Medal Monday #207

Welcome to Monday!  Friday’s questions are here. The answers follow today’s Medalists.

Medalists

  • Matthew AndersonPratt Vreeland Kennelly & White
  • Evan BarquistMontroll Backus & Oettinger
  • Mimi Brill, Windham County Public Defender
  • Erin GilmoreRyan Smith & Carbine
  • Robert Grundstein, Esq.
  • Glenn Jarrett, Jarrett & Luitjens
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Elizabeth KruskaPresident-Elect, VBA Board of Managers
  • John LeddyMcNeil Leddy & Sheahan
  • Kevin LumpkinSheehey Furlong & Behm
  • Jack McCullough, Vermont Legal Aid, Project Director – Mental Health Law Project
  • Jake Perkinson, Esq.
  • Jim Runcie, Esq.
  • Jay Spitzen, Esq.
  • Jonathan Teller-Elsberg, Hershenson, Carter, Scott & McGee
  • Jack Welch, Esq.

Answers

Question 1

The following statement refers to 2 of the 7 Cs of Legal Ethics.  One is “competence.” What’s the other?

Lawyers should be aware of the risks related to the inadvertent disclosure of client information & data that are associated with working remotely.

CONFIDENTIALITY.   For more, see my CLE video Protecting Client Data While Working Remotely. It’s 23 minutes.

Question 2

By rule, how often must a lawyer or firm reconcile a trust account?

  • A.  “Timely” with timely defined as no less than monthly.  V.R.Pr.C. 1.15A(a)(1)
  • B.  Quarterly.
  • C.  As recommended by general accounting standards and best practices.
  • D.  Trick question.  The rules are silent.  However, in a disciplinary case, the Vermont Supreme Court held that “more than 2 months without reconciliation is a violation of the general duty to safeguard client funds.”

Question 3

Client retains Lawyer and agrees to pay Lawyer an hourly fee.  The fee agreement is reduced to a writing that is signed by Client.

The representation ends.  Client has paid less than half of the outstanding bill and owes Lawyer for 20 hours of work.

May Lawyer claim the 20 hours as pro bono?

  • A. Yes.
  • B.  Yes, but only if Lawyer stops trying to collect the bill.
  • C.  Yes, but only if Client is “a person of limited means.”
  • D.  No.

To qualify as pro bono, legal services must be provided without a fee or expecation of a fee.  V.R.Pr.C. 6.1(a).

Question 4

There is a rule that has 3 exceptions.  They are:

  • unless the testimony relates to an uncontested issue;
  • unless the testimony relates to the nature and value of legal services rendered; or,
  • if disqualification of the lawyer would work substantial hardship on the client.

What does the rule prohibit?

It’s Rule 3.7 and it prohibits a lawyer from serving as an advocate at trial in a matter in which the lawyer is a necessary witness.  “Conflict of interest” counts as a correct answer.

Question 5

Juneteenth dates to an event that took place on June 19, 1865.  What event?

  • A.  The ratification of the 13th Amendment to the U.S. Constitution.
  • B.  President Lincoln’s signing of the Emancipation Proclamation.
  • C.  Union soldiers arriving in Texas and announcing that enslaved people were freeFor more, visit Juneteenth.com
  • D.  Lee’s surrender at Appomattox.

Juneteenth Flag : vexillology

 

Five for Friday #207

Welcome to Friday.

Lawyers owe a duty of competence to their clients.  It’s the very first rule and, to me, encompasses every other rule.  That is, competent representation includes maintaining client confidences, providing conflict-free representation, safeguarding client funds . . . yada, yada, yada.

I also believe that the duty of competence includes knowing, for lack of a better term, what’s going on.  For example, in a pandemic, a lawyer should be aware of the impact that the Judicial and Executive Orders have on clients’ matters.  Or, when a lawyer shows up at a deposition or hearing, the lawyer should have a basic idea about, you know, what’s going on.

More often than not, I use the intro to the #fiveforfriday quiz to share a story related to the week’s number. However, I’ve also used it to blog about events associated with the publication date.  Last night, pondering how to compose a post connected to “207” or June 19, I realized that I know next to nothing about the origin, history or meaning of Juneteenth.

I was surprised that my lack of knowledge surprised me.  Indeed, I’m often struck by how little I know about many of the holidays and observances.  For instance, I often struggle to remember the answers to these questions: **

  • is March 17 the anniversary of St. Patrick’s birth, death, or return to Ireland?
  • is Cinco de Mayo Mexico’s Independence Day?
  • who were the other commanders with Ethan Allen at the Battle of Bennington?

Again, in my view, as lawyers, we violate the duty of competence when we don’t know what’s going on.  As people, we’ve long done so with holidays: we participate without bothering to learn a day’s true meaning or importance to those who celebrate, honor, and observe. As an Irish-Catholic, I assure you that multiple green beers by 2PM on a workday in March isn’t the point.

I want to understand Juneteenth’s history, origin and meaning.  So, I will mark the day by learning. You can do the same here, here, here, or a whole lot of other places.

It’s good to know what’s going on.

Onto the quiz!

Rules

  • None.  Open book, open search engine, text-a-friend.
  • Exception: Question 5. We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

The following statement refers to 2 of the 7 Cs of Legal Ethics.  One is “competence.” What’s the other?

Lawyers should be aware of the risks related to the inadvertent disclosure of client information & data that are associated with working remotely.

Question 2

By rule, how often must a lawyer or firm reconcile a trust account?

  • A.  “Timely” with timely defined as no less than monthly.
  • B.  Quarterly.
  • C.  As recommended by general accounting standards and best practices.
  • D.  Trick question.  The rules are silent.  However, in a disciplinary case, the Vermont Supreme Court held that “more than 2 months without reconciliation is a violation of the general duty to safeguard client funds.”

Question 3

Client retains Lawyer and agrees to pay Lawyer an hourly fee.  The fee agreement is reduced to a writing that is signed by Client.

The representation ends.  Client has paid less than half of the outstanding bill and owes Lawyer for 20 hours of work.

May Lawyer claim the 20 hours as pro bono?

  • A. Yes.
  • B.  Yes, but only if Lawyer stops trying to collect the bill.
  • C.  Yes, but only if Client is “a person of limited means.”
  • D.  No.

Question 4

There is a rule that has 3 exceptions.  They are:

  • unless the testimony relates to an uncontested issue;
  • unless the testimony relates to the nature and value of legal services rendered; or,
  • if disqualification of the lawyer would work substantial hardship on the client.

What does the rule prohibit?

Question 5

Juneteenth dates to an event that took place on June 19, 1865.  What event?

  • A.  The ratification of the 13th Amendment to the U.S. Constitution.
  • B.  President Lincoln’s signing of the Emancipation Proclamation.
  • C.  Union soldiers arriving in Texas and announcing that enslaved people were free.
  • D.  Lee’s surrender at Appomattox.

 

Juneteenth Flag : vexillology

 

**

  1. March 17 is the traditional date of St. Patrick’s death.
  2. No, Cinco de Mayo is not Mexico’s Independence Day. The holiday commemorates the Mexican Army’s victory over France in the Battle of Puebla on May 5, 1862.
  3. Umm, Ethan Allen wasn’t at the Battle of Bennington.  At the time, he was in NY, a prisoner of the British.

 

 

 

Medal Monday #206

Monday, Monday.   Can’t trust that day.

Friday’s questions are here.  The answers follow today’s Medalists.

Medalists

Answers

Question 1

If a section of the Rules of Professional Conduct requires a “writing,” does an email comply with the rule?

  • A.   Yes.  V.R.Pr.C. 1.0(n) 
  • B.   No.

Question 2

Imagine you hear me say this during a seminar:

  • “Depositing your own funds to cover reasonably expected bank charges falls within a safe harbor from the general prohibition on _______________.”

Which of the 7 C’s of Legal Ethics correctly fills in the blank?

COMMINGLING

Question 3

Attorney serves as a mediator.  The matter does not settle or resolve at mediation.  Going forward, can Attorney represent one of the parties?

  • A.  No.
  • B.  Yes.
  • C.  Yes, if all parties to the matter give informed consent, confirmed in writing.  V.R.Pr.C. 1.12(a).
  • The Rules of Professional Conduct do not address this type of conflict issue.

Question 4

In response to an inquiry, I tell a lawyer “the rule says that you can’t counsel or assist your client to unlawfully alter, conceal, or destroy material that has potential evidentiary value. Most advisory ethics opinions add that you can’t counsel your client to do so if it would constitute spoliation.”

In context, “do so” most likely means that Lawyer asked me if Lawyer could advise a client to:

  • A.   Take down material that the client had posted to social media.  See, my blog post Advising Clients On Their Social Media Use
  • B.    Speak directly to a represented opposing party.
  • C.    Surreptitiously record a conversation with the opposing party.
  • D.    Intentionally post false information to social media to deceive the opposing party.

Question 5

Thank you Elizabeth Kruska for the tip!

Tech competence is a thing.

Earlier this year, a relatively famous lawyer was temporarily released from prison due to the COVID-19 crisis.  The lawyer, often mentioned on this blog, was back in the news this week: prosecutors allege that metadata associated with the lawyer’s court filings shows that the lawyer violated his conditions of release.

Name the lawyer.

Michael Avenatti.   Among others, CNN and The Hill covered the story.

Who Is Stormy Daniels Lawyer Michael Avenatti — And Who Is Helping ...

Five for Friday #206

Welcome to Friday.

As of 7:05 AM, I had a nearly complete essay on how “206” reminds me of a common marathon strategy. It began by reminding readers that a marathon is 26.2 miles.

  • (Tip:  EVERY marathon is 26.2 miles.  There’s no need to ask a runner “how far is your next marathon?”)

From there, I shared that, in their heads, runners often divide a marathon into two segments: the first 20 miles, and the final 6.2  It’s a mental trick.  Then, I tried to use the so-called “20 & 6” strategy to connect “206” to a lawyer’s professional responsibility to provide clients with competent representation.  Alas, the draft stunk, so it now lives wherever trashed WordPress posts go to spend their days.

Before I deleted it, I considered revising it.  Then, as a new pot of coffee brewed, I made the mistake of browsing the news and stumbled upon this headline:

Study Suggests Bald Men Could Be More At Risk For Severe Coronavirus

As a result of the quarantine, you might not remember what I look like:

Race

The news led me down a rabbit hole of articles from which I returned mere moments before an 8:30 meeting that kicked off a morning of meetings.  Now, I’ve no time to revise my essay on 206, the 20 & 6 strategy, and the duty of competence.  So, today, this is what you get.

Please remember me fondly when you buy shampoo and comb or brush your hair.

Onto the quiz.

Rules

  • None.  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

If a section of the Rules of Professional Conduct requires a “writing,” does an email comply with the rule?

  • A.   Yes.
  • B.   No.

Question 2

Imagine you hear me say this during a seminar:

  • “Depositing your own funds to cover reasonably expected bank charges falls within a safe harbor from the general prohibition on _______________.”

Which of the 7 C’s of Legal Ethics correctly fills in the blank?

Question 3

Attorney serves as a mediator.  The matter does not settle or resolve at mediation.  Going forward, can Attorney represent one of the parties?

  • A.  No.
  • B.  Yes.
  • C.  Yes, if all parties to the matter give informed consent, confirmed in writing.
  • D.  The Rules of Professional Conduct do not address this type of conflict issue.

Question 4

In response to an inquiry, I tell a lawyer “the rule says that you can’t counsel or assist your client to unlawfully alter, conceal, or destroy material that has potential evidentiary value. Most advisory ethics opinions add that you can’t counsel your client to do so if it would constitute spoliation.”

In context, “do so” most likely means that Lawyer asked me if Lawyer could advise a client to:

  • A.   Take down material that the client had posted to social media.
  • B.    Speak directly to a represented opposing party.
  • C.    Surreptitiously record a conversation with the opposing party.
  • D.    Intentionally post false information to social media to deceive the opposing party.

Question 5

Thank you Elizabeth Kruska for the tip!

Tech competence is a thing.

Earlier this year, a relatively famous lawyer was temporarily released from prison due to the COVID-19 crisis.  The lawyer, often mentioned on this blog, was back in the news this week: prosecutors allege that metadata associated with the lawyer’s court filings shows that the lawyer violated his conditions of release.

Name the lawyer.

 

Conflicts, Confidences & Prospective Clients

Long ago, I investigated this disciplinary complaint:

  • Person met with Lawyer to discuss representation in a matter;
  • Person shared information about the matter with Lawyer;
  • Person opted not to retain Lawyer;
  • Litigation ensued;
  • Opposing Party retained Lawyer; and,
  • Lawyer represented Opposing Party in the same matter about which Person had consulted with Lawyer.

Back then, Vermont had yet to adopt V.R.Pr.C. 1.18, the rule that sets out a lawyer’s duties to a prospective client.  Thus, as disciplinary counsel, I was left to analyze whether Lawyer had violated the rule that prohibits concurrent representation of clients with conflicting interests or the rule that prohibits representing a client whose interests are materially adverse to those of a in the same or a substantially related matter.

At the time, the general legal principle was that prospective clients were “neither fish nor fowl” for the purposes of the ethics rules.  Thus, conceding that Person was not a current or former client, I argued that the spirit and intent of the conflicts rules rendered Lawyer’s representation of Opposing Party a violation.

Alas, a hearing panel of the Professional Responsibility Board disagreed. The panel concluded that my decision to charge Lawyer with a violation was not supported by probable cause.  Thus, complaint dismissed.

Not long thereafter we got to work on proposing & promulgating V.R.Pr.C 1.18.  It took effect on September 1, 2009.

Under the rule, a “prospective client” is a person who, in good faith, discusses with a lawyer the possibility of forming client-lawyer relationship.  If no relationship ensues, the lawyer’s duty of loyalty is relaxed, but the duty of confidentiality is not.

That is, the lawyer must maintain the prospective client’s confidences as if the person had retained the lawyer.  However, the lawyer may represent someone whose interests are materially adverse to the prospective client, even in a matter that is the same as or substantially related to the matter that was the subject of the consultation, as long as the lawyer did not receive information that “could be significantly harmful” to the prospective client. Depending on the steps that the lawyer took to avoid or minimize the receipt of disqualification, lawyer’s conflict might not be imputed to lawyer’s firm.

Earlier this week, the ABA’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 492. The opinion addresses a lawyer’s obligations to prospective clients. The ABA Journal reported the opinion here.

In my view, the opinion provides clear and helpful guidance on (1) what constitutes a “consultation;” (2) the type of information that would be considered “significantly harmful” and thereby potentially disqualifying in a subsequent matter; and (3) the steps lawyers and firms can take to avoid receiving disqualifying information in an initial consultation.

I suggest reading it. Which is my way of saying that, as I ease back into blogging after the annual mini-hiatus that comes with the CLEs and training that take place this time of year, I’m not going to regurgitate an advisory opinion that is written far better than I could.

Aside: with the adoption of Rule 1.18, I assume that the prospective client has achieved fish or fowl status.  I’m not sure which.

Neither Fish Nor Fowl - Liz Sumner | Life Coach

Confidentiality, Privilege, and Lobster.

Many of the inquiries I receive involve a lawyer’s duty of confidentiality.  The duty is set out in Rule 1.6.  Paragraph (a) prohibits a lawyer from revealing “information relating to the representation of a client” unless:

  • the client gives informed consent;
  • disclosure is impliedly necessary to carry out the representation;
  • disclosure is required by Rule 1.6(b); or,
  • disclosure is permitted by Rule 1.6(c).

Remember: the ethical duty is not to reveal “information relating to the representation of a client” unless one of the exceptions is present.

Anyhow, too often, we use the words “confidential” and “privileged” interchangeably.  While related, they are different concepts.  On the distinction, Comment [3] is helpful:

  • “The principle of client-lawyer confidentiality is given effect by related bodies of law: the attorney-client privilege, the work product doctrine and the rule of confidentiality established in professional ethics. The attorney-client privilege and work product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct.”

In my view, a lawyer has an ethical duty not to disclose information relating to the representation of a client, as well an ethical duty to act competently to protect the privilege.

In blog posts and videos, I’ve mentioned & recommended Brian Faughnan’s blog Faughnan On Ethics.  In one of his recent posts, Brian suggested that his readers follow another site as well: Presnell on Privileges.  I join Brian’s suggestion – PoP looks like a fantastic resource for anyone with questions on the evidentiary privilege.

Plus, when the first post I see refers to lobster and “the most New England crime ever,” how could I resist??!!?

Quin-Sea Fisheries opens live lobster facility in New Harbour ...

Responding to Online Reviews

I took a week off from blogging.  I’m back, albeit not so much because I missed it.  Rather, I’m here to celebrate a Vermont connection, however tiny, to an article in today’s ABA Journal.

Lawyers in Bennington County might remember Cynthia Sharp.  Last year, Attorney Sharp presented a CLE for the BCBA.  Today, the ABA Journal ran her article How to ethically respond to negative reviews from clientsThe article shares valuable tips and includes quotes from two names that regular readers of this blog will recognize: Tom Wilkinson and me.  Tom serves on the ABA’s Standing Committee on Professionalism and frequently appears on the #fiveforfriday Honor Roll in Legal Ethics.

Not having blogged in a week, I’m unprepared to dive directly back into the deep end.  So, here’s the “knee-deep” version on responding to online reviews:

  1. Information relating to the representation of a client is confidential.
  2. The rules prohibit lawyers from disclosing information relating to the representation of client.
  3. There are exceptions to the general prohibition.
  4. “The client gave me a negative review” is not one of the exceptions.

Last month, I received two inquiries from lawyers seeking guidance on how to respond to negative reviews.  I was struck by the intensity with each wanted to respond. It reminded me of the criticism often directed my way in various online forums when I was coaching high school basketball.

Trust me, I get it.  Still, be careful.  Don’t let your initial reaction cause you to disclose information that the Rules of Professional Conduct require you to keep confidential. If, upon reflection you choose to respond, consider the type of response suggested by Tom Wilkinson in Attorney Sharp’s article.

Be Quiet

Additional Resources

Related Posts

 

 

 

 

 

Medal Monday #205

It’s Memorial Day.  If you have a moment and are so inclined, the National Moment of Remembrance is at 3:00 PM.

Friday’s questions are here.  The answers follow today’s Medalists.

Medalists

  • Matthew AndersonPratt Vreeland Kennelly Martin & White
  • Alberto Bernabe, Professor, John Marshall Law School
  • Erin GilmoreRyan Smith & Carbine
  • Benjamin GouldPaul Frank & Collins
  • Laura Gorsky, Esq.
  • Bob Grundstein, Esq.
  • Mark Heyman, Esq.
  • Glenn Jarrett, Jarrett & Luitjens
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy, JB Kennedy Associates, Blogger’s Mom
  • Tom LittleLittle & Cicchetti
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Hal Miller, First American
  • Herb Ogden, Esq.
  • Jay Spitzen, Esq.
  • Thomas Wilkinson, Jr., Cozen O’Connor
  • Peter Young, General Counsel, Vermont Railway System

Answers

Question 1

Fill in the blank. (choices are below)

“In the course of representing a client a lawyer ___________ make a false statement of material fact or law to a third person.”

  • A.   should not
  • B.   should take reasonable steps not to
  • C.   may
  • D.   shall not   V.R.Pr.C. 4.1

Question 2

I’ve often mentioned the 7 Cs of Legal Ethics.  This week, preparing a CLE for government attorneys, I realized that there might be an 8th.

While a government attorney likely won’t have to worry about “commingling,” a government attorney often must ask a question that lawyers in private practice do not:

  • Who is the _________?

The answer begins with the letter C.

CLIENT

Question 3

Speaking of the Cs, a rule involving one of them includes a comment that says:

  • “A lawyer should adopt reasonable procedures, appropriate for the size and type of firm and practice, to determine in both litigation and non-litigation matters the persons and issues involved.  Ignorance caused by a failure to institute such procedures will not excuse a lawyer’s violation of this rule.”

What C?

Conflicts of Interest.  The language is from V.R.Pr.C. 1.7 Comment [3].  

Question 4

Lawyer called me with an inquiry.  My response included the words “scrubbing” and “spoliation,” as well references to several advisory ethics opinions that also speak of “scrubbing and spoliation.”

It’s most likely that Lawyer called because a client asked Lawyer:

  • A.   To withdraw.
  • B.   Whether the client could “take down” social media posts.
  • C.   Whether Lawyer would accept payment via PayPal or Venmo.
  • D.  To refund a retainer paid by a personal check that had been deposited to trust, but that did not yet constitute “collected funds.”

This post from September 2019 includes links to several social medial advisory ethics opinions, as well as to the Social Media Ethics Guidelines published by the New York State Bar Association’s Commercial & Federal Litigation Section.

Question 5

With Memorial Day in mind, believe it or not, there are lawyers who earned the distinction of being buried in at Arlington National Cemetery!  Yes Dad, posthumously!

Among them, William Howard Taft.  Having served as U.S. President and Chief Justice of the United States Supreme Court, Taft is the only person ever to lead two branches of government and was the first president buried at Arlington.

I don’t know whether Major League Baseball will return this summer.  If it does, I don’t know whether fans will be allowed to attend.  Someday, however, baseball stadiums will again include fans.

As he is with leading branches of government,  Taft is associated with not one, but two of baseball’s enduring game-day traditions.  The first is something that Taft did on the field, but that fans can only watch.  The second is something in which fans enthusiastically participate and one that, according to lore, became popular because of something Taft did in the stands.

Name either tradition.

Taft was the first president to throw out the “first pitch” on Opening Day and, according to lore, made the 7th inning stretch a thing.

Who was the first president to throw a first pitch on Opening Day ...

Five for Friday #205

Welcome to Friday!

I took up fishing this week. Last night, JD and the First Brother took me on my initial outing.  Each is an experienced angler.

All week, I imagined great success that would provide me with a fish story connected to “205” to share this morning.  Whether 2.05 pounds, 20.5 inches long, or the depth from which I landed the first of the countless glorious catches undoubtedly to follow this summer.

Alas, any fish story I might share this morning would be exactly that: a fish story.

On the way back to the access, JD said “boys, that’s why they call it fishin’ not catchin’.”

Fair enough.

Still, this was the view at the time:

IMG_0510

(photo credit to JD)

The moment reminded of last week’s post on the journey and the destination: fishin’ is to the journey, as catchin’ is to the destination.  Something that, as the sun set, it dawned on me that JD and my brother have long understood.

I don’t have a fish story to share, but I’ll share this: a setting bettered only by the company allows me to assure you that last night’s journey was time well spent.

Wherever the weekend leads, may Monday evening’s destination find you assured that your journey was time well spent.

Onto the quiz!

Rules

  • None.  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

Fill in the blank. (choices are below)

“In the course of representing a client a lawyer ___________ make a false statement of material fact or law to a third person.”

  • A.   should not
  • B.   should take reasonable steps not to
  • C.   may
  • D.   shall not

Question 2

I’ve often mentioned the 7 Cs of Legal Ethics.  This week, preparing a CLE for government attorneys, I realized that there might be an 8th.

While a government attorney likely won’t have to worry about “commingling,” a government attorney often must ask a question that lawyers in private practice do not:

  • Who is the _________?

The answer begins with the letter C.

Question 3

Speaking of the Cs, a rule involving one of them includes a comment that says:

  • “A lawyer should adopt reasonable procedures, appropriate for the size and type of firm and practice, to determine in both litigation and non-litigation matters the persons and issues involved.  Ignorance caused by a failure to institute such procedures will not excuse a lawyer’s violation of this rule.”

What C?

Question 4

Lawyer called me with an inquiry.  My response included the words “scrubbing” and “spoliation,” as well references to several advisory ethics opinions that also speak of “scrubbing and spoliation.”

It’s most likely that Lawyer called because a client asked Lawyer:

  • A.   To withdraw.
  • B.   Whether the client could “take down” social media posts.
  • C.   Whether Lawyer would accept payment via PayPal or Venmo.
  • D.  To refund a retainer paid by a personal check that had been deposited to trust, but that did not yet constitute “collected funds.”

Question 5

With Memorial Day in mind, believe it or not, there are lawyers who earned the distinction of being buried in at Arlington National Cemetery!  Yes Dad, posthumously!

Among them, William Howard Taft.  Having served as U.S. President and Chief Justice of the United States Supreme Court, Taft is the only person ever to lead two branches of government and was the first president buried at Arlington.

I don’t know whether Major League Baseball will return this summer.  If it does, I don’t know whether fans will be allowed to attend.  Someday, however, baseball stadiums will again include fans.

As he is with leading branches of government,  Taft is associated with not one, but two of baseball’s enduring game-day traditions.  The first is something that Taft did on the field, but that fans can only watch.  The second is something in which fans enthusiastically participate and one that, according to lore, became popular because of something Taft did in the stands.

Name either tradition.

 

 

The Duty to Cooperate.

Yesterday I posted The Boom Shakalaka Defense.  It’s the story of a lawyer who was charged with failing to respond to disciplinary authorities who were investigating the lawyer’s conduct. The lawyer argued that he’d responded in the “form of SILENCE. (BOOM SHAKALAKA).”  The Supreme Judicial Court of Massachusetts concluded that silence is not a response.

The absurdity of “Boom Shakalaka” tends to detract from an important point: lawyers have an affirmative duty to cooperate with a disciplinary investigation.  Violating the duty strikes at the heart of a profession that enjoys the privilege of self-regulation.

These days, it’s rare for a lawyer not to cooperate with a disciplinary investigation.  It used to happen a lot more often.

On July 1, 2000, I was deputy disciplinary counsel.  At the time, we had 178 active disciplinary investigations.  A few months later, my boss left for another job.  I became disciplinary counsel but would not hire a deputy until mid-2001.  The docket was overwhelming.

I don’t know if it was in recognition of the caseload, but it wasn’t uncommon for lawyers under investigation not to cooperate. So, I started charging lawyers with failing to cooperate.  Often, informing the lawyer that a hearing panel had concluded that there was probable cause to file public charges alleging a failure to cooperate would spur cooperation.  On occasion, however, I’d have to file the charges.  Cooperation would follow, with the charges being dismissed or, at most, the lawyer receiving a private admonition.

Still, it persisted.  So, in 2006, I upped the ante.

That summer, we received a complaint.  The lawyer failed to respond to several requests to answer the complaint.  Thus, I charged the lawyer with failing to cooperate with a disciplinary investigation.

I can hear you now.  What rule does it violate?

The rules that govern the operation of the Professional Responsibility Program state that discipline may be imposed for, among other things, “(f)ailure to furnish information to or respond to a request from disciplinary counsel, a hearing panel chair, or the Court without reasonable grounds for doing so.”  Supreme Court Administrative Order 9, Rule 7.D.

More importantly, Rule 8.4(d) of the Vermont Rules of Professional Conduct prohibits lawyers from engaging in conduct that is prejudicial to the administration of justice. It is well-settled that the failure to cooperate with a disciplinary investigation violates Rule 8.4(d).

Anyhow, back to my 2006 case.  I urged the hearing panel to issue a public reprimand.  The panel concluded that a public reprimand was not appropriate.

Instead, the panel suspended the lawyer for 30 days.

The panel’s decision is here.  Here’s a key statement from the decision:

  • “We do not disagree with much of Disciplinary Counsel’s reasoning. We believe, however, that the importance of the attorney’s obligation to the profession requires a serious response, particularly when an attorney, without offering any
    explanation, chooses to ignore a critical duty owed to the profession.”

From there, the panel stressed that a self-regulating profession “requires the cooperation of all members of the bar if it is going to work fairly and efficiently.”  The panel went on to state that the “(f)ailure to comport with the duty of cooperation seriously impedes the efficient administration of justice and erodes the public’s confidence in the profession.”

In conclusion, I often worry that the profession’s privilege to self-regulate, a privilege rooted in the notion of an independent Judiciary and the separation of powers, will come under attack.  A serious response to lawyers who fail to cooperate with the disciplinary process is one of our first lines of defense. So, while the Boom Shakalaka story might amuse, it shouldn’t distract from the importance of cooperating with a disciplinary investigation.

Cooperate Meaning - YouTube