Client Confidences, Motions to Withdraw, and Responding to Subpoenas for Client Information

“Of course I’m okay! God didn’t make me Irish for nothing you know!!”

~ Katherine Flynn, aka Aunt Kate


I’ll get to subpoenas and motions to withdraw in a bit.  First, I’m going to share a story, if only because Aunt Kate would roll in her grave if I failed to acknowledge the day.

I bought my condo in 2018.  When I moved in, I found it a bit curious that the previous owners had installed flagpole mounts on both sides of the garage door.  Don’t get me wrong: I’m a fan of flags, have a bunch of them, and love to fly them as appropriate.  Still, when would I ever need to fly two flags at the same time?


As most readers know, I’m a fan of all-things Irish and most-things basketball, with the opening weekend of the NCAA tournament among my favorite basketball things. Today, then, is quite a day: the magical and rare alignment of cosmos and calendar that results in March Madness opening on St. Patrick’s Day. Frankly, Younger Me would be shocked to learn that we’re working this morning.

It gets better.

Another of my favorite basketball things is UVM basketball. Tonight, Vermont plays a winnable game in the NCAA tournament.  That alone is something that would’ve fried Younger Me’s brain.  Combine it with playing on Day 1 of the tournament on St. Patrick’s Day?  Well, frankly, Younger Me would be even more shocked to learn that it was only half & half in our coffee this morning.

All that said, I’m sure you’ve figured out what this has to do with flags. Today I’m flying two: my Irish flag and my UVM flag.  So, I’ll transition to the legal ethics portion of this post with an Irish toast to the prior owner who had the foresight to install two pole mounts:

Sláinte and Go Cats Go!

Now, back to our regularly scheduled programming.

Motions to Withdraw & Subpoenas to Disclose Client Information

Over the past few months, I’ve noticed an uptick in inquiries on each of these questions:

  1. How much can I disclose in a motion to withdraw?
  2. How do I respond to a subpoena to produce a former client’s file or to give testimony about my representation of that client?

Here’s the nutshell version of my guidance:

  1. Very little. Cite to whatever provision of V.R.Pr.C. 1.16 applies, then go from there.
  2. Very carefully. Absent client consent to produce or disclose, I suggest raising all non-frivolous defenses against production or disclosure in a motion to quash.  Then, go from there.

After responding to these inquiries, I email these blog posts to the inquirers:

  1. Stop Making Noise.
  2. Subpoenaed to Disclose Client Info?

Now, I can sense that my mother’s French-Canadian mother is not only rolling in her grave, but she’s stomping her feet and smashing her fists.  She’s realized that today’s post is not original, but a rehashing of blogs I posted years ago.  She’s blaming the laziness on my Irish gene.  Nanny, Papa’s wife, has a point.

Nevertheless, since the questions continue to come, I thought I’d share this refresher.

When moving withdraw, remember that “I want to withdraw” is not among the exceptions to V.R.Pr.C. 1.6’s prohibition on disclosing information relating to the representation of the client. That’s why I think it’s best practice for a lawyer to limit a withdrawal motion to citing whatever provision(s) of V.R.Pr.C. 1.16 apply.  Then, if the court orders further disclosure, V.R.Pr.C. 1.6(c) permits a lawyer to respond.  Stop Making Noise includes a cautionary tale of a Tennessee lawyer who clearly had grounds to withdraw, but who was sanctioned for disclosing too much in a motion to do so.

Similarly, “I’ve been subpoenaed” is not among the exceptions to V.R.Pr.C. 1.6’s prohibition on disclosing information relating to the representation of a client.  So, absent the client or former client’s consent to produce the file or to give testimony, I think best practice is to raise all non-frivolous arguments against production/disclosure in a motion to quash. Then, if a court compels production or disclosure, V.R.Pr.C. 1.6(c) permits a lawyer to comply with the court order.[1]  My blog post links to ABA Formal Opinion 473: Obligations Upon Receiving a Subpoena or Other Compulsory Process for Client Documents or Information.

As always, let’s be careful out there.

Happy St. Patrick’s Day!

UVM and Irish

[1] Note: this post assumes that the subpoena issues in a matter that does not involve an allegation involving the lawyer’s representation of the client.  The analysis likely would change if the subpoena issues in connection with a case or controversy involving the lawyer’s representation of the former client.  See, V.R.Pr.C. 1.6(c) or contact me.

When a client insists that a lawyer advance frivolous claims.

Last year, I ran the “Professional Responsibility Madness” challenge.  Modeled on the “March Madness” brackets associated with the NCAA basketball tournament, I seeded 64 concepts associated with professional responsibility & legal ethics into the bracket.  Round-by-round, lawyers voted.  The concepts (and their category) that advanced to the Final Four were:

  • Candor to the Tribunal (Duties to Others)
  • Former Client Conflicts: Substantially Related? (Conflicts & Confidences)
  • Who Decides? Lawyer or Client? (Duties to Clients)
  • Did you say “Utes?” (My Cousin Vinny)

I was surprised by the interest in “Who Decides? Lawyers or Client?”  Until then, it was an issue rarely raised in ethics inquiries.

Flash forward to 2021.

In the past month, two different lawyers have made inquiries that boiled down to the same question: “what do I when the client insists on presenting a claim that I think is frivolous?”

In short, my position is that the lawyer decides which facts and arguments will be advanced, and that the lawyer, not the client, decides which facts and arguments are frivolous.  Then, if the client insists that the lawyer present frivolous claims, the lawyer must move to withdraw. In responding to each inquiry, I cautioned the lawyers that there is a difference between a frivolous claim and one that has little chance of prevailing.[i]

My position derives from the following rules:

  • Rule 1.2(a), which leaves the objectives of the representation to the client and how those objectives are pursued to the lawyer’s discretion, in consultation with the client;
  • Rule 1.4(a)(5), which requires a lawyer to “consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law;”
  • Rule 3.1, which prohibits a lawyer from bringing a claim or asserting a position “unless there is a basis in law or fact for doing so that is not frivolous;”
  • various provisions of Rule 1.16, most notably Rule 1.16(a)(1), which requires a lawyer to withdraw when continued representation will result in a violation of the rules; and,
  • the general duties of fairness to the opposing party and candor to the court.

Doing some follow-up research, I came across Ethics Opinion 1214 from the New York State Bar Association. Issued January 11, 2021, the opinion answers a question from a lawyer assigned to represent a person who had filed a pro se petition to vacate a judgment of foreclosure.  Upon reviewing the filing, the lawyer concluded that the person lacked a non-frivolous basis in law or fact to vacate the judgement.  The opinion concludes as follows:

  1. The lawyer may not argue or advance frivolous arguments.
  2. If the person insists, the lawyer may move to withdraw pursuant to:
    1. New York’s Rule 1.16(c)(4). The rule permits withdrawal when a “client insists on taking action with which a lawyer has a fundamental disagreement;”[ii] or,
    2. any other rule mandating or permitting withdrawal.
  3. In moving to withdraw, the lawyer must not disclose confidential information.[iii]
  4. If a motion to withdraw is denied, the lawyer must continue to represent the client, but without presenting frivolous claims.

Here’s the key language on the final point.  Even when withdrawal is not allowed, the lawyer:

  • “may still not engage in ‘frivolous conduct’ at the direction or behest of the homeowner. A client has no right to instruct a lawyer to violate a Rules of Professional Conduct, and a lawyer has no right to follow an instruction that the lawyer violate a Rule. Thus, the inquirer must find a means to competently represent the homeowner without putting forth frivolous arguments.”

As always, be careful out there.

[i] I suppose this might be referred to as the “Dumb & Dumber Corollary.”

Dumb and Dumber

[ii] Vermont’s Rule 1.16(b)(4) includes the same language.

[iii] For more on this issue, see my post Stop Making Noise. It discusses the peril of “noisy withdrawal.”

Stop making noise.

Yeah we scream, yeah we shout ’til we don’t have a voice
In the streets, in the crowds, it ain’t nothing but noise
Drowning out all the dreams of this Tennessee boy
Just tryna be heard in all this noise”

~ Kenny Chesney, Noise


A common inquiry is “Mike, what can I say in my motion to withdraw?”  Channeling my inner Calvin Coolidge, I answer “not much.”

Seriously – take heed to avoid what, in the lingo, we call “noisy withdrawal.”  That is, don’t impermissibly disclose information relating to the representation of the client when moving to withdraw from the representation.

Before, I outline the analysis, perhaps I’ll pique interest by sharing a real-life example.

It’s the story of a Tennessee lawyer who was publicly censured for disclosing confidential information in a motion to withdraw.  Hat tip to Brian Faughnan for sharing the story in a recent post on his blog Faughnan On Ethics.  The disciplinary opinion is here.

I’ll return to the opinion in a bit. First, an outline of the relevant rules.

V.R.Pr.C. 1.16 governs withdrawal.  Paragraph (a) sets out the situations in which withdrawal is required, while paragraph (b) lists instances in which withdrawal is permitted.  Notably, nothing in Rule 1.16 requires or permits a withdrawing lawyer to disclose otherwise confidential information.  The rule is limited to withdrawal and the duties that follow the termination of a representation.

In short, the rule on client confidences remains in full effect throughout the withdrawal process.

And that rule is V.R.Pr.C. 1.6.  It prohibits lawyers from revealing information relating to the representation of a client.  Like the withdrawal rule, it includes exceptions that either mandate or permit disclosure in certain situations.  Finally, as regular readers know, a comment to Rule 1.6 makes clear that “information relating to the representation of a client” is much broader than “information that is subject to the attorney-client privilege.”

So, the ethical tap dance becomes complying with Rule 1.16 without violating Rule 1.6.  As was my Aunt Mary Ellen in her tap dance studio when I was a kid,  Tennessee case is instructive.  Here’s a quick summary.

Lawyer represented Client. The professional relationship deteriorated, so Lawyer filed a motion to withdraw.  Lawyer included an affidavit in support of the motion.  In the affidavit, Lawyer revealed that:

  • Lawyer’s employees worry that Client will physically assault them.
  • Twice, Lawyer called 911 for police assistance in dealing with Client.
  • Client had not paid certain bills.
  • Client was often aggressive, threatening, argumentative, and uncooperative.
  • Client had recorded conversations with Lawyer

In sum, the affidavit disclosed information relating to Lawyer’s representation of Client.  From there, the Tennessee panel was clear:

  • Yes, the Lawyer had grounds to move to withdraw pursuant to Rule 1.16.
  • However, nothing in Rule 1.16 allowed Lawyer to disclose information protected by Rule 1.6 when moving to withdraw.
  • Further, “when the lawyer withdraws” is not an exception to Rule 1.6’s prohibition on disclosing information relating to the representation of a client.
  • And, finally, it doesn’t matter whether the information in the affidavit was privileged: Rule 1.6 covers  all information relating to teh representation, no matter the source.

Returning to the inquiry I shared at the beginning of this post, here’s the guidance that I typically provide when in a mood to utter more than 2 words.

Cite to the provision of Rule 1.16 that requires or permits withdrawal.  That’s it.

Then, there are two situations that would permit (but not require) you to provide more information that is otherwise confidential.

The first is covered by V.R.Pr.C. 1.6(c).  A lawyer may comply with a court order to disclose information relating to the representation of a client.  To me, that means that if a court orders you to provide more information on your motion to withdraw, you may do so.  I recommend treading lightly, disclosing only enough information as is necessary to establish that grounds for withdrawal exist.

The second is set out in Rule 1.6(c)(3) and, in my experience, is less likely to arise.  It’s the so-called “self-defense” exception.  It allows a lawyer to disclose otherwise confidential information in three situations, including “to respond to allegations in any proceeding concerning the lawyer’s representation of the client.”  I suppose that a hearing on a motion to withdraw might include the client making allegations about the lawyer’s representation.  If so, Rule 1.6(c)(3) would permit the lawyer to respond.  Again, the response must be constrained to the allegation.

In closing, and to paraphrase Kenny Chesney, when it comes to disclosing confidential information in a motion to withdraw, you’ll likely find that clients, disciplinary prosecutors, and disciplinary bodies won’t stand for your noise.

No Shoes Nation

Talking culture, compliance, confidences & candor.

Flashback to 1994:  I was a brand new attorney.  Another attorney in my office mentioned Shelley Hill.  I asked, “who’s Shelley Hill?”  The attorney responded, “someone you never want to hear from.”

Back then, Shelley was Vermont’s disciplinary prosecutor.  The attorney’s answer to my question was the extent of the ethics guidance I received in my first ever job as a lawyer.

Legal Ethics

We’ve come a long way.  It’s no longer taboo to talk legal ethics.  We talk it.  A lot.  Not only does it help us do better for our clients, it improves the image of the profession.  To that end, one of my goals as bar counsel is to foster an ongoing and open dialogue about legal ethics and professional responsibility that helps to build a culture of compliance that we put out there for the world to see.

Reflective of the today’s world, the conversation happens in many forums.**  Today, I woke to having been mentioned in a tweet by a lawyer who was concerned by the news that Nikolas Cruz’s public defender disclosed Cruz’s potential inheritance in a motion to withdraw from representing him in the criminal case.  The lawyer tweeted:

“i would be interested to learn the circumstances of the public defender of Nikolas Cruz disclosing to the court in Mtn to Withdraw and on the record that his client inherited $430,000 (VERY vulnerable to civil suit if not exempt) – seems a bit problematic, eh @VTBarCounsel?”

The entire string is here.

Look at us.  We are talking legal ethics in public! THAT is professional responsibility.

I’ve blogged often on client confidences and Rule 1.6.  Basically, my position is that lawyers should STFU.  Or, to borrow a quote from Thomas Edison that my Dad instilled in me as a kid:

“You will have many opportunities
to keep your mouth shut.
You should take advantage
of everyone of them.”

Obviously, it’s far wiser to take my Dad out in public than his eldest son.

Anyhow, as indicated in my reply Tweet this morning, I don’t comment without hearing all sides to a story, not to mention that I have no idea what Florida’s rules are.  But it’s a great construct to use as a mini-refresher on Vermont’s rules.

By rule, “information relating to the representation of a client” is confidential.  The scope is broader than the privilege and includes all information related to the representation no matter the source.  Comment [3].  Such information shall not be disclosed unless:

  • the client gives informed consent to the disclosure;
  • disclosure is impliedly authorized to carry out the representation;
  • disclosure is required by paragraph (b);
  • disclosure is permitted by paragraph (c).

Returning to the Parkland case, if Vermont’s rules applied, the first possibility is that Cruz gave informed consent for his public defender to make the disclosure.

I’d be surprised if any of exceptions in paragraph (b) applied.  However, it’s possible that one of the exceptions in paragraph (c) applies.  That is, disclosure of the inheritance might be authorized by another rule.  Stay with me here.

This morning I did something rare: I did some research before I tweeted.  I learned that, as reported by the South Florida SunSentinel, a year ago Cruz’s inheritance was the subject of a hearing as to whether he qualified for public defender services.  Per the report, it appears as if it was represented to the court that Cruz stood to inherit far less than recent developments indicate.

If so, and again if Vermont’s rules applied, it’s possible that the new information required the public defender to make the disclosure pursuant to Rule 3.3.  The rule, entitled “Candor to a Tribunal,” requires a lawyer to correct a prior material statement of fact that was false.  Were the statements made in last year’s hearing on Cruz’s eligibility for public defender services “material” and “false?”  If so, one might argue that the public defender was required to make the disclosure in the motion to withdraw.

Finally, reading today’s reports left me with the impression that Cruz’s public defenders believe that, given the inheritance, the law precludes him from being eligible for their services.  Thus, it appears to me that they argued that they are required to withdraw.

In Vermont, Rule 1.16 governs withdrawal.  Perhaps most relevant here, Rule 1.16(a)(1) requires withdrawal when “the representation will result in violation of the rules of professional conduct or other law.”  So, it looks to me as if the argument is “by law, the inheritance prohibits us from representing him, thus withdrawal is required.”  The Florida courts will decide.

Aside: as some of you know from having called me or heard me speak.  When it comes to a motion to withdraw, I think it best to limit the motion to citing the text of whichever provision(s) of Rule 1.6 you’re arguing.  Then, if the court asks for more information, respond, but in such a way as to disclose no more information than is necessary to answer the court’s question.  Being mindful, the entire time, of a larger duty not to harm to your client’s interests on your way out.  Others may disagree with me, but that’s fine.

Indeed, that’s why it’s so important to continue to discuss legal ethics and professional responsibility.  The discussion makes us do better by our clients, the courts, and the profession.

Talk on.

** I couldn’t decide whether to go with “fora” or “forums.”  Flipped a coin.


Monday Morning Answers

Go Dawgs!


Friday’s questions are here.  Today’s answers follow the honor roll.



Question 1

How long are lawyers required to keep records of funds held in trust?

  • A.   The rules are silent.  A Supreme Court opinion holds that records must be kept for at least 3 years from the termination of the representation.
  • B.   2 years from the termination of the representation.
  • C.   6 years from the termination of the representation.  Rule 1.15(a)(1).
  • D.   The rules set out different retention periods based on the nature of the case that gave rise to the representation.

Question 2

Obviously, a lawyer should always take steps to protect a client’s interests.

However, there is one rule that specifically states that “_______________________, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests . . ..”

(This is not a “fill in the blank,” but if I were to fill in the blank, it would give away the answer to the question.)

It’s the rule on:

  • A.  Competence
  • B.  Diligence
  • C.  Client Under a Disability
  • D.  Declining or Terminating Representation (Withdrawal).  Rule 1.16(d).

Question 3

Lawyer called me with an inquiry.  I listened, then responded:

“Only if it’s reasonable to believe that you can provide competent & diligent representation to each, it’s not prohibited by law (whatever that means), they aren’t adversaries in the same case, and each provides informed consent, confirmed in writing.”

What general issue did Lawyer call to discuss?

Whether a concurrent conflict of interest can be waivedRule 1.7(b).

Question 4

This week, the Department of Justice made an announcement that, arguably, has ethical implications for Vermont attorneys.  The announcement concerned:

  • A.   Immigration
  • B.   Privacy
  • C.  Marijuana.  Vermont lawyers do not violate V.R.Pr.C. 1.2(b) by providing advice on marijuana-related matters that are legal under Vermont state law.  For more, see this post. Whether providing such advice violates federal law is a question beyond the scope of the Rules of Professional Conduct.
  • D.  Electronically Stored Information

Question 5

Even if you’ve never heard of Ted Buckland, Dr. Kelso, The Gooch, or New Sacred Heart Hospital, if you know a of clothing that’s common in a hospital, you can make an educated guess at this question.

Ted Buckland is in-house counsel at New Sacred Heart Hospital. He’s also one of the most pathetic and least competent lawyers in TV history.  Among other things,

  • Ted lived at home with his mother well into his adult life;
  • Although a lawyer, Ted’s mother thinks that he is a doctor;
  • He failed the bar exam 5 times, before passing it in Alaska;
  • Ted’s low self-esteem & chronic anxiety often leave him unable to provide Dr. Kelso, the hospital’s Chief of Medicine, with any legal advice, not to mention competent legal advice;
  • Once, a patient slipped & fell at the hospital.  Ted is so incompetent that his immediate response was to blame the fall on the patient’s slippers . . . not realizing that the patient was wearing hospital-supplied booties.
  • Ted is in a band.  It’s name is The Worthless Peons.
  • The Gooch broke Ted’s heart.
  • In one episode, Ted warned the hospital’s staff:

Finally, doctors, if there is a mistake, don’t admit it to the patient. Of course, if the patient is deceased – and you’re sure – you can feel free to tell him or her… anything.

The reason Ted’s mother thinks that he is doctor is because, once, he came home from work wearing a type of clothing that’s common in a hospital.  He told her he’d saved someone’s life that day.

Name the show on which Ted Buckland is in-house counsel at New Sacred Heart Hospital.




Monday Morning Answers – T. Swift & T. Petty

Now I know what drives traffic – Taylor Swift!

Friday’s questions are here.   The answers follow today’s Honor Roll.

Honor Roll


Question 1 – American Girl

“Well she was an American girl
Raised on promises . . .”

Later, the American girl became a lawyer and is admitted to practice in Vermont.  By rule, she has essentially promised:

  • A.  Not to disclose information related to the representation of her clients.
  • B.  Not to disclose information related to the representation of her clients, unless the information is a matter of public record.
  • C.  Not to disclose information related to the representation of her clients, unless the information falls outside the attorney-client privilege.
  • D.  Not to disclose her clients confidences and secrets.

For more on this, please see this blog post in which I discuss Rule 1.6 and its interplay with matters of privilege & matters in the public record.

Question 2 – Refugee

Lawyer represents Client in a civil matter.  Trial is scheduled for next week.  Most of Lawyer’s strategy sessions with Client have focused on Witness.  Lawyer plans to have Witness testify and offer evidence in support of Client’s claim.

Yesterday, Client said to Lawyer:

  • “We got somethin’, we both know it, we don’t talk too much about it
    Ain’t no real big secret, all the same, somehow we get around it
    Oh listen, it don’t really matter to me, baby
    You believe what you wanna believe.”

Lawyer was somewhat confused, but, having thought about it, thinks that Client might have convinced Witness to offer false evidence.  Which is most accurate?

  • A. If Lawyer reasonably believes that Witness will offer false evidence, Lawyer may refuse to offer Witness’s testimony. See, V.R.Pr.C. 3.3(a)(3).  
  • B.  Lawyer must offer Witness’s testimony.
  • C.  Lawyer must not offer Witness’s testimony.
  • D.  Lawyer must withdraw.

The key here is that Lawyer suspected, but did not know, that Client might have convinced Witness to offer false evidence.  A prudent course here would be to remonstrate with client & to make clear to Client (1) that “C” would be correct if Lawyer “knows” Witness will offer false testimony; and, (2) that if Lawyer discovers after-the-fact that Witness provided false evidence, Lawyer has a duty to take reasonable remedial measures, up to and including disclosure to the court.

Question 3 – Don’t Do Me Like ThatJammin’ Me

This is a different case than in Question 2.

Attorney informs Client that Attorney intends to file a motion to withdraw.  Client responds:

  • “Don’t do me like that
    Don’t do me like that
    Someday I might need you baby
    Don’t do me like that!”

Attorney replies “the ethics rules require me to withdraw.” Client retorts:

  • “You’re jammin’ me, you’re jammin’ me
    Quit jammin’ me
    Baby you can keep me painted in a corner
    You can walk away but it’s not over.”

Assuming that Attorney is correct and that withdrawal is mandatory, which of the following will Attorney be most likely to cite in the motion?

  • A.  Client has failed substantially to comply with the terms of the fee agreement.
  • B.  Attorney has discovered a non-waivable conflict of interest with a former client.
  • C.  The representation has been rendered unreasonably difficult by Client.
  • D.  Client insists on taking a course of action that Attorney considers repugnant.

Rule 1.16(a)(1) mandates withdrawal when continued representation will result in a violation of the rules of professional conduct.  Continuing despite a non-waivable conflict would cause Attorney to violate the rules.   Thus, B is correct.  Choices A, C, and D are instances in which withdrawal is permitted, but is not mandatory.  

Question 4 – Runnin’ Down A Dream

Continuing the scenario from the previous question, Attorney filed the motion to withdraw.  As it remained pending, stress & anxiety bedeviled Client.  Then, the court granted the motion.  Shortly thereafter, Client contacted the VBA’s Lawyer Referral Service and received a list of potential new lawyers.  Uplifted, Client called Attorney to schedule an appointment to pick up the file. Client said:

  • “I rolled on as the sky grew dark
    I put the pedal down to make some time
    There’s something good waitin’ down this road
    I’m pickin’ up whatever’s mine.”

When Client arrives, Vermont’s rule specifically requires Attorney to:

  • A.   Keep a copy of Client’s file.
  • B.   Surrender Papers & Property to which Client is entitled.
  • C.   A, B, and refund any unearned fee.
  • D.   B and refund any unearned fee.

This is Rule 1.16(d).  After complying with the rule by delivering the file, there is nothing in the rules of professional conduct that requires Attorney to keep a copy of the file.  Most carriers, however, have language in their policies that require lawyers to keep copies of a closed files for X number of years.

Question 5 – Free Fallin’

Continuing the scenario . . . Client followed through on her statement that Attorney could walk away, but it’s not over.  Before runnin’ down her dream elsewhere, Client posted a negative online review about Attorney, sued Attorney for malpractice, and filed a disciplinary complaint against Attorney.

Attorney intends to respond with:

  • “She’s a good girl, loves her mama
    Loves Jesus and America too
    She’s a good girl, crazy ’bout Elvis
    Loves horses and her boyfriend too
  • It’s a long day livin’ in Reseda
    There’s a freeway runnin’ through the yard
    And I’m a bad boy, ’cause I don’t even miss her
    I’m a bad boy for breakin’ her heart”

Assume the information in the response is true, but is not generally known.  Attorney would likely violate the rules by:

  • A.  Posting the information online, in response to the negative review.
  • B.  Incorporating the response into the defense of the malpractice complaint.
  • C.  Incorporating the response into his answer to the disciplinary complaint.
  • D.  None of the above.  No matter the forum, Client put the representation in issue.

Client is a “former client.”   Rule 1.9(c)(2) prohibits disclosure of information relating to the representation of a former client unless the rules otherwise permit disclosure.  Here, Rule 1.6(c)(3) permits B & C.  The rule is often referred to as the “self-defense exception” to the general prohibition against disclosure.  It is well-settled that the “self-defense exception” does not apply to negative online reviews.  For more, see my post Negative Online Review? What NOT to do.

swift and petty

Monday Morning Answers #83

Friday’s questions are HERE.

Spoiler alert: the answers follow today’s Honor Roll in 5, 4, 3, 2, 1……if you don’t know, now you know.

Honor Roll


Question 1

There’s only ONE thing that the rules require Vermont lawyers to keep for a period of years.  What is it?

  • A.   Copies of advertisements for 2 years after they first run.
  • B.   Client’s file for 7 years following the termination of the representation of Client.
  • C.   Trust account records of funds held for Client for 6 years following the termination of the representation of Client.  Rule 1.15(a)(1).
  • D.   Client’s confidences & secrets for 7 years following the termination of the representation of client.

Notes:  A is incorrect because the rule was repealed years ago.  B is NOT CORRECT.  The file must be delivered upon the termination of the representation.  See, Rule 1.16(d).  It’s a good idea to make a copy for yourself, but the rules do not require you to do so.  Your carrier probably does though.  Finally, D is not correct.  We stopped using the word “secrets” in 1999.  Also, information relating to the representation of a former client is governed by Rule 1.9(c) and is not subject to a 7-lear limit.

Question 2

Attorney called.  Among other questions on a single topic, she asked me whether the rules define “person of limited means.”  What general topic did Attorney call to discuss?

The pro bono rules.  Per rule 6.1, a majority of the 50 hours should go to providing representation to persons of limited means, or, to organizations that primarily address the needs of persons of limited means.  For more, including the definition of “persons of limited means” see this blog post.

Question 3

Speaking of encrypting email, if there is a duty to encrypt, it flows from two duties set out in the rules. One is the duty to maintain the confidentiality of information related to the representation.  What’s the other?  The duty to:

  • A.  Safeguard client property & funds
  • B.  Provide a client with diligent representation
  • C.  Provide a client with competent representation.  See, Rule 1.1.  Also, the link to my blog on encrypting email was included with the questions.  It outlines how the duty of competence dovetails with the duty to maintain confidences to include a duty to act competently to safeguard information relating to the representation of a client.
  • D.  Communicate with a client


Question 4

Lawyer represents Client.   Shortly before trial, opposing party discloses Witness. Lawyer determines that he has a conflict that prohibits him from representing Client in a matter in which Witness will testify for Opposing Party.

Lawyer moves to withdraw and discloses the conflict in both his motion and the argument on the motion.  The court denies the motion and Lawyer represents Client at trial.  Witness testifies, Lawyer cross-examines Witness.

True or False: Lawyer violated the Vermont Rules of Professional Conduct by representing Client at trial and cross-examining Witness.

False.  Rule 1.16(c).  (“When ordered to do so by a tribunal, a lawyer shall continue representation nothwithstanding good cause for terminating the representation.)

Question 5

I’m not making this up.

In Vermont, V.R.Pr.C. 3.1 is the equivalent of civil rule 11.  It prohibits lawyers from asserting a position unless there is a non-frivolous basis for doing so.

I’m not making this part up either.

In 2014, a New York lawyer was sued for allegedly helping a client to fraudulently transfer assets.  Let’s call the lawyer “Defendant.”

In 2015,  Defendant filed a motion in which he requested the he and plaintiff either have a duel or “trial by combat.”  When questioned by the media, he responded that “”I have a good-faith belief that this is still part of our state constitution. I want the law to be clear on this issue, and I have every right to ask for this.”

What’s Defendant’s favorite television show?

Game of Thrones.

The lawyer’s request was denied.  In an article on the denial, Staten Island Live has a fascinating quote from Attorney Richard Luthmann:

  • “I believe that the court’s ruling is based upon my adversaries’ unequivocal statement that they would not fight me,” said Luthmann, who’s based in Castleton Corners.  “Under my reading of the law, the other side has forfeited because they have not met the call of battle. They have declared themselves as cowards in the face of my honorable challenge, and I should go to inquest on my claims.”

Trial by Combat




Withdrawing? Remember this Disco Tune

So, you want to withdraw because your client hasn’t paid.  There’s a rule for that: Rule 1.16.

Specifically, Rule 1.16(b)(5) permits withdrawal when:

  • “the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled.”

Per Comment 8, this includes a client’s failure to abide by the terms of a fee agreement.

This is where disco comes in.

As I was driving to work this morning, Thelma Houston’s version of Don’t Leave Me This Way came on the radio.  I admit: it caused me to dance in the driver’s seat as I carpool-karaoked south on 89.

But the chorus provides a great lesson: when you withdraw, don’t violate a client’s confidences on your way out.  A client’s failure to abide by the terms of a fee agreement does not relieve a lawyer of his or her obligations under Rule 1.6, the rule that prohibits disclosure of information relating to a representation.

Last December, the ABA’s Standing Committee on Ethics & Professional Responsibility issued Formal Opinion 476: Confidentiality Issues when Moving to Withdraw for Nonpayment of Fees in Civil Litigation.  In an excellent article on the advisory opinion, the ABA Journal warned that Lawyers should tread carefully before quitting a troublesome client.

Don’t leave your clients pleading for you not to leave them this way.

Disco Ball


Monday Morning Answers – Week 39

Lots of entries this week!  Must be everyone is looking forward to today’s post . . . not for the answers, but for the traditional Steelers tie in Week 1 of the NFL season.  Normally I’d have worn it Friday, but Big Ben and Company open tonight, so I’m wearing it today.

Spoiler alert: answers follow the Honor Roll.  If you’d like to take the quiz, it’s HERE.


Gold = Perfect Score


Question 1

One of the rules includes a so-called “self-defense exception.”  I’ve blogged on it twice. Essentially, the rule says “don’t do this” but then says “but, you can do this to defend yourself.” Last month, the Texas State Bar became the latest jurisdiction to conclude that the self-defense exception “cannot reasonably be interpreted” as allowing a lawyer to:

  • A.  punch a client.
  • B.  engage in discourteous conduct in response to unfair criticism from a judge that was made in the presence of a jury.
  • C.  arrange for a bank to use the lawyer’s operating account to cover overdrafts to a client trust account.
  • D.  disclose information relating to the representation of a client in response to a negative online review from the client.  

The self-defense exception is in Rule 1.6(c)(3).  It states that a lawyer may disclose information relating to the representation, without client consent, “to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client . . . or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.”   In August, Texas joined five other jurisdictions in concluding that a negative online review is neither a “controversy” nor “proceeding” for purposes of Rule 1.6(c).  The Texas opinion is HERE.

Question 2

Under the Vermont Rules of Professional Conduct, which is different from the others?

  • A.  the representation will result in a violation of the rules of professional conduct.
  • B.  the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services.
  • C.   the representation has been rendered unreasonably difficult by the client
  • D.  other good cause exists.

A lawyer MUST withdraw if continued representation will result in a violation of the rules.  In the three other situations, withdrawal is permissive, but not mandatory.  Thus, A is the correct answer.  See, Rule 1.16.

Question 3

Rule 1.1 requires lawyers to provide competent representation.  I have previously blogged that competence includes tech competence.

With that in mind, what specifically am I referring to when I respond to an attorney inquiry by saying “you need to know if your client has any, where it is, and how to produce it.  You also need to know how to ask it for it from an opposing party, how to handle it, how to review it, and how to use it.”

Electronically Stored Information.  (I gave credit here for metadata, social media, etc, etc.)  I blogged about tech competence HERE.  The Cal State Bar set out a lawyer’s duties with respect to ESI very clearly in an opinion that is HERE.

Question 4

Opposing counsel sends responses to your discovery requests.  Reviewing the material, you find a document that you know or reasonably should know was inadvertently sent.  Under the Vermont Rules of Professional Conduct, your ethical duty is:

  • A.  to notify opposing counsel.
  • B.  to notify opposing counsel & return the document upon request.
  • C.  to use the document if it helps your client.
  • D.  to take steps necessary to determine whether the production waived the privilege.

Rule 4.4(b) states that “a lawyer who receives a document relating to the representation of the lawyer’s client and who knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.”  That’s it.

Comment 2 indicates that “whether the lawyer is required to take additional steps, such as returning the original document, is a matter of law beyond the scope of these rules, as is the question of whether the privileged status of the document has been raised.”

Comment 3 indicates that “some lawyer may choose to return a document unread, for example, when the lawyer learns before receiving the document that it was inadvertently sent to the wrong address. Where a lawyer is not required by applicable law to do so, the decision to voluntarily return such a document is a matter of professional judgment ordinarily reserved to the lawyer.”

Question 5

In the 1980’s, Jan Schlictmann was a young attorney in Massachusetts.  He filed a class action lawsuit alleging, among other things, that discharge from two tanneries had contaminated the local water supply and caused a leukemia cluster.  During the litigation:

  • opposing counsel responded to the suit with a Rule 11 motion, arguing that Schlictmann had filed a frivolous complaint and committed other ethical missteps;
  • Schlictmann invoked Rule 1.6 and the attorney-client privilege to avoid having to submit to cross-examination by opposing counsel at a hearing on the Rule 11 motion;
  • analyzing Rule 1.13, opposing counsel determined that the owner of one of the tanneries needed personal counsel;
  • the owner was eventually found to have lied while testifying at trial; and,
  • according to some commentators, Schlictmann may or may not have rejected settlement offers without communicating them to his clients.

Two-part question:

What is the name of the movie about the case?  Who played Attorney Schlictmann?

A CIVIL ACTION, with John Travolta playing Attorney Schlictman.  Bonus to Herb Ogden for knowing that William Cheeseman was the lawyer who filed the Rule 11 motion. Herb also pointed out that Attorney Cheeseman worked with Vermont’s own Scott McGee after retiring from practicing in Massachusetts.