Tips for Online Reputation Management

Online Reputation Management is a thing.  An important thing.  But not so important that the Rules of Professional Conduct go out the window when a lawyer manages her online reputation.

Rule 1.6 prohibits a lawyer from disclosing information relating to the representation of client.  The rule is much broader than the attorney-client privilege and applies to all information relating to the representation no matter the source.

There are exceptions to the rule.  They are:

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

Rule 1.6(c)(3) permits a lawyer to disclose information related to the representation of client:

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

As I’ve previously blogged, a negative online review is not a “controversy between the lawyer and the client” that triggers the exception.  Neither is a negative online review a “proceeding” in which allegations have been made against the lawyer. My blog posts, which includes advisory opinions & disciplinary decisions, are here:

As the headlines suggest, the posts focus on what not to do.  For instance, don’t reveal client confidences in response to an online review.  Don’t post fake positive reviews.  Don’t create a fictitious lawsuit in order to get a court to order a website provider to take down a negative review.

Today’s ABA Journal has some great tips related to online clients reviews.  They appear in Kelly Newcomb’s post How lawyers can make positive – and negative – online reviews work for them.  

Whether on AirBnB, Yelp, Amazon, or myriad other sites, I suspect many lawyers have read through the reviews before making a purchase or reservation.  Odds are, potential clients are doing the same before hiring you.  Today’s post in the ABA Journal helps to frame not only a lawyer’s professional obligations when dealing with online reviews, but the marketing benefits that come with knowing how best to manage an online reputation.

See the source image    Image result for images of yelp     Image result for images of amazon

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Wellness Wednesday: an action plan

On March 3, 2016, I posted my first blog on attorney wellness: Lawyers Helping Lawyers.  Since, I’ve raised the issue as often as possible on this blog and at continuing legal education seminars.  Today, I’m pleased to report that the Vermont Commission on the Well-Being of the Legal Profession recently issued its State Action Plan.

The Vermont Supreme Court created the Commission in response to a report from the National Task Force on Lawyer Well-Being.  That report, The Path to Well-Being: Practical Recommendations for Positive Change, made a series of recommendations in response to a study that found staggering rates of behavioral health issues among lawyers.  Relevant to my job as bar counsel, the national report noted:

  • “To be a good lawyer, one has to be a healthy lawyer.  Sadly, our profession is falling short when it comes to well-being.  The two studies referenced above reveal that too many lawyers and law students experience chronic stress and high rates of depression and substance abuse.  These findings are incompatible with a sustainable legal profession, and they raise troubling implications for many lawyers’ basic competence.”

Competence is the first professional duty set out in the Rules of Professional Conduct.

Again, Vermont’s state action plan is here.  When you have time, give it a read.  Here’s the concluding paragraph from the introduction:

  • “Our profession has a duty to deliver competent legal and judicial services that will serve to uphold the integrity of the justice system. We recognize that the recommendations that follow may impose costs on the profession. We are certain, however, that the benefits of these proposals outweigh the modest cost of implementing them. Neglecting the truths of the national report that issued and its focus on the elevated risks for mental illness and substance abuse will, we believe, impose greater, more damaging costs—both on our profession, the public and its confidence in the rule of law. We hope that these proposals will be recognized as responsibilities fundamental to the privilege of practicing law.”

I agree 100%  We cannot neglect the issue.  As a profession, we must follow-up on the action items.  We cannot congratulate ourselves on the Commission’s fantastic work only to relegate the plan to the digital equivalent of a shelf where it collects electronic dust until that long-off day when someone finds an archived version and says “Wow.  Great ideas. I wonder what ever became of them?”

Wellness

If you’re new to this topic, here are my various posts:

 

 

 

Ethics: it’s all about the bad grades

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

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

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

  • Competence
  • Confidentiality
  • Communication
  • Candor
  • Conflicts

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

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

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

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

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

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

Thank you Professor Bernabe for another arrow in the quiver.

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

See the source image         Image result for images of d and f grades      Image result for images of f grade

 

 

 

Monday Morning Answers #146

Welcome to the week.  Friday’s questions are here.  The answers follow today’s Honor Roll.

Special kudos to (1) Under Pressure for a team name cleverly linked to Question 5; and (2) Kevin Lumpkin for using “Fauxstralian” to describe Friday’s example of paltering.

Honor Roll

Answers

Question 1

Last week, the quiz’s first question asked readers to name 1 of the 5 C’s of ethics.  They are Competence, Communication, Confidences, Conflicts and Candor.  This week, I blogged about the importance of a professional duty that begins with a letter that abuts C.  It’s a duty that applies no matter how “big” or “small” a lawyer views a client’s matter.

It’s the duty in the rule entitled:

  • A.   Bookkeeping
  • B.   Barratry
  • C.   Diligence;  See this blog post.
  • D.  Dual Representation

Question 2

One of the conflicts rules states that “a concurrent conflict of interest exists if the representation of one client will be directly adverse to another.”

True or False:

The rule speaks to matters that are the same or substantially related to each other. For example, a lawyer who represents Kennedy in Kennedy v James, can also represent Brady in Kennedy v. Brady, as long as the two matters are wholly unrelated.

FALSE.  See, Rule 1.7, Comment [6]: “absent consent, a lawyer may not act as an advocate in one matter against a person a lawyer represents in some other matter, even when the matters are wholly unrelated.”

Question 3

Lawyer is holding funds in connection with the representation of Client.  Both Client and Third Party Service Provider have claimed an interest in the funds.  Client and Third Party Service Provider dispute the amount to which each is entitled.  In fact, Lawyer is aware that Third Party Service Provider’s claim is valid.  By rule, Lawyer must:

  • A.   Pay the funds into court and ask a court to resolve the dispute
  • B.   Hold the funds in a trust account until the dispute is resolved.  Rule 1.15(e)
  • C.   Disburse the funds as directed by Client
  • D.   Disburse in accordance with Lawyer’s good-faith determination of the amount due to each

Question 4

Somewhat unbelievably, this one just happened again last week. So, I’m going to keep asking.

Attorney called me with an inquiry.  Attorney said “Mike, I represent a witness.  The defendant’s attorney keeps contacting my client directly. I asked him to stop.  He said he doesn’t need my permission because my client is only a witness, not a party.  Is he right?”

What was my response?

  • A.   Yes, he’s right.
  • B.   The rule is unclear.
  • C.   The rule is unclear, but, by case law, no, he’s wrong.
  • D.  He’s wrong. The rule applies to any person who is represented in a matter.  See, Rule 4.2

Question 5

I don’t watch reality tv, but I like regular tv. In addition, I often blog about competence. I also like to blog about lawyers who are quite competent at non-lawyerly pursuits.

A few years ago, I got into a show called Mr. Robot.  One of the reasons I liked it was the fantastically competent work by lead actor Rami Malek.

Earlier this week, Malek won the Golden Globe for outstanding lead actor in a movie. In the movie, he played Freddy Mercury.  This is a hint, as is the fact that I purposefully did not name the movie.

The Windham County Bar Association held its annual dinner on Wednesday night.  Thanks to former secretary Ray Massucco, the WCBA has a wonderful tradition of presenting the minutes of the previous year’s meeting in a very entertaining way.

This year was James Valente’s first meeting as Secretary of the WCBA. He marked the occasion by channeling his inner Freddy Mercury and singing the minutes of the 2017 meeting to the tune of a famous Queen song.  By all accounts, he was fantastically competent.

Name the song.

Bohemian Rhapsody.  The official version is here.  True story: footage of Valente’s version exists.  I’ve watched it, and it’s even more fantastically competent than you can imagine.

Image result for bohemian rhapsody images

Five for Friday #146

Welcome to Friday!

I’m battling writer’s block today.  As I struggled, I re-read last week’s post about my mom.   Then it hit me: especially this week, “146” makes me think of two things: paltering and reality TV.

Whether speaking or writing on professional responsibility, “puffery” and “paltering” are two of my favorite words.  Last October, I posted On Ponds, Puffery & PalteringIn it, I shared a story of my own paltering.  As a refresher, here’s a short excerpt:

“A person palters by actively using the truth to deceive.  As this piece in the Washington Post points out, many consider ‘the behavior of someone who paltered in a negotiation as being just as unethical or untrustworthy as the person who outright lied with a known falsehood.’

Remember: when representing a client, Rule 4.1 prohibits misrepresentations of fact or law to a third person.  Per Comment [1], ‘[m]isrepresentations can also occur by partially true or misleading statements or omissions that are the equivalent of affirmative false statements.'”

Last Friday, my set-up for “145” was to ask readers to pronounce it “1 for 5.”  I wrote:

“If you say it ‘1 for 5,’ well, you’ve summed up my baseball career.  As in, I was a terrible hitter:  ‘1 for 5’ was an above average game at bat for me.”

Well, now that I think about it, does 1 for 5 sum up my baseball career?  Yes, but that’s only partially true.  It’s far more accurate to say “yes, I went 1 for 5, then I made another out in my 6th at-bat.”

1 for 6.

Now, here’s where reality TV comes in.

I  don’t like reality TV.  I don’t watch any of it.  The only exception: in law school, I was into MTV’s Real World.  I watched the first 3 seasons.  Since then, I’ve actively worked to know as little as possible about reality TV.

Alas, worlds collide.

Monday night was a huge night for me.  Not only did my beloved Clemson Tigers win the college football national championship, but Season 23 of The Bachelor premiered.  No, I didn’t watch.  I never have.  It’s reality TV and it’s not puffery when I tell you that I despise reality TV.

But, in the hype leading up to the premiere, The Bachelor made headlines for, guess what?

Paltering!

The pre-premiere promos include this tweet.  Check it out.  That is the clinical definition of paltering!

And that is why, in the unlikely event that I ever again have to pause to reflect on the number 146, my introspection will cause me to think of baseball, paltering, and reality TV.

Image result for images of an aussie flag

On to the quiz!

Rules

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception – but one that is loosely enforced – #5 (“loosely” = “aspirational”)
  • 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
  • Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

Last week, the quiz’s first question asked readers to name 1 of the 5 C’s of ethics.  They are Competence, Communication, Confidences, Conflicts and Candor.  This week, I blogged about the importance of a professional duty that begins with a letter that abuts C.  It’s a duty that applies no matter how “big” or “small” a lawyer views a client’s matter.

It’s the duty in the rule entitled:

  • A.   Bookkeeping
  • B.   Barratry
  • C.   Diligence
  • D.  Dual Representation

Question 2

One of the conflicts rules states that “a concurrent conflict of interest exists if the representation of one client will be directly adverse to another.”

True or False:

The rule speaks to matters that are the same or substantially related to each other. For example, a lawyer who represents Kennedy in Kennedy v James, can also represent Brady in Kennedy v. Brady, as long as the two matters are wholly unrelated.

Question 3

Lawyer is holding funds in connection with the representation of Client.  Both Client and Third Party Service Provider have claimed an interest in the funds.  Client and Third Party Service Provider dispute the amount to which each is entitled.  In fact, Lawyer is aware that Third Party Service Provider’s claim is valid.  By rule, Lawyer must:

  • A.   Pay the funds into court and ask a court to resolve the dispute
  • B.   Hold the funds in a trust account until the dispute is resolved
  • C.   Disburse the funds as directed by Client
  • D.   Disburse in accordance with Lawyer’s good-faith determination of the amount due to each

Question 4

Somewhat unbelievably, this one just happened again last week. So, I’m going to keep asking.

Attorney called me with an inquiry.  Attorney said “Mike, I represent a witness.  The defendant’s attorney keeps contacting my client directly. I asked him to stop.  He said he doesn’t need my permission because my client is only a witness, not a party.  Is he right?”

What was my response?

  • A.   Yes, he’s right.
  • B.   The rule is unclear.
  • C.   The rule is unclear, but, by case law, no, he’s wrong.
  • D.  He’s wrong. The rule applies to any person who is represented in a matter.

Question 5

I don’t watch reality tv, but I like regular tv. In addition, I often blog about competence. I also like to blog about lawyers who are quite competent at non-lawyerly pursuits.

A few years ago, I got into a show called Mr. Robot.  One of the reasons I liked it was the fantastically competent work by lead actor Rami Malek.

Earlier this week, Malek won the Golden Globe for outstanding lead actor in a movie. In the movie, he played Freddy Mercury.  This is a hint, as is the fact that I purposefully did not name the movie.

The Windham County Bar Association held its annual dinner on Wednesday night.  Thanks to former secretary Ray Massucco, the WCBA has a wonderful tradition of presenting the minutes of the previous year’s meeting in a very entertaining way.

This year was James Valente’s first meeting as Secretary of the WCBA. He marked the occasion by channeling his inner Freddy Mercury and singing the minutes of the 2017 meeting to the tune of a famous Queen song.  By all accounts, he was fantastically competent.

Name the song.

 

 

 

 

 

 

 

 

 

 

Monday Morning Answers #145

Good Monday morning!

2019 is off to a great start! A record number of folks made the Honor Roll!

Friday’s questions are here.  Thank you for the many kind words about my mom.  The answers follow today’s Honor Roll.

p.s.: based on the responses I received, it’d be fascinating to host a debate where my readers make their various cases as to whether Pete Rose should or should not be in the Hall of Fame!

Honor Roll

  • Matthew AndersonPratt Vreeland Kennelly Martin & White
  • Evan BarquistMontroll Backus & Oettinger
  • Alberto Bernabe, Professor, John Marshall Law School
  • Honorable John M. Conroy, United States Magistrate Judge, District of Vermont
  • Andrew Delaney, Martin & Delaney Law Group
  • Jake Durell, Esq.
  • Jennifer DuxburyPratt Vreeland Kennelly Martin & White
  • Jennifer Emens-Butler, Vermont Bar Association, Communiation & Education
  • Erin GilmoreRyan Smith & Carbine
  • Bob Grundstein, Esq.
  • Mark HeymanGeneral Counsel, Logic Supply
  • Glenn Jarrett, Jarrett & Luitjens
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy, My mom
  • John LeddyMcNeil, Leddy, & Sheahan
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Kevin LumpkinSheehey Furlong & Behm
  • Lon McClintockMcClintock Law Offices
  • Jeff MessinaBergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Josh O’Hara, Appellate Public Defender
  • Nancy Rogers, South Burlington School District
  • Jim Runcie, Ouimette & Runcie
  • Chris Souliere, Burlington School District
  • Jay Spitzen, Esq.
  • Caryn WaxmanBarber & Waxman
  • Zachary York, Vermont Superior Court, Chittenden Civil & Criminal

Answers

Question 1

Earlier this week, I blogged that lawyers likely won’t go wrong if they remember the “5 Cs” of ethics.  Name at least one of the 5 Cs.

Competence, Confidentiality, Communication, Candor, Conflicts

For more, see C in Ethics? You’re on the right track

Question 2

Fill in the blank.

Generally, incivility isn’t a violation of the Rules of Professional Conduct. However, there’s a rule that makes it professional misconduct to “engage in undignified or discourteous conduct which is degrading or disrupting to ____________”

Question 3

The term “IOLTA” does not appear in the rules.  What’s the term that the rules use when referring to what we all more commonly refer to as an “IOLTA?”

Question 4

True or false.

The rule on trial publicity only applies to criminal cases.

FALSE.  Rule 3.6

Question 5

Speaking of baseball, autographs and my mom . . .

. . . in the 1970’s, she was a huge fan of the Cincinnati Reds, the so-called “Big Red Machine.”  Such a fan that not only would we go see them play in Montreal, but my mom would figure out what hotel they were in and try to get autographs from them.

True story: once in Montreal, I think it was at the Bonaventure, she spotted Joe Morgan and another player in a booth eating dinner.  She sat down with them and asked for their autographs.  The other player replied: “I don’t give autographs to people who are sitting on my sport coat.”

Joe Morgan is in the Hall of Fame.  The player in the booth with him is not.  In fact, besides suffering the indignity of having my mom sit on his sport coat, the player who was with Morgan has been banned from baseball. Disbarred, if you will.

Name him.

Pete Rose.

See the source image

Five for Friday #145

Welcome to Friday!

Not much about “145” stirs memories worthy of the intro to this column.  However, as I ruminated on the number, a thought crystallized: my mom.

Right about now, she’s swearing.  Out loud.  You see, she’s a regular reader of the Friday column and, at this moment, is both certain and pissed that I’m going to say she’s 145 years old.

Mom, as I often say, don’t think so much.

145.

If you say it “1 4  5,” well, you’ve summed up my baseball career.  As in, I was a terrible hitter:  “1 for 5” was an above average game at bat for me.

What’s this got to do with my mom?

My basement is a typical “man cave.”  Sports memorabilia dominates.  Last night, I paced back and forth across the basement trying to think of a topic for today’s blog.  As I did, I tossed a baseball from hand to hand.  It was a ball that I’d grabbed from a shelf.  Not just any old baseball, this baseball:

img_2274

1977 was my first year in Little League.  I played left field for the A’s.  That year, we beat the Dodgers in the championship game.  My mom saved the game ball, noted the date & score, and had everyone sign it.  You can see where I signed, and where Shawn Lacey signed.  The rest of my teammates & coaches signed too.

Last night, I considered whether to use the ball as a metaphor for life.  Something along the lines of how, in that moment, my teammates and I were, quite literally, the most important thing in the world to each other.  Yet, now, I can’t put faces to two of the names, and can’t remember the last time that I saw any of them.

Although somewhat melancholy, it was a great memory.  So great that I was struck by how fortunate I was to have kept the ball.

Then I realized something very important:

I only have the ball because my mom took the time to save it and have it signed.

My mom’s life is a huge story.  One so huge that I’m beyond proud of her and unable to tell the story completely here.

In short, my mom grew up in Bradford.  She moved to the big city of Burlington and, after two years, had a degree in dental hygiene. Back then, it wasn’t yet popular to help or encourage women to do anything other than what the times expected of them.  For my mom, nobody expected that she’d do anything but go back to Bradford, work for Dr. Barton, live out her life as a hygienist in the town she grew up in, and, every now and then, spend a weekend at Weirs Beach with her family.

My mom has never let others’ expectations deter her.

Yes, she spent several years working as a hygienist and was damn good at it.  She also did other things.  For instance, get elected to the School Board, get elected to two terms in the Vermont Legislature, serve as Executive Director of the Vermont Democratic party, and spend the past 25 or so years running a successful lobbying business that she started from scratch.

She also runs costume races with me:

img_0469

All of those big accomplishments?  She did them herself.  There was no movement helping her.  And I seriously doubt that her parents thought any of it made sense.

But she also made me that baseball.

The baseball that, last night, made me smile thinking about something that happened 41 years ago.  Something that I can’t really remember, but that I know, then, was my entire world.  The memory of a forgotten memory is now as valuable as the memory once was.  All thanks to my mom.

There are at least 145 million other little things that my mom has done for my brother and me, and infinitely as many that she’s done for others.  As proud as we are of her for accomplishing the big things, it’s those little things that make us so thankful that she’s our mom.

Throughout 2019, you’re going to have many chances to do a little thing for someone.

Do it.

The kid who went for 1 for 5 and who rolled his eyes as his mom ran around asking his teammates to autograph a baseball will thank you for it someday.

Thank you mom! For all the little things.

Onto the quiz!

Rules

  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception – but one that is loosely enforced – #5 (“loosely” = “aspirational”)
  • 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
  • Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

Earlier this week, I blogged that lawyers likely won’t go wrong if they remember the “5 Cs” of ethics.  Name at least one of the 5 Cs.

Question 2

Fill in the blank.

Generally, incivility isn’t a violation of the Rules of Professional Conduct. However, there’s a rule that makes it professional misconduct to “engage in undignified or discourteous conduct which is degrading or disrupting to ____________”

  • A.    opposing parties and counsel
  • B.    a tribunal
  • C.    the profession
  • D.   Trick question.  There is no such rule.

Question 3

The term “IOLTA” does not appear in the rules.  What’s the term that the rules use when referring to what we all more commonly refer to as an “IOLTA?”

  • A.  Pooled interest-bearing trust account
  • B.  Client trust account
  • C.   Operating account
  • D.   Vermont Bar Foundation account

Question 4

True or false.

The rule on trial publicity only applies to criminal cases.

Question 5

Speaking of baseball, autographs and my mom . . .

. . . in the 1970’s, she was a huge fan of the Cincinnati Reds, the so-called “Big Red Machine.”  Such a fan that not only would we go see them play in Montreal, but my mom would figure out what hotel they were in and try to get autographs from them.

True story: once in Montreal, I think it was at the Bonaventure, she spotted Joe Morgan and another player in a booth eating dinner.  She sat down with them and asked for their autographs.  The other player replied: “I don’t give autographs to people who are sitting on my sport coat.”

Joe Morgan is in the Hall of Fame.  The player in the booth with him is not.  In fact, besides suffering the indignity of having my mom sit on his sport coat, the player who was with Morgan has been banned from baseball. Disbarred, if you will.

Name him.

 

 

 

 

C in ethics? You’re on the right track.

I think we have too many rules.  Even some of the most important include too many words.  In 2019, I intend to work to streamline the rules.

This isn’t a new idea.

I started as disciplinary counsel in 2000.  Shortly after I started, I was talking with a lawyer who was representing an attorney against whom I’d filed disciplinary charges.  I don’t remember the lawyer’s exact words, but I’ll never forget the gist of something that he told me:

“Mike, the rules say blah, blah, blah. You should interpret them to prosecute lawyers who lie, cheat, or steal.”

In a way, he’s right.

A conflict is a form of cheating.  An unreasonable fee is stealing.  The lack of diligence – letting a client think you’re doing your job when you’re not – is lying,

Of course, I’m not so foolish as to think anyone would support amending the rules to one sentence:

  • “It shall be professional misconduct for a lawyer to lie, cheat or steal.”

Still, for those of you who looking for the crib notes version, it’s not a bad start.

A better start?  The 5 C’s.

Again, this isn’t something I came up with on my own.  This morning, I was reading Faughnan on Ethics.  I found this post: A recipe for ethical lawyering?.  In it, Brian Faughnan posits that the 5 Cs can serve as “a basic road map for being an ethical lawyer no matter the nature or setting of [the lawyer’s] practice” and could serve as “those pieces of the ethics rules” that we must keep as we constantly evaluate (and improve) lawyer regulation.

Faughnan’s 5 Cs:

  • Competence
  • Confidentiality
  • Communication
  • Candor
  • Conflicts

I like it.

Let’s take a look at how the 5 C’s apply to a new client, with links to some of my prior posts.

New client?

Seems to cover it.

Now, some of you might ask “what about trust accounting?”  Good question.

As Faughnan points out, “commingling” might be the 6th C.  As he also notes, several of the other Cs cover trust accounting.  To me, it’s part of competence: your job includes safeguarding & tracking money that isn’t yours.

If you find yourself on the horns of a dilemma, call me.  It’s free and part of my job.  But, as life and your practice happen in real-time, the two thoughts we’ve discussed today serve as good guideposts:

  1. Don’t lie, cheat or steal.
  2. Remember the 5 Cs.

See the source image

 

 

Advocacy, Decorum and Grover

Happy New Year!

Some of you might not have found yourselves in the happiest of moods when today dawned.  That’s ok.  This too shall pass and, anyway, it’s already Wednesday.

Still, remember: don’t let the post-holiday return to work deprive you of your professionalism.

The Rules of Professional Conduct don’t require lawyers to be polite to each other.  The only rule that addresses decorum is Rule 3.5(d).  It makes it professional misconduct for a lawyer to “engage in undignified or discourteous conduct which is degrading or disrupting to a tribunal.”

Fortunately, the record isn’t littered with violations of the rule.  Over the past 30 years, there have been only 5 instances in which a lawyer was sanctioned for violating Rule 3.5(d).

Still, rule or not, my opinion is that it’s a good idea not to be a jerk.  In fact, I think it’s such a good idea that I once wrote an entire blog on it:  Don’t Be a Jerk.  It was the first post in my series on David Hoffman’s  Fifty Resolutions in Regard to Professional Deportment. 

In the post, I cited to the Vermont Bar Association’s Guidelines for Professional Courtesy.  I encourage you to read them.  The last is my favorite:

  • “Effective advocacy does not require antagonistic or obnoxious behavior. Lawyers should adhere to the higher standard of conduct which judges, fellow attorneys, clients, and the public may rightfully expect.”

While I’ve no stats to back up this claim, my sense is that such behavior contributes to an overall lack of wellness in the profession.  And, since today is Wednesday, here’s a tip: do your part for attorney wellness by not being a jerk.

Nevertheless, as the January doldrums set in, some of you might find yourself dealing with a lawyer who, for whatever reason, acts like an antagonistic, obnoxious jerk.

Remember: you can’t control how that lawyer acts, but you can absolutely control how you react to that lawyer.

Finally, I’m loathe to miss a chance to weigh in on the great debates.  Which brings me to this post’s headline: Advocacy, Decorum and Grover.

Grover.JPG

What on earth could a muppet have to do with Rule 3.5(d)?

Earlier in this post, I mentioned lawyers who were sanctioned for violating Rule 3.5(d). Two of them were actually sanctioned for violating its predecessor in the old Code of Professional Responsibility:

  • a defense attorney for telling a prosecutor “go  ____  yourself;” and,
  • a lawyer who told a witness “get the _____ away from here.

If you haven’t heard about the Grover controversy, several media outlets have covered it, including People, Screen Rant, and TMZ.

I’m willing to listen to arguments to the contrary.  However, my initial reaction is that Grover violated the muppet equivalent of Rule 3.5(d).

 

Monday Morning Answers #144

Monday, Monday.   Can’t trust that day.

Friday’s questions are here.  The answers follow today’s Honor Roll.  A safe & peaceful New Year to all.

Honor Roll

  • Beth DeBernardi, Administrative Law Judge, VT Dept. of Labor
  • Jake Durrell, Esq.
  • Erin GilmoreRyan Smith Carbine
  • Bob Grundstein, Esq.
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy, JB Kennedy Associates, My mom
  • Lawyers in Cars Eating Chick Fil-A
  • Lon McClintockMcClintock Law Offices
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Jeff MessinaBergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Herb Ogden, Esq.
  • Eric ParkerBauer Gravel & Farnham
  • Bob PrattPratt Vreeland Kennelly Martin & White
  • Jonathan Teller-Elsberg, Vermont Law School, Class of 2020, Staff Editor, Law Review

Answers

Question 1

I often blog about tech competence.

19 years ago today, there was great fear that we were only days away from a massive tech problem.  The Deputy Secretary of Defense warned that the problem was the “electronic equivalent of the El Niño and there will be nasty surprises around the globe.”

What is the name associated with the problem that, in fact, didn’t turn into much of a problem at all?

Y2K Bug

Question 2

Somewhat related . . .

. . . Rule 1.6 prohibits lawyers from disclosing information related to the representation of a client.  Rule 1.16(d) requires lawyers to deliver the file upon the termination of a representation.  I’ve also blogged on what to do when subpoenaed to produce a client file.

In 2016, a Minnesota court considered a dispute between a deceased person’s estate lawyers and divorce lawyers.

Client’s estate lawyers wanted the divorce file, asserting that it might contain “potentially relevant” information as to Client’s potential heirs.  Client’s divorce lawyers (who work at a different firm than the estate lawyers) refused, arguing that it had a professional obligation not to disclose “information protected by the attorney-client privilege and work product doctrine which was generated and acquired during the decedent’s lifetime.”

The Court agreed with the estate lawyers and ordered the divorce lawyers to produce the file.

The Client was a famous musician. Name the musician’s song that somewhat relates to the previous question and today’s New Year theme.

1999

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Question 3

Imagine that someone files a disciplinary complaint against a lawyer.  I screen the complaint.  The complainant alleges that she met the lawyer at a New Year’s Eve party and was offended when she overheard him refer to her as “a verbally incontinent spinster who smokes like a chimney, drinks like a fish and dresses like her mother.”  Yet, the complainant concedes that the insult caused her to resolve to make changes in her life.

Specifically, the complainant credits the lawyer’s rudeness with causing her to write as follows:

New Year’s Resolutions

These are the things I decided I would do this year.
1. Stop smoking.
2. Develop a mature
relationship with an adult man.
3. Go to the gym.
4. Be kinder and help others more.

I ended up dismissing the complaint.  Why? Because by the end of the year, the complainant withdrew it, having learned that the lawyer wasn’t as bad as she initially thought.  He hadn’t broken up her friend Daniel’s marriage, it was the other way around.  The lawyer even bought her a new journal.  Plus, the PRB doesn’t have jurisdiction over barristers.

Who filed the complaint?

Bridget Jones 

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Question 4

Regular readers know that I’m a fan of Taylor Swift and The Rolling Stones.  I’ve seen each in concert.  However, the first concert that I ever attended was U2. I saw the band in Montreal during The Joshua Tree tour.

While I’m pro Taylor Swift, and pro Rolling Stones, perhaps I’d be well-served to refer to U2 when addressing a particular section of the Rules of Professional Conduct.  New Year’s Day this time of year, or, better yet, a member of the band.

The section is critically important, but often forgotten when thinking of “legal ethics.”  Which section?

Midway thru the day on Friday, I rephrased the question to try to make it easier. I failed. Guess it’s a poor question. 

Anyway, I’m also pro Bono.

And pro pro bono.  Don’t forget!  The public service rules (6.1 – 6.5) are very important!  Here are som FAQs.

Question 5

You represent a client who has been charged with ordering a relative’s death.  You’re well aware that Rule 1.2(a) requires you to abide by your client’s wishes whether to plea, whether to waive a jury trial, and whether to testify.

Your client has opted not to plea. Now, he wants to testify in his own defense.  Specifically, he wants to testify as to what he meant when, during a New Year’s Eve party in Havana, he said to the now deceased relative:

“I know it was you Fredo. You broke my heart.  You broke my heart.”

What is your client’s name?

Bonus: Name the movie.

Michael Corleone, in The Godfather: Part II   The scene is here.

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