Thursday Tidbits

I used to love Tid-Bits!

See the source image

I didn’t blog much this week.  So, I thought I’d take a few minutes to pass on some tidbits from the world of professional responsibility.

  • If you inform a court that you missed a hearing because your car was in the shop, don’t forget this: the court might follow-up by asking for your mechanic’s name and a receipt for the work done.  An inability to provide either might lead to your (law) license being suspended.   The ABA Journal has the story here.
  • Also from the ABA Journal, JurisBytes was one of the winners at the ABA Tech show.  The startup designed an app that assists lawyers to track the time spent texting clients.
  • In this blog post, Jonathan Turley welcomes the news that New York disbarred Michael Cohen.  I took Professor Turley’s property law class at GW.
  • Professor Alberto Bernabe, a frequent member of this blog’s #fiveforfriday Honor Roll in legal ethics, breaks down the Ohio Bar’s recent advisory ethics opinion on conflicts of interest.
  • My job often includes guiding lawyers through the ethics issues that arise when they leave a firm.  Until today, I’d never run across this one.  As reported by Above The Law, a law firm sued an associate who quit 1 year into a 3-year “employment commitment.”  Per the report, the firm alleges breach of contract and is seeking damages for the time spent training & mentoring the departed associate, time that more seniors lawyers will now have to spend working with someone new instead of billing clients.
  • Finally, and a tip of the electronic hat to Professor Bernabe for calling this to my attention, the Legal Profession Blog posted Sunlight in Vermont, noting that Vermont’s Professional Responsibility Board has a “first-rate transparent web page.”

Who says we’ve had no sunshine lately?????

The bar exam: a Q&A with the examiners

The bar exam begins today.

Forty-one aspiring members of the Vermont bar will be there.  I’ll be there too, as a proctor.  That’s a good thing.  I have a better chance of skiing Paradise from top to bottom without falling than I do of passing the bar exam.  And I say that knowing full well that I don’t know how to ski.

These days, Vermont’s bar exam is much different than many of you remember.  In 2016, Vermont switched to the Uniform Bar Exam (“UBE”).  For an overview of the UBE, check out this post from last summer.

Today, I’m happy to be able to share additional information about the exam, courtesy of Keith Kasper and Andy Strauss.  Keith chairs the Board of Bar Examiners (“BBE”) and is a regular member of the #fiveforfriday Honor Roll in Legal Ethics.  Andy is Vermont’s Licensing Counsel and is responsible for the administration of the bar exam.  They were kind enough to take time out from exam prep to answer questions.

All mistakes are mine.

MK:  In legal ethics, the very first rule requires lawyers to provide clients with competent representation. To some degree, is that what the UBE is intended to do? Help us to identify lawyers who meet (or exceed) a minimal level of competence?  That is, the UBE is more than testing who can remember the most from law school, right?

Keith:  The UBE is a measure to assure that those applicants we certify for licensure are qualified to practice law. Unfortunately, a law school degree is not sufficient. While not part of the UBE, the MPRE (Multistate Professional Responsibility Exam) is utilized by most states to assure that bar applicants have studied not only the substantive aspects of the law but the ethical requirements of being a lawyer. On the other hand, the UBE evaluates the core legal knowledge of the applicants as to the most important aspects of a modern law practice.  It undergoes periodic review and updating to reflect the modern practice of law in this country. One of the most recent changes since you and I took the bar exam is to add federal civil procedure to the Multistate Bar Exam (“MBE”) portion of the UBE, as procedural aspects of the practice of law are also of great importance to the competent practice of law.

MK:  Competence is key!  So, conflicts of interest are a big thing in my world.  I know that some in the state were “conflicted” about the change from the so-called “Vermont-specific essays” to the written portions of the UBE.  Can you share the BBE’s thinking on the change?  Was it a tough decision? And, any thoughts on how it has worked out?

 Keith: It was a tough decision, one that took years to ultimately make. However, I would phrase the decision in terms of competence. The Board ultimately decided that professional test developers would do a better job drafting bar exam questions more consistently year over year than us part-time amateurs were able to do. We did lose the ability to test on Vermont specific items, but we addressed this issue by requiring new lawyers to take 15 hours of CLE in the basics of Vermont practice and procedure. In addition, we replaced the old pre-admission clerkship requirement with a new one year post admission mentorship program to try to push new lawyers out into the legal community to experience as wide an array of Vermont law and practice as pragmatically possible, and to give new lawyers a mentor they can go to at almost any point in their career with questions as to Vermont law and practice. So, while I do miss drafting bar exam questions, (Anybody out there remember a Workers’ Compensation/Tort bar exam question?) I think the bar, bar applicants and the public are better served with these new admission requirements.

MK Note: the CLE & mentorship requirements that Keith mentioned are here.

MK:  I speak and blog often on attorney wellness. Wellness includes stress management.   When I took the bar exam, there was a thunderstorm that knocked out the power.  Talk about stressful!  I know that the Board and Andy work hard to ensure that the testing environment is as conducive to success as possible.  Are there any challenges with making an otherwise stressful event as stress-free as possible?

Andy: One challenge is that we rely on an outside vendor to provide the software for those examinees who want to take the exam by laptop.  It can be stressful when one or two (or more) people are having difficulty getting set up with the software right before the exam.  But the software package is good, and the vendor is responsive on exam day and provides us with an on-site technology person.

MK:  I remember “Barmageddon” in the summer of 2015.  Fortunately, we didn’t run into any serious problems here.  But I worried for some of the examinees as the uploads stalled.

Andy: One thing I’ve noticed is that, although the examinees are involved in a stressful exam situation, they are for the most part polite and friendly on exam day.  Not having people get upset or angry or impatient goes a long way towards a smooth exam administration.

The other thing that is important is for myself and the other staff helping to put on the exam to recognize that the examinees are full of stress and to be as friendly, helpful, patient, and understanding as possible.  I think we do a great job at that.  I also take that approach in all of my interactions with examinees during the application process.

MK: Very interesting point Andy. I love that, at the bar exam, you W.I.N your 3-feet of influence.  I covered 4 or 5 exams and proctored many others. I too was often struck by how nice our examinees are.  Practicing lawyers should take note! Rule 3.5(d)!  Anyhow, as fortunate as we’ve been to enjoy such high-quality examinees, not all states are the same.  I know that folks in your job spend significant time & resources ferreting out cheaters.  What are a few of the craziest cheating stories you’ve heard?

Andy: To be honest, I haven’t really heard any crazy stories!  Sometimes I read about spy-like technology, like camera glasses and speaker earrings, but that’s really about it.

MK:  Dang. I was hoping you’d busted a twin taking it for her sister. But I suppose it’s good that you’ve not had to deal with anyone as audacious as my favorite bar exam fraudster: Mike Ross

So, speaking of technology.  A lot of lawyers might not know that examinees can now use their laptops for the essays.  About how many take advantage of that option? Can I assume the graders love it? Also, do you think we’ll see a day where the multiple-choice segment of the exam is digital or electronic

Andy: Almost all examinees take it on a laptop nowadays.  And I don’t think we’re that far from seeing the MBE (multiple choice) being taken electronically.  The ethics exam that the National Conference of Bar Examiners administers is about to be given electronically, so the MBE will probably follow not long after.

Here, unlike the cheating tools I mentioned, technology is definitely good.  I’m sure the graders are happy not to be trying to decipher handwriting as often as they used to, and I wouldn’t mind not having to sharpen 200 pencils before every exam.

MK:  The bar exam: the last bastion of the #2 pencil!

Next, I asked the same question of both Andy & Keith but had them answer separately and only to me.

For Keith:  You are an experienced practitioner. You’ve served on many VBA and Court projects and committees designed to improve the profession.  What’s something that the exam doesn’t test – in fact that may be impossible to test – that’s critical to a successful career as a lawyer?

Keith: On the national level one area that has been discussed would be client interview skills. My understanding is that they test patient evaluation skills for new doctors for the Doctor licensing exams. I think the issue is that we have so many more lawyers taking the bar exam then doctor’s taking their licensing exam that a nationwide evaluation of one on one people skills is just not practical to add to the bar exam.  However, people skills and listening to your client are vital to many areas of legal practice. (When one of my firm founding partners, John Fitzpatrick, took the bar exam back in 1958, there was an oral component to the bar exam in VT.) I personally have suggested to the National Conference of Bar Examiners adding administrative law to the mix of areas to be tested given how many lawyers deal with administrative law issues. One thing that has changed on the bar exam since you and I took it is adding a performance exam portion to the testing protocol. Essentially the applicant is given a file folder of factual materials and copies of all the law they need to know to complete the project (from the fictional state of Franklin). The applicant needs to complete the project (drafting a memo, for example) and determine what information is relevant and what is not to address the issue and apply the relevant law correctly to the project and understand what law is relevant to the issue. This test a different skill set from taking a multiple-choice test and writing a law school type essay answer which had previously been the focus of the bar exam. Again, the bar exam continues to evolve over time. The MPRE is being given on tablets this year with the thought that ultimately the National Conference would move to providing specially dedicated computers for applicants to take the bar exam. A long way from the old days of handwritten essay exams in blue books. Given my horrendous handwriting it is a miracle I passed!

For Andy: You have a varied background: private practice, criminal prosecutor, in-house counsel to a government agency. In your experience, what’s something that the bar exam doesn’t test – indeed, might be impossible to test – that is critical to success as a lawyer?

Andy:  I think the bar exam is good at testing legal analysis skills: discerning key facts, applying the law to those facts.  These skills are essential to success as a lawyer.  But unless you are an appellate lawyer, much if not most of your time will be spent doing other things.  As a prior litigator, I see the two most important “other things” as (1) communicating with clients, attorneys, and judges, and (2) gathering facts (i.e. depositions, client interviews, document review, etc.).  The MPT (the performance section of the exam) only grazes the surface of these.  So, if we are using the bar exam to ensure minimal professional competence, we need to figure out a way to test these areas.

That said, my personal experience from law school leads me to think that people are not getting much training in these areas during their legal education.  So, ensuring that new attorneys can communicate effectively and successfully gather facts likely requires a much larger change in how we train and evaluate new lawyers.

MK: Each of you has mentioned technology.  Has anyone ever suggested the bar exam should be open book? I mean, really, these days, our mobile devices allow us to look up answers on demand. So, it’s not like a lawyer will ever have to do something by memory.

Keith:  The open book issue has been raised in the past, but not recently. Not sure what the answer to that question is from a testing metrics perspective. I think the bigger problem with mobile devices is cheating: Is this your work or not? The National Conference usually has an eye-opening seminar every year on the new devices and methods of cheating. These days, we do not allow you to even bring your own watch or pencils into the testing room. A few years ago, someone’s wife took the bar exam for him in California after he had had multiple failures. I think they both got disbarred.

MK:  You are right!  The Los Angeles Times has the story here.  I admit, I had to look it up. I didn’t know it by memory.  Maybe she’s the one who inspired the creators of Mike Ross!

Several years ago, I was an associate examiner.  One of the essay questions was on professional responsibility.  Believe it or not, I was assigned to grade answers to that question.  True story: one person wrote something like: “I don’t know. I’d call Mike Kennedy.”    That must be worth something, right??

Keith:  That is definitely worth at least one point! It is impossible to know all the law. Knowing who to ask if you don’t know the answer is almost as good as knowing the answer itself.

 MK:  Great point, Keith. And one that goes to the value of the new mentorship program.  Okay, final question for each of you, a question related to attorney wellness.

Andy – you race Dragon Boats.  Not only “race,” you were in the world championships! I assume there won’t be drummers in the exam tomorrow.  Are there similarities in preparing for a dragon boat race and, say, the bar exam or an important hearing?

Andy: Now that’s an interesting question!  Here’s one thought:  Going into big performance challenges, such as a competition or a bar exam or a trial, there can be a rush of nervousness and even fear of failure.  I think that at those points, it is extremely important to consciously recognize how hard you have worked to prepare for the event and consciously put your trust in that training.  The nervousness may still be there, but your focus will be elsewhere.

And no, no drummers at the exam.  Just the silent ticking of the countdown clock!

MK:  Ha! If only Poe had written about the bar examKeith – you’re a huge fan of The Grateful Dead.  A few weeks from now, you’ll be grading bar exams.  Which Dead show will be playing on your sound system?

Keith: Philadelphia 1987 (Place and year I graduated from law school.) Favorite song from that 3-night stand of concerts, and my theme song for when I was studying for the VT bar exam later that year: “I Need a Miracle Every Day!”

 MK:  Don’t we all!  Here’s the video.  Great stuff guys!  Thank you for taking the time, and thanks for all you do for Vermont’s legal profession!


Tech Sells

It’s funny how quick we are to blame technology.  At least in headlines.  Apparently, tech sells.

I’ve blogged on this phenomenon before: Social Media Sanction! Except, not really.  For the latest, I present 3 headlines:

  • Charleston attorney suspended for 3.5 years after offering legal advice for Go Fund Me money
  • Go Fund A Lawyer
  • Misleading GoFundMe appeal with offer for free legal advice leads to lawyer’s suspension

Without reading the articles, what do you think got the lawyer in trouble?

I can hear you now:

Mike, for all your tech competence mumbo jumbo, tech only leads to one thing – trouble!


  1. The first headline ran on January 26 in the West Virginia Record.
  2. The second ran on January 28 on the Legal Profession Blog.
  3. The third ran on January 31 in the ABA Journal.

Yes, a West Virginia lawyer’s license was suspended for 42 months.  Yes, the misconduct included a misleading GoFundMe page.

How much money do you think the lawyer raised via the GoFundMe campaign?

If you guessed anything more than $0.00, you guessed wrong.

The lawyer created the page in September 2017.  He took it down immediately after disciplinary authorities alerted him to their investigation of the page.  It had been active for 3 or 4 days and generated exactly zero donations.  The lawyer testified that he’d meant it only for family members and did not realize that it was publicly available.

Then why the 3.5 year suspension?

Alas, for approximately nine months that spanned 2016 and 2017, the lawyer misappropriated more than $12,000 from the Kanawha Valley Soccer League while serving as its treasurer.

The hearing panel’s decision is here.  Yes Costanza, stealing money is wrong.

There’s no need to fear tech or to think that tech developments have foisted a whole new type of unethical lawyer on the masses.  Since the dawn of time, people (including lawyers) with access to other people’s money have stolen it.

Further, don’t let the headlines detract from something more important: crowdfunding platforms can help to provide access to legal services.

Are there ethics issues associated with crowdfunding platforms?  Yes.  I’ve written about them here and here.  Regular #fiveforfriday contributor Professor Alberto Bernabe has discussed them here.

But, to think that a crowdfunding platform caused a lawyer to lose his license for 3.5 years would be, quite simply, wrong.

Don’t let buried ledes fool you.  Don’t fear tech.

See the source image




Manage expecations with candid legal advice

In November 2017, I posted The 50 Original Rules.  It’s a recap of the history of the conduct rules that apply to lawyers.

As best as I can tell, the earliest record of guidelines for attorney conduct in the United States is David Hoffman’s 1836 publication of his Fifty Resolutions in Regard to Professional Deportment.  My post includes each of Hoffman’s 50 resolutions.

182 years later, it’s somewhat fascinating to me how many of Hoffman’s resolutions continue to resonate.  Many are embedded in the rules and our collective professional conscience.  Given my fascination, I’ve resolved to blog about the continued relevance of Hoffman’s resolutions, taking them one at a time.  So far:

  1. Don’t be a jerk.
  2. Don’t switch sides.
  3. Don’t overcomplicate trust accounting.
  4. Deliver the file
  5. Resolve to be a mentor
  6. Be Diligent

Today’s tip: manage expectations by providing candid legal advice.

Here’s Hoffman’s Resolution 31:

  • “All opinions for clients, verbal or written, shall be my opinions, deliberately and sincerely given, and never venal and flattering offerings to their wishes or their vanity. And though clients sometimes have the folly to be better pleased with having their views confirmed by an erroneous opinion than their wishes or hopes thwarted by a sound one, yet such assentation is dishonest and unprofessional. Counsel, in giving opinions, whether they perceive this weakness in their clients or not, should act as judges, responsible to God and man, as also especially to their employers, to advise them soberly, discreetly, and honestly, to the best of their ability, though the certain consequence be the loss of large prospective gains.”

I’m using the exact quote.  To be clear, I’m not suggesting that competent representation includes being responsible to God or any other deity.  Again, I was simply quoting Hoffman.

The rest of Resoluton 31 is as relevant today as it was in 1836.  Candid legal advice is always a better option than telling the client what the client wants to hear.

I’ve written often on managing client expectations:

In my experience, the lawyer who fails to set reasonable expectations at the outset of the representation should expect to have the client file a disciplinary complaint.

False hope leads to disappointment.  Even if the result is as good as the client should have expected from the outset, the client likely will be disappointed if the result pales in comparison to what the lawyer suggested the outcome would be.  Don’t fall into that trap.  As Hoffman said, “[a]nd though clients sometimes have the folly to be better pleased with having their views confirmed by an erroneous opinion than their wishes or hopes thwarted by a sound one, yet such assentation is dishonest and unprofessional.”

Better to thwart unreasonable hopes with sound advice than to nurture their growth.

Manage expectations by providing candid legal advice.  If you don’t, the client will insert your name into the Blank Space on a disciplinary complaint.

Don’t say I didn’t say I didn’t warn ya.

Image result for taylor swift blank space images




Monday Morning Answers

Monday, Monday. Can’t trust that day.

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

Honor Roll

  • Karen Allen, Esq.
  • Mr. & Mrs. Hadley V. Baxendale
  • Alberto Bernabe, Professor, John Marshall Law School
  • Erin GilmoreRyan Smith & Carbine
  • Bob Grundstein, Esq.
  • Mark HeymanGeneral Counsel, Logic Supply
  • Glenn Jarrett, Jarrett & Luitjens
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy, Mom, JB Kennedy Associates
  • Patrick Kennedy, First Brother, My Web Grocer
  • John LeddyMcNeil, Leddy, & Sheahan
  • Jordana LevineMarsicovetere & Levine
  • Matthew Little, Esq.
  • Pam Loginsky, Washington Association of Prosecuting Attorneys
  • Lon McClintockMcClintock Law Offices
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Hal Miller, First American
  • Jim Runcie, Ouimette & Runcie
  • Jonathan Teller-Elsberg, Vermont Law School, Class of 2020, Staff Editor, Law Review
  • Thomas Wilkinson, Jr., Cozen O’Connor
  • Zachary York, Vermont Superior Court, Chittenden Civil & Criminal


Question 1

I often refer to the duty of competence.

True or false:  a lawyer may accept representation where the requisite level of competence can be achieved by reasonable preparation.

TRUE.  Rule 1.1, Comment 4

Question 2

Lawyer and Client agree to form a lawyer-client relationship.  Lawyer and Client have never before entered into a lawyer-client relationship.  The agreement is for an hourly fee.  Which is most accurate?

  • A.   the agreement must be in writing
  • B.   the agreement must be in a writing that is signed by the client
  • C.   the scope of the representation & basis of the fee shall be communicated to the client, preferably in writing, before the Lawyer commences the representation
  • D.  the scope of the representation & basis of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after Lawyer commences the representation.  Rule 1.5(b).

Question 3

Which does not belong with the others?

  • A.  each affected client gives informed consent, confirmed in writing
  • B.  the lawyer reasonably believes the lawyer will be able to provide competent & diligent representation to each client
  • C.  the representation does not involve the assertion of a claim by one client against another in the same litigation
  • D.  the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation.

A, B , C appear in Rule 1.7(b)’s standard on when a conflict can be waived.  D is in Rule 1.5(e),  the rule that applies when a lawyer shares a fee with a lawyer who works in a different firm.

Question 4

There’s only one rule that requires a lawyer to include a specific phrase on certain types of communications.  What’s the phrase?

  • A.   Advertising Material.  Rule 7.3(c)
  • B.   Of Counsel
  • C.   Pro Bono
  • D.   Pro Se

Question 5

As I mentioned, I often refer to the duty of competence.  For some, the ultimate in competence is the utter evisceration of a witness on cross-examination.

The O.J. Simpson criminal trial started 24 years ago today.  F. Lee Bailey, who has since been disbarred for reasons unrelated to OJ, was on Simpson’s so-called “Dream Team.”  Bailey’s cross-examination of one of the investigating officers is legendary.

Among other things, during the cross-examination, Bailey got the investigating officer to invoke the privilege against self-incrimination when asked if he had planted or manufactured evidence in the case.

Who was the investigating officer?

Mark Fuhrman

Not all agree that the cross-examination was effective.  For instance, see this article in the New York Times.

See the source image

And Diligence for All!

In November 2017, I posted The 50 Original Rules.  It’s a recap of the history of the conduct rules that apply to lawyers.

As best as I can tell, the earliest record of guidelines for attorney conduct in the United States is David Hoffman’s 1836 publication of his Fifty Resolutions in Regard to Professional Deportment.  My post includes each of Hoffman’s 50 resolutions.

182 years later, it’s somewhat fascinating to me how many of Hoffman’s resolutions continue to resonate.  Many are embedded in the rules and our collective professional conscience.  Given my fascination, I’ve resolved to blog about the continued relevance of Hoffman’s resolutions, taking them one at a time.  So far:

  1. Don’t be a jerk.
  2. Don’t switch sides.
  3. Don’t overcomplicate trust accounting.
  4. Deliver the file
  5. Resolve to be a mentor

Today’s thought:  “And Diligence for all!”

Here’s Hoffman’s 23rd resolution:

  • “23.    In all small cases in which I may be engaged I will as conscientiously discharge my duty as in those of magnitude; always recollecting that ‘small’ and ‘large’ are to clients relative terms, the former being to a poor man what the latter is to a rich one; and, as a young practitioner, not forgetting that large ones, which we have not, will never come, if the small ones, which we have, are neglected.”

To me, #23 is a resolution to comply with the duty of diligence . . . in every single matter.  

This should go without saying, but in 20 years of screening & investigating disciplinary complaints, I’ve heard it all.  Believe it or not, I’ve had lawyers respond to complaints or inquiries by saying “THAT case?? It’s a nothing case.  What’d they expect me to do?”

Ummm, I don’t know, your job?

There are no “small” cases.  Some are worth more than others, some are more complicated than others.  But to the people involved, the matter you’re handling might very well be the most important thing in their lives.  To a degree, all they have is your diligence.

By analogy, how many of you have gone to the doctor to have your cough & runny nose checked out this winter?  The health care professional who treated you probably saw someone with a lot worse than a cold that day.  Yet, the health care professional didn’t say “what, just a cold?” and leave you waiting while he or she went off to work on someone “sicker.”

Do the same with your clients.  When it’s time to work on a matter, work on the matter. Diligence for all.

Further, remember that even in the so-called small cases, someone is always watching.   I think that’s what  Hoffman means by “as a young practitioner, not forgetting that large ones, which we have not, will never come, if the small ones, which we have, are neglected.”

The client whose “small” matter you have today might have a “large” matter in the future.  The decision whether to retain you then might well turn on the attention you give to the “small” matter today.  Similarly, opposing counsel and judges notice how you handle yourself.  Word gets around, and words make reputations.

Finally, let me ask a question: what does it mean to learn that I’ve had lawyers say to me “THAT case?? It’s a nothing case.  What’d they expect me to do?”

It means that the client in THAT case contacted the Professional Responsibility Program to complain.  The rules do not contain exceptions for “small cases.”  Regardless of a matter’s worth or complexity, a lack of diligence is a lack of diligence. In other words, the client whose matter is too small to attend to is likely the exact client who will contact me.

There are no “small” cases.

And Diligence for all!

See the source image


That time you filed a complaint in the form of a screenplay . . . wait, what?

I love movies.  I’ve certainly referred to them time & time again in this blog.  Yet, despite my love of movies, and equal interest in spicing up an otherwise dreary profession, I’d never dare to submit a pleading in the form of a screenplay.

But to each their own!

In October, Attorney Ilya Liviz filed a federal civil action against the Massachusetts Supreme Court. He filed the complaint in the form of a screenplay.


I don’t think I can do the story justice.  There’s an excellent write-up at  The ABA Journal also covered the filing.

Per the story, Liviz followed the complaint with a letter asking the court to indulge the format.  Perhaps anticipating a referral to disciplinary authorities, Liviz’s letter to the court noted that “loss of ability to practice law is not the risk I am concerned with, but living with regret for failing to act is.”

Noble.  But an agrument I never heard in 14 years as a disciplinary prosecutor.

Not surprisingly, the federal court concluded that a “complaint in the form of a movie script” does not comply with the rules of procedure and ordered Liviz to show cause as to why the complaint should not be dismissed.

Liviz didn’t back down. He responded to the show cause order by moving for sanctions against the judge. He also moved to recuse the judge, citing the “Liviz recusal doctrine.”

Again, I can’t do it justice. The response is here.

I’ve always dreamed of having a legal doctrine named after me.  I’m somewhat chagrined that I never thought to support by arguments by referring to the Kennedy Doctrine.

Maybe if I do they’ll write a movie about me.



ABA Addresses an Attorney’s Obligations in Response to a Data Breach

I’ve blogged often on a lawyer’s duty to act competently to safeguard client data.  Generally, an attorney must take reasonable precautions to protect against inadvertent or unauthorized disclosure of client information.  Some of my posts:

Last month, the ABA’s Standing Committee on Ethics & Professional Responsibility issued Formal Opinion 483.  It sets out a lawyer’s obligations following an electronic data breach or cyber attack.

The opinion is detailed and technical.  It’s worth reading, or, at the very least, sharing with your IT support staff.  Also, various outlets have reported on the opinion, including The National Law Review, Louisiana Legal Ethics, and The ABA Journal.  I suggest each.

I’m going to try to stick to a summary.

  •  Prior to a breach, a lawyer has a duty to act competently to safeguard client property and information.  This likely includes adopting an “incident response plan” that will kick in once a breach occurs.
  • The duty includes an obligation “to monitor the security of electronically stored client property and information.”  In other words, there’s a duty to take reasonable efforts to monitor for and detect unauthorized access. This includes reasonable steps to ensure that vendors act in accordance with the lawyer’s professional obligations.
  • A breach is not necessarily evidence that the lawyer failed to act competently to safeguard client information.
  • If a breach occurs, a lawyer must take reasonable steps to stop it and mitigate the damage that results.
  • If a breach occurs, a lawyer must assess its scope.  This includes determining what information, if any, was lost or accessed.
  • A lawyer must notify current clients if the breach:
    • involves material, confidential client information; or,
    • impairs or prevents the lawyer from representing the client. For example, as would be the case in a ransomware attack.
  • Lawyers must be aware that their ethical obligations are independent of any post-breach obligations imposed by law.  Compliance with professional obligations is not necessarily compliance with other law, and vice versa.

Again, the full opinion is here.

As usual, I like to analogize to non-tech issues.  For instance, when it comes to paper files, most lawyers probably know that there’s a duty to take reasonable safeguards to protect them.  Locked file cabinets.  Locked rooms.  Secure office space.

If a lawyer arrives at work and realizes that the office has been broken into, I imagine the lawyer would intuitively understand the need to determine what, if anything, was viewed or taken.  Then, as appropriate, will notify clients. I also imagine that the lawyer would replace the broken locks, doors, and windows.

Thus, in my view, the ABA opinion clarifies that very standards that most of us already apply to clients’ paper files also applies to their electronic files.

Image result for images of a data breach





Judges and their Facebook Friends

Last year, I blogged on the Florida case in which a lower level court held that, standing alone, a judge’s Facebook friendship with a lawyer is not sufficient to disqualify the judge from a matter in which the lawyer appears.

I wrote:

This makes sense to me.  As with almost everything tech-related, I try to use analogies to non-tech stuff.  For example, if you learned that a lawyer who regularly appeared before a judge belonged to the same health club, or went to the same church, or was in the same law school class as the judge my guess is that you wouldn’t reflexively yell “conflict! disqualify the judge!”

No, you might ask something as simple as, “do they actually know each other? If so, how well? Do they do stuff together?”

In my view, Facebook is no different.  Florida’s Third District Court of Appeal agrees. The opinion presents a fantastic analysis of what it means, if anything, to be Facebook friends with someone.

The decision directly conflicted with another from a different Florida district.  So, the Florida Supreme Court agreed to resolve the issue.

Today, the Court issued its opinion.  For those of you who like to cut to the case, here you go:

  • “We hold that an allegation that a trial judge is a Facebook ‘friend’ with an
    attorney appearing before the judge, standing alone, does not constitute a legally
    sufficient basis for disqualification.”

I like the opinion.  I like it because it resolves a “tech” issue by analogizing to how we did things pre-tech.  To summarize:

  1. Since well before Facebook and social media, Florida law has recognized “that an allegation of mere friendship between a judge and a litigant or attorney appearing before the judge, standing alone, does not constitute a legally sufficient basis for disqualification.”
  2. There’s no reason to treat a Facebook friendship any differently than a “traditional” friendships.  In fact, it’s likely that Facebook friends are less friendly than traditional friends.
  • “In short, the mere fact that a Facebook friendship’ exists provides no
    significant information about the nature of any relationship between the Facebook
    ‘friends.’ Therefore, the mere existence of a Facebook ‘friendship’ between a
    judge and an attorney appearing before the judge, without more, does not
    reasonably convey to others the impression of an inherently close or intimate
    relationship. No reasonably prudent person would fear that she could not receive a
    fair and impartial trial based solely on the fact that a judge and an attorney
    appearing before the judge are Facebook ‘friends’ with a relationship of an
    indeterminate nature.”

From there, the Florida Supreme Court observed that its decision is consistent with the majority of states that have addressed the issue.

Finally, remember: just like real-life relationships, a Facebook friendship or other social media connection might create an appearance that provides a basis to inquire further.  So maybe it’s best to avoid such connections.

For now, here’s the final paragraph from the Florida opinion:

  • “In some circumstances, the relationship between a judge and a litigant,
    lawyer, or other person involved in a case will be a basis for disqualification of the
    judge. Particular friendship relationships may present such circumstances
    requiring disqualification. But our case law clearly establishes that not every
    relationship characterized as a friendship provides a basis for disqualification. And
    there is no reason that Facebook ‘friendships’—which regularly involve
    strangers—should be singled out and subjected to a per se rule of disqualification.”

Regular readers know my response:

Image result for facebook like symbol


Don’t Post That

There was a time in my life when the MTV Video Music Awards were must see tv.  I refer to that era as “law school.”

In my first year of law school, Hammer’s U Can’t Touch This won the VMAs for Best Rap Video & Best Dance Video.  I loved that song.  I wore out my apartment’s carpet dancing to it.

Anyhow, the song came to mind yesterday upon reading the ABA Journal’s story about a lawyer who called a client an “idiot and terrible criminal” in a Facebook post.

Why did the story remind me of the song?

Because last week I announced the theorem Keep Quiet & Lawyer OnToday, I’m announcing its corollary:  Don’t Post That.  It’s pronounced as if you’re singing along with Hammer.

Don’t let the pop culture reference gloss over your eyes.  This is a serious post. The story that prompts it raises concerns about an issuet that troubles me: my perception that we’ve become too willing to share too much.

Here’s the backdrop:

Aaccording to an article in the Des Moines Register, the Associated Press obtained a screenshot of an attorney’s Facebook post. In it, the attorney recounted meeting with a client to prepare for trial on federal gun & drug charges.  The client expressed concern that the “blue-collar jurors” would not connect with the attorney.

Per the AP story, the attorney turned to social media, posting that he was “flabbergasted” that the client would even suggest such a thing.  The post went on to state that the client was an ” ‘(expletive) idiot and a terrible criminal . . . who needed to shut his mouth because he was the dumbest person in the conversation by 100 times.’ ”  The attorney’s post observed ” ‘you wonder why need jails, huh?’ ”

The post speaks for itself and probably wouldn’t require more than 3 seconds at a CLE:  Don’t Post That.  It’s the attorney’s response that I find noteworthy.

The AP interviewed the attorney.  He told the AP that “he shared the post only with his Facebook friends.”

In Vermont, Rule 1.6 addresses client confidences.  The rule sets out the general prohibition against disclosing information relating to the representation of a client, then lists some exceptions.

“You may tell your friends” is not one of the exceptions.  In fact, it’s kind of the point of the rule.

Again, this story presents a stark example and I think most lawyers recognize that there’s no “friends & family” exception to the duty to maintain confidences. But as I noted last week, I think we sometimes get a bit lax in how much we share about our cases and clients.  Even a little is too much.

Finally, the fact that the attorney’s disclosure was made on social media is almost a red herring.  To me, this is not “See! I told you that social media is bad!”  That is, my guess is that lawyers who improperly disclose client confidences on social media would likely do by other means as well.  If you’re willing to post confidences to social media, you’re probably also willing to drop them in casual conversation over dinner.

Don’t.  Remember our postulates:

  • Theorem:  Keep Quiet & Lawyer On.
  • Corollary:  Don’t Post That.

Now, I look forward to spending the weekend revising Hammer’s lyrics to create a parody version entitled Don’t Post That.  Maybe I’ll sing it at my next CLE.

And, if I’m feeling nostalgic, maybe I’ll dig out the parachute pants.

Image result for images of mc hammer can't touch this