Five for Friday #89: T. Swift & T. Petty

89!

Regular readers – what did you guess I’d use as my “89” reference?

  • The fact that it’s one of Vermont’s interstates?  Terrible guess. Horribly wrong.
  • The fact that it’s a Fibonacci number?  Good guess.  Still wrong.

No more guesses! For 89, I’m using a musical reference and, in the process, making a confession:

I’m a Swiftie.

For those of you who haven’t fallen out of your chairs and are still reading, that means that I’m a big (and now unabashed) fan of Taylor Swift.  The connection to this post is her album (and birth year) 1989.

Swift

I first learned of Taylor in 2007.  My friend Jenny (from the block) and I went to the Champlain Valley Fair to see Brad Paisley, Kellie Pickler, and someone named Taylor Swift.  Paisley was a superstar, Pickler had a #1 album, and I’d never heard of Swift.  The only thing I knew about her was that she was scheduled to open.

Open she did.  To state the obvious, when the concert closed, Jenny (from the block) and I walked out singing about how much we hated “that stupid ol’ pickup truck that he never let me drive……”  The rest is history.

And the history inclues legal ethics.

I’ve used one of Swift’s songs at several CLE seminars.  I often speak on the importance of choosing clients wisely & managing client expectations.  When I do, I mention that there are 3 clients whose expectations can be difficult to manage:

  1. The Blondie client (“Call Me“)
  2. The Sinatra client (“My Way“)
  3. The Swift client (“Blank Space“)

The first two references speak for themselves.  However, I usually have to explain the reference to “the Swift client.” (Young lawyers! Please! Assert yourselves at the next seminar!)

“Blank Space” is a song off 1989.  It tells the story of a budding romance in which Swift warns a new (& soon-to-be former) suitor that the relationship quickly will devolve, lilely in a manner similar to the devolution of prior relationships. The lyrics include:

  • “I’ve gotta a long list of ex-lovers, they’ll tell you I’m insane,  but I’ve got a blank space baby, and I’ll write your name.”

In my seminars, I tell lawyers that “the Swift client” is the client who comes to them after having burned through 3 or 4 prior attorneys.  As I put it, the “Swift client” has:

  • “a long list of ex-lawyers, they’ll tell you I’m insane, but I’ve got a blank space baby and I’ll write your name.”

And you know what the “blank space” is?  It’s the space on a disciplinary complaint where the Swift client will write the new (& soon-to-be former) lawyer’s name once the relationship quickly devolves in a manner similar to the client’s relationships with prior attorneys.

Don’t believe me? Conjure up the memory of the promising client who turned into one of the most difficult clients you’ve ever had to manage .  . . then watch the video and listen to the lyrics.

Sometimes the prospective client who looks like your next mistake . . . is.

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

T: I promise I’ll never blog about Katy Perry!

Next, I’m going to honor Tom Petty.  So, Damn the Torpedoes and onto the quiz!

Petty

Rules

  • None.  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Please consider sharing the quiz on social media with the hashtag #fiveforfriday

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.

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.
  • B.  Lawyer must offer Witness’s testimony.
  • C.  Lawyer must not offer Witness’s testimony.
  • D.  Lawyer must withdraw.

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.

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.

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.

swift and petty

 

 

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Competence, ESI, and E-Discovery

I’ll say it again: Rule 1.1’s duty of competence includes tech competence.

To me, the duty includes:

  • knowing that that “it” exists,
  • knowing that clients, their adversaries, and witnesses have “it;” and,
  • knowing how to protect, preserve, produce, request, review, and use “it.”

What is “it?”

It is Electronically Stored Information (“ESI”).  Nearly every lawyer who has a client, has a client whose lawyer needs to know about ESI.  Indeed, I can’t think of a practice area in which a lawyer need not know about ESI.

  • Whether civil, criminal, probate, or family court, with so many of us so active on social media, ESI is a treasure trove of evidence.  Wondering how to admit a text, tweet, or social media post into evidence?  Check out the Evidence in Practice seminar at next week’s Annual Meeting of the Vermont Bar Association.
  • Wondering about your duties if a client asks about “scrubbing” or “taking down” social media posts?  The Pennsylvania Bar has issued some guidance.
  • For those of you practicing in the Vermont Superior Court’s Civil & Family Divisions, VRCP 26(a) lists the methods by which a party may obtain discovery.  Among them: a Rule 34 request to produce ESI.  Rule 26(b)(2)(A) imposes specific limitations on the discovery of ESI.  The federal rules of civil procedure have similar provisions.
  • Doing any estate work? There’s a new  Vermont law on digital assets.
  • Those of you who are in-house or general counsel . . . do you have some idea as to what ESI your client has, where it’s stored, and how long it’s kept? Have you talked to your client about its policy on employees using personal devices to access company data? Today, Above The Law posted some practical tips on preservation letters, including tips related to preserving & producing ESI.

I could go on & on. It is everwhere.

In 2015, the State Bar of California’s Standing Committee on Professional Responsibility and Conduct issued Formal Opinion 2015-193.  The opinion responds to the question “[w]hat are an attorney’s ethical duties in the handling of discovery of electronically stored information?”  Here’s the digest:

  • “An attorney’s obligations under the ethical duty of competence evolve as new
    technologies develop and become integrated with the practice of law. Attorney
    competence related to litigation generally requires, among other things, and at a
    minimum, a basic understanding of, and facility with, issues relating to e-discovery,
    including the discovery of electronically stored information (“ESI”). On a case-by-case basis, the duty of competence may require a higher level of technical knowledge and ability, depending on the e-discovery issues involved in a matter, and the nature of the ESI. Competency may require even a highly experienced attorney to seek assistance in some litigation matters involving ESI. An attorney lacking the required competence for e-discovery issues has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. Lack of competence in e-discovery issues also may lead to an ethical violation of an attorney’s duty of confidentiality.”

Give the full opinion a read.

I assume most lawyers understand this, but here’s the critical point I want to make:  ESI is something that can be preserved, produced, and used.  Not knowing how to handle the discovery of ESI is no different from not knowing how to handle the discovery of paper documents.

 

If you’re new to ESI, here’s a primer that the ABA issued several years ago.  It’s a good start, but only a start.

E Discovery

 

 

Hey Lawyers! STFU!!!

So, for those of you still adjusting to the interwebs, that headline is what we call “clickbait.”

And here you are.  Keepers, I hope.

But, seriously lawyers, shut up!

I’m talking about client confidences and the duty not to reveal “information relating to the representation” of a client.

The rule is Rule 1.6. For those of you averse to clicking on the hyperlink due to my repeated warnings about scams inviting you to do so, I applaud the effort, but frown upon your tech competence. Anyhow, here’s the language you need to remember:

  • “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation, or the disclosure is required by paragraph (b) or is permitted by paragraph (c).”

Let’s look at it a bit differently.  Per the rule, a lawyer may “reveal information relating to the representation of a client” if:

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

Now, please click on this and review paragraphs (a), (b), and (c).  As you do, I want you to think of, and be prepared to tell me, the two things that you will raise as defenses to a disciplinary complaint and that I will tell you DO NOT APPEAR in either paragraph.

Are you ready?

Here they are:

  1. But Mike, the information I revealed wasn’t privileged.
  2. But Mike, the information I revealed is a matter of public record.

My responses:

  1.  Did you read the rule? It says that you “shall not reveal information relating to the representation of a client unless the client gives informed consent [or] the disclosure is impliedly authorized to carry out the representation . . . ”  As made clear by Comment [3], the duty not to reveal “information relating to the representation” encompasses far more information than is covered by the attorney-client privilege. It encompasses “all information relating to the representation, whatever its source.” (emphasis added)
  2. Where in paragraph (a), (b), or (c) does it say that a lawyer may reveal “information that is public record?”  Hint – you don’t need to go back and look.  The answer is “nowhere.”  In other words, “it’s public record” is not the same as:
  • the client providing informed consent; or,
  • information that is impliedly authorized to be revealed in order to carry out the representation; or,
  • one of the disclosures mandated by paragraph (b); or,
  • one of the disclosures permitted by paragraph (c),

Rather, it remains “information relating to the representation” that a lawyer “shall not reveal.”

Lawyers seem to get hung-up on the “public record” thing.  No need to get hung-up.  As I just said, the rule makes it very, very clear: “it’s public record” is not one of the exceptions to “a lawyer shall not reveal information relating to the representation.”

Of course, this almost never comes up with “current clients.” In my experience, lawyers seem to think that they can disclose information relating to the representation of a former client if the information is in the public record.

Nope.

Please look at Rule 1.9(c)(2).

Still click averse? Fine.

  • “A lawyer who has formerly represented a client in a matter . . . shall not reveal information relating to the representation except as these rules would permit or require, or when the information has become generally known.”

The rules do not require or permit lawyer to reveal information merely because it has become a matter of public record.  Further, the fact that information is “public record” does not necessarily mean that it has become “generally known.”  There is plenty of authority for the proposition that “public record” does not equal “has become generally known.” I’ve listed a few cases at the end of this post.  For now, I’ll start with this:

Vermont’s Rule 1.6 is derived from ABA Model Rule 1.6.  The model rule expresses “the basic principle of professional ethics that all information `relating to’ a lawyer’s professional relationship with a client is presumptively confidential and must not be disclosed unless an exception applies.”  1 Hazard & Hodes, The Law of Lawyering (3d Ed.2001) 9-52, Section 9.15.

Or, think about it this way:

  1. 25 years ago, you represented me in a divorce. The case went to a trial and the evidence, including my own testimony, established that I had an affair.
  2. Now, in 2017, I’m running for public office, or, applying for a job and I listed you as a reference.  You tell a voter or my prospective employer “i’d never support someone who had an affair.”

Good luck with your “but it’s in the public record!” defense to my ethics complaint.

I’ve mellowed since I typed the headline.  So, I’ll conclude with this:

“Hey Lawyers! Be Quiet.”

But . . .

STFU

UPDATE – OCTOBER 5, 2017 

A few cites:

Most recently, take a look at, Dougherty v. Pepper Hamilton LLP, 133 A.3d  792 (2016), 2016 PA Super 23.  A thorough and relevant analysis begins on page 798. The court quotes the Restatement 3d, which includes the following language: “the fact that information has become known to some others does not deprive it of protection if it has not become generally known in the relevant sector of the public.”  Restatement (Third) of the Law Governing Lawyers § 59, cmt. d.

Akron Bar Ass’n v. Holder, 102 Ohio St. 3d 307 (2004). The case was decided under the Ohio rule that prohibited the disclosure of a client’s “confidendences & secrets.”  Some of you might remember that “confidences & secrets” are what we were required to keep confidential when Vermont followed the Code. We switched to the Rules in 1999.  In any event, after noting that its standard was “less encompassing than that in [ABA] Model Rule 1.6(a),” the Ohio court stated that “[t\here being an ethical duty to maintain client secrets available from sources other than the client, it follows that an attorney is not free to disclose embarrassing or harmful features of a client’s life just because they are documented in public records or the attorney learned of them in some other way.” 102 Ohio St. 3d (306, paragraphs 38-39). Again, the Ohio rule is encompasses less than the rule on which Vermont’s rule is based.

Here’s another: Lawyer Disciplinary Board v.McGraw, 461 S.E.2d 850 (W.Va. 1995).  The Moutaineer Supreme Court stated that “[t]he ethical duty of confidentiality is not nullified by the fact that the information is part of a public record or by the fact that someone else is privy to it.” Id. at 861-862.

Finally, I concede that the Restatement is not as restrictive as my take in the blog post.  Here’s more language from the Restatement:

  • Whether information is generally known depends on all circumstances relevant in obtaining the information. Information contained in books or records in public libraries, public-record depositaries such as government offices, or in publicly accessible electronic-data storage is generally known if the particular information is obtainable through publicly available indexes and similar methods of access. Information is not generally known when a person interested in knowing the information could obtain it only by means of special knowledge or substantial difficulty or expense. Special knowledge includes information about the whereabouts or identity of a person or other source from which the information can be acquired, if those facts are not themselves generally known.”

Still, as a lawyer, I’d be wary.  Arguably, “special knowledge” includes “I’m the only person who knows or remembers that there’s something in the public record about my former client.”

 

Monday Morning Answers: #88

I apologize for not posting this earlier.

Friday’s questions are HERE.  Spoiler alert, the answers follow this week’s Honor Roll.

Apparently, not many of my readers are NASCAR fans.  Kudos to Penny Benelli, Beth DeBernardi, and Erin Gilmore for recognizing that Friday’s picture was of Dale Earnhardt, Jr. and me.  Junior drives the 88.

Junior 88

Honor Roll

  • Laura Anderson, Nursing Supervisor, Mt. Ascutney Hospital & Health Center
  • Matt AndersonPratt Vreeland Kennelly Martin & White
  • Penny Benelli, Dakin & Benelli
  • Alberto BernabeLaw Professor, John Marshall Law School
  • Beth DeBernardi, Administrative Law Judge, Vermont Dept. of Labor
  • Erin GilmoreRyan Smith & Carbine
  • Robert Grundstein
  • Aileen LachsMickenberg, Dunn, Lachs & Smith
  • Samantha LednickyDowns Rachlin & Martin
  • Kevin LumpkinSheehey Furlong & Behm
  • Lon McClintockMcClintock Law Office
  • Hal Miller, First American
  • Robyn SweetCore Registered Paralegal, Cleary Shahi & Archer

Answers

Question 1

Prospective Client consults in good faith with Lawyer, with an eye towards retaining Lawyer.  However, Client chooses not to retain Lawyer.  Client notifies Lawyer of the decision.

Per the rules, Lawyer continues to owe Prospective Client a _____________, but in a somewhat relaxed fashion as compared to a former client.

  • A.   Duty of Loyalty
  • B.   Duty to Maintain Client’s Confidences
  • C.   Neither A nor B
  • D.  Both A & B

I don’t think I phrased the question well.  Here’s what I was trying to help people to think about.

Rule 1.18 sets out the duties that a lawyer owes to a “prospective client.”  A prospective client is one who consults with a lawyer in good faith and with an eye towards retaining the lawyer, but who, for whatever reason, does not retain the lawyer.

The duty to maintain the prospective client’s confidences continues to apply and IS NOT relaxed.  Rule 1.18(b) says:

  • “Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.6 would require or permit or as Rule 1.9 would permit with respect to information of a former client.”

In other words, I read the duty to maintain the prospective client’s confidences to apply to the same extent & degree as it would apply if the client was a former client.

Further, I read the rule as relaxing, however little, the duty of loyalty as compared to the duty of loyalty owed to a former client.

With respect to a former client, Rule 1.9(a) makes it clear that a lawyer cannot represent someone whose interests are materially adverse to those of a former client in the same or a substantially related matter unless the former client gives informed consent, confirmed in writing.

Rule 1.18 is different.  Specifically, Rule 1.18(c) states that “a lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d).”  (emphasis added).  There’s no such proviso in Rule 1.9, the rule that applies to former clients.

In other words, as I read the rule, it’s not as strict as Rule 1.9 and applies only if the lawyer received information that could be significantly harmful to the prospective client. And, even then, paragraph(d) permits a firm to screen the lawyer who consulted with the prospective client.  Normally, a former-client conflict under Rule 1.9 is imputed to all other lawyers in the firm by Rule 1.10 and, therefore, screening is not allowed. That’s another reason why I consider Rule 1.18 to relax the duty of loyalty.

Question 2

Which must a lawyer keep for 6 years following the termination of a representation?

  • A.   The file
  • B.   Client confidences
  • C.   Complete records of funds held in trust and other property
  • D.  Electronic communications with the client

The rules require the file to be delivered upon the termination of the representation.  Rule 1.16(d).  There is no duty to keep a copy. Of course, it’s a good idea to do so and, odd are, your liabilit insurance requires you to.

 Confidences must be kept forever, unless a client consents to disclosure or the information has become “generally known.”  See, Rule 1.9(c). 

Electronic communications are part of the file and there is no independent rule requiring them to be kept.

Rule 1.15(a)(1) requires lawyers to follow the trust account rules and prohibits commingling.  It states that “[c]omplete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of six years after termination of representation.”

Question 3

Attorney called me with an inquiry.  I listened, then said:

  • “Client hasn’t paid in 8 months? Assuming nothing crucial is imminent, my position is that you’re permitted to file the motion.  Whether the court grants it is another question.  The question will be whether there will be a material adverse effect on your client.”

What type of motion?

Motion to Withdraw, See V.R.Pr.C 1.16(b)

Question 4

Attorney represents Irving in the civil matter Irving v. James.   Lawyer represents James and has retained Expert Witness.

Whether Attorney can contact Expert Witness without Lawyer’s permission is likely governed by:

  • A.  Rule 4.2 (the no-contact rule)
  • B.  Rule 1.6 (information relating to the representation)
  • C.  The Rules of Civil Procedure
  • D.  The Rules of Evidence

An expert witness is not represented by the lawyer who represents the party or person for whom the witness will be testifying. So, Rule 4.2 does not apply.

However, Rule 26 of the Rules of Civil Procedure limits the ways in which discovery may be obtained from an expert witness.  Contacting that witness informally might not be one of them.  Thus, in the hypo, Rule 26 answers the question. And, remember, a violation of the Rules of Civil Procedure might rise to the level of a violation of Rule 3.4(c) of the Rules of Professional Conduct.

Question 5

When we first met Mike Ross, he hadn’t gone to college or law school, but was earning money by taking (and passing) the LSAT for others.  Then, to earn money to pay for his grandmother’s medical care, Mike agreed to deliver marijuana for a friend.  Somehow he managed not to be arrested in the ensuing sting and, almost impossibly, ended up with a job interview at a law firm.

He was hired.  As a lawyer. Even though Harvey, the partner who interviewed him, knew that Mike had not taken the bar exam or been admitted to practice.

After several years in practice, Mike was charged criminally with fraud & the unauthorized practice of law.  While the jury deliberated, Mike agreed to a plea offered by Anita, the U.S Attorney who was prosecuting him.

After serving a prison stint, Mike passed the bar, with only review by the Character & Fitness Committee standing between him and admission.  Yikes! Guess who bribed her way onto the committee charged with reviewing his application??? Anita!!  She did so not only to keep Mike out, but to try to prove her theory that Harvey (and others) had known all along that Mike wasn’t a lawyer!

Amazingly, Mike was admitted and spent the show’s most recent season as a duly licensed member of the New York State Bar.

Name the tv show.

Mike Ross is a lawyer in Suits.  

Ross Suits

 

 

 

Make Time For What Matters

Regular readers know what I blog about most: Rule 1.1 and the duty to provide clients with competent representation.

I am a firm believer that in order to satisfy that duty, you must act competently to take care of yourself.

Here’s what I mean.

Last month, I posted on Anxiety, Stress, and Work-Life Balance.  The post includes a quote from Jeena’s Cho’s ABA Journal article Talking about the elephant in the room – social anxiety. She wrote:

“Finally, remember: ‘Secure your own oxygen mask before assisting others.’ ”

Perfect analogy.

Jeena’s article was in response to the New York Times article The Lawyer, The Addict.  I also blogged in response to NYT article: Lawyers Helping Lawyers: Keep it on the Front Burner.  

To Jeena’s point about securing your oxygen mask before assisting others, let’s add Tracy Richelle High’s tips in the most recent ABA Journal: 10 ways to make time for the things that matter.  The tips are fantastic.  You should read them.  In my view, Tracy nails it in her first paragraph:

“But the answer is quite simple: You make time for the things that matter. Period.”

As a profession, we talk a lot about access to justice & access to legal services.  As I see it, lawyer well-being is an access issue.  Access to legal services requires a full complement of healthy and competent lawyers.

Make time for yourself.  It’s not unethical.

work life balance

Client Confidences: Disable Autocomplete?

Rules 1.1 and 1.6 impose a duty to act competently to safeguard against the inadvertent or unauthorized disclosure of information related to the representation of a client.  I’ve blogged often on encryption, cloud storage, and other tech issues that impact the duty.

But I’ve also blogged that the most recent sanctions involving Rule 1.6 have nothing to do with hackers or technology.  As I wrote:

“To wit: the last three sanctions for violations of Rule 1.6 in Vermont were imposed:

My guess is that far more lawyers have put information related to a representation at risk by leaving files or computers in restaurants or airport waiting areas than by sending unencrypted emails or storing information in the cloud.”

The lesson: don’t forget about the “simple” steps you can take to safeguard against the inadvertent disclosure of client information.

Today’s question is whether disabling your e-mail account’s “autocomplete” function is one of those steps.

The question arises from the evolving saga of one of the country’s more prestigious law firm’s inadvertent disclosure to the Wall Street Journal of confidential & privileged information.  The matter involves Pepsi, an SEC investigation, and a Russian dairy company named Wimm-Bill-Dann.   Above the Law’s Joe Patrice has the story here.

(As an aside, I wonder if the All-England Tennis Club has sued Wimm-Bill-Dan to change its name?  Or, perhaps, the company is the official dairy product provider for The Championships.)

Back to the story.

Patrice suggests that an e-mail snafu may have caused the inadvertent disclosure :

“The memo, discussing a subpoena Smith received, was sent to the Wall Street Journal in an email including a number of other attorneys working on the matter. Given the circumstances, it’s safe to say someone’s inline autocomplete got the better of them. For any attorneys using a mailbox with that feature… maybe turn it off. On the plus side, as an efficiency aid, it saves you a few seconds every day. On the downside, one day it’ll send privileged and potentially career-ending documents to the press. Weigh those out and do whatever you think is best. Don’t worry, you can continue this story after you go into your mail preferences.”

Very interesting point.

The duty to act competently to safeguard client information includes a duty to take reasonable precautions against inadvertent disclosure.  Is disabling autocomplete a reasonable precaution?  Stated differently, is it unreasonable not to disable it?

I don’t know.  But, I do know this.

My name is Michael Kennedy and my e-mail address is michael.kennedy@vermont.gov. Many of you know Judge Michael Kainen.  Prior to being appointed to the bench, Judge Kainen was the Windsor County State’s Attorney.  I don’t remember whether it happened when Judge Kainen was a prosecutor or after he’d been appointed. However, once, a lawyer who intended to e-mail a confidential ethics inquiry to me accidentally sent it to Judge Kainen.

How?

Hint: state’s attorneys and judges also have “vermont.gov” e-mail addresses.

To:  michael.k _________

Autocomplete.

Autocomplete

Five for Friday: #88

Welcome to #88!

Just kidding.  There is no #fiveforfriday this week.

Oh wait, yes there is….it’s that there’s no scam targeting lawyers this week!  Sorry, I get confused.

Anyhow, what to say about 88?  Those who know me best would be very disappointed if I said anything other than what I’m about to.

In February, I was in Miami for the annual meeting of the National Organization of Bar Counsel.  The meeting ended on the day before the Super Bowl. Once it ended, I rented a car and drove to Key West.

The Keys perfectly suit my No Shoes Nation lifestyle.  And, Key West is where my buddy Daren lives.  We met in about 3rd grade.  Now, Daren splits time between South Burlington & Key West.  He and his girlfriend let me crash for the weekend.

Daren owns the Viva Saloon, official southern-most bar of Ethical Grounds.  That’s where I watched the Super Bowl.

The manner in which the Falcons blew game remains unbelievable.  Even more unbelivable? Look who stopped into Viva after the game and sat down next to me.

IMG_2015

That’s my 88 story.  Bonus points in the quiz to anyone who can tell me what, specifically, it’s got to do with 88.

Oh, and since I constantly harangue you about competence, and since I’m a basketball guy, and since we’re in Week 88, and since it’s September 29 . . . happy birthday Kevin Durant!  KD was born on September 29, 1988.  In my opinion, he’s the most competent player in the world today.  Plus, thanks to this sequence, Kyrie is a Celtic!

Finally, to my readers who think I don’t mention Prince enough, it was on September 29 that Let’s Go Crazy reached #1 on the Billboad charts.  Alas, 1984, not 1988.

Onto the quiz!

Rules

  • None.  Open book, open search engine, text-a-friend.
  • Exception:  Question 5.  We try to play that one honest.
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to michael.kennedy@vermont.gov
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Share on social media.  Hashtag it – #fiveforfriday

Question 1

Prospective Client consults in good faith with Lawyer, with an eye towards retaining Lawyer.  However, Client chooses not to retain Lawyer.  Client notifies Lawyer of the decision.

Per the rules, Lawyer continues to owe Prospective Client a _____________, but in somewhat relaxed fashion as compared to a former client.

  • A.   Duty of Loyalty
  • B.   Duty to Maintain Client’s Confidences
  • C.   Neither A nor B
  • D.  Both A & B

Question 2

Which must a lawyer keep for 6 years following the termination of a representation?

  • A.   The file
  • B.   Client confidences
  • C.   Complete records of funds held in trust and other property
  • D.  Electronic communications with the client

Question 3

Attorney called me with an inquiry.  I listened, then said:

  • “Client hasn’t paid in 8 months? Assuming nothing crucial is imminent, my position is that you’re permitted to file the motion.  Whether the court grants it is another question.  The question will be whether there will be a material adverse effect on your client.”

What type of motion?

Question 4

Attorney represents Irving in the civil matter Irving v. James.   Lawyer represents James and has retained Expert Witness.

Whether Attorney can contact Expert Witness without Lawyer’s permission is likely governed by:

  • A.  Rule 4.2 (the no-contact rule)
  • B.  Rule 1.6 (information relating to the representation)
  • C.  The Rules of Civil Procedure
  • D.  The Rules of Evidence

Question 5

When we first met Mike Ross, he hadn’t gone to college or law school, but was earning money by taking (and passing) the LSAT for others.  Then, to earn money to pay for his grandmother’s medical care, Mike agreed to deliver marijuana for a friend.  Somehow he managed not to be arrested in the ensuing sting and, almost impossibly, ended up with a job interview at a law firm.

He was hired.  As a lawyer. Even though Harvey, the partner who interviewed him, knew that Mike had not taken the bar exam or been admitted to practice.

After several years in practice, Mike was charged criminally with fraud & the unauthorized practice of law.  While the jury deliberated, Mike agreed to a plea offered by Anita, the U.S Attorney who was prosecuting him.

After serving a prison stint, Mike passed the bar, with only review by the Character & Fitness Committee standing between him and admission.  Yikes! Guess who bribed her way onto the committee charged with reviewing his application??? Anita!!  She did so not only to keep Mike out, but to try to prove her theory that Harvey (and others) had known all along that Mike wasn’t a lawyer!

Amazingly, Mike was admitted and spent the show’s most recent season as a duly licensed member of the New York State Bar.

Name the tv show.

the-quiz

 

 

 

 

 

 

 

 

 

 

 

 

My Singing Debut Has Been Finalized

Last week, and in honor of Constitution Day, I offered to sing Schoolhouse Rock’s “The Premble” at the upcoming VBA meeting if a lawyer or firm pledged at least $1,000 to kickstart the Vermont Bar Foundation’s Access to Justice Campaign.  Here’s what I wrote:

“As I’ve mentioned at a few seminars, my initial exposure to the U.S. Constitution was during the Saturday morning cartoons I watched as a kid.  Courtesy of the folks at Schoolhouse Rock!, that’s when, where, and how I first learned about the origins of the Constitution and the words to The Preamble.

Of course, if people are not able to access the legal services that they need to protect their rights, the Constitution might mean little to them.  So, in honor of Constitution Day, if an attorney or firm donates $1,000 to the Vermont Bar Foundation’s Access to Justice Campaign by Friday, September 29, I’ll karaoke the Schoolhouse Rock! version of The Preamble at the VBA’s upcoming annual meeting.”

Well, what do you know?

Earlier today, a former member of the Vermont Bar Association’s Board of Managers who prefers to remain anonymous stepped up to the plate and made a pledge that met the threshhold!  Other former Bar Managers have joined in, making the threshhold but a speck in the rear-view.

It is an honor to have followed in their individual and collective footsteps.

I don’t remember much about contract law other than it met at 3PM during my 1L year at GW Law.  Anyhow, it doesn’t matter much what I remember because, as far as I’m concerned, we have ourselves a deal! I’ll be singing at the annual meeting.

Now, as some have already suggested, we’d raise a hell of lot more money by taking donations to have me stop singing.  I take no umbrage at the suggestion.  My mom and her entire family have carried congregations with their voices for years.  My dad and my brother have those silky smooth Irish voices.  Me? Umm, my singing voice has been called many things, with “silky & smooth” not one of them.

(For someone who blogs so often about Rule 1.1 and the duty of competence, I’m fairly certain the prosecutors at the Department of Music Ethics will have me up on their equivalent of 1.1 in a heartbeat.)

So what does this mean? It means you’ll have to help ease the audible assault (and throw the music ethics investigators off my scent) by singing along!  And the only way to do so is to learn the tune & the words yourself.  The video is here. Practice makes perfect!

And, again, to those who made this happen, you’re awesome.  You already were, but this just proves it yet again.  Thank you.

P.S. – if you can’t make it, I’m sure Jennifer will have it on Facebook Live and we’ll find someone with Periscope.

Schoolhouse Rock Preamble

 

Protecting Data: Cybersecurity Tips

For those of you pressed for time, the tips are in this post from the ABA Journal.  For the rest of you, I will now return to our regularly scheduled programming.

The phishing scam I warned about yesterday turned out to be a false alarm; a case of the school that conducted a fire drill without notifying the fire department.

Still, I’ll channel my inner Dwight Schrute:

FACT: lawyers and law firms are frequent targets of phishing scams & malware/ransomware attacks.

Some readers asked what the perpetrators of a phishing scam hope to gain by targeting lawyers and law firms.

Access to information.  Either yours or your clients’.

For example, be wary of an unsolicited e-mail that asks you to click on a link and confirm an account number or password.  This is obvious, correct?  If you respond, what have you done?  That’s right – you’ve given out an account number and its password.

Lately, there’s been a rash of well-publicized phishing scams designed to release malware or ransomware. In some instances, the malware provides the scammer with access to data – account numbers, passwords, secure client information.  In other instances, ransomware encrypts an office’s data.   And by “encrypts” I mean “prevents the office from accessing the data unless or until a ransom is paid.”  Think I’m exaggerating?

The Providence Journal has this story about a firm that was locked out of its data for three months earlier this year.  The firm paid a ransom, then paid another, lost $700,000 in billings, and is in litigation with its cybersecurity carrier.  Oh yeah, and how about being in the news for  having had confidential information breached?  Probably not the marketing campaign most of us would choose.

Or, from the FindLaw blog: last year, a prosecutor’s office in Pennsylvania paid a ransom to release files that had been locked after an employee clicked on a link in an e-mail that the employee believed to be from another government agency.  Sound familiar?  It should – that was yesterday’s pseudo-scam: an invitation for lawyers to click on links in an e-mail that appeared to be from the “ethics board.”

It’s not just small firms and state agencies that are at risk.

DLA Piper is one of the largest firms in the U.S. and has offices all over the world.  Last June, DLA Piper issued this cybersecurity advice in response to a global ransomware attack.  Unfortunately, and as reported by Above The Law, DLA Piper fell victim to a similar attack shortly after issuing the warning.

Today, I came across a post in the ABA Journal: Practical cybersecurity for law firms: How to batten down the hatches.  Give it a read.  It’ll be worth your time.

Remember: the Rules of Professional Conduct impose a duty to act competently to safeguard client information.  I understand that some of you worry that your unfamiliarity with technology will make you look silly if you ask for help.  Stop worrying. Doing nothing other than hoping that it doesn’t happen to you is not a reasonable alternative.

Safeguarding data