Wellness Wednesday: Judge Garland & My Cousin Vinny

Today, three of my favorite topics collide:

  1. A lawyer’s duty of competence
  2. My Cousin Vinny
  3. Attorney Wellness

To me, attorney wellness is much more than the staggering rates at which behavioral health issues affect lawyers, their non-lawyer assistants, judges, and law students.  Well-being also includes enjoying the light moments whenever possible.

The very first rule in the Rules of Professional Conduct requires lawyers to provide clients with competent representation.  It’s widely recognized that Vincent Gambini’s cross-examinations in My Cousin Vinny more than satisfied the duty of competence.

As I’ve previously blogged:

  • “Many great legal minds have mentioned the movie.  For proof, scroll down to the “critical reception” section of the film’s Wikipedia page.  There, alongside references to Justice Scalia and Judge Posner, you’ll see a quote from Alberto Bernabe.  A frequent member of this blog’s #fiveforfriday Honor Roll, Professor Bernabe is also the author of My Cousin Vinny: a story about legal education.  The post links to a fantastic post on Abnormal Use that honored the movie’s 20th Anniversary and that includes other great links to articles on the movie and the legal ethics issues raised in it.”

Time to add another great legal mind to the list: Judge Merrick Garland.

Yesterday, the United States Court of Appeals for the District of Columbia Circuited issued this opinion.  Judge Garland opened the opinion as follows:

  • “In 1992, Vincent Gambini taught a master class in cross-examination.  Trial
    counsel for the National Labor Relations Board and the National Union of Healthcare Workers apparently paid attention.”

Keith Lee of LawyerSmack is one of the best follows on Twitter.  Yesterday, he commented on Judge Garland’s references to My Cousin Vinny.  Lee’s tweet thread is here.  AboveTheLaw blogged on both Judge Garland’s opinion and Lee’s tweets.

If you’re a fan of the movie, I recommend the opinion, Lee’s tweets, and the ATL blog.

Personally, I thank all three for contributing to my well-being, while also incorporating the duty of competence.

Image result for my cousin vinny

ABA & Client Confidences: It’s Deja Vu All Over Again.

Last December, I blogged on ABA Formal Opinion 479.  It’s an advisory opinion in which the ABA’s Standing Committee on Ethics and Professional Responsibility stressed that lawyers should not assume that they are free to disclose client information merely because the information is in a public record.

That’s a point that I made in my post Hey Lawyers! STFU!

To bring you up to speed, here’s the analysis with respect to current and former clients:

Current Clients

  • Rule 1.6(a) states that a lawyer “shall not reveal” information relating to the representation of a client unless (1) disclosure is impliedly necessary to carry out the representation; (2) the client consents to disclosure; or (3) one of the exceptions in paragraphs (b) & (c) is met.
  • Notably, “it’s public record” is not one of the exceptions in paragraphs (b) & (c).

Former Clients

  • Rule 1.9(c)(1) prohibits a lawyer from using information relating to the representation of a former client to the former client’s disadvantage unless the information is generally known.  The fact that something is public record does not mean that it is generally known.
  • Rule 1.9(c)(2) states that a lawyer “shall not thereafter reveal” information relating to the representation of a former client except as the rules otherwise authorize or permit. Nothing in the rules authorizes a lawyer to reveal information merely because the information is in a public record.

On March 6, the ABA released advisory opinion 480.  The opinion purports to address the duty of confidentiality as it applies to lawyers who blog.  The ABA Journal and Above The Law reported on the opinion.   In addition, Trisha Rich and Allison Martin Rhodes, law partners at Holland & Knight, blogged on the opinion here.

The opinion strikes me as a bit odd.

First, for an opinion that purports to address lawyers who blog, it really doesn’t.  Indeed, parts of the opinion come off as, how shall I say it, “less than tech savvy.”  For example, the opinion refers to Twitter accounts as a “microblogs . . . that ‘followers’ (people who subscribe to a writer’s online musings) read.”

Twitter is more than a place to read online musings.  Per the Pew Research Center’s latest numbers, 24% of U.S. adults use Twitter, and 46% of those who do visit Twitter every day.  Speaking only for myself, Twitter is where I get my news. I don’t go for “musings.”  I doubt so many Americans do either.

Next, as Attorneys Rich and Rhodes point out,

  • “The unusual thing about the latest opinion, though, is that it breaks very little new ground. The main point of the opinion is simply to reinforce to lawyers that their obligations of confidentiality always apply, even where a lawyer is communicating electronically.”

Indeed, the opinion makes me wonder why someone asked for it.  I mean, really.

As many of you know, whether by following this blog or attending my CLE presentations, I often urge lawyers not to fear tech.  Tech doesn’t require new rules. It’s simply a new forum in which the same old rules apply.  For example, many of the questions you should ask a potential cloud storage vendor are remarkably similar to the questions you’d want answered before renting a unit at the Store-All facility out on the Old County Road.

More specifically, would you have needed an advisory opinion to tell you not to reveal client confidences in op-ed pieces for your local paper? I doubt it.  Then why would you need an advisory opinion on whether it’s okay to reveal client confidences in a blog post?

Again, as Rules 1.6 and 1.9 make clear, unless one of the exceptions is met, IT IS NEVER OK TO REVEAL CLIENT CONFIDENCES.

Anyhow, the opinion isn’t entirely a restatement of the obvious. It includes a helpful tip on a pet peeve of mine.

At many of my seminars, lawyers pose “hypotheticals.”  Some are so detailed that I’d guess that half the audience knows who the lawyer is talking about.

Remember, “but I was at a CLE & said it was a ‘hypo’!” is not one of the exceptions listed in Rule 1.6.  Indeed, as the most recent ABA opinion reminds us:

  • “A violation of Rule 1.6(a) is not avoided by describing public commentary as a
    ‘hypothetical’ if there is a reasonable likelihood that a third party may ascertain the identity or situation of the client from the facts set forth in the hypothetical. Hence, if a lawyer uses a hypothetical when offering public commentary, the hypothetical should be constructed so that there is no such likelihood.”

Finally, as I alluded to above, the opinion reinforces the notion that “it’s public record” is not license to reveal information. On that point, the opinion is not without criticism.  Check out the post from Above The Law.   Among other things, the author, Robert Ambrogi, writes:

  • “So a lawyer may not ‘reveal’ information that is contained in a public record. But how can someone reveal something that is already public? To reveal is to make something public that was secret.”

Interesting point.  I don’t necessarily disagree. However, on the flip side, what if you went through a messy divorce 10 years ago?

Imagine that it went to trial.  At trial, details emerged that remain embarrassing today.  Yes, the trial was public, but, really, in label only. Nobody went, certainly not the press.  The details are not, by any stretch of the imagination, generally known. The only way anyone could access the details would be by going to the great length of ordering a transcript.  Public? Yes.  Generally known? No.

How would you feel if your lawyer blogged the details tomorrow?

In any event, from a practical standpoint, in law & life, I think it’s often best to heed the words of Thomas Edison:

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

 

Be Quiet

Was That Wrong? Framing a volunteer at your kid’s elementary school for a drug crime.

Who doesn’t like a good love story???

Was That Wrong? is a semi-regular column on Ethical Grounds. The column features stories of the absurd & outrageous from the world of legal ethics and attorney discipline. My aim is to highlight misconduct that I hope you’ll instinctively avoid without needing me to convene a continuing legal education seminar that cautions you to do so.

The column is inspired by the “Red Dot” episode of Seinfeld. In the episode, George Costanza has sex in his office with a character known only as “the cleaning woman.”  His boss finds out.  Here’s their ensuing exchange :

(Scene) In the boss’ office.

  • Boss: I’m going to get right to the point. It has come to my attention that you and the cleaning woman have engaged in sexual intercourse on the desk in your office. Is that correct?
  • George: Who said that?
  • Boss: She did.
  • George: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know, cause I’ve worked in a lot of offices and I tell you people do that all the time.
  • Boss: You’re fired.
  • George: Well you didn’t have to say it like that.

The full script is HERE.  The scene is HERE.

costanza

Today’s lesson comes courtesy of two lawyers who were disbarred in California. As I alluded above, it’s a love story: our disbarred lawyers are married to each other!!! The story has been covered by Above The Law, the California Bar Journal, and OC Weekly.  I recommend the OC Weekly’s post.

Someday I hope to launch a YouTube channel tied to this blog.  When I do, I’ll adapt Was That Wrong entries to the screen.  Here’s how I envision scripting today’s:

  • Supreme Court:  We’re going to get right to the point.  It’s come to our attention that you & your wife got mad at a woman who volunteered at your son’s after school program.  So, you embarked upon a smear campaign against her. It culminated with you sneaking into her car & planting marijuana, Percocet, and Vicodin, then calling the police to report that you’d seen her driving erratically in the school parking lot.
  • Lawyer:  Who said that?
  • Supreme Court: The volunteer, the police, and the jury that convicted you of false imprisonment.  Oh, and, at trial, you admitted it, but argued that you only did it as part of a plan to win back your wife’s favor after she had an affair.
  • Lawyer: Was that wrong? Should I have not that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started practicing law that that sort of thing was frowned upon, you know, cause I’ve worked in a lot of offices and I tell you people do this stuff all the time.
  • Supreme Court:  Disbarred.
  • Lawyer:  Well you didn’t have to say it like that.

For more, here are the previous entries in Was That Wrong?

Legal Ethics, Cloud Storage, and . . . Game of Thrones?

So, you want to store client data in the cloud? Excellent! Odds are it’ll make you more efficient.

What are your duties under the rules of professional conduct?  Good question.

In my view, a lawyer has a duty to take reasonable precautions to protect client information from unauthorized access or disclosure.   The duty applies no matter the “place” that the information is stored.  That is, the cloud is a “place to store client information” in the exact same sense as a storage facility out on the old county road.

For more, here’s my post The Cloud: What Are Reasonable Precautions?

Now, about that headline.

Jeff Bennion has a great post over at Above The Law: How Are Lawyers Supposed  To Have More Security Than HBO?  It’s well-worth the few minutes you’ll need to read it.  A summary of his tips:

  • Know your duties
  • Don’t make unnecessary copies of things
  • Know that some client data is more sensitive than other data
  • Secure all devices & places where client data is stored.

Only 109 hours, 44 minutes until The Dragon & The Wolf.  Until then, just as I’m sure you’ll take reasonable precautions to avoid spoilersdo the same to avoid the inadvertent or unauthorized disclosure of client information.

Thrones

 

 

Was That Wrong? That’s what makes this so difficult.

Was That Wrong is a semi-regular column on Ethical Grounds. The column features stories of the absurd & outrageous from the world of legal ethics and attorney discipline. My aim is to highlight misconduct that I hope you’ll instinctively avoid without needing me to convene a CLE that cautions you to do so.

The column is inspired by the “Red Dot” episode of Seinfeld. In the episode, George Costanza has sex in his office with a character known only as “the cleaning woman.”  His boss finds out.  Here’s their ensuing exchange :

(Scene) In the boss’ office.

  • Boss: I’m going to get right to the point. It has come to my attention that you and the cleaning woman have engaged in sexual intercourse on the desk in your office. Is that correct?
  • George: Who said that?
  • Boss: She did.
  • George: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know, cause I’ve worked in a lot of offices and I tell you people do that all the time.
  • Boss: You’re fired.
  • George: Well you didn’t have to say it like that.

The full script is HERE.  The scene is HERE.

Today’s story comes thanks to Joe Patrice at Above the Law: Attorney Forges Judges’ Signatures Over 100 Times.  Earns Jail, Sick Burn.  Yesterday, the attorney was sentenced to 364 days in jail, and 10 years probation, for forging judges’ signatures on 114 structured settlements and filing them with the court clerk.

As regular readers know, this is the point in the column where, using the same structure as the “was that wrong” conversation between Costanza and his boss, I’d draft an imaginary colloquy between the attorney-forger & the judge who sentenced him.

Not today.

No, today’s story reminds me more Bizarro Jerry, the episode in which Kramer is fired from a job that he doesn’t even have.  The relevant segment:

  • Leland (the boss):  Well, I’m sorry.  There’s just no way that we could keep you on.
  • Kramer:  I don’t even really work here!
  • Leland:  That’s what makes this so difficult.

The scene is HERE.  The full script is HERE.

Returning to today’s story, as Patrice wrote on the ATL blog,

  • “It remains one of the most baffling cases of professional misconduct we’ve covered at Above the Law for the simple reason that Camacho seemingly garnered no advantage at all from his actions. The settlements would’ve earned a rubber stamp had he submitted them to the court.  He just… didn’t.”

Here’s how I envision it in Bizarro world:

  • Judge:  Well, I’m sorry.  There’s just no way we can condone lawyers forging judges’ signatures on settlements.  I sentence you to 364 days in jail.
  • Lawyer:  But they’d have been approved even if I didn’t forge them!
  • Judge:  That’s what makes this so difficult.

 

Kramer

 

Smalls & Solos: Tech Competence Can Help Keep the Train on the Tracks

Do any of these sound familiar?

  • your office’s e-mail server is AOL
  • you use folders within Microsoft Word as your case/document management system
  • you print out hard copies of “important” e-mails & documents
  • your “tech consultant” is someone a friend recommended
  • you haven’t learned much about tech because it’s not “lawyering” and keeps you from focusing on helping clients to solve their problems

If your answer is “yes, Mike, at least one of those sounds familiar,” I’m not here to say that you’ve violated the rules.  I am, however, here to say that I have a story for you to read.

The story is a cautionary tale entitled How Technology Illiteracy Can Cost Solos Big Money.  It’s by Carolyn Elefant and appears on the Above The Law blog.

Don’t have a lot of time?  Ok.  At least check out the part where Carolyn writes “I want to commend every solo and small firm lawyer to read this train wreck of a decision closely to learn how not to run a law office.”  The decision was issued last month by the United States District Court for the Eastern District of New York. If you don’t have time to read the decision, Carolyn’s blog summarizes it nicely.

Take the time to read the blog and the decision.  The money (and law license) that you save might be yours.

Train Tracks

 

Tips for Choosing a Practice Management System

Most of you know that when it comes to legal tech, I highly recommend Robert Ambrogi’s Law Sites Blog.  Ambrogi also writes a This Week In Legal Tech column for Above The Law.

Here’s the most recent column: 6 Questions To Ask Before Selecting A Practice Management Platform.

Read it.

A summary of the 6 questions:

  1. Do you want a cloud platform or a platform installed on site?
  2. How much do you want to pay?
  3. Does the system comply with security requirements and obligations under the Rules of Professional Conduct?
  4. Does it have the basic features that you need?
  5. Does it have the advanced features that you need?
  6. Does it feel right when you try it?

Again, read the article.

For part 2 of question 3, my view is that a lawyer’s obligation under the Rules of Professional Conduct is to take reasonable precautions to protect client data, whether the data is in transmission or at rest.  What are reasonable precautions?  I addressed that question HERE.

Still drinking coffee this morning?  You’ve got time to try this week’s legal ethics quiz before you hit the trails or slopes.

tech-ethics

 

Power of Pro Bono

I’ve written lately on using the rules to increase access to legal services.  A few of my posts referenced compassion.

This post isn’t part of that series.  Rather, I’m simply sharing a story that I liked. A story that involve compassionate lawyers working pro bono not just to increase access, but to make their community a better place.

The story, by David Lash, is at Above the Law and is entitled A Remarkable Experiment Taking Place in Los Angeles.  Give it a read.  Here’s the closing sentence:

“And in the middle of this revolution of outreach are the lawyers, again demonstrating the unique and powerful way that only the justice system, particularly when fueled by collaborating experts from the most compassionate and expert legal aid organizations, can touch the lives of those most in need as can no one else.”