Vermont’s Professional Responsiblity Program

Back to basics today.

The Professional Responsibility Program remains somewhat mysterious to many Vermont lawyers. In a sense, the fact that most attorneys lack first-hand experience with the Program is a good thing.  Nevertheless, since the PRP is funded by attorney licensing fees, it’s good for lawyers to know what the PRP does and the resources that it makes available.

Here’s an overview.

The Vermont Constitution vests the Supreme Court with exclusive “disciplinary authority concerning all judicial officers and attorneys at law in th State.”  Vt. Const., Ch. II, §30.  In its exercise of that authority, the Court has promulgated and adopted (1) Permanent Rules Governing Establishment and Operation of the Professional Responsibility Program; and, (2) Vermont Rules of Professional Conduct.  The former is more commonly known as “A.O. 9,” while the latter are the ethics rules.

A.O. 9 delegates responsibility for, and supervision of, the PRP to the Professional Responsibility Board.  The Board consists of 7 members.  By rule, 3 must be lawyers, 3 must be non-lawyers, and 1 must be a judge. The current members:

The Board meets between 4 and 5 times per year.  The Board does not direct investigations or prosecutions. It plays no role in the adjudication of disciplinary cases.  Each year, the Board issues an Annual Report.  The most recent is HERE.

A.O. 9 creates two positions to administer the PRP’s daily operations: Bar Counsel and Disciplinary Counsel.  I have been bar counsel since 2012.  I was disciplinary counsel from 2000 thru June of 2012.   Now, Sarah Katz is disciplinary counsel.  She started in April 2017. Our offices are in the Costello Courthouse in Burlington.  We have separate and independent roles within the Program.  Rules 3 and 9 of A.O. 9 defines those roles.

Bar Counsel

My responsibilities include:

  1. responding to ethics inquiries;
  2. providing education & outreach on legal ethics;
  3. administering the non-disciplinary dispute resolution program; and
  4. screening ethics complaints filed against attorneys

An ethics inquiry is when someone contacts me for guidance related to the Rules of Professional Conduct.  The key word is “guidance.”  I do not provide legal advice or formal advisory ethics opinions.  Rather, I share my views on the issue, and try to direct the person to the proper rule, decision, or opinion in order to frame the analysis so that the person can make his or her own decision.  Inquiries are confidential and I do not share the fact of the inquiry or its content with anyone, including disciplinary counsel.

Last fiscal year, I received 1106 inquiries.  999 came from attorneys, judges, law students, or law professors. The rest came from non-attorneys.  The topic most often raised in the inquiry process is conflicts of interest.  Additional detail on the inquiries I received will be available in the annual report that the Board will publish this fall.

Education & outreach are self-evident.  Among other things,  I frequently appear at continuing legal education seminars and I use this blog as a form of outreach.

I will discuss the non-disciplinary dispute resolution program later in this post.

Screening complaints.  By rule, bar counsel screens ethics complaint.  A.O. 9, Rule 10. The screening process involves a limited investigation in which I determine whether a complaint (1) should be dismissed; (2) can be resolved without referral to disciplinary counsel; or (3) should be referred to disciplinary counsel for an investigation.

If I dismiss a complaint at screening, the complainant has 30 days to file an appeal with the Chair of the Board.  The Chair either upholds my decision or refers the complaint for an investigation by disciplinary counsel.

Once a complaint is referred for an investigation, my involvement ends.  The respondent has 21 days to file a written response.  Exception: trust account overdrafts. Years ago, the Board decided trust account overdrafts go straight to disciplinary counsel and that a lawyer will have 5 days to respond.

Disciplinary Counsel

As disciplinary counsel, Sarah Katz investigates and litigates all disciplinary and disability matters. Sarah does not have a full-time investigator, but, in certain cases, the Board authorizes her to contract with an investigator.

Once Sarah receives an attorney’s response to a complaint, she investigates.  Upon concluding an investigation, Sarah has 3 options:

  1. dismiss the complaint;
  2. recommend formal disciplinary or disability charges; or,
  3. refer the complaint to the non-disciplinary dispute resolution program.

If Sarah dismisses a complaint, there is no appeal.  By contrast, she cannot unilaterally file formal disciplinary charges against a lawyer.  Rather, if Sarah decides to file formal charges, the rules require her to requesting a hearing panel to review her decision for probable cause.  The request is in the form of an affidavit outlining her investigation and a memorandum arguing why the respondent violated the rules  It is an ex parte process. If probable cause is found, Sarah must file formal charges against the lawyer.

There are 9 standing hearing panels.  By rule, each consists of 2 lawyers and 1 non-lawyer.  Member of the Board are not allowed to sit on hearing panels.

Once charges are filed, the respondent has 20 days to answer, followed by 60 days in which disciplinary counsel and the respondent can conduct discovery. At a hearing, disciplinary counsel must prove a violation of the Rules of Professional Conduct by clear and convincing evidence.

Not every case begins with formal charges filed by disciplinary counsel.  The rules authorize disciplinary counsel and a respondent to file stipulated facts with a hearing panel.  If a case is presented by stipulated facts, the parties can join to recommend a particular sanction, or, can present argument as to sanction.

Hearing panels are not required to accept stipulated facts.  The rules authorize a panel to reject stipulated facts and return a case to disciplinary counsel.  Similarly, if a panel accepts stipulated facts, the rules do not require the panel to accept a joint recommendation as to sanction.  Rather, a panel is free to impose its own sanction.

No matter how a case is presented, a hearing panel must issue a written decision.  If a panel concludes that the evidence or the stipulated facts clearly and convincingly establish a violation of the rules, the panel must impose a sanction.  The potential sanctions:

  • Admonition (does not identify the lawyer or impact the lawyer’s privilege to practice)
  • Reprimand (identifies the lawyer, but doesn’t impact the lawyer’s privilege to practice)
  • Suspension (identifies the lawyer and suspends the lawyer’s privilege to practice)
  • Disbarment (identifies the lawyer and suspends the lawyer’s privilege to practice)

Once a panel issues a decision, disciplinary counsel and the respondent have 30 days to appeal to the Vermont Supreme Court.  Even if neither appeals, the Court may order review on its own motion.  If no appeal is taken and the Court does not order review, a hearing panel decision becomes final and has the full force & effect of a decision of the Supreme Court.  Disciplinary decisions can be found here.

Vermont does not have permanent disbarment.  In Vermont, disbarment is for 5 years.  A disciplinary suspension must be for at least 1 day, but cannot be longer than 3 years.  If a lawyer is suspended for less than 6 months, the lawyer may return to practice when the suspension expires. A lawyer who is disbarred or suspended for 6 months or longer, must petition for reinstatement.

A reinstatement case is one in which the lawyer bears the burden of proving that the lawyer should be allowed to return to practice. Reinstatement cases are heard by hearing panels, with the decision subject to the same appellate process as in a disciplinary prosecution.

Finally, disciplinary counsel has options other than a disciplinary prosecution.  Among them, petitions for interim suspensions and petitions for transfers to disability inactive status.  Those are bit too far into the weeds for this post.

Non-Disciplinary Dispute Resolution

The rules authorize bar & disciplinary counsel to refer complaints to an “assistance panel” or any other dispute resolution program.  The PRP has both informal and formal dispute resolution.

Informal dispute resolution is bar counsel resolving the dispute.  Typically this involves me asking a lawyer to do something simple like call a client or return a client’s file.

Formal dispute resolution is resolution by an “assistance panel.”  By rule, an assistance panel must include 3 people.  Each panel must include at least 1 lawyer, at least 1 non-lawyer, and at least 1 member of the Professional Responsiblity Board.  The program has approximately 30 volunteers who have agreed to serve as assistance panel members.

The AP process is set out in Rule 4 of A.O. 9.  In short, assistance panels work to provide a forum for the non-disciplinary resolution of ethics complaints.  The process is confidential and the resolution cannot and does not result in a sanction being imposed against the lawyer’s license.

While we do not receive many fee complaints, the rules authorize us to refer fee complaints to the VBA’s Committee for the Abitration of Fee Disputes.   In my view, the Vermont Lawyers Assistance Program is a “dispute resolution program” and I have referred matters to the LAPVT. Complaints against judges are referred to the Judicial Conduct Board.

Other

That’s the program in a nutshell.

As I mentioned, I became bar counsel in June 2012.  Prior to June 2012, I was full-time disciplinary counsel and I had a full-time deputy.  The bar counsel position was half-time.

In 2012, recognizing the value in allocating resources to the prevention of misconduct, as opposed to the response to misconduct, the Board and the Court made bar counsel a full-time position and reduced the deputy disciplinary counsel position to part-time.  The position of deputy disciplinary counsel has since been eliminated.

From May 2014 to May 2017, and due to a staff vacancy, I was responsible for administering the daily operations of the Board of Bar Examiners, the Character & Fitness Committee, and the Continuing Legal Education Board.  That included administering the bar exam and the constant flow of applications for admission without examination.  In May 2017, the Court hired Andy Strauss as full-time Licensing Attorney.

With Andy on board, I’ve returned to focusing solely on my duties as defined in Rules 3 and 9 of A.O. 9 .  My goal is to move the program further towards a proactive system of regulation.  Soon, I will post on proactive attorney regulation.  For now, please visit this FAQ issued by the National Organization of Bar Counsel for more on the topic.

Legal Ethics

 

 

Monday Morning Answers #81

Nothing like a little Jay-Z to get people to enter the quiz!

Friday’s questions are HERE.  Today, the answers are below the Honor Roll.

Honor Roll

Answers

Question 1

Not all rules were created equal.  If an attorney’s duties under the rules conflict, which duty is usually viewed as trumping all others?

  • A.   Duty of zealous advocacy to clients
  • B.   Duty of fairness to opposing counsel & opposing parties
  • C.   Duty to provide competent, conflict-free representation
  • D.   Duty of candor to the courts; See generally, V.R.Pr.C. 3.4 Per the Reporter’s Notes, “if the interests of client and tribunal conflict with regard to candor, the interest of the tribunal prevail.”  Also, Comment 11 makes it clear that the duty of candor to the court prevails even in the face of causing “grave consequences” to a client by disclosing the client’s false testimony.

Question 2

Competence.  Conflicts.  Candor.  There’s another word that begins with “C” that is a serious violation of the rules.  However, the word doesn’t appear in any of the rules, notable in its absence from the trust accounting rules and the rule on safekeeping client property.

What’s the word?

Commingling

Question 3

This comes up in approximately 30% of the inquiries I receive. So, about 330 times per year.

Imagine I’m speaking at CLE.  You hear me say “the idea is that we’re not going to put a client to the ‘Hobson’s Choice’ of having to disclose a confidence in order to protect it.”

What general topic am I discussing?

Conflicts/Withdrawal

It is not uncommon for lawyers who encounter former client conflicts to tell me “but Mike, I don’t remember anything about the prior case.”  That may be true, but it’s not the standard under Rule 1.9(a).  As the Vermont Supreme Court has explained, if the new client’s matter is the same as or substantially related to the former client’s matter, the Court will presume that the former client shared confidential information with the attorney.  Why? 

  • “[t]he purpose of the presumption is to avoid “ ‘putting theformer client to the Hobson’s choice of either having to disclose his privileged information in order to disqualify his former attorney or having to refrain from the disqualification motion altogether.’ ” In re Crepault, 167 Vt. 209, 216-17 (citations omitted).

Question 4

Lawyer called me with an inquiry. I listened, then said,

  • “Okay.  Since you and Attorney don’t work in the same firm, it is only allowed if  you  do one of two things.  And, since it sounds like Attorney doesn’t want to do any work on Client’s matter, that means that the first option is out. So, your only option is that you each assume joint responsibility for the representation of Client. Otherwise, the rule prohibits it.“

What is “it” that Lawyer called to discuss, and that Lawyer and Attorney propose to do.

Fee Sharing.   See, this post.

Question 5

As another school year approaches, imagine an aspiring 1L heading to law school.  Law student is cruising down the highway with the tunes blaring.  All of sudden, there are blue lights in the rear view. In the ensuing encounter with police, the law student says to the officer:

  • “Well my glove compartment is locked, so is the trunk in the back
    And I know my rights, so you gon’ need a warrant for that.”

Problem 1:  The situation at hand for our erstwhile law student.

Problem 2:  Future issues with the Character & Fitness committee upon applying for admission?

Problem 3: If law student’s statement is based on advice from a lawyer, the lawyer didn’t exactly provide competent & ethical advice.

Your problem: Name the artist & song that was blaring just before law student was pulled over.

Jay-Z, 99 Problems.

Jay Z

 

Pro Bono: How is Vermont Doing? Stay Tuned

Last month, the ABA’s Standing Committee on Pro Bono & Public Service provided Vermont’s Access to Justice Coalition with A Report on the Pro Bono Work of Vermont’s Lawyers.  Lawyers from 24 states participated in a survey, with the data serving as the basis for state-specific reports.

The A2J Coalition is reviewing the Vermont report.  Soon, the Coalition hopes to receive a national report that reflects the aggregate data from the states that  participated.  Once the national report is available, we’ll have something to compare to Vermont.  I’m not positive, but I expect that the Coalition will disseminate the report after having time to digest and compare.

I’ve seen a draft of the Vermont report.   The results suggest that Vermont lawyers have questions about the relationship between pro bono & legal ethics.  To that end, I thought I’d re-post a blog that I authored last October.  It includes some of my thoughts on the section of the Vermont Rules of Professional Conduct that addresses pro bono.   Check it out HERE for a primer/refresher.

 

Otherwise, stay tuned.  Soon we’ll have a better idea of how we’re doing and what we can do better.  For now, here’s a relatively new opportunity that you might have missed: Vermont Free Legal Answers.

Oh . . . and here’s a sneak preview that happens to double as my favorite part of the report.   Given a long list of factors that may or may not motivate lawyers to do pro bono work, Vermont lawyers ranked “Helping People in Need” as the top motivator.

Isn’t that what it’s all about.

pro bono

 

Anxiety, Stress, and Work-Life Balance for Lawyers

Last month, and in response to the New York Times piece The Lawyer, The AddictI posted Lawyers Helping Lawyers – Keep it on the front burner.

Earlier this week, the ABA Journal posted Jeena Choo’s thoughts in response to The Lawyer, The Addict: Talking about the elephant in the room – social anxiety.  It’s an interesting post on the critical importance of work-life balance, in particular for lawyers who cope with stress-induced issues.   I love Jeena’s closing analogy:

  • “Finally, remember: ‘Secure your own oxygen mask before assisting others.'”

I’ll have more on this topic soon.   Later today, the National Task Force on Lawyer Well-Being is scheduled to release its report on The Path to Lawyer Well-Being.  In the meantime, give Jeena’s blog a read.  Or, for a fun-filled stress-reliver, give this week’s #fiveforfriday legal ethics quiz a try!

work life balance

Monday Morning Answers

Congrats to my mom! I had a feeling that Question 5 would draw her into the fray . . . and it did.  As a result, her first ever appearance on the Honor Roll.

You see, when I was a kid, my mom was huge fan of the Cincinnati Reds.  So much so that we’d go see Reds when they played in Montreal and would kind of stalk look for the players in the restaurant at the team hotel.  One time, my mom plopped herself down in a booth with Joe Morgan, Sparky Anderson, and Johnny Bench and asked for autographs.  It was either Anderson or Bench who replied “no.”  When my mom asked why – “I don’t give autographs to people who are sitting on my jacket.”

I’ve never seen my mom move so quickly as she did to get off that jacket.

Friday’s quiz is HERE.  The answers follow today’s Honor Roll.

Honor Roll

Answers

Question 1

Good to know for all lawyers, but perhaps particularly relevant to Vermont lawyers who visit Canada .  .  .  what’s at the heart of the legal ethics issue related to border crossings that recently has drawn attention from bar counsel types?

Question 2

Which is most accurate?

The duty to maintain the confidentiality of information relating to the representation of a client:

  • A.   Applies only to information acquired from the client
  • B.   Applies only to a client’s “confidences and secrets” that would prove embarrassing or detrimental if disclosed
  • C.   Does not apply to information that is in a public record
  • D.  Applies to information acquired before the representation began and after it ended.  See, Rule 1.6, Reporter’s Notes, (The rule “imposes a duty of confidentiality concerning information relating to the representation regardless of whether it is acquired before or after the relationship existed.”)

I’ve blogged often on Rule 1.6 and how it applies to “information relating to the representation,”  whatever the source.  In that sense, the is much broader than the privilege. See, Comment [3].

Further, Rule 1.6 refers to “information relating to the representation.” It does not mention “confidences and secrets.”  We dropped that language when we switched from the Code to the Rules in 1999.

Finally, as I’ve often blogged, Rule 1.6 includes several exceptions to the prohibition against the unauthorized disclosure of information relating to the representation.  “It’s public record” is NOT one of them. Indeed, when analyzing whether a lawyer violated Rule 1.9(c) by disclosing information related to the representation of a former client without the former client’s consent,  courts around the country have almost uniformly held that the fact that information is public record does not mean that it’s “generally known.”

Question 3

Which is most accurate?  In Vermont,

  • A.   All conflicts are waivable
  • B    All conflicts are waivable, but must be waived in writing
  • C.   If Lawyer currently represents A, Lawyer may not represent B in a matter adverse to A, even if the two matters are unrelated and both A & B give informed consent.
  • D.   If Lawyer currently represents A, Lawyer is not necessarily precluded from representing B in a matter where B is adverse to A.  See, Rule 1.7Rule 1.7.

Here, A&B are clearly wrong.  As Rule 1.7(b) makes clear, not all conflicts are waivable.

C is wrong because Lawyer may continue if Lawyer complies with Rule 1.7(b).

D is most accurate. It’s actually mentioned in the last sentence to Comment 6, the first sentence to Comment 24, and addressed throughout each.

That being said – THINK TWICE. While A & B might be happy up front, if things go bad later on, they’re going to look for someone to blame and Lawyer makes a convenient target. Also, Rule 1.7(b)(3) is quite clear, as is Rule 1.7(b)(1).  With respect to the latter, what seemed “reasonable” at the time, might not seem so reasonable when examined in the harsh light of a disciplinary investigation.

Question 4

Attorney called me with an inquiry.  I listened, then said:

  • “here’s the deal: you can’t unilaterally resolve the dispute.  if the dispute involves a client & you, you’re supposed to suggest means for prompt resolution.  if it’s a dispute between your client and a third person, a comment to the rule indicates that you may consider filing an action asking a court to resolve the dispute.”

In that my response referred to the Rules of Professional Conduct, what is the most likely subject of the “dispute” that Attorney called to discuss?

Disputed property, likely funds.  The dispute could be between client & third person, or client and lawyer.  See, Rule 1.15(e), Comment [4].

Question 5

Attorney John Dowd is part of President Trump’s legal team.  Nearly 30 years ago, he authored the famed “Dowd Report;” a report that led to a star pro athlete effectively being “disbarred” from the athlete’s sport.  Ever since, the athlete has sought reinstatement.

Two years ago, Dowd appeared on a radio station and said that, in the 70’s, the athlete had sex with minors.   Last year, the athlete sued Dowd for defamation.  Neither Dowd’s comments nor the lawsuit generated much media coverage until this week . . . when Dowd’s defense team introduced a sworn statement from a woman stating that she had sex with the athlete when she was 14 years old, and he was 34.

Identify the athlete who, now, appears unlikely ever to be reinstated from the “disbarment” that followed the Dowd Report.

Pete Rose.

big red machine

Discovery Sanction: Costs (of pizza)

Given that it’s 84 degrees, without a hint of humidity, but with bright sun & clear blue skies as we approach 5:00PM, I doubt many people are reading this blog, or any legal ethics blog.

Seems like the perfect time for this post.

Perusing Above The Law, I ran across Joe Patrice’s post Pro Se Plaintiff Asks For Expenses For A Pizza Party As Discovery Sanction, Gets Them.

It speaks for itself.

Now, stop reading this, and enjoy the fantastic weather! It won’t be long until the weather ain’t so fantastically enjoyable!

Pizza

Online Legal Research: is there an affirmative duty to use more than one research platform?

Earlier this week, Robert Ambrogi posted Turns Out Legal Research Services Vary Widely in Results.  Ambrogi, one of the leading commentators on legal technology, wrote:

  • “Call me naive, but I would have thought that entering the identical search query on, say, both Westlaw and Lexis Advance would return fairly similar results, at least among the cases ranked highest for relevance. After all, shouldn’t the cases that are most relevant to the query be largely the same, regardless of the research platform?”

Then, he added:

  • “Turns out, the results they deliver vary widely — not just between Westlaw and Lexis Advance, but among several legal research platforms. In fact, in a comparison of six leading research platforms — Casetext, Fastcase, Google Scholar, Lexis Advance, Ravel and Westlaw — there was hardly any overlap in the cases that appeared in the top-10 results returned by each database.”

Ambrogi’s post referred to Susan Nevelow Mart’s research paper The Algorithm as a Human Artifact: Implications for Legal {Re}search.   Mart is the Director of the Law Library and an Associate Professor at the University of Colorado Law School.

In this column that he wrote for Above The Law, Ambrogi dove deeper in Professor Mart’s findings.  Before I talk about the findings, I want to go back to my post Are Robots Nonlawyer Assistants.  

In my post, I suggested that lawyers who use artificial intelligence to perform “mundane legal tasks” might have an affirmative duty under the Rules of Professional Conduct “to have some sort of understanding of the coder’s qualifications.”  Well, as it turns out, a similar notion underpins Professor Mart’s research.

As Ambrogi reports, several years ago, a senior VP at Westlaw informed Professor Mart that the company’s “algorithms are created by humans.”  Mart, then, theorized that the choices that a human makes in creating an algorithm will necessarily influence the results delivered by the algorithm.  In other words, that the coder’s biases & assumptions will find their way into the algorithm and impact the results.  She set out to study her hypothesis.

Mart’s findings are eye-opening.  Using the same query across 6 providers – Casetext, Fastcase, Google Scholar, LexisAdvance, Ravel and Westlaw – she found that among the top 10 cases returned by each:

  • on average, 40% of the cases were returned by only 1 provider;
  • 7% of the cases were returned by all 6 providers.

I could go on & on.  Here’s the upshot, in an excerpt of the abstract from Professor Mart’s paper:

  • When legal researchers search in online databases for the information they need to solve a legal problem, they need to remember that the algorithms that are returning results to them were designed by humans. The world of legal research is a human-constructed world, and the biases and assumptions the teams of humans that construct the online world bring to the task are imported into the systems we use for research. This article takes a look at what happens when six different teams of humans set out to solve the same problem: how to return results relevant to a searcher’s query in a case database. When comparing the top ten results for the same search entered into the same jurisdictional case database in Casetext, Fastcase, Google Scholar, Lexis Advance, Ravel, and Westlaw, the results are a remarkable testament to the variability of human problem solving. There is hardly any overlap in the cases that appear in the top ten results returned by each database. An average of forty percent of the cases were unique to one database, and only about 7% of the cases were returned in search results in all six databases. It is fair to say that each different set of engineers brought very different biases and assumptions to the creation of each search algorithm. One of the most surprising results was the clustering among the databases in terms of the percentage of relevant results. The oldest database providers, Westlaw and Lexis, had the highest percentages of relevant results, at 67% and 57%, respectively. The newer legal database providers, Fastcase, Google Scholar, Casetext, and Ravel, were also clustered together at a lower relevance rate, returning approximately 40% relevant results.

Most importantly, here’s the ethics hook:  Rules 1.1 & 1.3 require lawyers to provide competent & diligent representation. Knowing that results vary widely by provider, do Rules 1.1 and 1.3 require lawyers to use more than one provider when conducting online legal research?

Although I’ve not yet had my daily requirement of coffee, my initial reaction is that it’d be much easier to argue “yes” than to argue “no.”  Actually, the real answer might be that it’s neither competent nor diligent for a lawyer to limit research to the first 10 results to a single query.

Indeed, in the abstract to her paper, Professor Mart notes:

  • “Legal research has always been an endeavor that required redundancy in searching; one resource does not usually provide a full answer, just as one search will not provide every necessary result. The study clearly demonstrates that the need for redundancy in searches and resources has not faded with the rise of the algorithm. From the law professor seeking to set up a corpus of cases to study, the trial lawyer seeking that one elusive case, the legal research professor showing students the limitations of algorithms, researchers who want full results will need to mine multiple resources with multiple searches.”

Anyhow, I was excited to post this, but now I can’t think of a creative way to wrap it up or to make a point.  I guess my point is this: know that online legal research services aren’t perfect.

Finally, maybe Professor Mart’s findings are a new twist on something that’s been going on forever.   I’m reminded of thinking “what the _____?” when I pulled a case that did not “follow” the case that I’d been thrilled to find, even though Shepard’s had promised me (with an “f”) that it would.  The human who coded it was, in fact, only human.

shepards

 

The Vermont Bar Exam

The Vermont Bar Exam is today and tomorrow.  To paraphrase Blues Image, at 9:30 this morning, 73 aspiring lawyers sailed off into the first segment of the exam.  Here’s wishing them fair winds and following seas.

For those of you curious as to how the exam is structured now that we’ve moved to the Uniform Bar Exam, take a look at this post from February.

 

bar-exam

#fiveforfriday #78: Bucky F$#*ing Dent

After a two-week hiatus, welcome back to #fiveforfriday! It’s #78 in the list of installments of the most popular legal ethics trivia game on the internet.*

*(puffery isn’t unethical.  might not be valid in AK or HI. other terms & conditions may apply.)

What’s 78 mean to me? Sadly, it’s the 2nd in a trilogy of 3 Red Sox related heart breaks on the journey from the 75th #fiveforfriday thru the 86th.

At one point in the summer of 1978, a soon-to-be 6th grader’s beloved Sox led the evil Yankees by 14 games.  They blew the lead – and then some, trailing the Bombers by 1 game with a week to go in the season.  Often lost to history, while New York finished 6-1, the Sox valiantly went 7-0 over the final week to force a one-game playoff for the AL East title.

A few things stick in my mind about the game.

It was afternoon game. Imagine that!  By then I was a full-fledged 6th grader at South Burlington Middle School.  The school day ended at 3:15. I had Mr. Newton for math, and math met in the final period.  Mr. Newton was a huge Sox fan. His fellow math teacher, and my middle school basketball coach, Mr. Culver, was a huge Yankees fan.  The two conspired to roll televisions into the classrooms and we were treated to the first inning or so of the game.  What kind of school principal would tolerate such behavior?!?!  My dad, that’s what kind.

I don’t have many specific-memories of the game.  What I do remember clearly is this:  with the Sox trailing 5-4 in the bottom of the 9th, and 2 runners on, Yaz came to the plate.  He was an icon to legions of kids in New England. My brother and I counted ourselves among the region’s scores of wiffle ball players perfectly able to imitate The Captain’s crazy left-handed batting stance.  Just as surely as we did when we hit like him in our backyards, Yaz would drive in the tying & winning runs in dramatic fashion.

He popped out.  Not only did he pop out, but it was in foul territory.  I’ll never forget the bitter sadness, a level of despair that was a rite of passage to generations of New England kids, this time accompanied by the inexplicable: our hero is mortal?

The title of this post refers to a Yankee shortstop who specialized in hitting pop flies for outs.  In a quirk of trajectory & stadium architecture, and on that blazingly sunny October afternoon in 1978, one of his pop flies sailed over the Green Monster.  Bucky “F$%*ing” Dent.

This one’s for you Hal Miller.

Onto the quiz!

Rules

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

Question 1

By rule, a lawyer has a conflict if there is a significant risk that the representation of a client will be limited by the lawyer’s responsibilities to ________, ________ or _________, or by ___________________.

Your mission, should you choose to accept it, fill in at least ONE of the blanks. (hint: each blank is more than 1 word)

Question 2

Remaining on conflicts for a moment, a Comment indicates that ” ________  ___________ requires that each affected client be aware of the relevant circumstances of the material and reasonably forseeable ways that the conflict could have adverse effects on the interests of that client.”

Which fills in the blank verbatim?

  • A.    Dual Representation
  • B.     Informed Consent
  • C.    Continued Representation
  • D.   Conflict Waiver

Question 3

Which type of fee agreement is different from the others?

  • A.   Contingent fee agreement
  • B.   An agreement to a non-refundable fee, paid in advance, that a lawyer may treat as the lawyer’s property before any legal services are rendered
  • C.   An agreement by lawyers in different firms to share the fee charged to a single client
  • D.   A standard hourly fee agreement

Question 4

Attorney called me with an inquiry.  She represents Defendant in a civil case and had a question related to some of the potential witnesses for Defendant.  I listened, then responded:  “by rule, you can make the request only if (1) the witness is a relative, employee, or agent of Defendant; or (2) if you reasonably believe that the potential witness’s interests won’t be adversely affected by agreeing to your request.”

What proposed course of conduct by Attorney do “make the request” and “your request” refer to?

Question 5

Oscar “Zeta” Acosta was a real-life attorney who practiced law in California.  In 1971, he and a famous writer took two trips to Las Vegas. On the first, the two attended the Mint 400, an off-road race that Sports Illustrated had dispatched the writer to cover.  A month later, they returned to Vegas, with the writer having been assigned by Rolling Stone to cover the National District Attorneys Association’s Conference on Narcotics and Dangerous Drugs.

The writer’s trips to Vegas with Attorney Acosta inspired a book.  In the book, a lawyer whose character is based on Acosta engages in behavior that, at the very least, would result in a referral to the Lawyers Assistance Program, if not a disciplinary prosecution.

For 1 point each, who was the writer with whom Attorney Acosta travelled to Las Vegas? And, what was the name of the character who was based on Acosta?

the-quiz

 

The More Things Change…

Since becoming bar counsel in June 2012, I’ve handled 4,421 ethics inquiries.  By far, the most common inquiry topic has been conflicts of interest.  Questions relating to conflicts have accounted for slightly more than half of all inquiries, with “former client” conflicts constituting the largest subset within the category.  Common questions:

  • Can I take a case against a former client?
  • I represent Buyer. I’ve known Seller for years.  She wants me to represent her. Can I?
  • For the past 10 years or so, I’ve represented a couple. Business stuff, some trusts, a small PI claim, nothing that either doesn’t know about.  They’re getting divorced.  Can I represent Wife?

This morning I realized that I needed to post today.  I was too busy watching the early coverage of The British Open to concentrate, so I figured I’d cheat with a “Throwback Thursday” post.

In between putts & wayward drives, I wondered what issues bar counsel types were dealing with 50 years ago.  So, I searched “legal ethics 1967.” I figured I’d find something simple, and post “here’s what was going on a long time ago.”

The top result was a compendium of the ethics opinions issued by the Indiana State Bar Association in 1967.

Opinion 1 is the genesis of this post’s title.

(Apparently, in 1967, lawyers had yet to resolve to use 37 words when 1 would do.  So, here’s the opinion, in its entirety.)

Opinion No. 1 of 1967
Lawyer Not Forever Barred From
Taking Case Against A Former Client

The Committee was asked its opinion by an attorney whose present
client wished to bring suit against a person who at one time had
been a client of the attorney.

Mr. Henry S. Drinker, in his book Legal Ethics, at page 112, stated:
“One may sue a former client if his representation is ended and. the
matter does not involve confidential communications.” An attorney
is not forever barred from suing a former client, so long as the present
matter was not connected with, and did not arise out of, the former
employment, and so long as there is no breach of confidential information
obtained during the former attorney-client relationship.

The opinion mirrors today’s rule.

Rule 1.9 prohibits a lawyer from representing a person:

  • in the same or a substantially related matter in which the lawyer represented a former client and in which the person’s interests are materially adverse to the interests of a former client, unless the former client gives informed consent, confirmed in writing.

Even if the matters are not the same or substantially related, Rule 1.9(c) prohibits a lawyer from using or revealing information relating to the representation of a former client.

Nothing has changed.

Next, I wondered what Vermont’s hot  topics in ethics were back in the day.  The Vermont Bar Association publishes advisory ethics opinions.  The earliest available are from 1978.  (As regular reader Hal Miller knows, it was a year that shall forever live in infamy on this blog.  More on that tomorrow.)

The VBA released 3 advisory ethics opinions in 1978.  They dealt with conflicts, conflicts, and conflicts.  Two of the three involved questions I continue to receive to this day.

Opinion 78-04 concluded that it is improper to represent both buyer & seller in real estate transaction.  I agree with the conclusion.

Opinion 78-03 concluded that it is improper for a lawyer who has represented a couple to represent one in a divorce if the issues in the divorce are substantially related to the former representation of the couple.  Again, I agree.  Comment 3 to Rule 1.9 addresses this very question.

I’m not complaining. If you have questions about a potential conflict, don’t hesitate to call, text, or e-mail.  I bring it up only because I’m struck by the fact that conflicts always have been and likely always will be the most common, but trickiest, ethics issue confronted by lawyers.

Actually, let’s be honest: I bring it up mainly I needed to post a blog about something- anything! – to drive traffic towards tomorrow’s #fiveforfriday quiz.

conflict