Five for Friday #270

Welcome to Friday and the 270h legal ethics quiz.

If you’re a regular reader, you know how I feel about winter.  Then, upon noticing that the welcoming sentence didn’t end with its usual exclamation point, you likely guessed that this week’s introduction would be about the wind chill.

Good guess!  But wrong. 

If this was the 273rd quiz, then yes, today’s post would reference the miserable temperature and the fact that -273 degrees is absolute zero. However, this is the 270th quiz, which means I’m going to discuss artificial intelligence.

My dear readers, the end might be nigh.

AI and its impact on the legal profession burst into the conversation earlier this month with a tweet from DoNotPay founder Joshua Browder:

Well, as they say about mice, men, and plans, here’s what Browder Tweeted last week:
Some of the headlines were catchy.

As the DoNotPay story was unfolding, multiple outlets, including Reuters and the ABA Journal, reported that Open AI’s ChatGPT had earned passing scores in Torts and Evidence on the multiple choice segment of the bar exam.  Also, as reported by CNN, ChatGPT passed four courses at the University of Minnesota Law School.

I used the DoNotPay and ChatGPT stories as questions in Montreal during the Thaw Bowl. Going through the answers, I remarked – not jokingly – that my job might be the first to go once the robots start to replace lawyers.  People seemed to disagree, suggesting that there’s nuance in ethics inquiries that AI can’t replicate. 

I’m not so sure. So, I ran a test this morning.

I asked ChatGPT three questions that are common ethics inquiries.  Each answer came within 5 seconds.  You be the judge.

Question 1

MK:       In legal ethics, is it a conflict of interest to represent a person in a divorce after representing the couple during the marriage?

ChatGPT:  In legal ethics, representing a person in a divorce after representing the couple during the marriage may be considered a conflict of interest. Representing a client in a divorce case after representing both parties during their marriage may create a situation where the lawyer has confidential information obtained during the previous representation that could potentially be harmful to one of the parties in the divorce case.

The American Bar Association Model Rules of Professional Conduct, which provides ethical guidelines for lawyers, state that a lawyer shall not represent a client if the representation will be directly adverse to another client, unless the client consents after consultation.

Whether representing a person in a divorce after representing the couple during the marriage constitutes a conflict of interest will depend on the specific circumstances of the case and the ethical rules that apply in the jurisdiction in which the lawyer is practicing. It’s important for lawyers to consider their ethical obligations and to seek guidance from their state bar association or ethics committee if they have any questions or concerns.

Not bad.

Question 2:

MK: What are lawyer’s duties upon learning that a client may have presented false evidence to a court?

ChatGPT: A lawyer’s duty when they learn that their client may have presented false evidence to a court is to take steps to rectify the situation. This may include, but is not limited to, withdrawing from the case, informing the court of the false evidence, or seeking to have the evidence corrected or stricken from the record.

However, the specific steps that a lawyer must take will depend on the jurisdiction in which they are practicing and the ethical rules that apply to their profession. It’s important to note that in some cases, a lawyer may have an obligation to continue representing the client if they believe that doing so would not result in harm to the administration of justice. In these circumstances, the lawyer may have a duty to provide advice to the client to correct the situation and to comply with the ethical rules that govern the legal profession.

 Again, not bad.

Question 3

MK:  In Vermont, how much of a lawyer’s own money can be in a trust account?

ChatGPT In Vermont, there is no specific rule regarding the amount of a lawyer’s own money that can be placed in a trust account. However, trust accounts are intended for holding clients’ funds and any personal funds deposited in the account must be kept separate from client funds and properly accounted for.

Lawyers must comply with the Vermont Rules of Professional Conduct and any applicable laws and regulations governing trust accounts. Vermont Rule 1.15 provides that a lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds belonging to the lawyer may be deposited in a client trust account only as permitted by Vermont Rule 1.15(e), which states that a lawyer may deposit the lawyer’s own funds in a client trust account only as permitted by law and only in an amount reasonably sufficient to pay service charges.

It’s important for lawyers to familiarize themselves with the specific rules and regulations that apply to trust accounts in Vermont and to seek guidance from the Vermont Bar Association or a professional liability insurance provider if they have any questions or concerns.

This one is interesting. The first sentence is wrong. In fact, we have a specific rule, it’s V.R.Pr.C. 1.15(b). However, in the second paragraph, ChatGPT got to the correct answer (although incorrectly citing to Rule 1.15(e)).

Again, the answers aren’t bad.  And remember – AI learns as it goes.

What’s all of this this got to do with 270?

Apparently, we aren’t too far from AI passing the bar exam.  And when it does, I could be the first to go.

What’s the passing on score on the Vermont Bar Exam?

270.

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 consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

By rule, what is required to be “communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation?”

  • A.   Whether the lawyer has malpractice insurance and, if so, the policy limits.
  • B.   Whether the lawyer has designated a successor to review and triage files if the lawyer becomes incapacitated during the representation.
  • C.   The basis or rate of the lawyer’s fee, and expenses for which the client will be responsible, except when the lawyer will charge a regularly represented client on the same basis or rate.
  • D.  All the above.

Question 2

Competent representation includes knowing the other rules.

There’s a rule that prohibits charging a contingent fee to secure a ______ and to represent to represent a _______________.

Question 3

Absent a written agreement between Lawyer & Client saying it will be treated otherwise, a flat fee paid in advance of any services being performed by Lawyer ____________:

  • A. must be deposited into trust.
  • B.  must not be deposited into trust.
  • C.  violates the rules.
  • D.  None of the above.

Question 4

If a lawyer calls me with an inquiry related to client confidences, which situation is most likely to cause me to give a different response than to the others?

  • A.  Client files disciplinary complaint against lawyer.
  • B.  Client leaves negative online review for lawyer.
  • C.  Client sues lawyer for malpractice.
  • D.  Client files petition for post-conviction relief that makes allegations about the lawyer’s representation of client.

Question 5

One of Netflix’s most-watched shows of 2022 starred Julia Garner as the so-called “SoHo Grifter . . . who stole the hearts of New York’s social scene — and stole their money as well.” Garner’s performance earned Emmy and Golden Globe nominations, and required a much different accent than Garner used as Ruth in Ozark.

In real life, the “grifter’s” lawyer was disbarred last year. Ironically, for stealing money from another client.

In the fall, the real-life “SoHo Grifter” sued the lawyer, alleging that the lawyer had failed to turn over the complete file after being fired last April.  The lawyer told the press that she had delivered the entire file, that the lawsuit is a vendetta, and that the former client is an “ungrateful b*&*%.”

Name the Netflix show.

Identified by facial recognition software, a lawyer was kicked out of a holiday show at Radio City Music Hall because she works at a firm that is suing the corporation that owns the venue.

Happy New Year!

I didn’t blog over the final few weeks of 2022. With the calendar having turned, it’s time to get back at it. Today, I’ll ease back into things with a post that relates to a story I shared a few months ago.

Kelly Conlon is a lawyer at a firm that has offices in New York and New Jersey. As reported by NBC4, Ars Technica and the ABA Journal, Attorney Conlon’s holiday season got off to an eventful start.

The weekend after Thanksgiving, Attorney Conlon went to Radio City Music Hall with her daughter’s Girl Scouts troop. They planned to attend the Rockettes’ Christmas Spectacular. Despite having a ticket, staff forced Attorney Conlon to leave after identifying her via facial recognition software.  

Why?

Because of the law firm where she works.

Attorney Conlon’s firm is involved in litigation against a restaurant that is controlled by Madison Square Garden Entertainment (MSG). Like the restaurant, Radio City Music Hall is an MSG venue.  In a statement issued to NBC4, a spokesperson for MSG said:

  • “MSG instituted a straightforward policy that precludes attorneys pursuing active litigation against the Company from attending events at our venues until that litigation has been resolved. While we understand this policy is disappointing to some, we cannot ignore the fact that litigation creates an inherently adverse environment. All impacted attorneys were notified of the policy, including (Attorney Conlon’s firm), which was notified twice.”

Attorney Conlon told NBC4 that she is not involved with her firm’s cases against MSG.  Referring to a case in which another firm sued after being informed that it would be denied entrance to events at MSG venue, Conlon added that she thought a judge had ruled that MSG could not bar entry to people, like her, who had valid tickets.

In October and November, I blogged about the case that Attorney Conlon referred to.  It involved Larry Hutcher. 

Since the 1970s, Attorney Hutcher has had season tickets to New York Knicks games.  The Knicks play at Madison Square Garden.

Attorney Hutcher is lead counsel for a group of ticket resellers who, in September, sued MSG.  Once the suit was filed, MSG banned Hutcher and other lawyers at his firm from attending events at Defendant’s properties.  Among other things, MSG cited New York’s version of ABA Model Rule 4.2 as a basis for the ban.[1]  The ABA Journal reported that MSG released the following statement:

  • “It is not unreasonable that while in active litigation, we would want to preserve our right to protect ourselves against improper disclosure and discovery. That is why we instituted this policy, and we have repeatedly made clear that once litigation is resolved, impacted attorneys will be allowed back in our venues.’”

On behalf of his firm, Hutcher asked a court to enjoin MSG from prohibiting the firm’s lawyers from attending events at MSG properties.[2] 

In his complaint, Hutcher argued that:

“Rule 4.2 is meant to ensure that there is no contact between represented parties by counsel relating only to the ‘subject of the litigation.’ Certainly, there are only very few employees of MSG in a position to discuss the ‘subject of the litigation ‘with any of the individual plaintiffs. In essence, MSG feigns concern over the unlikely scenario that any individual plaintiff will discuss ‘the substance of the litigation’ with such an MSG employee while watching a Knicks game or attending a concert. This is absurd and is nothing more than a flimsy unsupportable pretext to justify the infantile behavior of MSG’s principals.”

He went on:

“Furthermore, Rule 4.2, when applied to corporate organizations, only affects limited categories of corporate employees and not all employees as MSG disingenuously implies in its notice. As described in more detail below, the affected MSG employee must be someone with the authority to bind MSG to a decision that will impact the subject litigation. How many MSG employees fall into this limited category? The odds of an individual plaintiff discussing the subject of the litigation with that MSG employee are astronomical. There are better odds of being struck by lightning or the Knicks winning the NBA championship this year.”[3]

In November, a court issued this opinion. Here’s how the court resolved the 4.2 issue:

  • “. . . there appears to be no rational basis for the policy instituted by the defendants except to dissuade attorneys from bringing suit against them. The concern that the defendants could be prejudiced by allowing attorneys who are representing those who have brought action against the defendant to attend events with thousands of other people is unavailing to this Court.”[4]

To my knowledge, nothing like what has happened to Attorney Conlon and Attorney Hutcher has happened in Vermont. To think that it might strikes me as somewhat preposterous.

V.R.Pr.C. 4.2 prohibits a lawyer from communicating with a represented person on the subject matter of the representation.  The first sentence of Comment [7] to Vermont’s rule states that

  • “In the case of a represented organization, this rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.”

I don’t interpret V.R.Pr.C. 4.2 as authorizing a grocery chain’s law firm to ban a lawyer who is representing a plaintiff who slipped on a wet floor from shopping at its stores.  Nor do I interpret the rule to authorize a lawyer for the hospital to ban me from visiting a sick relative merely because I’m representing a client who is suing the hospital.

For all I know, such bans might be valid under other law.[5]  And I am not suggesting that lawyers should undermine the discovery rules, make themselves witnesses, or do anything that violates V.R.Pr.C. 4.2 or V.R.Pr.C. 4.4(a).  

However, while I’m open to discussion, to me, absent actual communication with a represented organization’s constituent on the subject of the representation, a lawyer does not violate V.R.Pr.C. 4.2 by going shopping, going to a game or concert, or visiting a sick relative.

As always, let’s be careful out there.

Related Posts


[1] Rule 4.2 prohibits a lawyer from communicating with a represented person on the subject of the representation. 

[2] The suit drew coverage from multiple outlets, including Forbes, the New York Times, the New York Post, ESPN, and the ABA Journal

[3] Hutcher appears correct. As of today, the Knicks are tied for 7th in the NBA’s Eastern Conference, 6.5 games behind the Boston Celtics, owners of 17 NBA championships and the league’s best record so far this season.

[4] Alas, while Rule 4.2 was not dispositive, Hutcher and his co-workers fell short of total victory.  While the court concluded that New York law requires MSG to honor valid tickets to non-sporting events that are presented by people 21 or older who are behaving appropriately, it also determined that the same law does not apply to sporting events and, further, that MSG can revoke tickets at will until the moment they are presented.

[5] I don’t know much law.

Monday Morning Honors #269

Happy Monday!

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

Honor Roll

  • Karen Allen, Karen Allen Law
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, UIC School of Law
  • Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labor
  • Andrew Delaney, Martin Delaney & Ricci
  • Benjamin Gould, Paul Frank + Collins
  • Robert Grundstein
  • Keith Kasper, McCormick Fitzpatrick Kasper & Burchard
  • Deb Kirchwey, Law Office of Deborah Kirchwey
  • Elizabeth Kruska, Past-President, Vermont Bar Association
  • Pam Loginsky, Deputy Prosecuting Attorney, Pierce County (WA)
  • Kevin Lumpkin, Sheehey Furlong & Behm
  • Bob Lydon, Law Clerk for Vermont Supreme Court Justice Nancy Waples
  • Pam Marsh, Marsh & Wagner
  • Susan McManus, Office of the Bennington County Public Defender
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeff Messina, Messina Law
  • Hal Miller, First American Title, Hawaii State Counsel
  • Keith Roberts, Darby Kolter & Roberts
  • Honorable John Valente, Vermont Superior Judge
  • Jason Warfield, J.D.
  • Thomas G. Wilkinson, Jr., Cozen O’Connor

Answers

Question 1

Regular reader Professor Alberto Bernabe urges law students to remember the core principles of legal ethics by associating those principles with the letter grades that they don’t want to receive in his class. So, Professor Bernabe refers to 4 Cs, 1 D, and 1F.

There’s a rule that requires lawyers to act with “reasonable _______ and promptness” when representing a client. A comment to the rule states that a “lawyer’s duty to act with reasonable ________ does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.”

Which core duty that is one of Professor Bernabe’s “bad grades” properly fills in the blank?

DILIGENCE.   The language is from Comment 1 to V.R.Pr.C. 1.3.

Question 2

A recent amendment to the Vermont Rules of Professional Conduct prohibits lawyers from issuing a check that is drawn on a pooled interest-bearing trust account (IOLTA) to ________:

Question 3

Fill in the blank.

A comment to one of the conflicts rules states that “continued common representation will almost always be inadequate if one client _________________.”

  • A.  pays a higher percentage of the lawyer’s fee than the other client.
  • B.  is also a client of the lawyer’s in an unrelated matter.
  • C.  is the lawyer’s main contact on matters related to the representation.
  • D.  asks the lawyer not to disclose to the other client information relevant to the common representation.V.R.Pr.C. 1.7, Cmt. [31].

Question 4

Fill-in-the-blank.

True story.  Earlier this week I received an email from a lawyer who was trying to avoid “noisy _______.”  Indeed, “noisy _______” is a phrase intended to remind lawyers not to disclose confidential information when filing and arguing a certain type of motion. 

What word properly fills in the blank?

Withdrawal.  See, Stop Making Noise

Question 5

Today’s introduction includes a link to the press release that DOJ issued after Attorney Michael Avenatti was sentenced to 14 years in prison for stealing millions from clients.

Last month, Netflix released a documentary in which Avenatti appeared. The documentary re-tells the true story of Avenatti’s former client, John Leonard.  In the mid-90s, Leonard, then 20, found a loophole in a promotion run by a major corporation that, according to Leonard, entitled him to a $30 million fighter jet. The corporation, which ran the promotion as part of the so-called “Cola Wars,” claimed that the offer of a jet was an obvious joke and that nobody could have reasonably believed that they could actually win a fighter jet. 

Netflix teased the documentary by describing the man’s attempts to claim the fighter jet as setting “the stage for a David & Goliath court battle for the ages.”   In the end, the corporation prevailed.

Name the corporation.

Pepsi. The documentary is Pepsi, Where’s My Jet?  According to Salon, Avenatti’s work uncovering prior Pepsi promotion scandals was one of most bizarre revelations in the documentary.  Pepsi may have won the legal action but, depending on how you view things, arguably lost the Cola Wars.  Indeed, the Garage Bar menu includes Jack & Coke, no substitutions.

Five for Friday #269

Welcome to Friday and the 269th legal ethics quiz!

I haven’t blogged much lately and can’t remember the last time I posted a quiz. However, to borrow from an evidentiary phrase, the absence of posts on legal ethics news does not mean that legal ethics has been absent from the news.

To wit, since the last quiz:

That’s quite a month. And it doesn’t even include the crazy stories that I actually found time to blog about over the past few weeks!

Perhaps the lesson is this.

Sadly, legal ethics blogs will never run out of material.  When they appear to have done just that, rest assured, they haven’t.  That is, the absence of evidence of legal ethics news is not evidence of an absence of legal ethics news.  Rather, I confess: it’s evidence of the blogger’s lack of diligence.

Stay safe in the storm.  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 consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

Regular reader Professor Alberto Bernabe urges law students to remember the core principles of legal ethics by associating those principles with the letter grades that they don’t want to receive in his class. So, Professor Bernabe refers to 4 Cs, 1 D, and 1F.

There’s a rule that requires lawyers to act with “reasonable _______ and promptness” when representing a client. A comment to the rule states that a “lawyer’s duty to act with reasonable ________ does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.”

Which core duty that is one of Professor Bernabe’s “bad grades” properly fills in the blank?

Question 2

A recent amendment to the Vermont Rules of Professional Conduct prohibits lawyers from issuing a check that is drawn on a pooled interest-bearing trust account (IOLTA) to ________:

  • A.   A relative.
  • B.   An employee.
  • C.   Themselves.
  • D.   Cash.

Question 3

Fill in the blank.

A comment to one of the conflicts rules states that “continued common representation will almost always be inadequate if one client _________________.”

  • A.  pays a higher percentage of the lawyer’s fee than the other client.
  • B.  is also a client of the lawyer’s in an unrelated matter.
  • C.  is the lawyer’s main contact on matters related to the representation.
  • D.  asks the lawyer not to disclose to the other client information relevant to the common representation.

Question 4

Fill-in-the-blank.

True story.  Earlier this week I received an email from a lawyer who was trying to avoid “noisy _______.”  Indeed, “noisy _______” is a phrase intended to remind lawyers not to disclose confidential information when filing and arguing a certain type of motion. 

What word properly fills in the blank?

Question 5

Today’s introduction includes a link to the press release that DOJ issued after Attorney Michael Avenatti was sentenced to 14 years in prison for stealing millions from clients.

Last month, Netflix released a documentary in which Avenatti appeared. The documentary re-tells the true story of Avenatti’s former client, John Leonard.  In the mid-90s, Leonard, then 20, found a loophole in a promotion run by a major corporation that, according to Leonard, entitled him to a $30 million fighter jet. The corporation, which ran the promotion as part of the so-called “Cola Wars,” claimed that the offer of a jet was an obvious joke and that nobody could have reasonably believed that they could actually win a fighter jet. 

Netflix teased the documentary by describing the man’s attempts to claim the fighter jet as setting “the stage for a David & Goliath court battle for the ages.”   In the end, the corporation prevailed.

Name the corporation.

Court upholds order prohibiting Drew Peterson’s former lawyer from disclosing information about Peterson’s missing ex-wife

Prologue

This post is longer than most.  You’ve been warned.

Summary

Today’s story verges on the tabloid-esque.  Still, it includes a helpful reminder on the scope of the so-called “self-defense” exception to a lawyer’s duty of confidentiality.

Post

In May, I posted Judge orders Drew Peterson’s former lawyer not to disclose information about Peterson’s missing ex-wife.  Peterson is a former police officer who gained national attention in 2007 when his fourth wife, Stacy Peterson, disappeared. Stacy has never been found. 

Stacy’s disappearance refocused attention on the 2004 death of Kathleen Savio, Drew’s third wife. Kathleen’s death was originally ruled an accident. Then, after Stacy’s disappearance, Kathleen’s body was exhumed. Following a forensics examination, the cause of death was changed to homicide.

In 2012, a jury convicted Drew of the premeditated murder of Kathleen. He was sentenced to 38 years in prison.  .

Joel Brodsky represented Peterson at trial.  Earlier this year, Peterson filed a petition for post-conviction relief.  Among other things, the petition alleges that Brodsky lied about his experience handling murder cases, failed to provide effective assistance of counsel during the trial, and threatened to withdraw if Peterson testified.  Shortly after the PCR was filed, and as reported here, Brodsky told WGN Investigates that “maybe it’s time” to reveal Stacy’s whereabouts.  Brodsky added:

  • “It’s something that weighs on my conscience.  I would never do anything that would hurt a former client, but he’s in prison, he’s never getting out.  So, if he’s a man, he’d say ‘I’m done, here’s what happened,’ so people can have closure.” 

Brodsky went on:

  • “I know everything about both of his wives – everything. I feel bad about Drew still not taking responsibility and Stacy still being missing.  I’m thinking about maybe revealing what happened to Stacy and where she is.”

Peterson’s lawyer requested an order prohibiting Brodsky from revealing the information. A judge granted the order, stating “[t]his may be the most vile crime in the U.S. but [defendants] still have a right to speak in confidence with their attorney.” 

Unsurprisingly, Brodsky appealed.  He raised both procedural and substantive arguments.  Last week, the appellate court affirmed the lower court’s ruling.  WGN9 and the ABA Journal have coverage.  The opinion includes references to the Rules of Professional Conduct. I’m going to focus on the court’s analysis of the confidentiality rule.[1]

Brodsky argued Peterson’s allegation of ineffective assistance of counsel constituted a waiver of the attorney-client privilege that allowed Brodsky to respond. In support, he cited to Rule 1.6(b)(5) of the Illinois Rules of Professional Conduct.  The rule is identical to Vermont’s Rule 1.6(c)(4).  Both permit disclosure of otherwise confidential information when a lawyer reasonably believes that disclosure is necessary:

  • “to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.”

This is the so-called “self-defense exception” to the confidentiality rule.  What’s critical to remember, and as I often mention during CLEs, is that the exception is a narrow one.  In Vermont, Comment [14] states that the exception permits disclosure “only to the extent the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes specified.”  It also states that “a disclosure adverse to the client’s interest should be no greater than the lawyer reasonably believes necessary to accomplish the purpose.”

I’ve made this point often in different contexts. For example, let’s assume the following:

  • Lawyer represents Client.
  • Client is charged with aggravated assault.
  • Client agrees to a plea.
  • Immediately after the change of plea hearing, Client thanks Lawyer and says “unrelated, but last summer, a friend paid me to burn down his lake house as part an insurance scheme. If they find out about that, will you represent me?”
  • Later, Client isn’t so thankful.  After a few months of incarceration, he files a petition for post-conviction relief alleging that Lawyer misled him about the strength of the State’s case in the aggravated assault.

I’ve explained to lawyers that it’s possible to respond to the allegation without adding “oh, and by the way, that lake house that burned last summer?  You know, the one that they haven’t solved? Well, my client told me that a friend paid him to set it as part of an insurance fraud scheme.”

Back to Brodsky and Peterson.  The appellate court interpreted the Illinois rule in a similar manner, stating:

  • “We find clear support for a narrow waiver in the language of Rule 1.6(b)(5), stating that an attorney is permitted to respond to the extent the attorney reasonably believes necessary to establish a defense to the client’s claim. We concur with defendant’s conclusion that ‘nothing about the specific allegations of ineffective assistance of counsel made by Defendant-Appellee in his pro se petition for post-conviction relief would require Appellant to disclose any supposed inculpatory statements (especially any supposed inculpatory statements about Stacy Peterson) in order to establish a defense to such claims.’”[2]

In sum, yes, the self-defense exception permits disclosure of otherwise confidential information to respond to certain allegations from clients and former clients.  However, any disclosure made pursuant to the exception must be limited to information reasonably necessary to respond to the allegations.

As always, let’s be careful out there.


[1] The opinion also references Rule 3.6, the rule on trial publicity. In Illinois, it states that “an attorney who is participating in or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and would pose a serious and imminent threat to the fairness of an administrative proceeding in the matter.” Noting that Peterson’s PCR might result in a new trial, the appellate court wrote “Few people in the history of Illinois jurisprudence have achieved Drew Peterson’s level of notoriety. We find it nearly inconceivable that any revelation about Stacy would not taking the jury pool should Peterson receive a new trial.”  People v. Peterson, 2022 Il App (3d) 220206, p. 19, ¶56.

[2]  People v. Peterson, 2022 Il App (3d) 220206, p. 19, ¶74.

Update: how I might respond if assigned to investigate a case like the one involving the poop in the Pringles can.

Last week I shared this story, one that left even me shaking my head in disbelief.  Several readers contacted me.  While agreeing that the conduct was reprehensible, many asked “what rule does it violate to throw a poop-filled Pringles cannister into a parking lot?”

Good question. Even as a former disciplinary prosecutor, I’m not certain how it’d be charged in Vermont.  Alas, if you’re reading, you didn’t come here for me not to have an opinion.  So, forced to wager, here’s how I suspect I’d approach a similar incident in Vermont.

Ohio’s disciplinary prosecutors charged the lawyer with a single count: violating Rule 8.4(d) of the Ohio Rules of Professional Conduct. The rule makes it “professional misconduct for a lawyer to engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.”

You might be wondering “wouldn’t Vermont file the same charge?”  Fair question.  But the answer is an unequivocal “no.” 

For many years, V.R.Pr.C. 8.4(h) made it professional misconduct for a Vermont lawyer to engage in conduct that adversely reflected on the lawyer’s fitness to practice. The rule, however, was repealed in 2009.  While I don’t remember the debate or discussion, the Reporter’s Note to the 2009 Amendment includes this statement:

  • “The present amendment follows the Model Rules in deleting subdivision (h) and related language in Comment [5] in light of the omission of from these Rules of ABA Model Rule 1.8(j) [1] prohibiting sexual relations with a client and the fact that as drafted the provision was overly broad.[2] (emphasis added).

So, in that Vermont no longer has the sole rule that Ohio charged the lawyer with violating, that wouldn’t be the charge here.

Well Mike, now what?  Surely, we must be able to respond to a lawyer who throws a container of their own poop into the lot where a person who the lawyer perceives as adverse to a client parks, right?!?!

I think so. And don’t call me Shirley.

If assigned to investigate and prosecute a similar incident here, I’d consider three violations.

First, V.R.Pr.C. 8.4(b) “makes it professional misconduct for a lawyer to engage in a ‘serious crime,’ defined as any felony or any lesser crime that adversely reflects on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.” In Ohio, the lawyer was charged with and pled guilty to two misdemeanors: Disorderly Conduct and Littering.  While I don’t think either is a per se violation of Rule 8.4(b), if misdemeanor charges were filed against a Vermont lawyer who did what the Ohio lawyer did, I’d argue that the conduct that resulted in the charges and plea is conduct that adversely reflects on the lawyer’s fitness.

Next, here’s the first clause of V.R.Pr.C. 4.4(a):

  • “In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay or burden a third person. . .”

While I’d be open to explanation, I cannot imagine any scenario in which a criminal defense lawyer who throws their own feces at the victim’s advocate’s car does so with a substantial purpose other than to embarrass or burden the victim’s advocate.

And, finally, V.R.Pr.C. 8.4(d) makes it professional misconduct for a lawyer “to engage in conduct that is prejudicial to the administration of justice.”  Reviewing the annotations to Model Rule 8.4(d), I might have an uphill battle on this charge. Still, I’d be comfortable arguing that the lawyer for a criminal defendant impedes the proper functioning of the judicial system when, on the way to an appearance in the case, the lawyer throws a cannister of their own feces into the victim’s advocate’s parking lot.

So, you readers who raised it are correct: Vermont does not have the rule that Ohio charged the lawyer with violating. Still, I don’t think that’d be the end of it.

As always, let’s be careful out there.


[1] Vermont has since adopted a rule that prohibits most sexual relations with clients.  See, V.R.Pr.C. 1.8(j). 

[2] It’s interesting that the rule prohibiting “conduct that adversely reflects on the lawyer’s fitness to practice law” was deemed overbroad.  While Rule 8.4(h) has been deleted, similar language remains in place. For one, in 2009, the Supreme Court held that the rule was “meant to capture other conduct similar to that described in [Rule 8.4’s] preceding subsections and to specifically define such conduct as that which reflects adversely on fitness to practice law.”  In re PRB Docket Nos. 2007-046 and 2007-047, 2009 VT 115, ¶ 12.  The rule’s other subsections remain on the books.  Meanwhile, Rule 25.C of Supreme Court Administrative Order 9 states “Information relating to a lawyer’s physical or mental condition which adversely affects his or her ability to practice law shall be the subject of formal proceedings to determine whether the lawyer shall be transferred to disability inactive status.”  Finally, keep reading for my discussion of V.R.Pr.C. 8.4(b).

Finally — misconduct that left even me in disbelief.

Every so often, a lawyer will preface a story about legal ethics with a statement like “Mike, I GUARANTEE that you WILL NOT believe this one.”

Yes, I will.  That’s what 22 years in this field can do to a person.

Then I read today’s story.  It involves misconduct that, until now, I would only have imagined in a TV or movie script. I mean, I’m not even certain that Saul Goodman would stoop so low.  Sadly, it’s real life.

I learned of the story via the ABA Journal and the Legal Profession Blog.  Respectively, the headlines:

The story is mind-boggling.

According to disciplinary charges filed last week, the lawyer represented a client charged with several criminal offenses, including Murder.  In June 2021, both the lawyer and a victim’s advocate appeared at the client’s arraignment.  The lawyer had known the victims’ advocate for years, knew that the advocate was involved in the lawyer’s client’s case, and new that the victim’s advocate worked for an organization named “Haven of Hope.”

The court set a pretrial hearing for November 30, 2021.  The client’s last name is Wells, the victim advocate’s Wilkinson-Carpenter.  What follows in italics is an excerpt from the disciplinary complaint, which refers to the lawyer as “respondent.”

  • 15. On November 30, 2021, the day of Wells’s pretrial hearing, respondent deposited his feces into an empty potato chip can before leaving his home. He did not put a lid on the can. Respondent drove with the can of feces to Cambridge, Ohio.
  • 16. At approximately 8:10 a.m. – 8:15 a.m., respondent turned his vehicle down the alley where Haven of Hope’s parking lot is located.
  • 17. At the entry to the alley, there is a sign on the side of the building indicating that Haven of Hope is housed there. Further, there was construction at the entrance to the alley which made the alley more difficult to access.
  • 18. Respondent slowed his vehicle down as he initially passed Haven of Hope’s parking lot.
  • 19. Respondent then drove further down the alley, passing by other parking lots, and turned around, allowing him to drive past Haven of Hope’s parking lot a second time.
  • 20. Respondent slowed again as he passed Haven of Hope’s parking lot for the second time and threw the open chip can containing his feces out of his car window and into Haven of Hope’s parking lot.
  • 21. Wilkinson-Carpenter observed respondent throw the can out of the window of his vehicle toward Haven of Hope’s parking lot.
  • 22. Respondent then sped off in his vehicle and drove to the courthouse for Wells’s 8:30 a.m. pretrial hearing.
  • 23. Wilkinson-Carpenter approached the item which landed close to her car and discovered it was a Pringles can containing what appeared to be human feces.

The charges go on to allege that the victim’s advocate reported the incident to law enforcement and that the lawyer eventually pled guilty to Disorderly Conduct and Littering.

So far, I’d yet to reach the part of the story that left me in disbelief. Then I read paragraph 27 of the disciplinary complaint.  It alleges:

  • “27. Respondent has engaged in similar conduct on approximately ten previous occasions, indiscriminately choosing the location where he throws the chip cans containing his feces.”

Thinking back to the opening and a jingle of my youth, I GUARANTEE this: today’s story certainly does not leave me with a fever for the flavor.

As always, let’s be careful out there.

Related posts:

Five for Friday #268

Welcome to Friday and the 268th legal ethics quiz!

Throughout the week, various ideas for today’s introduction percolated in my mind. A few even led to drafts that I’ve not yet deleted.  Then, this morning, I happened upon a French proverb:

Silence makes no mistakes.”

With that, 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 consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

Below, I’ve listed 3 carve outs in which a rule permits a lawyer to do something that the same rule otherwise prohibits.  Which of the 7 Cs of legal ethics does the rule govern?

  • To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client.
  • To establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved.
  • To respond to allegations in any proceeding concerning the lawyer’s representation of the client.

Question 2

There is a rule that sets out a lawyer’s duties when, in connection with a representation, the lawyer is in possession of funds in which both the “client and a third person claim interests.”  The rule requires the lawyer to promptly distribute all portions that are not in dispute and to keep the remainder “separate” until the dispute is resolved.

Does the rule apply when the lawyer is the “third person” who claims an interest in the funds?

  • A.  Yes.
  • B.  No.  In this situation, the rule requires the lawyer to disburse the entire portion to the client and then seek to recover the lawyer’s share through “appropriate judicial process.”

Question 3

Here’s an excerpt from a comment to one of the rules.  Fill in the blank.

“The tribunal has proper objection when the trier of fact may be confused or misled by a lawyer servicing as both advocate and ____________.  The opposing party has proper objection where the combination of roles may prejudice the party’s rights in the litigation.”

Question 4

Lawyer called me with an inquiry. I listened, then responded “we just adopted a new rule that applies to your situation. It allows you to disclose otherwise confidential information in order to detect and resolve conflicts of interest, as long as the information you reveal won’t compromise the attorney-client privilege or otherwise prejudice your clients”

Given my response, what is Lawyer’s situation

  • A.  Lawyer is changing jobs.
  • B.  Lawyer is changing malpractice carriers.
  • C.  Lawyer received a jury summons.
  • D.  Lawyer was selected for a trust account audit by a CPA firm that does business in Vermont.

Question 5

One of the jobs in a U.S. President’s administration is that of Pardon Attorney. I’m not positive, but I think that the lawyer who serves as Pardon Attorney must be very busy this time of year. 

According to legend, President Lincoln granted clemency one November, as did President Kennedy 100 years later.  However, it wasn’t until 1989 that President Bush began an official tradition that continues to this day. Several years ago, President Obama spoke eloquently:

“And it is my great privilege — well, it’s my privilege — actually, let’s just say it’s my job — to grant them clemency this afternoon. As I do, I want to take a moment to recognize the brave [others] who weren’t so lucky, who didn’t get to ride the gravy train to freedom — who met their fate with courage and sacrifice — and proved that they weren’t chicken.”

According to media reports from earlier this week, President Biden is likely to issue pardons next week to two North Carolinians. Assuming that President Biden asks the Pardon Attorney for advice, competent advice will include understanding who is being considered for pardons.

Who is up for presidential pardons this time of year?

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 9th Circuit Court of Appeals affirmed the district court’s decision.  Among other things, the 9th 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.