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

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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

 

Friends, Followers, and Legal Ethics

Yesterday, I blogged on tech competence and the duty to act competently to safeguard client data.  Today, I’d like to spend a few minutes on tech competence insofar as it relates to the legal ethics of social media, friends, and followers.

Here are three advisory ethics opinions on social media:

There are many more advisory opinions & court decisions on the topic.  Today, I’m focusing on these three.

A few takeaways:

The opinions from D.C. and NH make it clear that a lawyer’s duty of competence includes a duty to be aware of the benefits and risks of social media.  Referring to Rule 1.1 and the duty of competence, the D.C. Opinion notes that: “[b]ecause of society’s embrace of technology, a lawyer’s ignorance or disregard of it, including social media, presents a risk of ethical misconduct.”

In addition, Rule 1.3 imposes a duty to provide a client with diligent representation. Here again, the D.C. and NH opinions indicate that a lawyer’s duties to provide competent and diligent representation include a duty to understand that an adversary or witness may have made information publicly available on a social media platform.  Or, as the NH Bar stated in referring to Rules 1.1 and 1.3, “[i]n light of these obligations, counsel has a general duty to be aware of social media as a source of potentially useful information in litigation, to be competent to obtain that information directly or through an agent, and to know how to make effective use of that information in litigation.”

But what about information that is not publicly available?  Can a lawyer send a “friend” request to an adversary or witness?  Can a lawyer “follow” or “connect” with an adversary or witness?  The opinions advise to proceed with caution.

A “friend” request is a communication. So, if the adversary or witness is represented, a “friend” request sent directly to the person might violate Rule 4.2, aka “the no-contact rule.”

Further, don’t forget your duties of honesty, candor, and fair dealing.  Are you really the adversary’s or witness’s “friend?”  The Massachusetts and New Hampshire opinions conclude that a Facebook “friend request,” a request to follow a private Twitter account, and a request to “connect” on LinkedIn must include a communication that identifies the lawyer and the lawyer’s role in the matter about which the lawyer is seeking information.  The failure to do so constitutes misrepresentation by omission.  As the MassBar’s Opinion states:

  • “We do not agree with the conclusion of the Oregon Ethics Committee in its Opinion No. 2013-189 that the burden should be on the unrepresented party to ask about the inquirer’s purpose rather than on the lawyer to disclose her identity and/or purpose. We believe that it is permissible to ‘friend’ [an opposing party] in this situation in order to access nonpublic information only when the lawyer has been able to send a message that discloses her identity as [an adversary’s] lawyer. Facebook, LinkedIn and other social media sites allow the invitation to include a message. We also do not agree with the suggestion in Formal Opinion 2010-2 of the New York City Bar Association’s Committee that the lawyer’s identification message may be contained in a ‘profile’ created on the lawyer’s personal social media page. It is well known that ‘friending’ requests are often granted quite casually, and viewing the invitee’s profile is not necessarily a mandatory step in accepting a ‘friend’ request. The lawyer’s message must accompany the ‘friending’ request in order to avoid the very real possibility that the recipient will be deceived. Although this communication medium is obviously different, the bottom line resembles a telephone call in which the lawyer does not adequately identify herself.”

Today, I wanted to be succinct, even more succinct than this post turned out.  So, I’m going to stop here.  I’ll leave you with this:  I view the rules as requiring a lawyer to know (1) that an adversary or opposing witness likely has posted to a social media platform information that could be helpful to the lawyer’s client; and, (2) that a client likely has posted to a social media platform information that could be helpful to an advesary.

For more, I suggest that you read each of the 3 advisory opinions.  Each goes into more detail, and each includes discussion of issues that I did not present in this post.

Social Media

 

 

 

 

Five for Friday #87: The Constitution

Welcome to the 87th #fiveforfriday legal ethics quiz!

It’s fitting that #fiveforfriday87 falls during Constitution Week.  Why? Funny you should ask!

The Constitution was signed on September 17, 1787.  Indeed, it reminds me of a song that I sang as a kid:

  • “in 1787 I’m told our founding fathers diiiid agree, to write a list of principles FOR keepin’ people freeee. The U.S.A. was just startin’ out a whole brand new countreeee. And so our leaders spelled it out, the things that we should bee-EEE.”

(if you’re interested in hearing me sing more, read THIS)

On a more serious note, here’s a startling statement on the Constitution and civics.  According to a recent poll, nearly 40% of Americans cannot name a single protection listed in the 1st Amendment.

Think about that.

Are you trying to come up with a few?

Hint: there are SIX things about which “Congress shall make no law.” 4 in 10 people cannot name 1.

Worse, per the same poll, only 1 in 4 Americans can name all 3 branches of government!

If 3 out of 4 don’t know the branches, how are we to impress upon the executive & legislative branches the importance of an independent & fully funded judicial branch?

Here’s a simple way to help: contact the Vermont Bar Association at info@vtbar.org  Ask for a pocket constitution.  Give the pocket constitution to a kid, or to a teacher, or to a client who is a school board member.

Or, do what a number of Vermont lawyers have been doing around the state: volunteering their time to visit schools and civic organizations to talk about the Constitution and civics.  It might sound like a small step.  It is.  But small steps often lead in the right direction.

Again contact info@vtbar.org and ask for some pocket Constitutions.

Onto the quiz!

And what better way to mark Constitution Week than with a Constitution-themed quiz.

Rules

  • None.  Open book, open search engine, text-a-friend.
  • 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
  • Amendment 1:  Mike shall make no law abridging a quiz taker’s right to an open book, open search engine, phone-a-friend quiz.  Yet, in the spirit of civics, give this week’s quiz a shot without exercising the rights conferred by this Amendment.
  • Amendment 2: Notwithstanding Amendment 1, Question 5 is closed book, closed search engine, no contacting friends.
  • Amendment 21.  I agree!

Question 1

The 1st Amendment to the United States Constitution lists 6 things about which “Congress shall make no law.”   1 point for each you can name.

Question 2

On May 1, 2017, the ABA marked “Law Day” by celebrating an amendment that it called “a mini-constitution for modern times.”   The amendment is the longest, and per the ABA, “arguably the most important.”  Name the amendment.

Question 3

Which is different from the others?

  • A.  right to be secure from unreasonable searches & seizures
  • B.  right not to be compelled to self-incriminate in a criminal matter
  • C.  right not to be deprived of life, liberty, or property without due process of law
  • D.  right not to have private property taken for public use without just compensation

Question 4

The “Great Compromise” reached at the Constitutional Convention likely saved the Constitution and, by extension, the fledging Union.

What are the two things that the “Great Compromise” called for?

Question 5

In 1792, a boy was born in Danville, Vermont.  Later, he attended Burlington College at UVM, but transferred to Dartmouth after the federal government took over UVM during The War of 1812.  After graduating from Dartmouth, he became a lawyer and was admitted to the Pennsylvania Bar.  For many years, he had very successful practice in Gettysburg.

This Vermont-born lawyer eventually was elected to the United States Congress as a “radical republican” from Pennsylvania.  During the Civil War, he served as the chair of the House Ways & Means Committee.  His work as chair was key to the Union’s efforts to fund the war.

A staunch abolitionist, this Vermont-born lawyer played a critical role in the passage of the 13th and 14th Amendments to the United States Constitution.  In response to the House vote to authorize the 13th Amendment, he said:

  • “I will be satisfied if my epitaph shall be written thus, ‘Here lies one who never rose to any eminence, and who only courted the low ambition to have it said that he had striven to ameliorate the condition of the poor, the lowly, the downtrodden of every race and language and color.’ ”

In 2013, Tommy Lee Jones received an Oscar nomination for Best Supporting Actor for his portrayal of this Vermont-born lawyer in the movie Lincoln.

Name the lawyer.

Constitution

 

 

 

 

 

 

 

Constitution Day & Karaoke

I know you’re only reading because you saw the word “karaoke.”  It’s okay, I understand. I’ll get to karaoking in a bit.  For now, Constitution Day.

Sunday was Constitution Day.  To mark the occasion, the Vermont Judiciary and the Vermont Bar Association have teamed to present the 2nd Annual Constitution Day Forum.  This year’s event is scheduled for Wednesday, September 20.  It will begin at 5:00 PM and will take place at the Vermont Supreme Court.

My column on last year’s forum is here.  This year’s forum will focus on the 14th Amendment. (Earlier this year, the ABA made the 14th Amendment the focus of Law Day.)

The Judiciary and the VBA have assembled a fantastic line-up of speakers.  In order of appearance:

  • Judge Robert Mello: Overview of the Constitution & Origins of the 14th Amendment
  • Associate Justice Harold Eaton: Procedural Due Process
  • Associate Justice Karen Carroll: Equal Protection Clause
  • Judge Timothy Tomasi: Substantive Due Process
  • Judge Mary Miles Teachout: The Relevance of the 14th Amendment Today

The event is free and open to the public.  Plus, everyone who attends will receive a free pocket Constitution! Hope to see you there.

Now, karaoke.

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.

Last year’s Five for Friday quiz on the Constitution is here.  The answers are here.

We the People

Five for Friday #86

Welcome to the 86th #fiveforfriday!

Before I get to my 86-related story, I have a question: have you seen the weekend’s weather report??  Folks, I’ve blogged often on issues related to lawyer assistance and lawyers helping lawyers.  This weekend, help yourself.  Get outside!!  Yesterday I drove 302 from Barre to Wells River.  The early foliage is fantastic!  Not to mention, there is a TON of stuff going on around Vermont this weekend, literally something for everyone. For instance:

Find something!

Now, back to the Quiz #86.

86 is the end of a trilogy that includes 75, 78, me, my dad, and the Boston Red Sox.

I’m superstitious.  Especially when it comes to sports.  When the Steelers play a big game, I sit when they’re on offense and I stand when they’re on defense.  Same with the Sox: chair when they’re up, pacing when they’re in the field.  Just last year I brought to Goodwill a bunch of perfectly good Steelers gear that I’d worn during a game that they lost.  Big playoff win for one of my favorite teams? On the day of the next playoff game I’ll eat the exact same food as I had on the day of the win.

So many rules, many of them much more detached from reality complicated than the ones I’ve admitted too.

But my simplest rule is “don’t call Dad until the game is over.”

Flashback: October 25, 1986.  Game 6. Boston Red Sox at New York Mets.  Red Sox up 3 games to 2.

The game was tied 3-3 after 9.   In the top of the 10th, Dave Henderson hit a solo home run and Marty Barret doubled to drive in Wade Boggs.  Going into the bottom of the inning, the Sox led 5-3 and their Win Probability was 92%.  In other words, throughout the history of baseball, teams in the Sox’ position – up by 2 going into the bottom of the last – had gone on to win 92% of the time.

I was a sophomore at BC, a young, dumb, and broke (college) kid.  During the commercial break after the top of the 10th, I called my dad. He was watching back in South Burlington.  I said “Dad, we’re going to win the World Series!!!”

Boston’s Win Probability rose to 99% after Calvin Schiraldi retired the first 2 Mets.  Then,  a bunch of bad stuff happened, including this.  The Red Sox lost the game and, two nights later, lost the World Series.

It was my fault.  Because I called my dad. I truly believe – and maybe only sports fans will understand – that my call to my Dad affected the mojo.   It wasn’t until 2004 that I felt some sense of relief.  Still, the call haunts me.  So much so that I nearly passed out when, just a few weeks ago, my dad texted “looks good” to my brother and I DURING a Sox-Yankees game.

Dad, if you’re reading, remember the rule!

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

With respect to legal ethics, which involves a different set of rules than the others?

  • A.  Net dividends
  • B.  Screening
  • C.  Overdraft Notification
  • D.  Three-Way Reconciliation

Question 2

If an attorney calls me with an inquiry and my response includes use of the word “imputed,” what did the attorney most likely call to discuss?

  • A.   The advertising rules
  • B.   Trust account management
  • C.   A potential conflict of interest
  • D.  A client unable to make informed decisions due to an impairment

Question 3

With respect to legal ethics, which of the following is most often associated with the provision of “unbundled” legal services?

  • A.   Limited representation agreements
  • B.   Reasonable precautions in the electronic storage & transmission of client data
  • C.   Trust account management
  • D.  The rule prohibiting communication with a represented party

Question 4

Today I’m presenting a CLE at a conference in North Conway, NH.  The topic is “legal ethics in the tripartite relationship.”  The audience will consist of lawyers who practice:

  • A.   Family law
  • B.   Real Estate Law
  • C.   Tax Law
  • D.   Insurance Defense

Question 5

Regular readers know that I’m big on Rule 1.1: the rule that requires lawyers to provide competent representation.  So, today, Question 5 involves competence.

Today’s answer is a color. Your mission, should you choose to accept it, is to identify the color.  Here’s the clue.

  • I am a color.
  • In one of the most competent witness examinations of all-time, Attorney Vincent Gambino asked witness Mona Lisa Vito about me.
  • Specifically, noting that both the 1963 Pontiac Tempest and 1964 Buick Sklyark were made by GM, Gambino asked Ms. Vito whether both models were available in me.
  • Ms. Vito testified “They were!”

WHAT COLOR AM I?

the-quiz

 

Five for Friday #84

Oops. I got so excited about this post that I published it prematurely.  Sorry about that. Here’s the official version.

Welcome to the final #fiveforfriday before Labor Day.  Summer I hardly knew ye!

84.

Besides the Van Halen album, not much jumps to mind.  Sadly, the young version of me knew more songs from 1984 than characters from 1984.

van halen

I hope you get out and enjoy the weekend.  I’m visiting my dad in Flat Rock, NC, home of The Hubba Hubba Smokehouse, the official BBQ joint of Ethical Grounds. And what goes best with BBQ?

That’s right – running & college football!

(Actually, beer, but that doesn’t fit my story.  However, speaking of beer & NC, I recommend Asheville Brewing Company’s Perfect Day IPA).

Anyhow, after tomorrow’s Apple Festival 8K, my dad and I are heading to SC for our our first visit to Death Valley.  And speaking of 8Ks, here’s a tip to you new runners: the easiest way to run a PR is to race a distance you’ve never raced before.  Gotta love this 8K!

To 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

The rules do not require lawyers to have succession plans. However, a comment to a particular rule suggests that it’s a violation for a sole practitioner not to have a plan that designates another lawyer to review the solo’s files and contact the solo’s clients in the event of the solo’s death, disability, or unavailability.  It’s the rule on:

  • A.  Diligence
  • B.  Communication
  • C.  Conflicts of Interest
  • D.  Safekeeping Client Property

Question 2

Valerie and Eddie divorced many years ago.  Eddie is over a year in arrears on court-ordered spousal maintenance payments.

Valerie asks Lawyer to represent her in a motion to enforce the order.   She cannot afford Lawyer’s fee and asks Lawyer to take the case on a contingent fee basis.  Lawyer agrees.  You may assume that Lawyer does not have any conflicts that prohibit Lawyer from representing Valerie.

Which is most accurate?

  • A.   If the contingent fee agreement is reasonable & reduced to writing, it does not violate the rules.
  • B.   Lawyer has violated the rules.  Contingent fees are banned in domestic cases.
  • C.   There will not be a violation unless or until Lawyer attempts to collect a contingent fee from Valerie.
  • D.   There is no violation because it was Valerie, the client, who proposed the contingent fee.

Question 3

Lawyer represents Organization.  Lawyer leaves Organization for private practice.

True or false:   Lawyer’s general knowledge of Organization’s practices and procedures ordinarily will preclude Lawyer from representing a party adverse to Organization.

Question 4

Rule 8.4 prohibits some types of conduct that do not involve the practice of law.  Although it no longer appears in the text of the rule, what’s the 2-word term used to draw the distinction between non law-related conduct that violates the rules and non law-related conduct that does not? Conduct involving ” ________  ___________.”

Question 5

This is a fictional scenario.  A prop device, if you will.  Play along.

I received an ethics complaint from a woman complaining how her brother was treated in a criminal case.  The thrust of her complaint was that her brother was framed for the murder of his best friend, Andy, who had just confessed to an affair with her brother’s “cheatin’ wife.”

Referring to her brother’s defense attorney, she wrote that her brother never should’ve “trusted his soul to no backwoods southern lawyer.”  She alleged that the proceeding was “a make believe trial” and that the “judge in this town has got blood stains on his hands.”

Interestingly, her brother WAS framed! In fact, the sister is the one who did it! Not only did she admit to killing Andy, she wrote that her brother’s “cheatin’ wife had never left town and that’s one body that’ll never be found.”

It’s the first complaint I’ve ever received in which the complainant confessed to a crime.

Anyhow, Vermont’s Professional Responsibility Program and Judicial Conduct Board don’t have jurisdiction over the defense attorney and judge.

Name the state to which I referred the complainant.

the-quiz

So A Lawyer & Judge Are Facebook Friends . . .

So a lawyer & judge are Facebook friends.

So what?

The ABA Journal has the story of an appellate court’s decision that a Facebook friendship with a lawyer, without more, is not a sufficient basis to disqualify a judge.   The order is here.

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

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

In my view, Facebook is no different.  Florida’s Third District Court of Appeal agrees. (there’s no “s” – maybe the court only hears one case at at time).  The opinion presents a fantastic analysis of what it means, if anything, to be Facebook friends with someone.

Here are my favorite paragraphs from the ABA Journal’s post.  They include a quote from the opinion.

“Though a Facebook friendship may have once given the impression of a close friendship, that’s no longer the case, the Third District Court of Appeal said in explaining its disagreement with the other appeals court. Facebook uses data mining and network algorithms to suggest potential friends, and many Facebook users have thousands of friends, the appeals court said.

“ ‘To be sure,’ the opinion said, ‘some of a member’s Facebook ‘friends’ are undoubtedly friends in the classic sense of person for whom the member feels particular affection and loyalty. The point is, however, many are not. A random name drawn from a list of Facebook ‘friends’ probably belongs to casual friend, an acquaintance, an old classmate, a person with whom the member shares a common hobby, a ‘friend of a friend’ or even a local celebrity like a coach.’ ”

Ab, yes. A local celebrity.  Like a coach.  Music to my ears.