Tech Competence Isn’t Everything: Soft Skills Matter

I often blog about tech competence.

One of my earliest posts was Competence Includes Tech Competence.  A search of “tech competence” on this blog produces a lot of posts.  3 of the 4 most-read posts have tech competence tags:

Well, let me tell you something: tech competence ain’t everything.

Earlier tonight, I was checking out Above the Law (woohoo!) and stumbled across a great post from Michael McDonald: Soft Skills Still Matter for Attorneys.

As I read about the so-called “soft skills,” I was reminded of a book I read long ago: Blink, by Malcolm Gladwell.  I had a vague recollection of Gladwell writing that nice doctors are less likely to be sued for malpractice than doctors who have poor bedside manners.

So, I did a quick search.  Sure enough, I found Why doctors get sued on The Ethical Nag. (great name for a blog!)  The post references Gladwell’s Blink.

Then I found a piece by Aaron E. Carroll in the New York Times: To Be Sued Less, Doctors Should Consider Talking to Patients More.  Carroll wrote:

  • “Learning to be better communicators, and to be better at — in essence — customer service is no small task for physicians. But improving those skills might actually make a difference in whether they are sued.”

And that gets me back to another reason that soft skills still matter for attorneys, one not mentioned by Michael McDonald.  Effective communication, a soft-skill, helps minimize the chances of having a disciplinary complaint filed against you.

A week after I posted my first blog on tech competence, I posted Great Expectations.  It’s a post in which I argue that the “hot topic in legal ethics” is what it always has been and always will be: communicating clear expectations about the representation and managing those expectations throughout.

Earlier this year, I followed up with Client Communication & Cool Hand Luke. For those of you unfamiliar with the movie, I guarantee you’ve heard one of its most famous lines. Readers after my own heart will recognize the line not from the film, but as the intro to GNR’s Civil War.

Anyhow, it’s not all tech competence.  Soft skills matter.  Develop, hone, & use them.

PS: The most read post in this blog’s history?  For some crazy reason, this one.

Communication

Social Media Sanction! Except, Not Really

Regulators, practicing attorneys, and those who opine on legal ethics seem to wait with bated breath for any sort of disciplinary sanction involving a lawyer’s use or misuse of social media.

In my view, the collective anticipation causes an anxiety that leads lawyers to distrust, if not avoid, social media.  That’s too bad.  Lawyers who distrust & avoid social media tend not to develop the level of tech competence required in today’s practice.

Here’s a test: you’re having coffee, procrastinating about getting the work day started. You have time to read ONE article.  You see these two links:

  1. Lawyer who advised client to ‘relax’ in response to Facebook inquiries gets suspension.
  2. Nebraska lawyer suspended for failing to properly communicate with client.

Which do you choose? Everyone who chose #1, raise your hand.

As I expected, lots of hands.

The links are to the exact same story.  #1 ran in the ABA Journal, #2 in the Omaha World-Herald. To borrow a phrase, social media sells.  Are you telling me that my choice is “lawyer suspended for using Facebook!” or “lawyer fails to communicate with client?” Ha! I’ll take social media 11 times out of 10!

Here’s another test for my lawyer readers: raise your hand if, even without reading the story, you thought “See, I knew Facebook could get me in trouble.”

Again, lots of hands.

Now, read the opinion from the Nebraska Supreme Court.  In reality, the lawyer’s violation had very little to do with Facebook.  The lawyer’s responses to his client likely would’ve violated Nebraska’s rules whether transmited via Messenger, e-mail, phone call, or U.S. Mail.

In other words, a failure to communicate is a failure to communicate regardless of the medium.  The lawyer who fails to engage in a reasonable level of communication via Messenger in 2017 is as guilty of misconduct as the lawyer who, way before Nirvana, failed to engage in a reasonable level of communication in 1985.

This violation had nothing to do with social media.  Don’t fear social media.

Social Media

P.S.: talk about burying the lede.  The lawyer intentionally sued the wrong defendant in order to access deep pockets!!  To me, that’s a bit more disturbing than a garden-variety failure to communicate.

 

 

 

 

 

 

Monday Morning Answers: Kentucky Derby Edition

Friday’s questions are HERE.  As usual, when it comes to cashing on the Derby, I’m left Always Dreaming.

But congrats Jeanne Kennedy! My mom had Always Dreaming to win AND to place, which was good enough for a tidy little payoff and, more importantly, honorable mention Honor Roll status.  Given her success and Saturday’s sloppy track, I guess my mother is a mudder.

Spoiler alert – the answers to Friday’s questions appear immediately after the Honor Roll.

HONOR ROLL

Answers

Question 1

Pletcher is a former client of Lawyer’s.  Lawyer took Pletcher’s case on a contingent fee. By rule, what must Lawyer maintain for 6 years following the termination of the representation of Pletcher?

  • A.    A copy of Pletcher’s file
  • B.    A copy of Pletcher’s fee agreement
  • C.    Records of any property or funds held in connection with the representation of Pletcher.  V.R.Pr.C. 1.15(a)(1)
  • D.   Nothing.

Note: the rules do not require lawyers to maintain copies of closed files.  Rather, Rule 1.16(d) requires a lawyer to surrender the file upon the termination of a representation.  If a lawyer chooses to keep a copy (which the lawyer’s liability policy might require) the lawyer is keeping a copy for the lawyer’s own purposes, not because the rules require it.

Question 2

Baffert is a long time client of Attorney. Last night, Baffert met with Attorney for legal advice.  During the meeting, Baffert told Attorney some bad things that he intends to do tomorrow.  As a result, Attorney reasonably believes that Baffert will commit a crime that is certain to result in substantial injury to the financial interests of Lukas.  Attorney has no reason to believe that Lukas or anyone else will suffer bodily injury.

Which is most accurate?

  • A.   Attorney must disclose Baffert’s intent
  • B.   Attorney must not disclose Baffert’s intent
  • C.   If Baffert is using or has used Attorney’s services to further the crime, Attorney must disclose Baffert’s intent.  V.R.Pr.C. 1.6(b)(2)
  • D.  If Baffert is using or has used Attorney’s services to further the crime, Attorney may disclose Baffert’s intent.

The key here is whether Baffert is using or has used Attorney’s services to further the crime.  If so, disclosure is mandatory.

Question 3

It’s Monday afternoon.

Late Saturday evening, Client was arrested and charged with DUI.  Fortunately (I guess) for Client, he had just won $2500 as a result of McCracken’s stunning victory in the 2017 Kentucky Derby. So, on Monday morning, Client retained Lawyer who agreed to handle the DUI for a $2500 flat fee.  Client and Lawyer decided not to confirm the fee agreement in writing.

Now, on Monday afternoon, which is most accurate?

  • A.   Lawyer violated the rules.
  • B.   Lawyer may not deposit the $2500 into her IOLTA account
  • C.    Lawyer must deposit the $2500 into her IOLTA
  • D.   A & B

The rules do not require the fee agreement to be reduced to writing.  However, since it was not reduced to writing, it does not qualify as a type of advanced fee that Lawyer may treat as “earned upon receipt.”  See, V.R.Pr.C. 1.5(e)(2).  We are left, then, with a fee that is paid advanced.  Per Rule 1.15(c), the $2500 must go into trust until earned.

Question 4

Attorney represents Irish War Cry.  Opposing Counsel represents Classic Empire.

Reviewing discovery that has been provided by Opposing Counsel, Attorney finds information that Attorney concludes was inadvertently produced.

Which is most accurate?

  • A.   Attorney must notify Opposing Counsel.  V.R.Pr.C., 4.4(b)
  • B.   Attorney may notify Opposing Counsel
  • C.   Attorney must first consult with Irish War Cry
  • D.   Attorney’s duties under the Rules of Professional Conduct necessarily depend upon whether the information falls under the evidentiary privilege that Classic Empire shares with Opposing Counsel.

Question 5

Mick is a criminal defense attorney.  His ex-wife is a prosecutor who bears a striking resemblance to one of the players in last week’s Question 5: Mona Lisa Vito.

Mick represents Louis Roulet, an ultra-rich playboy who is accused of a brutal crime. At first, Mick is convinced that Roulet is innocent. However, as the case progresses, Mick’s doubts grow.  Eventually, Roulet tells Mick that he (Roulet) previously committed a different crime . . . a murder for which one of Mick’s former clients, Jesus Martinez, is serving life in prison!

Identify the movie in which Mick confronts the many ethical dilemmas associated with his knowledge that a current client committed a crime for which a former client has been convicted.

(Of lesser importance is whether Mick’s driver, another former client, might have grounds to complain that Mick has charged him an unreasonable fee.)

The Lincoln Lawyer.

Lincoln Lawyer.jpg

Protect Client Info When Traveling Abroad

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

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

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

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

Border

 

 

 

Five for Friday: #70 & The Kentucky Derby

Welcome to 70th Five for Friday!

This blog might help me find a new career in math. Turns out, 70 is a sphenic number. As I suspect regular readers Nicole Killoran and Allison Wannop might be able to tell you, a sphenic number factors as 3 distinct primes. In this case (2 x 5 x 7).

Also, did you know that 70 is the smallest weird number?  I didn’t, mainly because I didn’t know that weird numbers were an official thing.  As best as I can tell, a number (X) is “weird” if its non-X divisors add up to more than X, but no subset of the divisors adds up to exactly X.  I wonder if the so-called “weird” numbers are lobbying for a new name.

Nothing like a little Friday morning math to make a legal ethics quiz seem easy!  So, let’s get to it!

Rules

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

Question 1

Pletcher is a former client of Lawyer’s.  Lawyer took Pletcher’s case on a contingent fee. By rule, what must Lawyer maintain for 6 years following the termination of the representation of Pletcher?

  • A.    A copy of Pletcher’s file
  • B.    A copy of Pletcher’s fee agreement
  • C.    Records of any property or funds held in connection with the representation of Pletcher
  • D.   Nothing.

Question 2

Baffert is a long time client of Attorney. Last night, Baffert met with Attorney for legal advice.  During the meeting, Baffert told Attorney some bad things that he intends to do tomorrow.  As a result, Attorney reasonably believes that Baffert will commit a crime that is certain to result in substantial injury to the financial interests of Lukas.  Attorney has no reason to believe that Lukas or anyone else will suffer bodily injury.

Which is most accurate?

  • A.   Attorney must disclose Baffert’s intent
  • B.   Attorney must not disclose Baffert’s intent
  • C.   If Baffert is using or has used Attorney’s services to further the crime, Attorney must disclose Baffert’s intent.
  • D.  If Baffert is using or has used Attorney’s services to further the crime, Attorney may disclose Baffert’s intent.

Question 3

It’s Monday afternoon.

Late Saturday evening, Client was arrested and charged with DUI.  Fortunately (I guess) for Client, he had just won $2500 as a result of McCracken’s stunning victory in the 2017 Kentucky Derby. So, on Monday morning, Client retained Lawyer who agreed to handle the DUI for a $2500 flat fee.  Client and Lawyer decided not to confirm the fee agreement in writing.

Now, on Monday afternoon, which is most accurate?

  • A.   Lawyer violated the rules.
  • B.   Lawyer may not deposit the $2500 into her IOLTA account
  • C.    Lawyer must deposit the $2500 into her IOLTA
  • D.   A & B

Question 4

Attorney represents Irish War Cry.  Opposing Counsel represents Classic Empire.

Reviewing discovery that has been provided by Opposing Counsel, Attorney finds information that Attorney concludes was inadvertently produced.

Which is most accurate?

  • A.   Attorney must notify Opposing Counsel
  • B.   Attorney may notify Opposing Counsel
  • C.   Attorney must first consult with Irish War Cry
  • D.   Attorney’s duties under the Rules of Professional Conduct necessarily depend upon whether the information falls under the evidentiary privilege that Classic Empire shares with Opposing Counsel.

Question 5

Mick is a criminal defense attorney.  His ex-wife is a prosecutor who bears a striking resemblance to one of the players in last week’s Question 5: Mona Lisa Vito.

Mick represents Louis Roulet, an ultra-rich playboy who is accused of a brutal crime. At first, Mick is convinced that Roulet is innocent. However, as the case progresses, Mick’s doubts grow.  Eventually, Roulet tells Mick that he (Roulet) previously committed a different crime . . . a murder for which one of Mick’s former clients, Jesus Martinez, is serving life in prison!

Identify the movie in which Mick confronts the many ethical dilemmas associated with his knowledge that a current client committed a crime for which a former client has been convicted.

(Of lesser importance is whether Mick’s driver, another former client, might have grounds to complain that Mick has charged him an unreasonable fee.)

Footnote:   I predict that the horses referenced in this quiz will finish in the same order of appearance in the quiz.

the-quiz

So You Want To Store Client Data in the Cloud….

. . . you should! Odd are it’ll make your law practice more efficient, which will help both you and your clients.

With the June 30 deadline to report CLE compliance, I’m asked to present at a lot of CLEs in May and June.  This year, several folks have asked me to talk about the ethics associated with storing client data in the cloud.

I will do as asked. Reluctantly.

Last November, I posted a blog in which I expressed my hope that I’d done my last seminar on the ethics of storing information in the cloud.  I think it’s time we move beyond “can I use the cloud?” to figuring out whether the cloud works for you & your firm and, if so, which vendor to choose.

Since my hope has not yet been realized, I’m re-posting my post. Two words to remember: “Reasonable Precautions.”

****

The Cloud:  What are Reasonable Precautions?

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.

 

Cloud for Lawyers

Celebrate Law Day

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

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

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

Happy Law Day!

John Bingham

 

Monday Morning Answers: #69

Welcome to May!  Before I get to the answers, Friday’s questions are HERE.  Click before you scroll, because the answers follow the honor roll.

Honor Roll

Answers

Question 1

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

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

What’s the topic of the rule?

Conflicts.  Rule 1.7, Comment [3].  In other words, ignorance caused by a failure to adopt reasonable procedures to check for conflicts will not excuse a violation of the rule.

Question 2

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

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

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

Which is most accurate?

  • A.    Alliance may not represent Luke.
  • B.    If Vader is a former client of Alliance, Alliance may not represent Luke
  • C.    If Vader is a former client of Alliance, Alliance may not represent Luke absent Vader’s informed consent.
  • D.    If Vader is a former client of Alliance, Alliance may represent Luke unless (1) the matter is the same as or substantially related to a matter in which it represented Vader; and (2) any lawyer working at Alliance has information about Vader that the rules prohibit from being disclosed.  See, Rule 1.10(b).

Not a single reader commented on the Star Wars reference.

Question 3

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

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

  • A.  Is discouraged.
  • B.  Adversely reflects on a lawyers’ fitness to practice law if done regularly
  • C.  Might constitute obstruction of justice in a criminal case. See, Rule 3.4(f), Reporter’s Notes to 2009 Amendments.
  • D.  Likely violates the rule on dealing with the unrepresented person

Question 4

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

What general topic did Attorney call to discuss?

Solicitation/Direct Contact with Prospective Clients.  Rule 7.3(a).

Question 5

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

Gambino

The question:  What color am I?

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

 

Mona Lisa Vito

What color am I?

I am Metallic Mint Green.

Metallic Mint Green