Tech Competence and . . . flipping the bird?

It’s been a while since I’ve posted.  I love easing my way back into blogging with quick hitters.  So, without further ado:

Tip #1.   During a remote hearing, whether angry at yourself, opposing counsel, the court, or a screen that’s blank, frozen, or otherwise not working properly, don’t “flip the bird” at your camera.

Tip #2.  If you forget Tip #1, be honest when the court asks you what it just saw.

Today’s post comes thanks to a tip from Catamount Law’s Samantha Lednicky.  Last week, Sam sent me this order issued by the Michigan Court of Appeals.  The ABA Journal and Detroit Free Press have coverage.

I leave further reading to curious minds.

Flip the Bird

Related Posts:

Preparing for a remote hearing? Maybe check your client’s screen name

Tech Competence & Cats

Tech Competence Posts:

Go here for all my posts categorized or tagged as “tech competence.”

Prepping your client for a remote hearing? Check the client’s screen name.

Good news: “I’m not a cat” lawyer might be off the hook!  More on that in a moment.

Yesterday the Vermont Supreme Court amended Administrative Order 49, the order declaring a judicial emergency. Per the State Court Administrator’s memo to the bar:

  • “Paragraph 5(d) is amended to lift the existing requirement for mandatory remote hearings effective June 14, 2021. By this date, individuals will have had an opportunity to become fully vaccinated. The Court anticipates that some hearings will continue to be held remotely after remote hearings are no longer mandatory and even after the conclusion of the judicial emergency. Amending the order now gives judges, court staff, parties, and their lawyers adequate time to plan for the possibility of in-person court proceedings.”

Since some hearings will continue to be held remotely, I thought I’d share this tip: competent and diligent representation might include a dry run with a client before a remote hearing. Not only for the obvious reasons, but to check the client’s screen name.

Why would you want to check the client’s screen name?

Good question.

For the answer, read today’s ABA Journal post Judge is taken aback when Defendant logs in to Zoom arraignment with obscene screen name.  The Detroit News, Law & Crime, and Vice covered the story as well, each apparently including video.

And to think I never thought it could be worse than having to tell a judge “I’m not a cat.”

Oops

Let’s Light Some Candles

Here’s a quote to ponder as you read this post.  At the end, I’m going to ask you to remember it.

“A candle loses nothing by lighting another candle.”

~ James Keller

candle

Next week is Well-Being Week in the Law.  A project of the Institute for Well-Being in the Law, one of the goals is to provide resources that will help lawyers & legal employers to bolster well-being throughout the year.  As the infographic at the bottom of this page shows, each day has a different theme, with each theme a component of overall well-being.

The Institute’s website includes a plethora of ideas for individuals and organizations to participate in Well-Being Week.  In a way, the plethora can be dizzying.  The tools & suggestions run the gamut from desk yoga to this Alcohol Use Policy Template for Legal Employers.

Indeed, the more I learn, the more I’m convinced that while the profession must prioritize the wellness and well-being of its members, it’s not one-size-fits-all.  Each member’s journey to wellness and well-being will be along the path of their choosing.

For instance, Monday’s theme is “Stay Strong” and is intended to focus on physical well-being.  I tend to my physical well-being by running as often as possible and doing yoga 2 or 3 days per week.  Yet, having a 5K on Monday wouldn’t necessarily benefit someone who prefers biking (or walking, hiking, or swimming) and occasional breathing exercises.

The same goes for emotional, spiritual, and social well-being.  To each their own.  The square peg does little for the round hole’s well-being.

In short, I’m not holding a 5K Monday.  Rather, I encourage everyone to take a few minutes on Monday to consider how you might improve your physical well-being over the course of the year, or how your firm or office might do the same for all who work there. Then, throughout the week, do the same for each of the daily themes.

Here’s where I might be able to help.

Next week, I’ll open a Zoom meeting everyday at noon.  All are welcome.  Whoever joins, we’ll share thoughts and ideas on the day’s theme.  Take what works for you, leave the rest. All I ask is that you come ready to share.  I’ll get each discussion started, but they will remain discussions, not lectures.  You can email me for the links, and I’ll include them in the daily blog posts that tee up each discussion.

The schedule:

  • Tuesday, May 5. Align: Spiritual Well-Being.  We will share ideas related to aligning our work with our values, enabling ourselves to find meaning and purpose in what we do.
  • Wednesday, May 6. Engage & Grow: Occupational and Intellectual Well-Being.  We will share ideas on how to continuously learn and develop, within the legal profession and, as importantly, outside the law.
  • Thursday, May 7. Connect: Social Well-Being. We will share ideas on the importance of forging connections that help us to build communities and support networks.
  • Friday, May 8. Feel Well: Emotional Well-Being.  We will share ideas related to emotional intelligence and learning to identify how our emotions impact us.

You’ll note that I’ve not provided a link for Monday.  That’s because Monday’s focus is physical well-being.  Instead of logging at noon, go for a walk! Or turn off your devices for 15 minutes and do nothing!  Tech breaks help to improve physical well-being!

Again, my goal is to promote the concepts of well-being and wellness. How you go about it is up to you.

That said, here again is the quote:

“A candle loses nothing by lighting another candle.”

~ James Keller

On wellness and well-being, many of you are candles burning brightly.  Next week, consider joining to share your thoughts and ideas. You might light another.

candle

Proposed Florida Opinion would allow mobile payment of legal fees as long as lawyers protect client confidences and safeguard funds.

I know a guy who runs an NCAA tournament pool.  He told me that most participants paid via Venmo or PayPal.  A few, however, sent checks in the mail.  Hearing this made me realize that there are people who do not know how mobile payment apps work.

Last week, the Florida Bar’s Professional Ethics Committee approved Proposed Advisory Opinion 21-2.  The proposed opinion concludes that Florida’s ethics rules do not prohibit a lawyer from accepting payment via apps like Venmo & PayPal if the lawyer:

  1. protects client confidentiality; and,
  2. takes reasonable steps to safeguard funds held in connection with a representation.

This press release summarizes the proposed opinion. It now goes out for comment and will considered for final adoption in June.

Next week, I’ll blog about the opinion’s consideration of the trust account rules.  Today, I’m more interested in the first part of the opinion.  In my view, it provides helpful reminders and guidance on tech competence and client confidentiality.

Some of you might be wondering: what does a mobile payment app have to do with client confidentiality?  Well, there you have it: tech competence.  You need to know what you don’t know.

Like the Florida opinion, let’s use Venmo as an example.

Venmo is more than just a payment processor.  In a way, it’s a social media platform.  Here’s language from the Florida opinion:

  • “For example, Venmo users, when making payment, are permitted to input a description of the transaction (e.g., ‘$200 for cleaning service’). Transactions are then published to the feed of each Venmo user who is party to the transaction. Depending on the privacy settings of each party to the transaction, other users of the application may view that transaction and even comment on it.”

To illustrate the point, if you download the Venmo app, here’s what you’ll see before you log-in or sign-up:

IMG_5777

From the third transaction in the feed, we know that Skye F and John G had a virtual coffee date.  Let’s hope that their privacy settings are such that one or the other’s significant other didn’t find out.

As an aside, did the date not go well? Is that why Skye charged John??  Anyhow, I digress.

Now, apply this to real life.  Yes, accepting mobile payments might make it easier to run your law office.  However, things might become more difficult if your privacy settings are such that the entire world, including John G’s unsuspecting spouse, learns from Venmo that your firm charged John G. for “divorce consultation.”

Here’s the answer, courtesy of me logging into Venmo and opening my privacy settings:

IMG_5778

Finally, here’s a great paragraph from Florida’s proposed opinion.  The first sentence aside, it applies to every single circumstance that involves information relating to the representation of a client:

  • “For lawyers, accepting payment through a payment-processing service risks disclosure of information pertaining to the representation of a client in violation of Rule 4- 50 1.6(a) of the Rules Regulating The Florida Bar. Rule 4-1.6(a) prohibits a lawyer from revealing information relating to representation of a client absent the client’s informed consent. This prohibition is broader than the evidentiary attorney-client privilege invoked in judicial and other proceedings in which the lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The ethical obligation of confidentiality applies in situations other than those in which information is sought from the lawyer by compulsion of law and extends not only to information communicated between the client and the lawyer in confidence but also to all information relating to the representation, whatever its source. Likewise, a lawyer must make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation. The obligation of confidentiality also arises from a lawyer’s ethical duty to provide the client with competent representation. This includes safeguarding information contained in electronic transmissions and communications.”

From there, the opinion makes several suggestions.  To me, they boil down to this one:

  • “The lawyer must make reasonable efforts to understand the manner and extent of any publication of transactions conducted on the platform and how to manage applicable settings to preempt and control unwanted disclosures.”

That’s all for now.  Next week I’ll discuss the section of the opinion that deals with the trust account rules.

Related post:

Pants-on-Fire Lawyer is back. And things aren’t looking better.

I first blogged about Pants-On-Fire Lawyer in 2017.  It’s worth a read.

Back then, I promised I’d follow the story and update you on any developments. Well, I failed. Last February, the lawyer’s license was suspended for 91 days.  There are no details in the suspension order, so I’m not positive if it issued in response to the spontaneous combustion.  If so, I imagine a hearing at which the lawyer asked the Supreme Court if it was wrong to “accidentally” set himself on fire during the trial of a client charged with arson whose defense was that the fire was an accident.  Because, you know, if anyone had told him that was frowned upon . . .

I digress.

Anyway, Pants-On-Fire Lawyer returned to the news this week. The Miami Herald and ABA Journal are among the many outlets that reported the lawyer was charged with cocaine possession.

I’d say, “out of the frying pan and into the fire”, but that might have it backwards.

Pants-on-fire

This time, the lawyer isn’t wrong.

Many readers enjoy the Was That Wrong? posts.  Alas, as a bluebird Wellness Wednesday dawns, I thought I’d share the story of a lawyer who was in position to do the wrong thing but didn’t.

The tale, worthy of a Seinfeld episode itself, comes via the Mercury News and ABA Journal. Last month, the IRS notified a lawyer that he’d made a mistake on his income tax return and sent him a “refund” check for $285,000.  It didn’t take long for the lawyer to realize that, in fact, he had not made a mistake and wasn’t owed anything.  Ever since, he’s tried to convince the IRS that they’re wrong.

They won’t let him!

Imagine if this had happened to a lawyer of the ilk of the prior stars of Was That Wrong?

  • Court: It’s come to our attention that the IRS sent you $285,000 that you knew wasn’t yours but that you kept anyway.
  • Lawyer: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know, cause I’ve worked in a lot of offices and I tell you people do that all the time.

Sadly, it wouldn’t surprise me if someday I post exactly that. This morning, though, may an amusing story provide an uptick in your well-being, however incremental or fleeting.

Oh, by the way: some of you might be aware that it’s the first day of Lent.  Today’s post aside, don’t worry, I’m not giving up the Was That Wrong? column.

That would be, well, wrong.

wellness

ps: this post is almost like I’m Bizarro Blogger.  That’s what made it so difficult.

Tech Competence & Cats

Back when I blogged more often than I do now, I’d post about tech on Tuesdays.

Today, I didn’t intend to blog. Alas, in the past hour, numerous readers have emailed or texted me the same story.  Initially, it came from lawyers. Then, my friend Waskow texted me and my brother, with my brother replying, “I hope this makes the blog.”

When the non-lawyers chime in, who am I not to share a cautionary tale involving tech competence?

Lawyers: may your careers in law never require you to tell a judge “I’m not a cat.” 

If the Florida Bar’s tweet doesn’t work for you, it’s on YouTube here.

Court isn’t a social media platform.

It’s the rare inquiry that involves the rule that addresses trial publicity.  Alas, in that it’s becoming more and more rare to find a lawyer not on social media, I think today’s message bears mentioning.

Rule 3.6 is the trial publicity rule.  It prohibits “extrajudicial statements that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”

Whoa.  Try saying that three times fast.

Anyhow, lately I’ve sensed a general feeling that arguments made in pleadings and court are seeping into lawyers’ social media posts, thereby raising Rule 3.6 concerns.

I disagree.

Based on the information I’ve reviewed when responding to inquiries and screening complaints over the past few years, I believe that the accepted norms of social media posts are seeping into pleadings and arguments.

I don’t say that with admiration for those causing the seepage.

Court is court.  It’s not the kitchen table, the town square, the bar, or Facebook. Give it the respect it deserves. Or, read Rule 3.5(d).

Last week, Professor Bernabe blogged about a Texas lawyer and client who were “’sanctioned $150,000 for the client’s ‘outright lies’ in litigation and ‘mountain of evasiveness’ in discovery.”  His post is here.  It links to this ABA Journal story, which, in turn, cites to a post on Law.com.

I’m not going to get into the misconduct that resulted in the sanction. For those interested in learning more about it, the court’s order imposing the sanction is here.

Rather, I want to highlight a statement made by the other lawyer.  Per the ABA Journal, “Opposing counsel Foster Johnson told Law.com that he hoped that the sanctions would be a warning to other lawyers.”

Then, the money quote:

  • “ ‘Lawyers at times forget filing motions and pleadings is not like using Twitter,’ Johnson said. ‘You can’t just say anything you want when you file a complaint. You can’t say anything you want when you file a summary judgment motion.’”

Indeed.

To paraphrase this blog’s muse, “say it in a Tweet it’s a knockout, but you say it in a court you’ll be kicked out.”

Remember, in pleadings & arguments:

1*wA1Vc082NU82zI64lp99Sg

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

Happy Birthday Papa!

Today would’ve been my grandfather’s 105th birthday.  Ironically, three years ago, he was the subject of the 105th Five For Friday legal ethics quiz. So, in Eddie Bonneau’s honor, I’m running the post again today.

The link is here, and I’ve pasted in the post below.

Happy Birthday Papa!

67FCDEE4-4A0B-4B58-9AB7-151422E4069A

****

Welcome to # 105!

Today I’m going to write about Eddie Bonneau.   Eddie was my grandfather, my mom’s dad.  I called him “Papa.”

How am I tying this to #105?  Good question.

My grandfather isn’t 105.  His birthday was February 1 and, if still alive today, he’d have just turned 102. It only feels like 105 years since I’ve seen him.  So, there’s that.

Plus, using a prop to which I frequently resort in this column, the final digit in 105 is, well, 5.  And VT Route 5 runs through Bradford, which is where my grandfather lived for the final 50 (or so) years of his life.

Good enough for me.

I’m going to share two stories about Papa.  But first, some background.

Eddie Bonneau was born in Chicago.  Somehow, his family ended up in Lebanon, New Hampshire.  Papa dropped out of Lebanon High School after his sophomore year.  Like many of French-Canadian descent, he went to work in a woolen mill.

When he was 21, he married my grandmother.  She was 17 and had recently graduated from high school.  She was the breadwinner: Nanny made $7 per week, Papa $5.

Within 10 years, they’d had 4 kids and moved across the river & up the valley to Bradford, Vermont.  My grandfather opened a grocery store.

The grocery store lasted only until the early 1950’s.  My grandfather was deep in debt. His creditors took over.  Papa decided against bankruptcy, concluding that it was morally and ethically wrong.

Over the next few years, he and my grandmother had 2 more kids.  For the rest of his life, my grandfather worked here and there: some jobs as a door-to-door salesman, one as a butcher, another as a clerk at the 5 & Dime.

I remember him as being the smartest guy I knew. He didn’t talk much, but when he did, you listened. What he didn’t have in school smarts, he had 100 times over in common sense.  He was a voracious reader & keen follower of current events.

Papa loved cribbage.  And cards.  He dutifully played endless rounds of pinochle with my grandmother and various family & friends, even though my grandmother usually whupped him, no matter their respective partners.

Papa wasn’t active.  I don’t think I ever saw him in anything but dark pants and a button-up white shirt.  That’s how he dressed even when he & my grandmother took us to Lake Winnipesaukee, where he’d sit on a bench reading a newspaper while we swam.  Actually, once he wore his clothes off the bench & into a boat.  We were at Niquette Bay on Lake Champlain.  He helped me catch my first fish.  A little pumpkinseed.

Besides not being active, Papa smoked.  He was an equal opportunity smoker.  He smoked for breakfast, he smoked for lunch, and he smoked for dinner.  He smoked on the bench at the beach.  I vividly recall mornings at his breakfast table, where we’d pretend not to hear his daily coughing fits that he thought the wafer-thin bathroom walls muffled.

Emphysema eventually killed him in 1994.

Before it did, my brother and I have an enduring memory of visiting our grandparents for a family event, only to have Papa disappear. We went to find him.  He had wheeled his oxygen tank to the barn to sneak a cigarette.  By then we were in our late teens, maybe 20’s.  We didn’t feel compelled to make a mandatory report to our grandmother, mom, or aunts.

You see, one thing Papa loved, but lacked, was quiet.  My mom has 4 sisters and a brother. Unlike my grandfather, one might accurately describe my grandmother and her 6 children as the sharing type.  As in, they’ve always shared pretty much every thought that ever entered their heads.  So, if Papa wanted a smoke in the quiet of the barn, who were my brother and I to stop him?

Now, the stories.

First, like I said, my grandfather was super smart.  And he was proud.  Not vain, but proud. I visited my grandparents during the holiday break of my first year in law school. Once we sat down, he said, after a long drag, “so Mister, tell me a law.”

I had no ready answer. He wasn’t impressed.

Next, for special occasions, my grandmother would send me, my brother, and our cousins checks.  Sometimes $3, sometimes $5.  She’d include a card with a note to “buy yourself an ice cream!”  Once, in law school, I lost one of my $3 checks. I was too afraid to tell her, so I let the Irish side of me take over.  Meaning, I just ignored it, figuring that ignoring it would make the issue go away.

Epic fail.  Eventually, my mother called to ask why I hadn’t cashed Nanny’s check. I had to fess up.  Again, Papa wasn’t impressed with someone who cared so little about $3 as to lose a check.

A few months later, Nanny & Papa gave me $300 as gift for my graduation from law school.  For people like them, it was an astonishingly staggering amount.  Think about it: it’s 25 times as much as their combined weekly income as newlyweds. I cashed the check immediately.

About a month later, I was back in Vermont and went to visit my grandparents. First words out of Papa’s mouth: “guess you didn’t lose that one.”

I don’t how to end this post.  I’m not sure how it ties to 105, other than it doesn’t.  I just felt like writing about my grandfather.  I miss him.  He was a good man. He had nothing, but made sure that his kids had something, which, besides my parents, is one of the main reasons that I have anything.

Thanks for indulging me.

What is the file? Helpful guidance from Arizona.

Questions related to file delivery & retention are among the most common that I receive via ethics inquiry.  It’s odd, if only because so few of the complaints that are filed allege that a file wasn’t delivered or was incomplete.  Of course, I understand that with respect to the latter, a client likely wouldn’t know to complain about missing items.  Still, my general sense is that Vermont lawyers are on top of the duty to deliver the file.

But therein lies the rub: the duty is not to deliver the file.  Rather, upon the termination of the representation, V.R.Pr.C. 1.16(d) requires a lawyer “to take steps reasonably practicable to protect a client’s interests.”  Among other things, the duty includes “surrendering papers and property to which the client is entitled.”

Aside, and no offense to readers who are fans of Cheap Trick, but once I get around to proposing a rule change, I doubt I’ll recommend continued use of any form of the word “surrender.”**  I much prefer “deliver” or “provide.”  Alas, I digress.

Anyhow, the question: to what papers and property is the client entitled?  Or, what is “the file?”

In 2015, the ABA’ Standing Committee on Ethics & Professional Responsibility provided guidance in Formal Advisory Opinion 471.  I blogged about it here.  Both the opinion and my post list the items that must be delivered, as well as items that need not be provided. In other words, the opinion helps lawyers to determine what constitutes the file.  Frankly, while the opinion and my blog post are helpful, neither fully answers “what is the file?”

Fortunately, and thanks to a tip from Professor Bernabe’s Professional Responsibility Blog, I came across an advisory opinion that clarifies and simplifies the duty and analysis.

Last month, the Arizona Supreme Court’s Attorney Ethics Advisory Committee issued Ethics Opinion EO-19-0009.   Professor Bernabe blogged about it here

To me, the Arizona opinion does a terrific job answering “what is the file?” plain language. Here’s the committee’s summary of its opinion:

  • “Lawyers must retain sufficient information regarding the work they have done on a matter to permit the client to understand what was done for them and to permit a subsequent lawyer to take up the matter if the lawyer is discharged, withdraws, or is unable to continue the representation for other reasons such as death, disability, or discipline. This obligation informs the lawyers’ obligations concerning what materials they keep, how they store and organize those materials, and what they do with records at the end of a representation.”

Isn’t that exactly it? In other words, let’s fight the urge to be lawyers and debate every possible item – “what about this, what about that.”  Instead, let’s use common sense: “would this help the client or the client’s next lawyer figure out what I did for the client?” Or, as the committee notes later in the opinion:

  • “Lawyers do not maintain files for the sake of preserving files, but rather because keeping records of what they have done or plan to do in the course of representation is part of diligent, competent representation.”

Indeed!

That’s all I have for now.  However, I’m already planning a future post on other aspects of the Arizona opinion, including a paragraph that I expect will resonate with many lawyers who’ve contacted me.  By way of preview, here’s the pargraph from our friends in the southwest:

  • “The client is entitled to a single copy for free, and the lawyer may charge for additional copies or special copying requests that have associated costs, such as, scanning a file maintained in paper form. Lawyers may satisfy their obligations by providing copies throughout the representation, and do not need to provide additional free copies of those documents previously provided at the end of the representation. Of course, the lawyer may choose to provide more documents or copies than are required.”

Stay tuned!

** “Surrender, surrender, but don’t give yourself away.” Is this another way of stating that a lawyer need not include work product in the file?

Cheap Trick Surrender