Hot Topics in Legal Ethics

I’m in Chicago at the Annual Meeting of the National Organization of Bar Counsel.

First things first: no, Cook County is not one of Vermont’s 14 counties.  However, very early this morning, I knocked out 11.5 miles in Cook County.  I ran a beautiful route from my hotel to Wrigley Field and back.  Most of the route was on the Lakeshore Trail along Lake Michigan. One lap around Wrigley made me feel very, very guilty . . . the setting is much nicer than Fenway.

Anyhow, back to business. One of tomorrow’s seminars is “Hot Cases in Ethics Opinions.” The material is posted online (NOBC membership required, so I’m not linking to it.)  Anyhow, from the material, it looks like the seminar will address 6 advisory opinions. The first 4 are:

  • Nebraska Ethics Advisory Opinion for Lawyers 17-03 (Cryptocurrency)
  • ABA Formal Opinion 477 (Securing Communication of Protected Client Information)
  • Illinois State Bar Professional Conduct Advisory Opinion 18-01 (Web Bugs)
  • ABA Formal Opinion 479 (The “generally known” exception to Rule 1.6)

Guess what? If you’re a regular reader of this blog, it’s like you’ve already attended tomorrow’s seminar!  That’s right, I’ve written about each of the first 4 advisory opinions!

So, what about the two others?

#5 in the material is a recent report from the Attorney Registration and Discipline Commission of the Supreme Court of Illinois. In the report, the ARDC seeks comment on its recommendation that Illinois relax its rules against attorney participation in for-profit referral services.  Robert Ambrogi blogged about the report for Above the Law.

I’ve not yet followed suit.  Why? Well, the report is 124 pages long.  Further, about a month after the ARDC issued the report, the company that recently acquired Avvo announced that it would discontinue Avvo Legal Services.  The ABA Journal reported on the announcement here.

I’ve yet to fully flesh out a blog that will cover both the ARDC report and the news that Avvo’s fixed-fee legal services plan has been discontinued. That being said: I’ve blogged a topic related to each: Fixed-Fee Legal Services: A Conversation Starter

Finally, #6 in the material is ABA Formal Opinion 472: Communication with Person Receiving Limited-Scope Legal Services. I’ve not yet blogged on the opinion. But I’ve discussed it at many seminars!  Also, the material suggests that discussion of the opinion will include a discussion the ethics of ghostwriting. As you know, I ain’t afraid of no ghost! I’ve tackled the topic a few times, most recently in Ghostwriting as Access.

Want to know what’s hot in legal ethics? Follow this blog!!




Monday Morning Answers – My Cousin Vinny

You’ve spoken.  My Cousin Vinny is not only your favorite movie, it’s the most popular topic upon which I’ve ever blogged.

And if there’s one thing my readers know, it’s magic grits.

Friday’s questions are here.  Spoiler alert: the answers appear below today’s Honor Roll. However, before I get to the Honor Roll & answers, I’m trying something new that I hope turns into its own column.

For those of you who follow me on Twitter, you know that last night I posted this link to all my posts on the topic of Lawyers Helping Lawyers.  I posted at 5:30 PM in reaction to my realization that “whoa! it’s pitch dark and it’s only 5:30.”

Winter is long.  Darkness can be tough.  And, as the numbers show, we’re a profession that struggles to cope with stress, anxiety, substance abuse and mental health issues.  We must promote wellness and work-life balance, and we must encourage lawyers to make time for what matters.  In other words, let’s focus on ensuring that light shines in our personal & professional lives.

One way to let the light in is to do things that have nothing to do with the law. For example, yesterday, I ran a race with my mom.  She ran the 5K, I did the half marathon. One of us won her age division, I did not.  Here’s us post-race, pre-brunch.


As we enter the months where the days arehort, it’s as important as ever to keep light in our lives.  To encourage that, send me your pictures of you doing something non-lawyerly.  It doesn’t have to be running a race.  It could skiing, playing with your kids or grandkids, reading, posing outside a show you’re about to attend.  If this catches on, each week, I’ll post the pictures, highlighting lawyers who, every now & then, go lawyerly-lite to keep the light on.

Honor Roll


Question 1

The rules include a special rule on conflicts for a certain type of lawyers.  What type?

Former & Current Government Officers & Employees.  Rule 1.11

Question 2

Pick the exact word or phrase that most accurately fills in the blank.

For the purposes of the confidentiality provisions of Rules 1.6 and 1.9(c), information that is a matter of public record is not necessarily __________:

  • A.   “Waived”
  • B.   “Privileged”
  • C.    “Confidential”
  • D.    “Generally known.”

Demonstrating my lack of competence, the original version of the quiz had two correct answers:  A – disclosable, and D – generally known.  Once I caught it, I edited the blog, but not before some people had answered and, anyway, it doesn’t edit the email that goes to people who have signed-up to follow the blog.

In the revised version, the answer is “generally known.”  See generally, Rule 1.9(c)(1).  I will blog on this issue later this week.

Question 3

Attorney called with an inquiry.  I listened, then responded “the rule doesn’t say ‘solely to obtain an advantage.’ It says ‘to obtain an advantage.’  We dropped ‘solely‘ back in 1999.”

What did Attorney call to discuss?

  • A.  Contacting an opposing party’s expert witness
  • B.  Contacting a prospective juror
  • C.  Threatening criminal charges in a civil matter.  See, Rule 4.5
  • D.  Interviewing an employee of a represented organization, without the permission of the organization’s lawyer

Question 4

Lawyer called me with an inquiry. I listened, then responded “Well, given the traditional limitation on permitting a non-lawyer to direct a lawyer’s judgment, if any the activities  will include the practice of law, you can’t do it.”

What did Lawyer call to discuss?

  • A.  Forming a partnership with a non-lawyer. See, Rule 5.4(b)
  • B.  Someone other than a client paying for Lawyer to represent that client
  • C.  Sharing a referral fee with an attorney in a different firm
  • D.  Implementing a cloud-based practice management system

Question 5

In the trial in My Cousin Vinny, one of the key moments is Vinny’s cross-examination of an eye-witness.  The witness testified that Vinny’s clients must have been in the Sac-O-Suds (the convenience store where the murder took place) for 5 minutes. On cross, Vinny asked:

“Well, I guess the laws of physics cease to exist on top of your stove. Were these ___________________? Did you buy them from the same guy who sold Jack his beanstalk beans?”

Fill in the blank. Hint: it’s 2 words

Magic Grits.   The scene is here and is worth re-watching.  It’s a fantastically competent cross-examination of an eye-witness. And it’s funny.  #lawyerlight 



PRP Looks at Nonlawyer Ownership

The Professional Responsibility Program (PRP) held its Annual Meeting on May 31, 2017.  The meeting took place at Burlington’s Hotel Vermont.  Chief Justice Paul Reiber joined the Board, members of the PRP’s hearing & assistance panels, PRP staff, and several invited guests for a day of seminars and discussion.

The morning’s second seminar focused on whether to amend Rule 5.4 to allow lawyers   to practice in firms in which nonlawyers hold ownership interests or managerial roles.

Vermont Law School’s Oliver Goodenough provided a fascinating talk on law & technology.  Among other things, Professor Goodenough expanded on ideas he originally shared in blogs he authored for the Huffington Post: Innovation in Legal Practice: Beyond the Current Model of Professionalism, and, Legal Technology 3.0.

Changing Rule 5.4 to allow Alternative Business Structures has long intrigued me. My first post on the topic is here: Is it Time for Nonlawyer Ownership? An Introduction to ABS.

Professor Goodenough’s engaging & instructive talk opened many more eyes to the potential benefits of ABS.  I anticipate that the Board will study nonlawyer ownership.  I will continue to raise the issue, as well as the idea of entity regulation.

Professor Goodenough – thank you so much for sharing your time, thoughts, and expertise with the members of the PRP!