Judges and their Facebook Friends

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

I wrote:

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

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

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

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

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

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

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

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

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

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

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

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

Regular readers know my response:

Image result for facebook like symbol



Don’t Post That

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

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

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

Why did the story remind me of the song?

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

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

Here’s the backdrop:

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

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

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

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

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

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

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

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

Don’t.  Remember our postulates:

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

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

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

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






I’m not a huge fan of the “Throwback Thursday” trope, but I am a huge fan of readers.  So, as it has, when blogger’s block strikes, I resort to the trope.

But not without reason.

I’m heading to Rutland tomorrow.  Two years ago, and a few days after heading to Rutland, I blogged on how I hoped never again to have to assuage lawyers that there’s nothing inherently unethical about storing client information in the cloud.

I’m happy to report that we seem to have accepted the premise.


Thank you.

That being said, refreshers aren’t inherently bad either. Especially since the effective date of the recent amendment on tech competence is nigh.  So, here goes.

The original post ran on November 10, 2016.


Last Friday, I presented a CLE for the Rutland County Bar Association. My assigned topic: the ethics of storing client information in the cloud.  I started by saying that I hoped it was my final seminar on the topic.  I was serious.

Let’s walk through this.

In general, a lawyer has a duty not to disclose information relating to the representation of a client absent client consent.  See, Rule 1.6.  A lawyer also has a duty to keep client property safe.  See, Rule 1.15.

I view the cloud as the latest in a long line of different places to store information.  In that sense, the cloud is not different than manila folders, boxes, offices, attics, basements, barns, file cabinets, file cabinets with locks, storage facilities, hard drives, floppy disks, CDs, and thumb drives.

No matter where a lawyer stores client information, a lawyer must act competently to protect the information against inadvertent or unauthorized disclosure. See, Rule 1.6, Comment [16].  When transmitting client information, a lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients.  Rule 1.6, Comment [17].

So, think about cloud storage like this:  client information is electronically transmitted to a place where it will be kept.  Thus, a lawyer must take reasonable precautions to protect client information both while it is in transit and while it is at rest.

In fact, that’s almost exactly what the VBA’s Professional Responsibility Committee said – SIX YEARS AGO when it issued Advisory Ethics Opinion 2010-06.  Here’s the digest of the opinion:

  • “Vermont attorneys can utilize Software as a Service in connection with confidential client information, property, and communications, including for storage, processing, transmission, and calendaring of such materials, as long as they take reasonable precautions to protect the confidentiality of and to ensure access to these materials.”

(Aside: for anyone wondering why I included an advisory opinion about “Software as a Service” in a post on cloud computing, I remind you that Rule 1.0’s duty of competence includes tech competence.)

The question I hear most often is this:  “what are reasonable precautions?”  In Rutland, I suggested to the audience that they already know the answer, if only by treating the cloud as if it were a storage facility out on Old County Road. Some questions you might ask when considering that facility:

  • who do you let into this facility?
  • do you require a passcode or badge for the gate?
  • are there locks on the individual units?
  • who besides me has a key or knows the combination?
  • can i get into my unit whenever i want to?
  • what happens to my files if I don’t pay or if you go out of business?

Indeed, take a look at page 6 of the VBA Opinion.  The Committee suggested some of those exact questions when considering a cloud vendor.

Or, take a look at this post from Robert Ambrogi.  He writes that “[s]ome basic questions to ask of a cloud vendor, distilled from various ethics opinions, include:

  • Is it a solid company with a good reputation and record?
  • Can you get access to your data whenever you want, without restrictions?
  • If your service is terminated – by you or by the company – can you retrieve your data?
  • Does it allow use of advanced password protocols and two-step verification?
  • What are its internal policies regarding employee and third-party access to your data?
  • Is your data encrypted both while in transit and while at rest on the company’s servers?
  • How is your data backed up?
  • What security protections are in place at the data centers the company uses?”

Finally, remember that asking the questions isn’t enough.  You need to understand the answers or find someone who does.  For example, imagine this:

  • You:   Will my data be encrypted in transmission and at rest?
  • Vendor:  Yes.  In transmission, we use a BTTF Flux Capacitor.  At rest, we use the latest cloaking technology from Romii.
  • You.  Sounds awesome. Sign me up.

Umm, no.  You just signed up to star in the next entry in Was That Wrong.

In conclusion, you may store client information in the cloud so long as you take reasonable precautions.  This entry includes links that will help you determine what “reasonable precautions” are.  Don’t fear the cloud, but know what you don’t know.

Speaking of which, info on the BTTF Flux Capacitor is HERE. And, for more on Romii cloaking technology, go HERE.


Wellness Wednesday: Jennifer O’Connor

Welcome to Wednesday!

So far, Wellness Wednesday has featured:

This week, I’d like to introduce Jennifer O’Connor.

Jennifer is a 3L at Vermont Law School.  At VLS, Jennifer chairs the Mental Health Committee.  The Committee is doing great work.  Per Jennifer, the Committee’s

  • “mission is to lay the groundwork to strike the stigma of mental health issues.  Our goal is to provide services and resources to students to maximize their mental health throughout the academic year.”

In addition, Jennifer is a 3L representative to the Law School Committee of the Vermont Commission on the Well-Being of the Legal Profession.  Last but not least, Jennifer is the 3L rep to the VLS Fitness Advisory Board.  In that capacity, Jennifer practices what she preaches.

Ten days ago, Jennifer finished her first running race.  And it wasn’t just any old race: it was the Chicago Marathon!

IMG_3624 (1)

In the process, she conquered weather conditions – rain & wind – that I’m sure exacerbated the mental & physical challenges that marathoners face even in the best of weather.


Jennifer ran Chicago on behalf of a friend who was recently diagnosed with brain cancer.  Jennifer used the marathon to raise money for the American Brain Tumor Association.

Not only does she practice wellness, Jennifer chooses to help.

For all she does for wellness in the profession, Jennifer is this week’s focus of Wellness Wednesday.

Thank you Jennifer!  You’re doing great stuff!


Monday Morning Answers #130

Welcome to the week!  Friday’s questions are here.  Before I get to the Honor Roll & answers, it was great to see so many lawyers both participating in and volunteering at yesterday’s Pine Street Mile. Wellness is a thing.

Honor Roll


Question 1

There’s a rule that prohibits lawyers from making “a false or misleading communication about _____________.”   Per the rule, “a communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.”  It’s the rule on:

  • A.  Communicating with an Unrepresented Person
  • B.  Candor to a Tribunal
  • C.  Communications Concerning a Lawyer’s Services.  Rule 7.1.
  • D.  Puffery (Statements made in negotiations)

Question 2

Lawyer settled a PI claim on behalf of client.  The insurance company sent Lawyer a check.  Lawyer deposited the check into trust yesterday.  Client wants her money now, before the weekend.

Under Vermont’s rules, which is most accurate?

  • A.  Lawyer cannot disburse funds to client until the check clears.
  • B.  Lawyer violated the rules. The check should not have been deposited into trust.
  • C.  It depends on the terms of the fee agreement.
  • D.  If the insurance company is licensed to do business in Vermont, Lawyer can disburse in reliance upon the deposit, without waiting for the check to become “collected funds.”  Rule 1.15(g)(5).

Question 3

Lawyer called me with an inquiry.  My response included this statement:  “Even if you are ‘necessary,” the rule applies ‘at trial.’ And there’s an argument that it means ‘at a jury trial.’ ”

Given my response, Lawyer called to talk about the rule on:

  • A.  Representing an Organization
  • B.  Candor to a Tribunal
  • C.  Fairness to Opposing Party & Counsel
  • D.  Lawyer as a Witness.  Rule 3.7

Question 4

Fill in the blank.

There’s a rule on prospective clients.  Per the rule, if a prospective client consults with a lawyer in good faith, but no attorney-client relationship ensues, the lawyer’s duty of loyalty to the prospective client is relaxed.  However, the rule makes clear that the lawyer’s duty of confidentiality to the prospective client is not relaxed.

Confidentiality.  Rule 1.18(b).

Question 5

The rules require lawyers to reduce contingent fee agreements to writing.

Hollywood talent lawyers take a cut of their clients’ earnings.  Apparently, they don’t always reduce their fee agreements to writing.

Indeed, in late August, a California court voided a “handshake deal” between a movie star and the star’s lawyer.  The deal was made in 1999.  With it having been voided for not being in writing, the movie star is now seeking the return of approximately $30 million paid to the lawyer over the past 20 years.

Name the movie star.

Johnny Depp.  The ABA Journal has the story here.

See the source image

Client funds: when do third parties have valid claims or interests?

Revised on 9/6 for typos.

Scenarios like this one arise every now & then:

  • Lawyer represents Client.
  • Client was injured in a motor vehicle accident.
  • Lawyer recovers funds for Client from the other driver’s insurer.
  • Lawyer is aware that 3rd party creditors have claims against Client’s funds.
  • Can (or must) Lawyer disburse the funds to Client?

Rules 1.15(a), (d) & (e) apply.

Rule 1.15(a) is the easy one.  Funds held in connection with a representation that are not the lawyer’s must be deposited into a trust account.

Here’s (d):

  • “(d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person.  Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.”

And here’s (e):

  • “(e) When in the course of representation a lawyer is in possession of property in which two or more persons (one of whom may be the lawyer) claim interests, the property shall be held separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute.”

As suggested by the title, this blog post is limited to one specific issue: when does a third party have “an interest” in funds that a lawyer recovered for client? In other words, this blog post is the 101 equivalent to a topic that has several 500 level courses.

Yet, even as a 101 class, it can get murky.

For example, what if Lawyer knows that Client has unpaid medical bills for treatment of injuries sustained in the auto accident, but has never heard from the treatment provider?  Does the provider have “an interest” sufficient to trigger Rules 1.15(d) and (e)?  Or, must Lawyer disburse the funds to Client?

Or, what if Client happens to mention “no, I didn’t see the Sox amazing comeback yesterday.  Cable prices are outrageous, so I stopped paying four months ago.  They cut-off my service.”  Does Client’s cable provider have an interest in the funds that Lawyer is holding?

Often, the comments to the rules are helpful.  Here, I’m not so sure.  Comment [4] to Rule 1.15 says:

  • “Paragraph (e) recognizes that third parties may have lawful claims against specific funds or other property in a lawyer’s custody, such as a client’s creditor who has a lien on funds collected in a personal injury action.  A lawyer may have a duty under applicable law to protect such third-party claims against wrongful interference by the client. In such cases, when the third-party claim is not frivolous under applicable law, the lawyer must refuse to surrender the property to the client until the claims are resolvedA lawyer should not unilaterally assume to arbitrate a dispute between the client and the third party, but, when there are substantial grounds for dispute as to the person entitled to the funds, the lawyer may file an action to have a court resolve the dispute.”

Umm . . .  ok.  But, again: what are the “interests” and “claims” that trigger the rule?  When is a third party “entitled” to funds that a lawyer is holding for client?

Today, I found this advisory opinion from the Virginia State Bar.  I find pages 1-4 particularly helpful.

Let me be clear: here in Vermont, I do not know how disciplinary counsel, a hearing panel, or the Supreme Court would approach the issue.  However, I think the opinion from the Virginia State Bar is useful in formulating the appropriate thought process.

Some key quotes from the opinion:

  • “In the absence of a valid third party interest in the funds, the lawyer owes no duty to a creditor of the client and must act in the best interests of the client.”

This is important. In other words, when it comes to funds, a lawyer’s primary loyalty remains to the client and the conflict rules continue apply.

  • The mere assertion of an unsecured claim by a creditor does not create an ‘interest’ in the funds held by the lawyer.  Therefore, claims unrelated to the subject matter of the representation, though just, are not sufficient to trigger duties to the creditor without a valid assignment or perfected lien.”

This is consistent with how I’ve approached the issue.  Standing alone, “Hey, your client owes me money” isn’t enough.  Even if it’s true.  This is my cable bill example.

Next, the opinion lists things that certainly trigger a lawyer’s duties to a third-party creditor:

  • statutory liens
  • judgment liens
  • court order or judgments that affect the funds.

Then, the opinion says:

  • Likewise, agreements, assignments, lien protection letters, or other similar documents in which the client has given a third party an interest in specific funds trigger a duty under [the rules] even though the lawyer is not a party to such agreement or has not signed any document, if the lawyer is aware that the client has signed a document.” (emphasis in the original).

And, to me, here’s the key statement:

  • In other words, a third party’s interests in specific funds held by the lawyer is created by some source of obligation other than Rule 1.15 itself.”

This makes perfect sense to me.  The mere fact that Lawyer is holding the money is not sufficient to give a third party “an interest” in or “claim” to the funds.

With all of this said, the Virginia opinion makes a critical point that cannot be ignored.  While the general rule is that a lawyer have “actual knowledge” of a third party’s interest or claim to trigger the duties under the rule:

  • “In some situations under federal and state law, the lawyer need only be aware that the client received medical treatment from a particular provider or pursuant to a health care plan. In those instances, notice of lien or lien letter may not be required in order for that third party to claim entitlement to funds held by [the] lawyer.

In other words, the duty of competence includes knowing whether, by law, a treatment provider has a valid interest, claim, or entitlement that may not need to be formally asserted.

Finally, remember, your duty as a lawyer is to recognize the existence of valid claims and interests to funds you are holding for a client. The rule does not require you to resolve the claims and, in fact, prohibits you from doing so unilaterally.

Again, I can’t predict what disciplinary counsel, a hearing panel, or the Supreme Court will do.  I will say this though:

Many years ago, when I was still disciplinary counsel, a chiropractor filed a disciplinary complaint against a lawyer.  The lawyer had represented a client in a personal injury case.  The chiropractor had treated the client and, in addition, had the client sign an agreement that the bill would be paid out of any recovery secured by the lawyer.  Chiropractor sent a copy of the agreement to the lawyer.

Eventually, lawyer settled the case.  Lawyer paid himself and other treatment providers, but, at his client’s direction, did not pay the chiropractor before disbursing the remaining funds to the client.  As you might have guessed, by the time the chiropractor found out, the client had blown through the recovery.

I decided to prosecute the lawyer for violating Rules 1.15(d) and (e).  As required by the rules that govern the Professional Responsibility Program, I asked a hearing panel to review my decision for probable cause.  The panel concluded that there was no probable cause to conclude that the lawyer should face formal disciplinary charges.  As such, the complaint was dismissed.

Over time, I’ll continue to explore related issues.  Future blogs will address (1) a lawyer’s duties upon concluding that a third-party has an interest in funds that the lawyer is holding for a client; (2) a lawyer’s duties when asked to guarantee payment to a client’s creditors.

Legal Ethics


Five for Friday #129

21 years ago today I went to Albany (NY) to visit Todd Sinkins, one of my law school roommates.  I remember that I went with Erin, a woman I was dating at the time, but I don’t recall why we went.

So, why do I recall it at all?

Because I remember having just exited interstate 87 onto Western Avenue when we heard that Princess Diana had died.

For some odd reason, I’m fascinated by events that are seared into the memories of an entire generation.  For example, both of my parents know exactly where they were when they learned that JFK had been assassinated.  And each has a clear memory of being at my grandparents’ house in Bradford on the day of the first moon landing.

Actually, it’s not necessarily the events that fascinate me.  It’s whatever “it” is that causes an entire generation to remember an event forever.  Sadly, tragedy & grief appear to be the tie that binds us all.  For example, I’m guessing that most in my grandparents’ generation have vivid memories of where they were & what they were doing when they learned that Pearl Harbor had been attacked.  And, for people my age, I’m fairly certain that 9/11 is “that” event.

Last night, I wondered whether Diana’s death qualifies as well.  So, I thought I’d throw the question to my readers – what are the events seared into the memories of your generation or, as I suppose is the case with 9/11, multiple generations?

Feel free to share.  The aspect of this Friday column that I like the most – in fact that I love – are the stories you send in response.  Last week’s stories of memories of fairs, endless summers, and young crushes were amazing.  Indeed, the column sparked more stories from my readers than any other, moving ahead of your superstitions and your respective stances in the Beatles v. Stones debate.

Now, a ground rule.  I’m not referring to something that just you will always remember.  For instance, I’ve shared my indelible memory of costing the Red Sox the 1986 World Series. Or, I have a reader who will never forget where he was when he learned that Frank Sinatra had died.  (I see you Uncle Drew!) For this exercise, neither would count.  I’m looking for collective memories.

I look forward to hearing from you.  In the meantime, I hope you have a fantastic long weekend, one that includes lots of things that have nothing to do with work.

Oh, and for you persnickety readers who prefer every Friday column to be tied to the week’s number, fear not!  Diana was born and married in July.  Respectively, on the 1st and 29th.  So, there you have it: 129.

Onto the quiz!

Image result for diana


  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception – but one that is loosely enforced – #5 (“loosely” = “aspirational”)
  • 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
  • Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

Lawyer called me with an inquiry.  My response included the following words and phrases:  “knowledge,” “violation,”  “substantial question,”  and “honesty, trustworthiness, fitness.”

What did Lawyer call to discuss?

  • A.  Informing a court that a client had testified falsely in a civil matter.
  • B.  Informing a court that a criminal defense client had testified falsely.
  • C.  Reporting another lawyer’s misconduct.
  • D.  Whether reciprocal discipline would be imposed in Vermont as a result of Lawyer being sanctioned in another state.

Question 2

The conflicts rules are NOT relaxed for:

  • A.  Lawyers who transfer from one private firm to another.
  • B.  Lawyers who move from government practice to private practice.
  • C.  Lawyers who provide short-term pro bono services under the auspices of a program sponsored by a nonprofit or court.
  • D.  All of the above.

Question 3

You’re at a CLE.   You hear me say:  “yes, it’s okay as long as  (1) your client gives informed consent; (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and (3) information relating to the representation of your client is protected as required by Rule 1.6.”

What did someone ask if it was okay to do?

  • A.  Accept compensation for representing a client from someone other than the client.
  • B.  Request that guardian be appointed for the client.
  • C.  Represent co-defendants in a criminal matter.
  • D.  Talk to the media in a client’s case.

Question 4

Client provides Lawyer with an advance payment of $2,000.  Lawyer has yet to do any work for Client.

Which is most accurate?

  • A.  The fee agreement must be confirmed in writing.
  • B.  The fee agreement must be confirmed in a writing that is signed by Client.
  • C.  The $2,000 must go into Lawyer’s pooled interest-bearing trust account (“IOLTA”).
  • D.  Lawyer may treat the money as Lawyer’s own if Lawyer confirms in writing (i) that the fee is not refundable; and (ii) the scope of availability or services that Client will receive.

Question 5

Speaking of the JFK assassination . .  .

. . . Jules Mayer was a lawyer in Dallas.  In 1950, Mayer drew up a will for a client.  The will named Mayer as the executor the client’s estate.

The client died in 1967.  A dispute quickly arose, as the client’s family contended that the client had changed his will on his deathbed to remove Mayer as executor.  Mayer refused to make the change and kept the original will.

In 1991, after a lengthy legal battle, a probate court granted the family’s petition to remove Mayer as executor after concluding that he had mismanaged the estate.

Central to the dispute was gun associated with the JFK assassination.  Mayer’s client bought the gun for $62.50.   After winning their legal battle with Mayer, the client’s family sold the gun for $220,000.  Fortunately for the family, Mayer had safeguarded the gun, holding it in trust for 24 years.

Two-part question:

  1. Who was Mayer’s famous client?
  2. Who was the most famous victim of the client’s gun?




Pro Bono: FAQs & Opportunities

Disclaimer: I serve as the chair of the Vermont Bar Association’s Pro Bono Committee. Still, there’s an entire section of the Rules of Professional Conduct dedicated to pro bono. So, it’s a topic that’s eminently appropriate for this blog.

Here are my answers to some frequently asked questions.

What’s the rule?

It’s 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.”

The remainder of the 50 hours can be satisfied in any of the 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.”

My client stiffed me, that’s pro bono, right?

  • Wrong.  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 all lawyers.  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).

Ok Mike, 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 work is not a 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.

How can I learn about pro bono opportunities?

Some opportunities are here.  There’s also the Vermont Volunteer Lawyers Project.  To learn more, please contact Mary Ashcroft or Angele Court.

Also, here’s a message that Navah Spero, President of the Chittenden County Bar Association, sent today:  “in addition to the many wonderful opportunities available at non-profits in the area, the courts are always looking for volunteers to serve as guardians ad litem (Family Division), attorneys for proposed wards in guardianships (Probate Division), attorneys for the rent escrow clinic (Civil Division), and more.  Be in touch with the court clerks directly for more information.”


There should be a conference on this.

There is.  October 18, 2018, at the Statehouse.   Save the date. The conference will include seminars on:

  • legal ethics
  • working with victims of trauma
  • starting & sustaining legal clinics
  • working with clients with disabilities
  • meeting the legal needs of the homeless
  • the basics of landlord/tenant law
  • the basics of domestic violence & harassment law
  • “TED”-type talks on pro bono &:
    • post-adoption contract agreements
    • adult involuntary guardianships
    • bankruptcy
    • child support contempt defense
    • the Vermont Volunteer Lawyers Project
    • muncipal boards & basic due process

Thank you.

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Remember reruns?  In the age of streaming content, I don’t know if reruns are even a thing anymore.  If not, good riddance!!

Seriously, was there anything as disappointing as waiting all week for the next episode of your favorite show only to have it be a rerun?

Aside: yes, we used to have wait all week for the next episode of our favorite shows.

As much as I despised reruns as a viewer, I love them as a blogger.  They’re the perfect antidote to writer’s block. So, here goes.

The VBA’s Tech Day is next month.  The agenda is fantastic.  It includes seminars on several topics upon which I’ve blogged in my nauseating ongoing effort to remind lawyers that the duty of competence includes tech competence.

Missed my posts?  Thank goodness for reruns.

Last October, I posted Competence, ESI, and E-DiscoveryIt referenced several topics, including:

  • admitting social media posts into evidence;
  • an attorney’s duties related to a client “taking down” or “scrubbing” social media posts;
  • practical tips on preservation letters regarding ESI.

VBA Tech Day includes seminars on each.

Last September, I posted Protecting Data: Cybersecurity TipsI followed up in February with  ABA Journal Provides Cybersecurity TipsEach post refers back to my post on the electronic transmission & storage of client information: The Cloud: What are Reasonable Precautions? Indeed, I’ve often blogged on Encryption & The Evolving Duty to Safeguard Client Information.

VBA Tech day includes seminars on encryption, cybersecurity, & data security.

Finally, I’ve blogged on using technology to become more efficient.  My post Fees. Is there an App for that? refers to an ABA Journal post that discusses how technology can help lawyers bill more than 2.24 hours per day that, on average, they currently bill.  And, in Tech Competence: It includes more than you might think, I cautioned that a lawyer who isn’t competent in basic tech runs the risk of violating Rule 1.5 by over-billing clients.

VBA Tech Day includes seminars on using technology to become more efficient at billing.

I think the networks might have used reruns to build anticipation for the final few episodes of a show’s season.  Most of those episodes ran in May.

Well, I’ve posted some reruns here today. Hopefully they build anticipation for VBA Tech Day.  A terrific conference on tech-related issues that will take place in, you guessed it, May.

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