Conduct, and a lawyer has no right to follow an instruction that the lawyer violate a Rule. Thus, the inquirer must find a means to competently represent the homeowner without putting forth frivolous arguments.”

As always, be careful out there.

[i] I suppose this might be referred to as the “Dumb & Dumber Corollary.”

Dumb and Dumber

[ii] Vermont’s Rule 1.16(b)(4) includes the same language.

[iii] For more on this issue, see my post Stop Making Noise. It discusses the peril of “noisy withdrawal.”

Lawyer’s incivility factors in substantially reduced fee award.

It’s rare that I post twice in the same day.

Earlier today, I posted a blog with “quick tips” to reduce stress. In it, I mentioned what I’ve mentioned often over the past few months: in my opinion, incivility by lawyers contributes to stress and negatively impacts lawyer well-being.

If not being a jerk for its own sake isn’t enough, here, perhaps, is motivation to be more civil: a California appellate court recently affirmed a trial court’s decision to use a lawyer’s incivility as part of the basis to award a lower fee than the lawyer had requested.

The opinion is here.  Thank you to Geoffrey Bok for sending it me.  Geoff is admitted in Vermont and Massachusetts, is the former chair of the Massachusetts Board of Bar Examiners, and is an excellent resource on matters related to legal ethics and professional responsibility.

Per the opinion, a lawyer hired a contractor to work on the lawyer’s home. After paying the contractor more than $92,651, the lawyer instructed the contractor to stop.  The lawyer was not satisfied with the work and claimed that the contractor owed him $35,096.  The contractor agreed that he owed the lawyer a refund, but only $13,000.  The lawyer sued.

The lawyer prevailed.  Under California law, the lawyer was entitled to judgment in the entire amount he had paid to the contractor – $92, 651 – even though he’d received the benefit of work that not a single witness had “impugned.”  The trial court also awarded the lawyer just over $30,000 in other damages and costs.  By law, the lawyer was entitled to attorney’s fees.

If you don’t believe the next line, please refer to pages 5 and 6 of the opinion.  The lawyer requested “$271,530 in attorney fees, $52,021 in discovery sanctions, and $203,646 for proving matters at trial that had been denied in discovery.” The trial court determined that the lawyer had not provided sufficient evidence to assess whether the fee request was reasonable and gave the lawyer additional time to make the argument.  The trial court instructed the lawyer to limit additional argument to 10 pages of text, plus any exhibits.

The lawyer submitted additional evidence – 11 pages of text, over 400 pages of exhibits – and requested an additional $16,000 in fees.

In the end, the trial court awarded $90,000 in fees.  Among the factors that the court cited in declining to award the full amount requested was the lawyer’s incivility and over-litigation of the matter.

The appellate court affirmed the trial court’s decision that the lawyer was not entitled to the full amount requested.  In so doing, the appellate court commented on the lawyer’s incivility.  The comments begin on page 15.  Here are excerpts, with citations omitted:

Fifth, the court correctly noted the incivility in (the lawyer’s) briefing. Attorney skill is a traditional touchstone for deciding whether to adjust a lodestar. Civility is an aspect of skill.

Excellent lawyers deserve higher fees, and excellent lawyers are civil. Sound logic and bitter experience support these points.

Civility is an ethical component of professionalism. Civility is desirable in litigation, not only because it is ethically required for its own sake, but also because it is socially advantageous: it lowers the costs of dispute resolution. The American legal profession exists to help people resolve disputes cheaply, swiftly, fairly, and justly. Incivility between counsel is sand in the gears.

Incivility can rankle relations and thereby increase the friction, extent, and cost of litigation. Calling opposing counsel a liar, for instance, can invite destructive reciprocity and generate needless controversies. Seasoning a disagreement with avoidable irritants can turn a minor conflict into a costly and protracted war. All those human hours, which could have been put to socially productive uses, instead are devoted to the unnecessary war and are lost forever. All sides lose, as does the justice system, which must supervise the hostilities.

By contrast, civility in litigation tends to be efficient by allowing disputants to focus on core disagreements and to minimize tangential distractions. It is a salutary incentive for counsel in fee-shifting cases to know their own low blows may return to hit them in the pocketbook.”

Here, here.

Don't Be a Jerk

Duties associated with the inadvertent receipt and production of information.

When talking professional responsibility, we sometimes focus so intently on the Rules of Professional Conduct that we overlook duties that arise under other law.  Prone to such laser-like focus is the discussion of the professional duties associated with the inadvertent production and receipt of privileged information.

Oops

I’ve previously mentioned Presnell on Privileges.  It’s a fantastic resource to stay up to date on all matters related to the attorney-client privilege.  Last week, a loyal reader forwarded me a post from the blog: EEOC Lawyer Reads GW’s Privileged Emails – Violates FRCP 26(b)(5)(B). What about Ethics Rules and Sanctions?

Let the discussion begin.

With respect to legal ethics, V.R.Pr.C. 4.4(b) governs.

“A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.”

Three observations:

  • I’d caution against debating with yourself as to whether you received a “document.”  That strikes me as too fine a distinction when dealing with information that you know or should know was not meant for you. Indeed, Comment [2] indicates that “ ‘document’ includes email or other electronic modes of transmission subject to being read or put into readable form.”
  • Nothing in the rule suggests that the duty to notify the sender turns on the recipient’s assessment of whether the document is privileged. Rather, “receipt” triggers the duty to notify.
  • The rule applies no matter the sender.  That is, it’s not limited to “opposing counsel.”

As I’ve often mentioned, notification is the only duty that arises under Vermont’s rule.  Per Comment [2] “whether the lawyer is required to take additional steps, such as returning the original document, is a matter of law beyond the scope of these rules, as is the question of whether the privileged status of a document has been waived.”  Comment [3] goes on to indicate that even when not required by law to do so, the decision to return or destroy the document unread is a matter of professional judgment left to the lawyer.

But that doesn’t end the discussion.  There are duties that spring from other law, most notably the rules of civil procedure.

The link at the beginning of this post refers to the duties that arise under the federal rules in response to an assertion that a privileged document was inadvertently produced.  There’s also Rule 26(b)(6)(B) of the Vermont Rules of Civil Procedure. Under the rule, a party who is notified that privileged information was produced “must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved.”

Is a violation of the civil rule an ethics violation?

Maybe.

V.R.Pr.C. 3.4(c) makes it a violation to “knowingly disobey an obligation under the rules of a tribunal.”  Further, when discussing privileged information, V.R.Pr.C. 4.4(b) prohibits “methods of obtaining evidence that violate the legal rights of [a] person.”  The Comment adds that while “it is impractical to catalogue all such rights . . . they include . . . unwarranted intrusions into privileged relationships, such as the client-lawyer relationship.” Finally, even if not an ethics violation, I’ve heard that discovery sanctions aren’t fun.

In conclusion, when discussing inadvertent production, don’t limit the discussion to the Rules of Professional Conduct.

Don’t Be This Guy.

Two topics I’ve covered before are civility & puffery.  As to the former, my thoughts are best summed up by my post Don’t Be A Jerk.  As to the latter, well, puffery in negotiations isn’t necessarily unethical.  Assuming, of course, that the conduct at issue can legitimately be described as “puffery in negotiations.”  More on that in a moment.

Over the past 21 years, I’ve seen some incredibly bad behavior by lawyers.  I’ve never seen anything like the story I’m about to recount, a story covered by Above The Law and Professor Bernabe’s Professional Responsibility Blog.  I’m not the only one. Indeed, the story is one of  behavior so bad as to cause opposing counsel to file a request for relief that ended with:

  • “In a collective 75 years of legal practice, [defense] counsel have never seen
    behavior that even comes close to that of [plaintiffs’ counsel] here. It is unlikely that the Court has either.”

I can hear you now: “Mike, tell us more! What was this behavior?”

Here’s what I’m willing to share.

Water damaged a house.  A contractor hired by the homeowners’ insurance company estimated the damage at $150,000, which is the amount that the insurance company paid on the claim.  The homeowners sued, contending that they incurred $350,000 in covered damages.

Negotiations (and discovery) weren’t pleasant. So unpleasant that, last month, the insurance company’s lawyers asked a federal court to dismiss the complaint or, in the alternative, to disqualify plaintiffs’ attorney.  They also requested a restraining order against plaintiffs’ attorney and a protective order preventing plaintiffs’ attorney from deposing defense witnesses. A memorandum in support of the request opened with:

  • “Plaintiffs’ attorney . . . has embarked on a campaign of abusive and intolerable conduct that began with profanity-laced emails, escalated to discriminatory slurs, and culminated in repeated threats of physical violence against Allstate’s witnesses, Allstate’s attorneys, and their families.”

This is where my job as tour guide ends.  To continue the journey, the insurance lawyers’ memorandum in support of the request is here and a declaration from one of the lawyers is here.  I suspect the odds that you’ve seen conduct as egregious are greater than the odds that I will win next year’s Boston Marathon.

The Above The Law post includes an excerpt of plaintiffs’ attorney’s response:

 

Umm, that’s not the kind of puffery I blogged about.  Also, the attorney’s apology and promise not to do it again make me think of Costanza: was that wrong?  Perhaps the lawyer will soon join those who learned the hard way that the answer is “yes.”

For now, and per an update on Above The Law, the court ordered the plaintiffs’ attorney to appear and show cause why the insurance company’s requests for relief should not be granted.  The hearing is set for December 16.

Stay tuned.

costanza

 

 

 

 

In litigation, be wary of the gift horse.

A few weeks ago, the Los Angeles County Bar Association’s Professional Responsibility and Ethics Committee issued Opinion 531.  The opinion addresses this question:

  • “In Litigation, What Are A Lawyer’s Ethical Obligations When Offered Evidence Retained By A Former Employee Of The Opposing Party Who Reveals That Relevant Documents Have Been Concealed From Production?”

The ABA Journal and Bloomberg Law reported on the opinion.

Here’s the scenario:

  • Lawyer represents Company in civil claim against Business.
  • Company contends that Business stole trade secrets from Company.
  • Former Employee of Business contacts Company.
  • Former Employee says that Business has withheld important documents and data from production.
  • Former Employee says that documents & data will establish that Business possesses and has used Company’s trade secrets.
  • Former Employee claims to possess electronic copies of the documents & data.
  • Company asks Lawyer to meet with Former Employee and take possession of the electronic copies.

And here’s an outline of the LA Bar Committee’s analysis:

  1. Lawyer must determine whether Former Employee lawfully possesses the data.  If not, and if Lawyer takes possession of it, Lawyer might be required to turn the data over to the appropriate authorities as evidence of a crime.
  2. Lawyer must determine whether the data constitutes information that Lawyer knows or should know is privileged or work product.  If so, Lawyer may not take possession of the data and must notify Business or its attorney.
  3. If Former Employee is not represented, Lawyer may communicate with Former Employee but must comply with the rule on dealing with unrepresented persons.
  4. Lawyer must consult with Company as to the means by which Lawyer will pursue Company’s objectives, including any limitations that the Rules of Professional Conduct place on Lawyer’s conduct.
  5. Lawyer may not advise or assist Company to violate the law or to gain unauthorized access to information that is privileged or work product, but may advise Company as to the consequences of Company’s proposal that Lawyer (and Company) take possession of the data.

Obviously, the opinion is based upon California legal authority, including various opinions from California courts & the state’s version of the Rules of Professional Conduct.  I’ve never dealt with this in Vermont and have not yet fully thought through my response if it were to happen here.

That being said, in my opinion, critical to the analysis is the fact that the data was not inadvertently produced.  As such, on its face, V.R.Pr.C. 4.4(b) does not apply.  Indeed, Comment [2] to Vermont’s rule states:

  • “Whether the lawyer is required to take additional steps, such as returning the original document, is a matter of law beyond the scope of these rules, as is the question of whether the privileged status of a document has been waived. Similarly, this rule does not address the legal duties of a lawyer who receives a document that the lawyer knows or reasonably should know may have been wrongfully obtained by the sending person.”

Rather, to me, the California opinion addresses what is often referred to as “purloined information.”  It’s not a simple issue.  Indeed, the annotation to ABA Model Rule 4.4(b) includes two pages of cites to decisions, advisory opinions, and law review articles that address a lawyer’s duties upon the “fortuitous receipt” of information that may or may not be privileged and may or may not have been improperly obtained.

Earlier this year, The Colorado Lawyer published Handling Electronic Documents Purloined by a Client. I recommend the article and suspect it might ring familiar to family law practitioners.  It “considers ethical issues raised when a client in pending litigation forwards her lawyer electronic documents that the client obtained without permission from the opposing party’s computer.”

Anyhow, I’m blathering.  I’m not convinced that there’s an absolute prohibition on possessing and attempting to use nonprivileged information fortuitously received.  Nevertheless, there are likely some gift horses worth looking in the mouth.  If the issue arises here, contact me for a confidential discussion of a lawyer’s duties under Vermont law, including both the Rules of Professional Conduct and the Rules of Civil Procedure.

Finally, I’m only in Season 2, but something tells me that Jessica Pearson and Harvey Specter wouldn’t need an advisory opinion to proceed.

Image result for jessica pearson and harvey specter

 

 

Court Martials, Web Bugs, and Tech Competence

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

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

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

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

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

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

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

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

A few thoughts.

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

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

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

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

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

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

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

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

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

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

Bugs

 

 

 

Talking culture, compliance, confidences & candor.

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

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

Legal Ethics

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

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

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

The entire string is here.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Talk on.

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

 

Candor in an Ex Parte Proceeding

I’ve not once had this arise in 20 years of reviewing disciplinary complaints.  Maybe, however, it’s because you can’t complain about something you don’t know.

Here’s the issue: a lawyer’s duty of candor in an ex parte proceeding.

Like apps, there’s a rule for that.  It’s Rule 3.3(d).

Generally, it’s not a lawyer’s job to make the other side’s case.  Yes, rule 3.3(a)(2) prohibits a lawyer from knowingly failing “to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.”  However, in most adversary proceedings, the rules do not require a lawyer to disclose or introduce facts that help the adversary more than the client.

Rule 3.3(d) makes clear that an “ex parte proceeding” is a bit different.   Here’s the rule:

  • “In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.”

Comment [14] addresses the rule:

  • “Ordinarily an advocate has the limited responsibility of presenting one side of the matter that a tribunal should consider in reaching an informed decision; the conflicting position is expected to be presented by the opposing party.  However, in any ex parte proceeding, such as an application for a temporary restraining order, there is no balance of presentation by opposing advocates.  The object of an ex parte proceeding is nevertheless to yield a substantially just result. The judge has an affirmative responsibility to afford the absent party just consideration.  The lawyer for the represented party has the correlative duty to make disclosures of material fact known to the lawyer and that the lawyer reasonably believes are necessary to an informed decision.”

In 1999, Vermont replaced the Code of Professional Responsibility with the Rules of Professional Conduct.  At the time, Rule 3.3(d) was brand new. There was no corollary in the old Code.

Now, many of you likely never participate in ex parte proceedings.  If so, that’s fine. I won’t be offended if you stop, or have already stopped, reading. However, this blog tracks exactly how far you read.  And while I won’t be offended, I won’t forget.

Just kidding!  This blog tracks no such thing!!!

Back to my post.

The rules do not define “ex parte proceeding.”  Other than the mention of applications for temporary restraining orders in Comment [14], there’s no guidance as  to when Rule 3.3(d) applies.

Last month, the New York City Bar Association provided guidance in the form of Formal Opinion 2019-01.  New York’s 3.3(d) and Comment [14] track Vermont’s verbatim.  So, while we’re not bound by the NYCBA opinion, it’s helpful.  Here’s the summary.

  • Rule 3.3(d) applies in limited circumstances.
  • It does not apply when a pro se party is absent by choice.
  • It applies to proceedings in which only one side receives an opportunity to present its case.
  • It applies to applications for temporary restraining order when one side has not been provided with notice or an opportunity to appear & be heard on the application.
  • It applies to proceedings in which “interested parties are not permitted to receive notice and participate,” for instance, search warrant applications.

The opinion notes that there are two ways to define an “ex parte proceeding.” Narrowly, only applying to emergency applications for temporary relief.  Or, more broadly, to any matter in which, for whatever reason, one side is absent.  The opinion rejects each extreme and settles on middle ground.  Specifically concluding that:

  • “The rule applies only to proceedings in which, for practical or legal reasons, only one side has an opportunity to present its case.”

Again, I’ve never dealt with this issue in the form of a complaint or an ethics inquiry. However, I’ve practiced under the rule.

I was disciplinary counsel from 2000 – 2012.  In Vermont, upon completing an investigation and concluding that a lawyer violated the rules, disciplinary counsel is not free simply to charge the lawyer with misconduct.  Rather, by rule, before filing a formal petition of misconduct, disciplinary counsel’s charging decision must be reviewed for probable cause by a hearing panel of the Professional Responsibility Board.  Typically, this involves an affidavit summarizing the investigation and a memorandum of law outlining the rule violations.

I filed dozens of probable cause requests. The process is definitely “ex parte.”  That is, the subject lawyer has no right to participate and is not invited to participate.  Thinking back to my days as the prosecutor, I’m not sure I even knew about Rule 3.3(d), even though it clearly applied to me as I filed the pc requests.  Thankfully, my practice was to include a copy of the lawyer’s response to the disciplinary complaint with each pc request that I filed.

Phew!

See the source image

Don’t be an “Empty Head”

When I was a kid, my head was so big that baseball hats and football helmets wouldn’t fit.  So, one of my best friend’s brothers always called me “Mr. Potato Head.”

I didn’t love the name.

See the source image

But maybe it’s better than having a federal court reprimand me for “errors made with an empty head.”

As reported by Bloomberg’s Big Law Business, the Court of Appeals for the 7th Circuit recently did exactly that to an Illinois lawyer. The order is here.

The lawyer’s troubles began when the appendix to a brief she filed included material that should have been redacted.  Opposing counsel notified the court.  The court ordered the lawyer to file a redacted appendix.

She did.  Along with a brief that included “substantial changes . . . altering both propositions of fact and law.”

Opposing counsel asked for an extension of time to reply to the new propositions.  The court granted the extension, but ordered the lawyer to “file a new brief, identical to the original, making only the changes required to redact information in the appendix.”

Seems clear enough. So, lawyer filed a third brief.

As the appellate court noted, “yet again, changes had been made.”  The new filing “did not match either” of the first two.

The court ordered the lawyer to file a new brief that matched the original and to show cause why she should not be disciplined.

Lawyer argued that the original order to redact the appendix implied that she could change the brief that it accompanied.   Per the court, “we accept her assertion that she believed that she could do so, but errors made with an empty head are hard to excuse.”

Ouch.

The court added that “making an error once is bad; making it twice in a row . . . is unfathomable.”

But for the fact that the court reprimanded the lawyer instead of imposing a more serious sanction, this might have qualified for Was That Wrong?

Don’t be an empty head.