Protect Client Info When Traveling Abroad

Given the proximity of the Canadian border, and with the YLD Thaw in mind, this article strikes home.

As reported by the ABA Journal in this post, ABA President Linda Klein recently authored a letter to DHS in which she expressed “serious concern about standards that permit searches of lawyer laptops and other electronic devices at the border in the absence of reasonable suspicion.”  President Klein’s letter is here.

Let me be clear: I am NOT suggesting that Vermont lawyers have an affirmative duty to refrain from bringing devices that contain client data to Montreal when traveling for the weekend. However, understand what might happen upon your return.  And, as I often say in response to inquiries, avoiding problems is a great way not to have any.  So, if you don’t need your device that contains work & client data while you’re wandering the Old Port, consider not bringing it.

Somewhat related, I’ve previously posted a blog Subpoena to Disclose Client Info?

Border

 

 

 

Celebrate Law Day

Without law, there’d be no legal ethics.  And that’s my hook to post about Law Day on a legal ethics blog.

May 1 is Law Day.  This year’s theme: the 14th Amendment.

The ABA has lots of great information on Law Day and how to commemorate it.   Chief Justice Roberts encouraged federal judges to recognize the day & the theme.  For an interesting read on the origin and continued importance of the 14th Amendment, check out Victor Li’s piece in the ABA Journal: The 14th: A Civil War-era amendment has become a mini-Constitution for modern times.  The amendment’s principal author, John Bingham, is pictured below.

Happy Law Day!

John Bingham

 

Five for Friday: #69

69 is about how many games the Sox will win this season if their offense continues at its current anemic pace.  Let the chant begin: Bring back Papi!

Papi

I didn’t post many columns this week, with “many” defined as “any.”  I was in D.C. for ABA Day and let it get the best of my time.  The topics this year: LSC funding and changing the laws to allow the VA to do more to provide homeless veterans with access to legal services.  For more info, e-mail me.  However, I wouldn’t miss the Friday column, so here we go:

Rules

Rules

  • There are none. It’s open book, open search engine, use whatever resource you have.
  • Exception: Question 5.  We try to play that one honest.
  • Team entries welcome.  Creative team names encouraged.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Please e-mail answers to michael.kennedy@vermont.gov
  • Please do not use the “comment” feature to submit your answers
  • I will post the answers Monday, along with the week’s Honor Roll
  • Please consider sharing the quiz with friends
  • Hashtag & share: #fiveforfriday

Question 1

A comment to one of the rules includes the following language.

  • “a lawyer should adopt reasonable procedures, appropriate for the size and type of  firm and practice, to determine in both litigation and non-litigation matters the persons and issues involved. Ignorance caused by a failure to institute such procedures will not excuse a violation of this rule.”

What’s the topic of the rule?

Question 2

Solo just opened a new practice.  Solo used to work for the Alliance Firm.

At new practice, Solo represents Vader in matter against Luke.

Luke asks Alliance for representation.   Prior to asking, Luke has never been represented by Alliance.

Which is most accurate?

  • A.    Alliance may not represent Luke.
  • B.    If Vader is a former client of Alliance, Alliance may not represent Luke
  • C.    If Vader is a former client of Alliance, Alliance may not represent Luke absent Vader’s informed consent.
  • D.    If Vader is a former client of Alliance, Alliance may represent Luke unless (1) the matter is the same as or substantially related to a matter in which it represented Vader; and (2) any lawyer working at Alliance has information about Vader that the rules prohibit from being disclosed.

Question 3

Vermont’s rules prohibit lawyers from asking a person other than to client to voluntarily refrain from giving information to another party.  The rule does not apply if (a) the person is a relative, employee, or agent of the client; AND (b) the lawyer reasonably believes that the person’s interests will not be adversely affected by choosing to refrain from giving the information.

The rule applies to all types of cases. However, the Reporter’s Notes caution lawyers that conduct permitted by the rule:

  • A.  Is discouraged.
  • B.  Adversely reflects on a lawyers’ fitness to practice law if done regularly
  • C.  Might constitute obstruction of justice in a criminal case
  • D.  Likely violates the rule on dealing with the unrepresented person

Question 4

Attorney called me with an inquiry.  I listened, then responded by saying “generally, it’s prohibited if one of your significant motives for doing so is pecuniary gain. Though, if motivated by pecuniary gain, it’s okay if the person is a lawyer or has a close family/personal/professional relationship with you.”

What general topic did Attorney call to discuss?

Question 5

Vincent Gambino meandered back & forth across the line between “ethical” and “not ethical.”  But, talk about tech competence! (positraction is technology!) Plus, in the end, Gambino’s trial skills demonstrated an ability to provide competent & diligent representation.   Question 5 invokes Gambino.

The question:  What color am I?

  • I am a color.  Attorney Gambino asked witness Mona Lisa Vito about a similarity between the 1963 Pontiac Tempest and the 1964 Buick Skylark. Specifically, he asked if both GM models were available in me.  Ms. Vito answered “They were!”

What color am I?

 

 

 

 

 

 

February Bar Exam Results

The Board of Bar Examiners administered the Uniform Bar Exam (“UBE”) on February 21 & 22. It was Vermont’s 2nd administration of the exam since the Supreme Court adopted the UBE in April 2016.  For an explanation of how the UBE works, please see my post on The Vermont Bar Exam.

Forty (40) applicants sat for the February exam.  I am pleased to announce the names of the 21 applicants who passed the February administration of the exam.

I am also pleased to announce that Vermont’s scores on the Multistate Bar Examination (“MBE”) exceeded the national average.  The MBE is what most of you know as “the multiple choice.” Nationally, the average MBE score for the February 2017 bar exam was 134.  As Above The Law reports, it was the lowest average score on the MBE since aggregate results were first collected in 1976.  In Vermont, the average MBE score on the February exam was 139.1.

Bar Exam

 

Back to the Basics: Contingent Fees

Sometimes a column must get back to the basics and discuss legal ethics without reference to music, tv, movies or sports.

As a result of a few seminars I’ve taught over the past few weeks, I’d like to get back to the basics of contingent fees.

Rule 1.5(a) prohibits lawyers from agreeing to, charging, or collecting unreasonable fees and expenses.  Contingent fees, and expenses in contingent fee cases, are subject to the rule.

In addition, Rule 1.5(c) states that a contingent fee agreement:

  • MUST be in a writing that is signed by the client;
  • MUST state the method by which the fee is to be determined, including:
    • the percentage that will accrue to the lawyer in the event of settlement, trial or appeal;
    • the litigation & other expenses that will be deducted from any recovery; and,
    • whether such expenses will be deducted before or after the contingent fee is calculated.
  • MUST clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party.

Upon the conclusion of a contingent fee matter, a lawyer:

  • MUST provide the client with a written statement showing the outcome of the matter and, if there is a recovery, the remittance to the client and the method by which it was determined.

Lawyers are NOT allowed to agree to, charge, or collect:

  • a contingent fee in a criminal case;
  • a fee that is contingent upon the securing of a divorce; or,
  • a fee that is contingent upon the amount of spousal maintenance or support, or property settlement in lieu thereof, in a domestic relations matter.

However, lawyers may use contingent fees in domestic relations matters that involve the collection of:

  • spousal maintenance or support due AFTER a final judgment has been entered; or,
  • child support and maintenance arrearages due AFTER a final judgment has been entered, provided that the court approves the reasonableness of the fee agreement.

In other words, contingent fees are okay in some POST-JUDGMENT divorce & custody matters.

So, there you have it.  The basics of contingent fees.

Of course, speaking of “back to the basics,” this is not one of those columns sans reference to music, tv, movies or sports.  Who could forget the Barden Bellas and their version of Back to the Basics in Pitch Perfect 2?

Pitch Perfect 2

 

 

Florida OKs Judges at Beauty Pageants

One of the great debates in legal ethics has been resolved: a real judge may serve as a judge at a qualifier for the Miss America competition.

So says the Florida Supreme Court’s Judicial Ethics Advisory Committee in JEAC Opinion 2017-08. The opinion was first reported by the Legal Profession Blog and the ABA Journal.

I had no idea that this was even a topic.  Well, it is.  Not only that, it’s a divisive topic! Although there’s no written dissent, the opinion notes that a committee member dissented.

I hope someone attends the pageant, sees the judge judge, points & says “there she is  . . .”

 

Bert Parks

Opening Day & Monday Morning Answers

Yes, it’s Monday.

But, the sun is shining, most of the snow has melted, and it’s Opening Day at Fenway.  I’m curious: are any of you Sox fans mildly surprised that Porcello gets the start over Sale?

Two more housekeeping matters before I get to the Honor Roll & Answers.  First, in case you missed it Saturday morning, here’s my post on the new rule in North Carolina that extends the duty to disclose exculpatory information to all lawyers.  Second, if you want to read Friday’s questions before you see the answers, they’re here.

Oh – a third thing.  In the bracket-style pool that I entered, I have Gonzaga defeating North Carolina in the title game. Unfortunately, the other two teams I had in the Final Four were Lousiville & Wisconsin.

HONOR ROLL

Question 1

The Vermont Supreme Court has described a particular rule as “prophylactic.”  The Court used the word, in part, due to what it termed as the “Hobson’s Choice” that would arise if:

  • A. A client had to disclose a confidence in order to protect it
  • B. A criminal defendant had to take a plea to avoid going to trial with ineffective& incompetent counsel
  • C. A client had to pay an unreasonable fee in order for disciplinary counsel to have grounds to prosecute the lawyer for charging  an unreasonable fee

In the context of former-client conflicts that arise under Rule 1.9, lawyers often say “but I don’t remember anything about the case.” It doesn’t matter. If the old case is the same as or substantially related to the new case, the Court will presume that confidences were shared. Otherwise, former clients will face of Hobson’s Choice of having to disclose confidences in order to protect them.

Question 2

Lawyer represents Client. Lawyer reasonably believes that Client will offer false testimony. However, the rules prohibits Lawyer from refusing to offer the evidence.

Question 3

What do these rules have in common?

  • A. The rule requiring zealous representation
  • B. The rule requiring lawyers to maintain copies of ads for 2 years
  • C. The rule prohibiting the appearance of impropriety
  • D. The rule prohibiting conduct that adversely reflects on a lawyer’s fitness to practice law

They no longer exist.  Each has been repealed or replaced.

Question 4

The “self-defense” exception to Rule 1.6 is often discussed with respect to:

  • A.    Disclosing a client’s intent to commit a crime
  • B.    Disclosing a misrepresentation that a client made to the court
  • C.    Responding to a client’s negative online review
  • D.    Withdrawing upon discovery of a conflict that was not apparent at the outset of the representation

The so-called “self-defense” exception is Rule 1.6(c)(3). It allows a lawyer to disclose otherwise protected information:

  • to establish a claim or defense in a controversy between the lawyer & client; or
  • to establish a defense to a criminal charge or civil claim regarding the lawyer’s conduct in which the client was involved; or
  • to respond to allegations in any proceeding involving the lawyer’s representation of the client.

Numerous authorities have held that the exception DOES NOT apply to negative online reviews.  

  • B. Ass’n of San Francisco, Ethics Op. 2014-1 (2014) (stating that while lawyers may respond to an online review, the duty of confidentiality still prevents any disclosure of confidential information without the client’s consent)
  • Pa. B. Ass’n, Formal Op. 2014-200 (2014) (lawyer’s response to negative online must be proportional & constrained, and  must not reveal confidential information absent client consent. Negative review doesn’t trigger self-defense exception in Rule 1.6)
  • N.Y. St. B. Ass’n, Op. 1032 (2014) (lawyer may not disclose confidential client information solely to respond to former client’s criticism of the lawyer posted on a lawyer-rating website)
  • New Hampshire Bar Association Ethics Committee, NH Bar News, February 2014 (Lawyer may make limited response, but not so detailed as to divulge confidential information).
  • Los Angeles County B. Ass’n, Ethics Op. No. 525 (2012) (lawyer may publicly respond to comments published by a former client if (1) no confidential information is disclosed, (2) the response does not injure the former client in any matter involving the prior representation, and (3) the response is proportionate and restrained)

Question 5

Name the iconic musician/songwriter whose lyrics are cited more often in U.S. judicial opinions than any other musician.  Chief Justice Roberts and former Justice Scalia are among the scores of judges who have cited to the songwriter.

I never got into him, but found it to be an interesting bit of trivia. The answer is Bob Dylan.  The ABA Journal has it in this post.

Red Sox

Five for Friday #65

For the first time, Five for Friday is live & on location in Bennington County!  I’m at the VBA’s Mid-Winter meeting.   Sadly, the forecast suggests that the name of the meeting complies with the advertising rules.

Rules

  • There are none. It’s open book, open search engine, use whatever resource you have.
  • Exception: Question 5.  We try to play that one honest.
  • Team entries welcome.  Creative team names encouraged.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Please e-mail answers to michael.kennedy@vermont.gov
  • Please do not use the “comment” feature to submit your answers
  • I will post the answers Monday, along with the week’s Honor Roll
  • Please consider sharing the quiz with friends
  • Hashtag & share: #fiveforfriday

Question 1

The Vermont Supreme Court has described a particular as “prophylactic.”  The Court used the word, in part, due to what it termed as the “Hobson’s Choice” that would arise if:

  • A. A client had to disclose a confidence in order to protect it
  • B. A criminal defendant had to take a plea to avoid going to trial with ineffective& incompetent counsel
  • C. A client had to pay an unreasonable fee in order for disciplinary counsel to have grounds to prosecute the lawyer for charging  an unreasonable fee

Question 2

Lawyer represents Client. Lawyer reasonably believes that Client will offer false testimony. However, the rules prohibits Lawyer from refusing to offer the evidence.

  • What type of case must this be?

Question 3

What do these rules have in common?

  • A. The rule requiring zealous representation
  • B. The rule requiring lawyers to maintain copies of ads for 2 years
  • C. The rule prohibiting the appearance of impropriety
  • D. The rule prohibiting conduct that adversely reflects on a lawyer’s fitness to practice law

Question 4

The “self-defense” exception to Rule 1.6 is often discussed with respect to:

  • A.    Disclosing a client’s intent to commit a crime
  • B.    Disclosing a misrepresentation that a client made to the court
  • C.    Responding to a client’s negative online review
  • D.    Withdrawing upon discovery of a conflict that was not apparent at the outset of the representation

Question 5

Name the iconic musician/songwriter whose lyrics are cited more often in U.S. judicial opinions than any other musician.  Chief Justice Roberts and former Justice Scalia are among the scores of judges who have cited to the songwriter.

the-quiz

 

 

 

Monday Morning Answers: #64

Friday’s questions are HERE.  The answers follow the Honor Roll.

Honor Roll

Answers

Question 1

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

“Good question.  Here’s what it comes down to: your duty is to take reasonable precautions to protect the information from unauthorized disclosure. I’ll send you a few blog posts I’ve written on what ‘reasonable precautions’ are.”

Most likely, Attorney called to discuss:

  • A.  Cloud Storage/Cloud-Based Practice Management Systems.  See, this blog post.
  • B.  A disciplinary complaint that is under investigation
  • C.  A disciplinary complaint that has resulted in formal charges
  • D.. Electronically Stored Information that was inadvertently produced in discovery and that opposing counsel is trying to “claw back”

Question 2

Lawyer works for X.  Lawyer recently accepted a new job with a new employer. Next week, Lawyer will leave X to work for Y.

Y represents a client whose interests are materially adverse to a client who Lawyer represented while working at X.   The two matters are substantially related to each other. Lawyer has a conflict.

The rules will not impute Lawyer’s conflict to other attorneys at Y.  Rather, the rules will allow Y to screen Lawyer.

Which is most likely?

  • A.  X or Y is a government agency.    See, Rule 1.11(d), Comment [2].  The rules allow for screening when a lawyer moves to or from government practice.
  • B.  X and Y are private law firms.
      • B is not correct.  Nothing in the question suggests that both X and Y must be private firms.
  • C.  X represents a former employee of a corporation
      • C is not correct.  Lateral transfers and screens are not relaxed merely because a former client is also a former employee of a corporation.
  • D.  X and Y are in different jurisdictions
      • D is not correct. Lateral transfers and screens are not impacted by the fact that firms are in different jurisdcitions.

Question 3

Attorney called back with another inquiry. I listened, then asked “was it more than $1,000?”

Most likely, Attorney called to discuss:

  • A.   A client who brought a personal check to a real estate closing.  See, Rule 1.15(f) and (g).  Rule 1.15(f) requires a lawyer to have collected funds prior to disbursing from trust.  Rule 1.15(g) sets out instruments against which a lawyer may disburse upon deposit; in other words, instruments that we will presume to constitute collected funds upon deposit. Per Rule 1.15(g)(4) personal checks that do not exceed $1000 are among those instruments.  In this answer, “real estate closing” was a clue.  Buyers often bring personal checks to closings to cover any unforeseen costs. The rule, however, applies beyond closings, to any trust account transaction involving a personal check.
  • B.   Attorney’s deposit of Attorney’s own funds into a  trust account
    • This is not correct. Rule 1.15(d) allows an attorney to deposit an attorney’s own funds into trust, but only in amount necessary to cover bank charges and fees.  There is no $1,00o limit. In fact, for many of you, $1000 would far exceed charges and fees and, therefore, would serve as an impermissible “float.”
  • C.   Funds in Attorney’s trust account that belong to a client Attorney can’t locate
  • D.   Funds in Attorney’s trust account for whom Attorney cannot determine the      owner
    • C & D are incorrect. An attorney’s obligations with respect to unexplained trust funds are not impacted by the amount.

Question 4

Over the past few weeks, attorney regulators and legal ethics types throughout the country have turned their attention Congress.  The reason? Earlier this month, the Chair of the House Judiciary Committee wrote to the ABA and attorney regulators in all 50 states urging them to take action on:

  • A.   Vacancies on the Federal Bench
  • B.    Attorney Advertising Related to Lawsuits involving Pharmaceuticals.  See, Bloomberg BNA has the story HERE.
  • C.    Licensing Paralegals
  • D.   Bar Admission Rules that Impede Trade

Question 5

This week’s Question 5 is inspired by a conversation I had a few days ago with a loyal reader .  The reader followed-up by emailing me a YouTube clip.

Hint: if a question includes “the reader follow-up by emailing me YouTube clip,” well, that’s a hint.

Fictional lawyer spent a week at a fictional trial advocacy school.  The group of lawyers on staff at the school constantly preached “no matter the case, strike first, strike hard, no mercy!”

What name have the lawyers on staff at the trial advocacy school likely given to their group?

My readers know 80’s movies!

The staff likely named itself “Cobra Kai” in honor of John Kreese’s Cobra Kai dojo in The Karate Kid.