Five for Friday – Thanksgiving

Hi all!  Here’s a #fiveforfriday that has no basis in reality, but is my attempt to provide some sort of connection between law, the rules of professional conduct, and Thanksgiving.

Rules – for this week

  • None.
  • 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
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

Neal Page is a character in a movie that takes place over Thanksgiving.  Indeed, the movie is about Page’s attempt to get home for Thanksgiving.  Del Griffith is another character from the same movie.  Griffith is a shower curtain salesman.  They met in New York City and, eventually, arrived in Chicago via milk truck.

Here’s my imaginary scenario:

In connection with all civil & criminal claims that resulted from their travel adventures, Attorney represents Page and Lawyer represents Griffith.  Talk about complex litigation: depending on the matter, Page & Griffith find themselves as adversaries, co-plaintiffs, co-defendants, and co-victims.  We’re talking arson, credit card fraud, wrong-way driving, a hotel burglary, and an alleged assault on a taxi driver.

Both Attorney & Lawyer are competent, so they understand the value of visual evidence.  Here’s a picture that each used in one of the many trials that dealt with the fallout from their clients’ misadventures – your task, name the movie.

PTA MAP.gif

Question 2

Lawyer represents Client.  The issue: a dispute related to Opposing Party’s contractual right to slap Client, including whether a slap that took place on Thanksgiving should or should not count towards Opposing Party’s number of contractually allotted slaps.  The most critical witness – Lily, in her role as Slap Bet Commissioner.

Name the TV show.

Question 3

As friends, Monica and Rachel had some interesting Thanksgiving adventures.

One Thanksgiving, Monica invited Will Colbert to dinner.  I always wondered if Rachel ever talked to a competent lawyer about suing Monica for emotional distress. I mean, when they were kids, Will had founded the “I Hate Rachel” club!

Name the actor who played Will in the Thanksgiving episode.

Question 4

One Thanksgiving, Arlo and his friend Rick agreed to take some trash to the dump as a favor to some friends who had converted a church into a restaurant.  The dump was closed for the holiday, so they dumped the trash off a cliff.  The next day, they were arrested for littering.  Attorney was assigned to represent them.

Presumably, competent representation will require Attorney to interview the restaurant owner.

What’s her name?

Question 5

In a speech about Tater and Tot, a famous (and real) lawyer said:

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

Name the speaker.

Turkey lawyer

 

 

 

Confidences, Conflicts & Electronically Stored Information

To answer ATCQ, this is the scenario:

  • Lawyer works at Firm and represents Kennedy.
  • No other attorney at Firm works on Kennedy’s matter.
  • Lawyer leaves Firm.
  • Kennedy decides to go with Lawyer.
  • Firm sends hard copy of Kennedy’s file to Lawyer.

Ok.  That’s the easy part and isn’t very complicated.  Since easy & uncomplicated make for boring blogs, let’s add this:

  • Lawyer represents Kennedy in matter against Brady.
  • Brady seeks to retain Firm.
  • Kennedy v. Brady is the same or substantially related to a matter in which Lawyer represented Kennedy while working at Firm.

Can Firm represent Brady?

The fact that the matter is the same or substantially related to a matter in which Lawyer represented Kennedy while working at Firm does not end the analysis.  Nor does the fact that Firm delivered the paper file to Lawyer.

Rule 1.10 applies.  Subsection (b) says:

  • “When a lawyer has terminated association with a firm, the firm is not thereafter prohibited from representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless:
    • (1) the matter is the same or substantially related to that in which the formally associated represented the client; and,
    • (2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter.”

In the hypo, Firm will argue that none of its lawyers has information protected by Rules 1.6 and 1.9(c) because (1) none of them worked on Kennedy matters; and, (2) Firm delivered the file when Lawyer left.

But do they?

What if an electronic version of Kennedy’s file (or a portion of thereof) remains on Firm’s servers?  If the information is “material” to the matter, does Firm “have” that information as contemplated by Rule 1.10(b)?

Here’s an opinion from New Jersey.  The answer is “maybe.”  Essentially,  the court said that Firm “has” the information if a remaining lawyer has actual knowledge of the information and has accessed substantive portions of the electronic file.  The court, however, indicated that limited access made to investigate a potential conflict is not necessarily disqualifying.

If you’re interested, give the opinion a read.  Also, to avoid this dilemma, it might be worth a self-assessment as to how your firm handles electronically stored information when clients follow a departing lawyer.

By the way, if you missed it yesterday, here are the results of the poll question: Who is on your Mt. Rushmore of U.S. Supreme Court justices?  The post includes this week’s question: your top 3 fiction novels focused on the law or a lawyer/lawyers.

Laptop-and-computer-file-folders

 

 

Five for Friday 94: Basketball & O.J.

Welcome to #94.

Before I get to 94, don’t forget 4.  As in, who are the 4 on your Mt. Rushmore of US Supreme Court justices?  Some great responses so far!

Back to 94.

I’m a basketball guy and, to me, 94 is a basketball number.  For one thing, a regulation court is 94 feet long.  For another, in my eternal quest to score 100 points in a single game, I usually ended up somewhere around 94.  With “somewhere around 94” meaning “points still to score to get to 100.”   Semantics.

Furthermore, most of you know that this blog focuses on the law, with doses of sports & pop culture. This is particularly true of the #fiveforfriday column.

I’m not sure there’s a year in which the intersection of the law, sports, and pop culture had a more profound impact on American society than 1994.

To the extent they’re remembered at all, the 1994 NBA Finals aren’t remembered for much to do with basketball.  No, I’d be willing to bet that they’re best remembered for one thing:

The OJ chase.

Game 5 of the 1994 NBA championship tipped off on June 17, 1994.  The New York Knicks hosted the Houston Rockets at Madison Square Garden. I’ll never forget it.  Earlier that day, my brother and I had driven to Bradford for our grandfather’s funeral.  We got back to South Burlington just in time to watch the game at the same place we watched every other big (and not so big) game back then: the bar at the Ground Round on Williston Road, just around the corner from where we’d grown up.

We didn’t watch the game.  Or maybe we watched a little bit of it, I don’t really recall.  I just remember that, at some point, the bar switched to coverage of the “chase.”  We stayed.  Enthralled.

I won’t even begin to try to describe the night. I can’t do it justice. To jog your memory, a simple Google search returns plenty of retrospectives of the event.  Suffice to say, I’ve watched a ton of basketball.  There are only 2 NBA games I remember exactly where I watched.  One is the OJ game.

For those of you too young to remember, I’m hard-pressed to imagine today’s equivalent of the chase. Here’s the best I can do.

In 1994, OJ was a celebrity.  He’d starred in commercials for years, and had made memorable appearances in movies. He was in the NFL Hall of Fame.  He was 25 years removed from being the #1 pick in the NFL draft after a decorated college career that included being named an All-American and winning the Heisman Trophy as the nation’s most outstanding player.

Today, Shaquille O’Neal is a celebrity. He’s starred in commercials for years, and has made memorable appearances in movies.  He’s in the NBA Hall of Fame.  He is 25 years removed from being the #1 pick in the NBA draft after a decorated college career that included being named an All-American and winning the Rupp Trophy as the nation’s most outstanding player.

So, imagine:

  • It’d be like watching last season’s New England-Atlanta Super Bowl, only to have the game interrupted by coverage of the police “chasing” Shaq to arrest him for a double-murder,
  • as a former teammate drove him around for hours,
  • while Shaq streamed the entire incident via Facebook Live,
  • as the rest of us stopped everything we were doing & caused the nation’s wireless networks to melt.

The chase eventually gave way to a trial, the impact of which continues to reverberate today.  Even ignoring the social impact – or maybe because of the social impact – I don’t know of a trial so fixed in our collective memory.

More than 20 years later, I’m guessing that a huge number of Americans over the age of 35 can still name most of the key players – the judge, the prosecutors, the defense team, and multiple witnesses – without even having to think very hard.  That never happens.  I mean, I don’t remember a single witness I called in my very first jury trial and it usually takes me a few minutes to remember whether Judge Meaker or Judge Jenkins presided!!  Also, is there a more widely known quote from any closing argument in history?

Finally, of the many pop culture aspects of the chase, one fascinates me: the events of the day introduced the world to the Kardashians.

Hours before the chase, and long before we’d meet his wife, kids, and his kids’ half-sisters, Attorney Robert Kardashian held a press conference.  It started shortly after his client, OJ, failed to surrender by an established deadline. Kardashian read aloud a letter from OJ.  Many interpreted it as OJ’s suicide note.  Talk about reality tv.

Actually, maybe the chase and subsequent trial qualify as the original reality tv.  Lives were taken, lost, ruined, destroyed, and forever altered.  And we watched it happen.

94.  A bizarre, surreal, and historic collision of law, sports, and pop culture.

If you’re interested, American Crime Story: The People v OJ Simpson dramatizes the entire case, including the chase. It won multiple Emmys and Golden Globes.

Dream Team

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
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

There is a rule that links an attorney’s duty of diligence to:

  • A.  Promptness
  • B.  Thoroughness
  • C.  Preparation
  • D.  Skill

Question 2

For the purposes of Vermont’s rules, which is different from the others:

  • A.  A check drawn on the IORTA of a realtor licensed in Vermont
  • B.  A check drawn on the IOLTA of a lawyer licensed in Vermont
  • C.  A check in the amount of $2,500 drawn on a client’s personal checking account
  • D.  A check in the amount of $500,001 issued by an insurance company that is licensed to do business in Vermont

Question 3

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

“For it to be okay, 3 things have to happen.  (1) It has to be in proportion to services you render, or, if not, you have to agree to assume joint responsiblity for the representation; (2) the client has agree and confirm the agreement in writing; and, (3) the total has to be reasonable.”

What did Attorney call to discuss?

Question 4

There is a rule that prohibits a lawyer from stating a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused.  It applies:

  • A.   In trial
  • B.   Only during closing arguments
  • C.   Only during opening statements
  • D.   During closing arguments AND to statements made to the press

Question 5 – Two parts:

In real life, O.J.’s attorney, Johnny Cochran, argued “if it doesn’t fit, you must acquit.”  He was referring to the so-called “bloody gloves.”

Part 1:

Jackie Chiles is a fictional attorney who regularly appeared on Seinfeld.  The character is a parody of Johnnie Cochran.  In the episode “The Caddy,” Chiles represented Kramer in a suit against Sue Ellen Mischke.  Kramer alleged that Mischke’s attire, while walking down the street, so distracted him as to cause him to get into an accident.  Chiles’ skillful and eminently competent cross-examination of Jerry Seinfeld delivered Kramer to the brink of a courtroom victory, only to have Kramer ruin it.  Against Chiles’ advice, Kramer took his golf caddy’s advice and asked Mischke to try on the piece of clothing that, allegedly, had distracted Kramer and caused the accident.  She tried it on, and it didn’t fit.  So, Kramer lost.

What was the piece of clothing?

Part 2:

In an episode of South Park, Chef sued a record company for harassment.  The record company hired a cartoon version of Johnnie Cochran.  During his closing argument, cartoon Cochran inexplicably asked the jury to consider why a character from a famous series of movies would live on the planet Endor.  He argued: “ladies and gentlemen, it does not make sense! If _____________ lives on Endor, you must acquit!! The defense rests.”

The movie character is 8 feet tall and has a one-word name.  His co-pilot and other friends associated with the rebellion often use a shortened-version of the name. Fill in the blank with the movie character’s name.

 

 

The 50 Original Rules

I’m presenting soon at a seminar entitled “Everything You Always Wanted To Know About The Rules But Were Too Afraid To Ask.”  Trying to anticipate questions that lawyers might be too afraid to ask, I thought of this one:  “who thought up these rules in the first place?”

So, I did a little research.  Like a title search, I’ll work backwards.

  • In 1999, Vermont adopted the Rules of Professional Conduct.
  • Vermont’s rules are based on the ABA Model Rules of Professional Conduct.
  • The ABA House of Delegates adopted the Model Rules in 1983.
  • The Commission that drafted the Model Rules was formed in 1977, in part as a result of the many lawyers involved in the Watergate scandal.
  • The Model Rules replaced the 1969 Model Code of Professional Conduct.
  • The Model Code restated the 1908 Canons of Ethics. (which, by 1969, had been adopted by most states)
  • The 1908 Canons were based on The Alabama Code of 1887.
  • The Alabama Code was the first codified set of rules for attorney conduct..
  • There is general agreement that the first 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.

Hoffman was an attorney in Maryland.  To me, it’s fascinating that 181 years later, our rules are replete with vestiges of his resolutions. I’ve pasted in Hoffman’s 50 Resolutions below.

PLEAS DO NOT CONTACT ME TO COMPLAIN THAT THEY’RE TOO LONG TO READ.  I AM NOT FORCING YOU TO READ THEM.

Also, this is a blog.  It will still be here later if you don’t want to read all the rules now.  You could read 1 a day for the next 50 days. Or none at all. Or all of them on a snow day in January.  It’s totally up to you.

Anyway, for those of you too afraid to ask who thought up these rules in the first place, here you go:

Original

Fifty Resolutions in Regard to Professional Deportment

DAVID C. HOFFMAN (1836)

1.    I will never permit professional zeal to carry me beyond the limits of sobriety and decorum, but bear in mind, with Sir Edward Coke, that “if a river swell beyond its banks, it loseth its own channel.”

2.    I will espouse no man’s cause out of envy, hatred, or malice toward his antagonist.

3.    To all judges, when in court, I will ever be respectful. They are the law’s vicegerents; and whatever may be their character and deportment the individual should be lost in the majesty of the office.

4.    Should judges, while on the bench, forget that, as an officer of their court, I have rights, and treat me even with disrespect, I shall value myself too highly to deal with them in like manner. A firm and temperate remonstrance is all that I will ever allow myself.

5.    In all intercourse with my professional brethren, I will always be courteous. No man’s passion shall intimidate me from asserting fully my own or my client’s rights, and no man’s ignorance or folly shall induce me to take any advantage of him. I shall deal with them all as honorable men, ministering at our common altar. But an act of unequivocal meanness or dishonesty, though it shall wholly sever any personal relation that may subsist between us, shall produce no change in my deportment when brought in professional connection with them. My client’s rights, and not my own feelings, are then alone to be consulted.

6.    To the various officers of the court I will be studiously respectful, and specially regardful of their rights and privileges.

7.    As a general rule, I will not allow myself to be engaged in a cause to the exclusion of, or even in participation with, the counsel previously engaged, unless at his own special instance, in union with his client’s wishes; and it must, indeed, be a strong case of gross neglect or of fatal inability in the counsel, that shall induce me to take the cause to myself.

8.    If I have ever had any connection with a cause, I will never permit myself (when that connection is from any reason severed) to be engaged on the side of my former antagonist. Nor shall any change in the formal aspect of the cause induce me to regard it as a ground of exception. It is a poor apology for being found on the opposite side, that the present is but the ghost of the former cause.

9.    Any promise or pledge made by me to the adverse counsel shall be strictly adhered to by me; nor shall the subsequent instructions of my client induce me to depart from it, unless I am well satisfied it was made in error, or that the rights of my client would be materially impaired by its performance.

10.    Should my client be disposed to insist on captious requisitions, or frivolous and vexatious defenses, they shall be neither enforced nor countenanced by me. And if still adhered to by him from a hope of pressing the other party into an unjust compromise, or with any other motive, he shall have the option to select other counsel.

11.    If, after duly examining a case, I am persuaded that my client’s claim or defense (as the case may be), cannot, or rather ought not to, be sustained, I will promptly advise him to abandon it. To press it further in such a case, with the hope of gleaning some advantage by an extorted compromise would be lending myself to a dishonorable use of legal means in order to gain a portion of that, the whole of which I have reason to believe would be denied to him both by law and justice.

12.    I will never plead the statute of limitations when based on the mere efflux of time; for if my client is conscious he owes the debt, and has no other defense than the legal bar, he shall never make me a partner in his knavery.

13.    I will never plead or otherwise avail myself of the bar of infancy against an honest demand. If my client possesses the ability to pay, and has no other legal or moral defense than that it was contracted by him when under the age of twenty-one years, he must seek for other counsel to sustain him in such a defense. And although in this, as well as in that of limitation, the law has given the defense, and contemplates, in the one case, to induce claimants to a timely prosecution of their rights, and in the other designs to protect a class of persons, who by reason of tender age are peculiarly liable to be imposed on, yet, in both cases, I shall claim to be the sole judge (the pleas not being compulsory) of the occasions proper for their use.

14.    My client’s conscience and my own are distinct entities; and though my vocation may sometimes justify my maintaining as facts or principles, in doubtful cases, what may be neither one nor the other, I shall ever claim the privilege of solely judging to what extent to go. In civil cases, if I am satisfied from the evidence that the fact is against my client, he must excuse me if I do not see as he does, and do not press it; and should the principle also be wholly at variance with sound law, it would be dishonorable folly in me to endeavor to incorporate it into the jurisprudence of the country, when, if successful, it would be a gangrene that might bring death to my cause of the succeeding day.

15.    When employed to defend those charged with crimes of the deepest dye, and the evidence against them, whether legal or moral, be such as to leave no just doubt of their guilt, I shall not hold myself privileged, much less obliged, to use my endeavors to arrest or to impede the course of justice, by special resorts to ingenuity, to the artifices of eloquence, to appeals to the morbid and fleeting sympathies of weak juries, or of temporizing courts, to my own personal weight of character–nor finally, to any of the overweening influences I may possess from popular manners, eminent talents, exalted learning, etc. Persons of atrocious character, who have violated the laws of God and man, are entitled to no such special exertions from any member of our pure and honorable profession; and, indeed, to no intervention beyond securing to them a fair and dispassionate investigation of the facts of their cause, and the due application of the law. All that goes beyond this, either in manner or substance, is unprofessional, and proceeds, either from a mistaken view of the relation of client and counsel, or from some unworthy and selfish motive which sets a higher value on professional display and success than on truth and justice, and the substantial interests of the community. Such an inordinate ambition I shall ever regard as a most dangerous perversion of talents, and a shameful abuse of an exalted station. The parricide, the gratuitous murderer, or their perpetrator of like revolting crimes, has surely no such claim on the commanding talents of a profession whose object and pride should be the suppression of all vice by the vindication and enforcement of the laws. Those, therefore, who wrest their proud knowledge from its legitimate purposes to pollute the streams of justice and to screen such foul offenders from merited penalties, should be regarded by all (and certainly shall by me) as ministers at a holy altar full of high pretension and apparent sanctity, but inwardly base, unworthy, and hypocritical–dangerous in the precise ratio of their commanding talents and exalted learning.

16.    Whatever personal influence I may be so fortunate as to possess shall be used by me only as the most valuable of my possessions, and not be cheapened or rendered questionable by a too frequent appeal to its influence. There is nothing more fatal to weight of character than its common use; and especially that unworthy one, often indulged in by eminent counsel, of solemn assurances to eke out a sickly and doubtful cause. If the case be a good one, it needs no such appliance; and if bad, the artifice ought to be too shallow to mislead any one. Whether one or the other, such personal pledges should be very sparingly used and only on occasions which obviously demand them; for if more liberally resorted to, they beget doubts where none may have existed or strengthen those which before were only feebly felt.

17.    Should I attain that eminent standing at the bar which gives authority to my opinions, I shall endeavor, in my intercourse with my junior brethren, to avoid the least display of it to their prejudice. I will strive never to forget the days of my youth, when I too was feeble in the law, and without standing. I will remember my then ambitious aspirations (though timid and modest) nearly blighted by the inconsiderate or rude and arrogant deportment of some of my seniors; and I will further remember that the vital spark of my early ambition might have been wholly extinguished, and my hopes forever ruined, had not my own resolutions, and a few generous acts of some others of my seniors, raised me from my depression. To my juniors, therefore, I shall ever be kind and encouraging; and never too proud to recognize distinctly that, on many occasions, it is quite probable their knowledge may be more accurate than my own, and that they, with their limited reading and experience, have seen the matter more soundly than I, with my much reading and long experience.

18.    To my clients I will be faithful; and in their cause zealous and industrious. Those who can afford to compensate me, must do so; but I shall never close my ear or heart because my client’s means are low. Those who have none, and who have just causes are, of all others, the best entitled to sue, or be defended; and they shall receive a due portion of my services, cheerfully given.

19.    Should my client be disposed to compromise, or to settle his claim, or defense, and especially if he be content with a verdict or judgment, that has been rendered, or, having no opinion of his own, relies with confidence on mine, I will in all such cases greatly respect his wishes and real interests. The further prosecution, therefore, of the claim or defense (as the case may be), will be recommended by me only when, after mature deliberation, I am satisfied that the chances are decidedly in his favor; and I will never forget that the pride of professional opinion on my part, or the spirit of submission, or of controversy (as the case may be), on that of my client, may easily mislead the judgment of both, and cannot justify me in sanctioning, and certainly not in recommending, the further prosecution of what ought to be regarded as a hopeless cause. To keep up the ball (as the phrase goes) at my client’s expense, and to my own profit, must be dishonorable; and however willing my client may be to pursue a phantom, and to rely implicitly on my opinion, I will terminate the controversy as conscientiously for him as I would were the cause my own.

20.    Should I not understand my client’s cause, after due means to comprehend it, I will retain it no longer, but honestly confess it, and advise him to consult others, whose knowledge of the particular case may probably be better than my own.

21.    The wealthy and the powerful shall have no privilege against my client that does not equally appertain to others. None shall be so great as to rise, even for a moment, above the just requisitions of the law.

22.    When my client’s reputation is involved in the controversy, it shall be, if possible, judicially passed on. Such cases do not admit of compromise; and no man’s elevated standing shall induce me to consent to such a mode of settling the matter: the amend from the great and wealthy to the ignoble and poor should be free, full and open.

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.

24.    I will never be tempted by any pecuniary advantage, however great, nor be persuaded by any appeal to my feelings, however strong, to purchase, in whole or in part, my client’s cause. Should his wants be pressing, it will be an act of humanity to relieve them myself, if I am able, and if I am not then to induce others to do so. But in no case will I permit either my benevolence or avarice, his wants or his ignorance, to seduce me into any participation of his pending claim or defense. Cases may arise in which it would be mutually advantageous thus to bargain, but the experiment is too dangerous, and my rule too sacred, to admit of any exception, persuaded as I am that the relation of client and counsel, to be preserved in absolute purity, must admit of no such privilege, however guarded it may be by circumstances; and should the special case alluded to arise, better would it be that my client should suffer, and I lose a great and honest advantage, than that any discretion should exist in a matter so extremely liable to abuse, and so dangerous in precedent.

And though I have thus strongly worded my resolution, I do not thereby mean to repudiate, as wholly inadmissible, the taking of contingent fees. On the contrary, they are sometimes perfectly proper and are called for by public policy, no less than by humanity. The distinction is very clear. A claim or defense may be perfectly good in law, and in justice, and yet the expenses of litigation would be much beyond the means of the claimant or defendant–and equally so to counsel, who, if not thus contingently compensated in the ratio of the risk, might not be compensated at all. A contingent fee looks to professional compensation only on the final result of the matter in favor of the client. None other is offered or is attainable. The claim or defense never can be made without such arrangement. It is voluntarily tendered, and necessarily accepted or rejected, before the institution of any proceedings.

It (i.e., a contingent fee arrangement) flows not from the influence of counsel over client. Both parties have the option to be off. No expenses have been incurred. No moneys have been paid by the counsel to the client. The relation of borrower and lender, of vendor and vendee, does not subsist between them; but it is an independent contract for the services of counsel to be rendered for the contingent avails of the matter to be litigated. Were this denied to the poor man, he could neither prosecute nor be defended. All of this differs essentially from the object of my resolution, which is against purchasing, in whole or in part, my client’s rights, after the relation of client and counsel, in respect to it, has been fully established, after the strength of his case has become known to me, after his total pecuniary inability is equally known, after expenses have been incurred which he is unable to meet, after he stands to me in the relation of a debtor, and after he desires money from me in exchange for his pending rights. With this explanation I renew my resolution never so to purchase my client’s cause, in whole or in part, but still reserve to myself, on proper occasions, and with proper guards, the professional privilege (denied by no law among us) of agreeing to receive a contingent compensation freely offered for service wholly to be rendered, and when it is the only means by which the matter can either be prosecuted or defended. Under all other circumstances, I shall regard contingent fees as obnoxious to the present resolution.

25.    I will retain no client’s funds beyond the period in which I can, with safety and ease, put him in possession of them.

26.    I will on no occasion blend with my own my client’s money. If kept distinctly as his it will be less liable to be considered as my own.

27.    I will charge for my services what my judgment and conscience inform me is my due, and nothing more. If that be withheld it will be no fit matter for arbitration; for no one but myself can adequately judge of such services, and after they are successfully rendered, they are apt to be ungratefully forgotten. I will then receive what the client offers, or the laws of the country may award; but in either case he must never hope to be again my client.

28.    As a general rule I will carefully avoid what is called the “taking of half fees.” And though no one can be so competent as myself to judge what may be a just compensation for my services, yet when the quiddam honorarium has been established by usage or law, I shall regard as eminently dishonorable all underbidding of my professional brethren. On such a subject, however, no inflexible rule can be given to myself, except to be invariably guided by a lively recollection that I belong to an honorable profession.

29.    Having received a retainer for contemplated services, which circumstances have prevented me from rendering, I shall hold myself bound to refund the same, as having paid to me on a consideration which has failed, and, as such, subject to restitution on every principle of law, and of good morals, and this shall be repaid not merely at the instance of my client, but ex mero motu.

30.    After a cause is finally disposed of, and all relation of client and counsel seems to be forever closed, I will not forget that it once existed, and will not be inattentive to his just request that all of his papers may be careful arranged by me, and handed over to him. The execution of such demands, though sometimes troublesome, and inopportunely or too urgently made, still remains a part of my professional duty, for which I shall consider myself already compensated.

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.

32.    If my client consents to endeavors for a compromise of his claim or defense, and for that purpose I am to commune with the opposing counsel or others, I will never permit myself to enter upon a system of tactics, to ascertain who shall overreach the other by the most nicely balanced artifices of disingenuousness, by mystery, silence, obscurity, suspicion, vigilance to the letter, and all of the other machinery used by this class of tacticians to the vulgar surprise of clients, and the admiration of a few ill-judging lawyers. On the contrary, my resolution in such a case is to examine with great care, previously to the interview, the matter of compromise; to form a judgment as to what I will offer or accept; and promptly, frankly, and firmly to communicate my views to the adverse counsel. In so doing no lights shall be withheld that may terminate the matter as speedily and as nearly in accordance with the rights of my client as possible; although a more dilatory, exacting and wary policy might finally extract something more than my own or even my client’s hopes. Reputation gained for this species of skill is sure to be followed by more than an equivalent loss of character; shrewdness is too often allied to unfairness, caution to severity, silence to disingenuousness, wariness to exaction to make me covet a reputation based on such qualities.

33.    What is wrong is not the less so from being common. And though few dare to be singular, even in a right cause, I am resolved to make my own, and not the conscience of others, my sole guide. What is morally wrong cannot be professionally right, however it may be sanctioned by time or custom. It is better to be right with a few, or even none, than wrong, though with a multitude. If, therefore, there be among my brethren any traditional moral errors of practice, they shall be studiously avoided by me, though in so doing I unhappily come in collision with what is (erroneously, I think) too often denominated the policy of the profession. Such cases, fortunately, occur but seldom; but, when they do, I shall trust to that moral firmness of purpose which shrinks from no consequences, and which can be intimidated by no authority, however ancient or respectable.

34.    Law is a deep science. Its boundaries, like space, seem to recede as we advance; and though there be as much of certainty in it as in any other science, it is fit we should be modest in our opinions, and ever willing to be further instructed. Its acquisition is more than the labor of a life, and after all can be with none the subject of an unshaken confidence. In the language, then of a late beautiful writer, I am resolved to “consider my own acquired knowledge but as a torch flung into an abyss, making the darkness visible, and showing me the extent of my own ignorance.” (Jameson)

35.    I will never be voluntarily called as a witness in any cause in which I am counsel. Should my testimony, however, be so material that without it my client’s cause may be greatly prejudiced, he must at once use his option to cancel the tie between us in the cause, and dispense with my further services or with my evidence. Such a dilemma would be anxiously avoided by every delicate mind, the union of counsel and witness being usually resorted to only as a forlorn hope in the agonies of a cause, and becomes particularly offensive when its object be to prove an admission made to such counsel by the opposite litigant. Nor will I ever recognize any distinction in this respect between my knowledge of facts acquired before and since the institution of the suit, for in no case will I consent to sustain by my testimony any of the matters which my interest and professional duty render me anxious to support. This resolution, however, has no application whatever to facts contemporaneous with and relating merely to the prosecution or defense of the cause itself, such as evidence relating to the contents of a paper unfortunately lost by myself or others, and such like matters, which do not respect the original merits of the controversy, and which, in truth, adds nothing to the once existing testimony, but relates merely to matters respecting the conduct of the suit, or to the recovery of lost evidence; nor does it apply to the case of gratuitous counsel–that is, to those who have expressly given their services voluntarily.

36.    Every letter or note that is addressed to me shall receive a suitable response, and in proper time. Nor shall it matter from whom it comes, what it seeks, or what may be the terms in which it is penned. Silence can be justified in no case; and though the information sought cannot or ought not to be given, still decorum would require from me a courteous recognition of the request, though accompanied with a firm withholding of what has been asked. There can be no surer indication of vulgar education than neglect of letters and notes. It manifests a total want of that tact and amenity which intercourse with good society never fails to confer. But that dogged silence (worse than a rude reply) in which some of our profession indulge on receiving letters offensive to their dignity, or when dictated by ignorant importunity, I am resolved never to imitate, but will answer every letter and note with as much civility as may be due, and in as good time as may be practicable.

37.    Should a professional brother, by his industry, learning, and zeal, or even by some happy chance, become eminently successful in causes which give him large pecuniary emoluments, I will neither envy him the fruits of his toils or good fortune, nor endeavor by any indirection to lessen them, but rather strive to emulate his worth, than enviously to brood over his meritorious success, and my own more tardy career.

38.    Should it be my happy lot to rank with or take precedence of my seniors, who formerly endeavored to impede my ownward course, I am firmly resolved to give them no cause to suppose that I remember the one, or am conscious of the other. When age and infirmities have overtaken them, my kindness will teach them the loveliness of forgiveness. Those, again, who aided me when young in the profession shall find my gratitude increase in proportion as I become the better able to sustain myself.

39.    A forensic contest is often no very sure test of the comparative strength of the combatants, nor should defeat be regarded as a just cause of boast in the victor, or of mortification in the vanquished. When the controversy has been judicially settled against me, in all court, I will not “fight the battle o’er again,” coram non judice; nor endeavor to persuade others, as is too often done, that the courts were prejudiced, or the jury desperately ignorant, or the witnesses perjured, or that the victorious counsel were unprofessional and disingenuous. In such cases, Credat Judaeus Apella!

40.    Ardor in debate is often the soul of eloquence, and the greatest charm of oratory. When spontaneous and suited to the occasion, it becomes powerful. A sure test of this is when it so alarms a cold, calculating and disingenuous opponent, as to induce him to resort to numerous vexatious means of neutralizing its force, when ridicule and sarcasm take the place of argument, when the poor device is resorted to of endeavoring to cast the speaker from his well-guarded pivot, by repeated interruptions, or by impressing on the court and jury that his just and well-tempered zeal is but passion, and his earnestness but the exacerbation of constitutional infirmity, when the opponent assumes a patronizing air, and imparts lessons of wisdom and of instruction! Such opponents I am resolved to disappoint, and on no account will I ever imitate their example. The warm current of my feelings shall be permitted to flow on; the influences of my nature shall receive no check; the ardor and fullness of my words shall not be abated–for this would be to gratify the unjust wishes of my adversary, and would lessen my usefulness to my client’s cause.

41.    In reading to the court or to the jury authorities, records, documents, or other papers, I shall always consider myself as executing a trust, and as such bound to execute it faithfully and honorably. I am resolved, therefore, carefully to abstain from all false or deceptious readings, and from all uncandid omissions of any qualifications of the doctrines maintained by me, which may be contained in the text or in the notes; and I shall ever hold that the obligation extends not only to words, syllables, and letters, but also to the modus legendi. All intentional false emphasis and even intonations in any degree calculated to mislead, are petty impositions on the confidence reposed, and whilst avoided by myself, shall ever be regarded by me in others as feeble devices of an impoverished mind, or as pregnant evidences of a disregard for truth, which justly subjects them to be closely watched in more important matters.

42.    In the examination of witnesses, I shall not forget that perhaps circumstances and not choice have placed them somewhat in my power. Whether so or not, I shall never esteem it my privilege to disregard their feelings, or to extort from their evidence what, in moments free from embarrassment, they would not testify. Nor will I conclude that they have no regard for truth and even the sanctity of an oath, because they use the privilege accorded to others, of changing their language and of explaining their previous declarations. Such captious dealing with the words and syllables of a witness ought to produce in the mind of an intelligent jury only a reverse effect from that designed by those who practice such poor devices.

43.    I will never enter into any conversation with my opponent’s client, relative to his claim or defense, except with the consent and in the presence of his counsel.

44.    Should the party just mentioned have no counsel, and my client’s interest demand that I should still commune with him, it shall be done in writing only, and no verbal response will be received. And if such person be unable to commune in writing, I will either delay the matter until he employs counsel, or take down in writing his reply in the presence of others; so that if occasion should make it essential to avail myself of his answer, it may be done through the testimony of others, and not by mine. Even such cases should be regarded as the result of unavoidable necessity, and are to be resorted to only to guard against great risk, the artifices of fraud, or with the hope of obviating litigation.

45.    Success in any profession will be much promoted by good address. Even the most cautious and discriminating minds are not exempt from its influence: the wisest judges, the most dispassionate juries, and the most wary opponents being made thereby, at least, more willing auditors–and this, of itself, is a valuable end. But whilst address is deservedly prized, and merits the highest cultivation, I fully concur in sentiment with a high authority, that we should be “respectful without meanness, easy without too much familiarity, genteel without affectation, and insinuating without any art or design.”

46.    Nothing is more unfriendly to the art of pleasing than morbid timidity (bashfulness – mauvaise honte). All life teems with examples of its prejudicial influence, showing that the art of rising in life has no greater enemy than this nervous and senseless defect of education. Self-possession, calmness, steady assurance, intrepidity–are all perfectly consistent with the most amiable modesty, and none but vulgar and illiterate minds are prone to attribute to presumptuous assurance the apparently cool and unconcerned exertions of young men at the bar. A great connoisseur in such matters says that “what is done under concern and embarrassment is sure to be ill done”; and the judge (I have known some) who can scowl on the early endeavors of the youthful advocate who has fortified himself with resolution, must be a man poor in the knowledge of human character, and, perhaps still more so in good feelings. Whilst, therefore, I shall ever cherish these opinions, I hold myself bound to distinguish the arrogant, noisy, shallow, and dictatorial impudence of some, from the gentle, though firm and manly, confidence of others–they who bear the white banner of modesty, fringed with resolution.

47.    All reasoning should be regarded as a philosophical process–its object being conviction by certain known and legitimate means. No one ought to be expected to be convinced by loud words, dogmatic assertions, assumption of superior knowledge, sarcasm, invective; but by gentleness, sound ideas, cautiously expressed by sincerity, by ardor without extravasation. The minds and hearts of those we address are apt to be closed when the lungs are appealed to, instead of logic; when assertion is relied on more than proof; and when sarcasm and invective supply the place of deliberate reasoning. My resolution, therefore, is to respect courts, juries, and counsel as assailable only through the medium of logical and just reasoning; and by such appeals to the sympathies of our common nature as are worthy, legitimate, well-timed, and in good taste.

48.    The ill success of many at the bar is owing to the fact that their business is not their pleasure. Nothing can be more unfortunate than this state of mind. The world is too full of penetration not to perceive it, and much of our discourteous manner to clients, to courts, to juries, and counsel, has its source in this defect. I am, therefore, resolved to cultivate a passion for my profession, or, after a reasonable exertion therein, without success, to abandon it. But I will previously bear in mind, that he who abandons any profession will scarcely find another to suit him. The defect is in himself. He has not performed his duty, and has failed in resolutions, perhaps often made, to retrieve lost time. The want of firmness can give no promise of success in any vocation.

49.    Avarice is one of the most dangerous and disgusting of vices. Fortunately its presence is oftener found in age than in youth; for if it be seen as an early feature in our character it is sure, in the course of a long life, to work a great mass of oppression, and to end in both intellectual and moral desolation. Avarice gradually originates every species of indirection. Its offspring is meanness; and it contaminates every pure and honorable principle. It cannot consist with honesty scarce a moment without gaining the victory. Should the young practitioner, therefore, on the receipt of the first fruits of his exertions, perceive the slightest manifestations of this vice, let him view it as his most insidious and deadly enemy. Unless he can then heartily and thoroughly eradicate it, he will find himself, perhaps slowly, but surely, capable of unprofessional, means, and, finally, dishonest acts which, as they cannot be long concealed, will render him conscious of the loss of character; make him callous to all the nicer feelings; and ultimately so degrade him, that he consents to live upon arts, from which his talents, acquirements, and original integrity would certainly have rescued him, had he, at the very commencement, fortified himself with the resolution to reject all gains save those acquired by the most strictly honorable and professional means. I am, therefore, firmly resolved never to receive from any one a compensation not justly and honorably my due, and if fairly received, to place on it no undue value, to entertain no affection for money, further than as a means of obtaining the goods of life; the art of using money being quite as important for the avoidance of avarice, and the preservation of a pure character, as that of acquiring it.

With the aid of the foregoing resolutions, and the faithful adherence to the following and last one, I hope to attain eminence in my profession, and to leave this world with the merited reputation of having lived an honest lawyer.

50.    Last resolution: I will read the foregoing forty-nine resolutions twice every year during my professional life.

 

Celebrate Pro Bono

This week marks the National Celebration of Pro Bono.  This year, the ABA encourages lawyers to provide pro bono services to events and organizations that assist homeless youth. To me, the focus calls to mind Jay Diaz’s fantastic work as the Vermont Bar Foundation’s Poverty Law Fellow.

Anyhow, I thought I’d use the National Celebration of Pro Bono to review the section of the Vermont Rules of Professional Conduct that applies to pro bono services.

pro bono

Per Rule 6.1,

  • “Every lawyer has a professional responsibility to provide legal services to those unable to pay.  A lawyer should render at least 50 hours of pro bono publico legal services per year .  In fulfilling this responsibility, a lawyer should
    • (a) provide a substantial majority of the 50 hours without fee or expectation of fee to:
      • (1) persons of limited means; or
      • (2) charitable, religious, civic, community, governmental, and educational organizations in matters which are designed primarily to address the needs of people with limited means.” (emphasis added).

The remainder of the 50 hours can be satisfied in ways outlined in Rule 6.1(b).

  • Who qualifies as a “person of limited means?”
    • See, Rule 6.1, Comment [3] (“Persons eligible for legal services under paragraphs (a)(1) and (2) are those who qualify for participation in programs funded by the Legal Services Corporation and those whose incomes and financial resources are slightly above the guidelines used by such organizations but nevertheless cannot afford counsel.”
    • Key points made at the CLE this morning included the point that there are plenty of people who make more than the guidelines but who cannot afford legal services.  Those people need help as well.
  • My client didn’t pay, that’s pro bono.
    • Categorically false.  Rule 6.1(a) is clear:  a “lawyer should provide substantial majority of the 50 hours of legal services without fee or expectation of fee . . ..”
    • Comment [4] drives home the point:  “Because services must be provided without fee or expectation of fee, the intent of the lawyer to render free legal services is essential for the work performed to fall within the meaning of paragraphs (a)(1) and (2).  Accordingly, services rendered cannot be considered pro bono if an anticipated fee is uncollected . . . .”
    • Note, however that the Comment goes on to indicate that “. . . the award of statutory attorney’s fees in a case originally accepted as pro bono would not disqualify such services from inclusion under this section.  Lawyers who do receive fees in such cases are encouraged to contribute an appropriate portion of such fees to organizations or projects that benefit persons of limited means.”
  • I’m a government attorney, so I don’t have to do pro bono.
    • False.  Rule 6.1 applies to every lawyer.  Comment[5], however, recognizes that government lawyers may not be able to satisfy the requirements of Rule 6.1(a) and, therefore, should be allowed to satisfy the pro bono requirement via provision of services set out in Rule 6.1(b).  Specifically, the Comment states
      • “Constitutional, statutory, or regulatory restrictions may prohibit or impede government or public sector lawyers and judges from performing the pro bono services outlined in paragraphs (a)(1) and (2).  According, where those restrictions apply, government and public sector lawyers and judges may fulfill their pro bono responsibility by performing services outlined in paragraph (b).
  • So I’m doing pro bono work, what other rules apply?
    • All of them!  You must be competent & diligent.  You can’t communicate with a represented party on the subject of the representation without counsel’s consent.  You can’t lie.  In short, pro bono is not license to act unethically.
  • What about the conflicts rules?
    • Rule 6.5 relaxes the conflicts rules IF a lawyer provides:
      • short term limited legal services
      • under the auspices of a program sponsored by a nonprofit organization or court
      • without expectation by the lawyer or the client that the lawyer will provide continuing representation in the matter.
    • If each of these is present, the conflicts rules apply only if the lawyer KNOWS of a conflict.  In other words, if the 3 conditions are met, a lawyer does not have to do a conflict check prior to commencing the representation.  See, Rule 6.5, Comment [1] (“Such programs are normally operated under circumstances in which it is not feasible for a lawyer to systematically screen for conflicts of interest as is generally required before undertaking a representation.”
    • Remember: a lawyer may provide pro bono services outside the auspices of program sponsored by a nonprofit or court.  However, if so, the lawyer must check for conflicts.

That’s all for now. I hope you celebrate pro bono week by providing some pro bono hours.  For opportunities to do so, contact Mary Ashcroft or Angele Court.

pro bono

Proposed Rule on Lawyer-Client Sex Published for Comment

The Vermont Supreme Court has published for comment a proposed rule that would ban lawyer-client sexual relationships that do not pre-date the professional relationship.

  • The proposed rule is HERE.
  • For background information, here are my blog posts on the topic.

Finally, here’s the language from the cover memo that accompanied the proposed rule:

  • The proposed amendment deletes Comment 12 to Rule 1.7 due to the simultaneous proposalto add Rule 1.8(j), which explicitly precludes a lawyer from having a sexual relationship with a client unless a consensual sexual relationship existed when the client-lawyer relationship began.
  • The proposed amendment to Rule 1.8(j) adds a prohibition on sexual relations between alawyer and client unless a consensual sexual relationship existed when the client-lawyer relationship commenced.                                                                       
  • The proposed amendment to Comment 17 clarifies that the rule applies
    to all sexual relationships formed after the commencement of the professional client-lawyer relationship, including consensual sexual relationships and sexual relationships in which there is no prejudice to the client’s interests in the matter that is the subject of the professional relationship. In such instances, a lawyer must withdraw from continued representation. See V.R.Pr.C. 1.16(a)(1).                                  
  • The proposed addition of Comment [18] provides guidance on sexual
    relationships that pre-date the commencement of the client-lawyer relationship.
  • The proposed amendment renumbers former Comment [18] as Comment [19] and clarifies that the conflict created by Rule 1.8(j) is personal for purposes of imputation. See V.R.Pr.C. 1.10.
  • The proposed new rule 1.8(j) tracks Rule 1.8(j) of the ABA Model Rules of Professional Conduct. Vermont joins 31 other states in adopting a specific prohibition on client-lawyer sexual relationships.
  • The proposed amendment is a “bright-line” rule that recognizes the serious risk to a client’s interest in receiving candid, competent, and conflict-free legal advice that is presented when the professional relationship turns sexual. Further, the proposed amendment is consistent with the fact that at least 18 of Vermont’s other licensed professions have adopted rules that specifically ban sexual relationships between a licensee and a client, patient, or person with whom the licensee has a professional relationship.
  • Comments on this proposed amendment should be sent by December 18, 2017, to Michael Kennedy, Bar Counsel, at the following address:

Michael Kennedy, Bar Counsel
Office of Bar Counsel
32 Cherry Street, Suite 213
Burlington, VT 05401
Michael.kennedy@vermont.gov

Legal Ethics

RIP – Ruth Stokes

Ruth Stokes passed away Monday.  Ruth was not a lawyer and most readers likely have no idea who she was.  I wanted to take a moment to call Ruth to your attention.

Ruth’s obituary reminds me how difficult it is to capture a life.  Simply, we aren’t paragraphs.  Ruth certainly wasn’t.

Her obituary is as understated as she was.  Not mentioned, Ruth served for many years as vice-chair of the State Board of Education.  In addition, she wasn’t just a member of the UVM Board of Trustees; she served stints as both Secretary and Chair.  In her role as Board Secretary, she signed an untold number of diplomas, including mine.

The main reason I write, however, is that Ruth served for a number of years as a member of the old Professional Conduct Board, and then for 6 years as a hearing panel member once we switched to the Professional Responsibility Board.  Through her work for the PCB and her work on the House Judiciary Committee, Ruth impacted the legal profession in a way few non-lawyers have.

She’s also the source of one of my favorite stories from my time as a disciplinary prosecutor.

Before I became a lawyer, Ruth met my mom through politics and shared circles.  So, by the time I was hired as deputy disciplinary counsel and made my first appearances before the PCB, Ruth and I knew of each other, and she certainly knew my family.

I don’t remember the year – i’m guessing 2000 or 2001 –  but I remember a disciplinary case I prosecuted before a panel upon which Ruth sat.  A few days before the hearing, I broke my nose playing basketball.  On the day of the hearing, my nose & eyes were still quite bruised.  As the panel entered and sat down, Ruth quipped “looks like the Kennedy boys fought their way out of a bar again this weekend.”

I broke out laughing.  Trust me, I took no offense and it was funny.

Anyway, that’s how I’ll always remember her.  Serious, and seriously dedicated to serving Vermont, but not so serious as to lose sight of the fact that we don’t need to be so serious all the time.  We can serve, but still enjoy the light moments.

Ruth Stokes – RIP.

Ruth Stokes

Client Confidences: Disable Autocomplete?

Rules 1.1 and 1.6 impose a duty to act competently to safeguard against the inadvertent or unauthorized disclosure of information related to the representation of a client.  I’ve blogged often on encryption, cloud storage, and other tech issues that impact the duty.

But I’ve also blogged that the most recent sanctions involving Rule 1.6 have nothing to do with hackers or technology.  As I wrote:

“To wit: the last three sanctions for violations of Rule 1.6 in Vermont were imposed:

My guess is that far more lawyers have put information related to a representation at risk by leaving files or computers in restaurants or airport waiting areas than by sending unencrypted emails or storing information in the cloud.”

The lesson: don’t forget about the “simple” steps you can take to safeguard against the inadvertent disclosure of client information.

Today’s question is whether disabling your e-mail account’s “autocomplete” function is one of those steps.

The question arises from the evolving saga of one of the country’s more prestigious law firm’s inadvertent disclosure to the Wall Street Journal of confidential & privileged information.  The matter involves Pepsi, an SEC investigation, and a Russian dairy company named Wimm-Bill-Dann.   Above the Law’s Joe Patrice has the story here.

(As an aside, I wonder if the All-England Tennis Club has sued Wimm-Bill-Dan to change its name?  Or, perhaps, the company is the official dairy product provider for The Championships.)

Back to the story.

Patrice suggests that an e-mail snafu may have caused the inadvertent disclosure :

“The memo, discussing a subpoena Smith received, was sent to the Wall Street Journal in an email including a number of other attorneys working on the matter. Given the circumstances, it’s safe to say someone’s inline autocomplete got the better of them. For any attorneys using a mailbox with that feature… maybe turn it off. On the plus side, as an efficiency aid, it saves you a few seconds every day. On the downside, one day it’ll send privileged and potentially career-ending documents to the press. Weigh those out and do whatever you think is best. Don’t worry, you can continue this story after you go into your mail preferences.”

Very interesting point.

The duty to act competently to safeguard client information includes a duty to take reasonable precautions against inadvertent disclosure.  Is disabling autocomplete a reasonable precaution?  Stated differently, is it unreasonable not to disable it?

I don’t know.  But, I do know this.

My name is Michael Kennedy and my e-mail address is michael.kennedy@vermont.gov. Many of you know Judge Michael Kainen.  Prior to being appointed to the bench, Judge Kainen was the Windsor County State’s Attorney.  I don’t remember whether it happened when Judge Kainen was a prosecutor or after he’d been appointed. However, once, a lawyer who intended to e-mail a confidential ethics inquiry to me accidentally sent it to Judge Kainen.

How?

Hint: state’s attorneys and judges also have “vermont.gov” e-mail addresses.

To:  michael.k _________

Autocomplete.

Autocomplete

My Singing Debut Has Been Finalized

Last week, and in honor of Constitution Day, I offered to sing Schoolhouse Rock’s “The Premble” at the upcoming VBA meeting if a lawyer or firm pledged at least $1,000 to kickstart the Vermont Bar Foundation’s Access to Justice Campaign.  Here’s what I wrote:

“As I’ve mentioned at a few seminars, my initial exposure to the U.S. Constitution was during the Saturday morning cartoons I watched as a kid.  Courtesy of the folks at Schoolhouse Rock!, that’s when, where, and how I first learned about the origins of the Constitution and the words to The Preamble.

Of course, if people are not able to access the legal services that they need to protect their rights, the Constitution might mean little to them.  So, in honor of Constitution Day, if an attorney or firm donates $1,000 to the Vermont Bar Foundation’s Access to Justice Campaign by Friday, September 29, I’ll karaoke the Schoolhouse Rock! version of The Preamble at the VBA’s upcoming annual meeting.”

Well, what do you know?

Earlier today, a former member of the Vermont Bar Association’s Board of Managers who prefers to remain anonymous stepped up to the plate and made a pledge that met the threshhold!  Other former Bar Managers have joined in, making the threshhold but a speck in the rear-view.

It is an honor to have followed in their individual and collective footsteps.

I don’t remember much about contract law other than it met at 3PM during my 1L year at GW Law.  Anyhow, it doesn’t matter much what I remember because, as far as I’m concerned, we have ourselves a deal! I’ll be singing at the annual meeting.

Now, as some have already suggested, we’d raise a hell of lot more money by taking donations to have me stop singing.  I take no umbrage at the suggestion.  My mom and her entire family have carried congregations with their voices for years.  My dad and my brother have those silky smooth Irish voices.  Me? Umm, my singing voice has been called many things, with “silky & smooth” not one of them.

(For someone who blogs so often about Rule 1.1 and the duty of competence, I’m fairly certain the prosecutors at the Department of Music Ethics will have me up on their equivalent of 1.1 in a heartbeat.)

So what does this mean? It means you’ll have to help ease the audible assault (and throw the music ethics investigators off my scent) by singing along!  And the only way to do so is to learn the tune & the words yourself.  The video is here. Practice makes perfect!

And, again, to those who made this happen, you’re awesome.  You already were, but this just proves it yet again.  Thank you.

P.S. – if you can’t make it, I’m sure Jennifer will have it on Facebook Live and we’ll find someone with Periscope.

Schoolhouse Rock Preamble